NLRB v. Better Val-U Stores of Mansfield, Inc.

• Decision Date: 10 September 1968
• Docket Number: Docket 32009.,No. 509,509
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BETTER VAL-U STORES OF MANSFIELD, INC., Respondent.
• Court: U.S. Court of Appeals — Second Circuit

401 F.2d 491 (1968)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BETTER VAL-U STORES OF MANSFIELD, INC., Respondent.

No. 509, Docket 32009.

United States Court of Appeals Second Circuit.

Argued June 4, 1968.

Decided September 10, 1968.

Fred R. Kimmel, Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Allison W. Brown, Jr., Washington, D. C., for petitioner.

Andrew Brand, Charles Suisman, Suisman, Shapiro, Wool, Brennan & Gray, New London, Conn., for respondent.

Before WATERMAN and FEINBERG, Circuit Judges, and ZAMPANO, District Judge.^*

WATERMAN, Circuit Judge:

The National Labor Relations Board seeks enforcement of its order of November 4, 1966, reported at 161 N.L.R.B. 762 (1966) that Better Val-U Stores of Mansfield, Inc., respondent, had violated §§ 8(a) (1) and (3) of the National Labor Relations Act. It ordered respondent to cease and desist from the unfair labor practices found, or from in any other manner interfering with, restraining, or coercing employees in the exercise of their statutory rights, to reinstate with back pay an employee found to have been dismissed because of her union activity, to post notices, and to bargain collectively, if requested to do so, with Food Handlers Union, Local 371, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, as the union exclusively representing its employees. We grant enforcement of the Board's order except that portion of it requiring the employer to bargain with the named union.

The Board found the following facts: Respondent opened a new supermarket on November 3, 1965. Prior to that date it hired and trained employees for three weeks, including Brenda Dossat, an experienced cashier. Shortly after the store opened Dossat, at the request of several of the employees, contacted the Food Handlers Union, obtained authorization cards, and began distributing them to the other employees. About one week later, employee Lloyd Martin had a conversation with his supervisor, Joseph Lobe, Jr., during which the latter said that respondent's president, Harry Bokoff "would never let the union in the store anyway." On December 8, Dossat, an admittedly above average cashier, was summarily discharged for her union activities. By that date among the 60 employees there the union had 34 validly executed authorization cards in its possession. On December 9, a representative of the union called Bokoff and informed him that the union represented a majority of the employees. Bokoff responded by commenting, among other remarks, that the employees were not eligible for union membership and that many of them would not be retained. He nevertheless agreed to meet with the union on December 14.

A day or two after that conversation, employee Frances Chesko, acting as a representative of several of her co-workers, spoke with Personnel Manager Zulka to check on the security of their jobs. Zulka responded that their jobs were safe as long as they "didn't walk out with any union man or have anything to do with the union," or go out on strike. He added that the store would be closed "before they would let a union in" and that in a short time he would give raises, also mentioning "something about vacations and pay." On December 12, several of the employees went to a union meeting in which they told union representatives of this conversation, that Dossat had been discharged, and that, as a result, there was great fear and apprehension among the employees concerning unionization. Acting on this information the union representative then met with the president of the local, they decided that it would be futile to meet with Bokoff on December 14, and on December 17 they filed their charges of unfair labor practices with the Board without ever meeting with Bokoff.

On the basis of these findings of fact the Board concluded that respondent had violated § 8(a) (1) of the Act by threatening employees with reprisals for union activity, by promising benefits for refraining from union activity, and by statements indicating that it would be futile for employees to join the union. The Board also found that respondent violated § 8(a) (1) and § 8(a) (3) of the Act by discharging Brenda Dossat because of her union activities.

The evidence relied upon by the Board in support of its findings is not overwhelming. In certain respects the Board's findings differ from those of the Trial Examiner. See 161 N.L. R.B. 762, 763-764 (1966). However, these differences are the result of differences of opinion concerning inferences that might be drawn from certain underlying facts, not the result of differences over the facts themselves. Therefore, the sum of the differences between the findings of fact the Board found and those the Trial Examiner found is but one more factor in the whole record to be weighed in determining the substantiality of the evidence, not a factor to be given the preponderant significance to which the sum of differences regarding witness credibility might be entitled. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 496-497, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Compare NLRB v. Coletti Color Prints, Inc., 387 F.2d 298 (2 Cir. 1967) with Rocky Mountain Natural Gas Co. v. NLRB, 326 F.2d 949 (10 Cir. 1964); NLRB v. Dal-Tex Optical Co., 325 F.2d 78 (5 Cir. 1963); and NLRB v. Porter County Farm Bureau Coop. Ass'n, Inc., 314 F.2d 133 (7 Cir. 1963). Bearing in mind that only this limited significance may be given to this conflict between the inferences drawn by the Board and those drawn by the Trial Examiner, we cannot say that there is not substantial evidence "on the record as a whole," Universal Camera Corp. v. NLRB, supra, 340 U.S. at 490, 491, 71 S.Ct. at 466, to support the Board's findings, and therefore the Board's findings and conclusion that respondent committed the alleged unfair labor practices may not be overturned by us.

The question whether the remedies the Board has ordered are proper ones for us to enforce remains for consideration. To require an employer to reinstate an employee with back pay, to cease and desist from further unfair labor practices, and to post appropriate notices are proper and accepted remedies for violations of Sections 8(a) (1) and 8(a) (3). See, e. g., NLRB v. A. P. W. Products Co., 316 F.2d 899 (2 Cir. 1963); NLRB v. Firedoor Corp. of America, 291 F.2d 328 (2 Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 242, 7 L.Ed.2d 136 (1961). Accordingly, to this extent we grant enforcement of the Board's order without further comment. However, the Board's imposition of a bargaining order where no violation of Section 8(a) (5) was found to have occurred is a more troublesome matter. We believe that a bargaining order cannot be justifiedly supported here and therefore we remand the case to the Board for the purpose of having it order a Board-supervised election after a reasonable passage of time.

The controlling test in this circuit as to whether a bargaining order is appropriate in a situation where there was no finding of a refusal to bargain by the employer in violation of § 8(a) (5) of the Act was announced by Judge Anderson in NLRB v. Flomatic Corp., 347 F.2d 74 (2 Cir. 1965). There the court called a bargaining order "strong medicine" because by dispensing with the necessity of a prior secret election, it creates "a possibility that the imposition of such an order may unnecessarily undermine the freedom of choice that Congress wanted to guarantee to the employees, and thus frustrate rather than effectuate the policies of the Act." Id. at 78. The court went on to add that though it is possible, absent a specific refusal to bargain, that a bargaining order might appropriately be made to restore the status quo ante as represented by a card majority it should only be done "where the employer's conduct has been so flagrantly hostile to the organizing efforts of a union that a secret election has undoubtedly been corrupted as a result of the employer's militant opposition." Ibid. See Bok, The Regulation of Campaign Tactics in Representation Elections Under the National Labor Relations Act, 78 Harv.L. Rev. 38 (1964). Although Judge Hays in his dissent in Flomatic strongly urged that the judgment of employer interference was peculiarly within the area of the Board's expertise, Id. at 80, a view since adopted by the District of...