NLRB v. Associated Naval Architects, Inc., 9910.

• Decision Date: 20 January 1966
• Docket Number: No. 9910.,9910.
• Citation: 355 F.2d 788
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ASSOCIATED NAVAL ARCHITECTS, INC., Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

355 F.2d 788 (1966)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ASSOCIATED NAVAL ARCHITECTS, INC., Respondent.

No. 9910.

United States Court of Appeals Fourth Circuit.

Argued October 7, 1965.

Decided January 20, 1966.

Melvin Pollack, Atty., N. L. R. B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Leo McGuire, Atty., N. L. R. B., on brief), for petitioner.

John A. MacKenzie, Portsmouth, Va. (Edgar A. Tugman, in pro per., on brief), for respondent.

Before SOBELOFF, BRYAN and J. SPENCER BELL, Circuit Judges.

SOBELOFF, Circuit Judge:

The National Labor Relations Board adopted the finding of its trial examiner that Naval Architects, Inc., of Norfolk, Virginia, had committed unfair labor practices in violation of sections 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C.A. §§ 158(a)(1), (3) (1958). It ordered the company to cease and desist from its unfair practices and to reinstate with back pay six machinists and machinists' helpers discharged at the height of the organizing campaign. We think the trial examiner's findings and recommendations are fairly and substantially supported in the record as a whole and that the Board's order is entitled to enforcement.

I

Naval Architects operates a ship repair yard in Norfolk and ninety percent of its work is done for the Navy. During the summer of 1963 the company employed from 60 to 80 people, including the six complaining employees — machinists Parker, Tate, Jones, Brown, Teller and Paquin. When no machinists' work was available, the company's consistent practice was to assign the machinists to general maintenance and clean-up work around the yard. Thus, all six of these machinists had been continuously on the company payroll for up to two years prior to their discharge on Friday, June 14.

On June 1, 1963, the union¹ began an organizing drive with the distribution of handbills at the company's front gate. When informed of this activity, Edgar Everhart, the company's president, ordered pictures taken of the handbillers since, as he later testified, he was "curious to know what they look like." Superintendent Forbes took the pictures, in the presence of several company employees.

The first union meeting, held the next Friday, June 8, was attended by machinists Parker, Tate and Paquin, and machinist's helper Jones. The following Monday Supervisor L. C. Wade approached Parker and Tate and asked them if any of the Negroes under Wade's supervision had attended the meeting. Wade told Parker and Tate that he had given orders to the men under him not to attend any union meetings. He added that, if the organizing drive was successful, the men would be limited to doing the specific jobs for which they had been hired and would lose the benefit of the practice theretofore prevailing whereby machinists were assigned to other duties when machinists' work was unavailable. Another supervisor, Oliver, later made a similar approach to Parker and Tate. Like Wade, Oliver sought to obtain from the machinists details of the union meeting and repeated the admonition that the company practice of retaining machinists to do general work in the yard during slack periods between contracts would be terminated if the company was organized. Oliver also remarked to Parker that machinist's helper Jones, one of the alleged discriminatees here, seemed to be "tangled up with the Union," since Oliver had seen him talking to one of the union organizers.²

Once again, on Thursday night, June 13, a company representative contacted Parker in an effort to elicit information about the union's organizing drive. Superintendent Forbes telephoned Parker and particularly inquired "who was stirrin' it up with the colored people."³ Parker disclaimed any knowledge, but Forbes insisted that he must be aware of what was going on from his close association with the men. Parker replied that he would not be a "white rat" on his fellow workers, but Forbes persisted, arguing that reporting the union's activities would not be "ratting" and that Parker should be "once for the company and always for the company." Forbes took the stand but did not refute Parker's testimony.

The next day, Friday, June 14, Supervisor Oliver again warned machinist Tate, as he had done earlier in the week, that if the union did come in, machinists would be retained solely to do machinists' work, and that some layoffs would result. The company at the time was engaged in overhauling eight LCVPs for the Navy, and no likelihood of immediate layoffs for lack of work appeared. In fact, five of the complainant machinists were asked to work overtime on Saturday to help get some of the boats out. About 1:30 that afternoon Foreman L. D. Wade asked Tate and Teller to work on Saturday; Paquin and Jones were likewise asked by Supervisor Oliver to work on Saturday and Sunday, transferring some piping. Machinist's helper Brown, also, was told by Supervisor McKee to report for work on Saturday.

However, at 4:30 that same afternoon all five men, and Parker, were suddenly laid off. Contrary to the company's normal practice, none of the men was given any advance warning.⁴ Each was handed a slip furloughing him "because of an unusually small workload" and told that he would be recalled "as soon as work is available."

II

These activities of the employer, in their totality, were not innocuous. From them, the examiner was clearly justified in finding, and the Board in sustaining his finding, that the company had engaged in section 8(a)(1) unfair labor practices during the period immediately preceding the discharge of the machinists. The supervisors' efforts to have the machinists inform the company about fellow employees' activities in the organizing campaign, and the photographing of the handbilling in the presence of company employees, were plain violations of the Act, whether or not they were coercive in actual fact. See, e. g., N.L.R.B. v. Preston Feed Corp., 309 F.2d 346, 351 (4th Cir. 1962); N.L.R.B. v. May Department Stores Co., 154 F. 2d 533, 535 n. 2 (8th Cir.), cert. denied, 329 U.S. 725, 67 S.Ct. 72, 91 L.Ed. 627 (1946). The inquiry in N.L.R.B. v. Covington Motor Co., 344 F.2d 136 (4th Cir. 1965), concerning the signatures on membership cards which the union itself was ready to disclose, is of an entirely different order from the persistent interrogation of employees shown here to elicit information as to what happened at union meetings and the identity of the men who were active in the organizing campaign. It is idle to insist that not every conceivable inquiry is coercive, for we hold no more than that it was coercive in the present context.

The contention is made that the event which was witnessed could have been described orally, and that therefore a photograph is unobjectionable. But we have before us no question of the admissibility of a photograph; it is the act of photographing itself that had the tendency in these circumstances to intimidate.

Regarding the supervisors' repeated warnings that the machinists might be forced out of work in slack periods if the union came in, the company cites section 8(c) of the Act, which permits the expression of "any views, argument or opinion * * *" about a union, provided it "contains no threat of reprisal or force or promise of benefit." 29 U.S.C.A. § 158(c) (1958). But we think the examiner was warranted in his conclusion that this was more than a mere expression of opinion or colorless prophecy. See N.L.R.B. v. Stanton Enterprises, Inc., 351 F.2d 261, 264 (4th Cir. 1965). Within the context of an organizing campaign these remarks could well be regarded as improperly designed to discourage the machinists' participation by threatening loss of work. See, e. g., N.L.R.B. v. Lester Bros., Inc., 301 F.2d 62, 67 (4th Cir. 1962); N.L.R.B. v. Norfolk Southern Bus Corp., 159 F.2d 516, 518 (4th Cir. 1947).

III

Replying to the allegations of discriminatory discharges, Mr. Everhart, the company's president, testified that he personally made the decision to lay off 14 employees, including the six complainants, after an early afternoon conference with Superintendent Forbes.⁵ The layoffs, Everhart asserted, were dictated by the company's lack of work during the past several months, and he pointed out that four of the six complaining machinists were recalled on July 16 after the company received a new Navy contract.⁶ The failure to recall Brown and Jones, Everhart insisted, was because no machinists' helpers were needed. While the company retained several men with less seniority than those discharged, Everhart's explanation was that one of these was a pipefitter, a classification in short supply, and that the other had been hired specifically to train for a supervisor's position. Similarly, Everhart justified the company's retention of ten summer college students on the ground that they were paid lower wages. Finally, he testified that the work remaining to be done in the yard consisted of general cleaning and finishing only, the machinists' work having been completed.

The trial examiner's report evidences that he fully considered this testimony tending to show some economic grounds justifying layoffs, but found from the timing and other circumstances, such as the sudden reversal of requests to machinists to work on Saturday, that the primary purpose and effect of the discharges was to discourage employee participation in union activities. Quite correctly he declared that if discouragement of union membership was a substantial, motivating reason for the layoffs, the existence of an alternate ground of justification would be no defense to a charge of employee discrimination under section 8(a)(3). The charge is sufficiently established if, in addition to an economic ground shown in the Labor Board hearing, there is proof from which the examiner may fairly find, as he did here, that the layoffs were motivated by a...