NLRB v. Bin-Dicator Company

• Decision Date: 14 February 1966
• Docket Number: No. 15760.,15760.
• Citation: 356 F.2d 210
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The BIN-DICATOR COMPANY, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

356 F.2d 210 (1966)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The BIN-DICATOR COMPANY, Respondent.

No. 15760.

United States Court of Appeals Sixth Circuit.

February 14, 1966.

Leo N. McGuire, N. L. R. B., Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Elliott Moore, Atty., N. L. R. B., Washington, D. C., on the brief), for petitioner.

Paul Franseth, Detroit, Mich. (Long, Ryan, Franseth & Spicer, Detroit, Mich., on the brief), for respondent.

Before MILLER^* and O'SULLIVAN, Circuit Judges, and KENT, District Judge.

O'SULLIVAN, Circuit Judge.

This matter is before us upon the petition of the National Labor Relations Board for enforcement of its order of July 31, 1963, which is based on its finding that respondent, The Bin-Dicator Company, was guilty of violating Sections 8(a) (1) and (3) of the National Labor Relations Act, 29 U.S.C.A. § 158 (a) (1) and (3). The Board's Decision and Order with its Examiner's Intermediate Report are reported as The Bin-Dicator Company, 143 N.L.R.B. 964 (1963). The Board found that respondent violated the Act by interrogation of and threats to its employees during the course of an organizational campaign, by the discriminatory discharge of one employee, and by a reprimand and denial of a pay raise to another.

Respondent company has its office at Detroit and its manufacturing plant at Port Sanilac, Michigan. About April 1, 1962, employee Floyd Hanger contacted the Teamsters Union and pursuant to this, efforts were made to organize respondent's 18 eligible employees. Floyd Hanger and employee John Masinick were the leading protagonists for the union and it is a fair inference that their activities were known to respondent's supervision. By various questions, members of the supervisory staff intimated that they knew of union meetings that were being held. After one such meeting a supervisor said to Hanger, "* * * somebody is going to get hurt over this. That's why Rex Brinker was fired, for instigation and trouble making." Another employee was told that if the union got in, the company "could lock the doors and close the place down." A foreman told Hanger that, "Mr. Thurston Assistant Plant Manager told me to ask you about the union and he is mad, and somebody is going to get hurt," adding that the shop would close up and move out "and the guys would be out of a job." Shortly before a scheduled election, the plant manager told Hanger, who had returned from a vacation, that things had been peaceful while Hanger was away and "I want you to stay away from the employees." There was evidence that the assistant plant manager told Masinick that he had heard that Hanger and Masinick were the instigators of the union activity. A foreman told an employee that when he, the foreman, worked for Mueller Brass Co., the union got in and the employees lost their bonus. These various events occurred between April 1, 1962, and the holding of a representation election on June 28, 1962.

On June 11, 1962, the company and the union agreed to have the election. The election was held, and the union lost. On July 5, 1962, the Teamsters Union filed Objections to Conduct Affecting the Results of the Election, and sought to have it set aside. These objections charged the company with misconduct different from that relied upon in the NLRB complaint here involved. The Acting Regional Director found all of the objections without merit, and certified that no labor organization had gained bargaining rights for respondent's employees. Certification to that effect was made on August 17, 1962. Between then and September 12, 1962, there was no apparent union activity at respondent's plant.

On September 12, 1962, all of respondent's rank-and-file employees were called into the plant manager's office and a general ten cent an hour raise was announced. Employee Masinick, however, was excluded from the raise and was given a written reprimand reading as follows:

"Our attention has been called to failure on your part to follow directions of supervisor or cooperate in work assignments. A continuance in this direction will be grounds for termination of employment."

Also on September 12, 1962, Hanger was summoned to the office of plant manager Norman L. Grostick and was discharged. He was given the following letter:

"Notice of Discharge to Floyd Hanger:

"Repeated absence from work without notice after warnings and posted notice, and other failure to perform jobs as assigned."

An argument ensued between Hanger and Grostick, Hanger disputing the claim of absences from work without notice. Hanger, becoming infuriated, said to Grostick "This is a personal feud between you and me. I don't know when, but some day we are going to meet, and I am going to get you," and added "When I get you, you can expect to spend some time in a wheel chair." Hanger embellished this threat with the further observation, "You have witnesses here. I don't care what you do. You can call the state police, the sheriff, or anything else, but some day we will meet again." At this point, respondent's general foreman, Donald Sweet, entered and Hanger turned his attention to Sweet. He called Sweet "a toad, a son-of-a-bitch" and putting on some leather work mittens, the back of one of which was covered with metal staples, he made threatening gestures to Sweet and "just kept raving and going on," inviting Sweet outside. He was finally quieted and left Grostick's office. Shortly afterward, while Sweet was going through the plant, Hanger picked up a six and a half pound casting and threatened to strike Sweet, implementing these gestures with further cursing. This time John Masinick intervened and took the casting from Hanger. Hanger then left the plant. The trial examiner made a finding of fact that Hanger had indulged in the above conduct.

On September 24 and November 19 of 1962, respectively, Hanger and Masinick filed charges against respondent — Hanger that he had been discriminatorily discharged, and Masinick that he had been denied a raise and given a reprimand, and both alleged that these deprivations were the consequence of their union activities. Each charge added that the described acts "and other acts not specifically set forth" interfered with the employees' rights guaranteed by Section 7 of the Act.

On November 28, 1962, the NLRB Regional Director consolidated the cases initiated by the above charges and issued a complaint which expanded the charges made by Hanger and Masinick by adding thereto a charge of violation of Sec. 8(a) (1) of the Act, arising from the company interrogation and alleged threats during April, May and June, 1962, preceding the election which the union lost. The Board's Trial Examiner sustained all of the charges of violation, recommended the usual cease and desist order, directed respondent to make Masinick whole for any loss from denying him the ten cent raise granted to the other employees, on September 12, 1962. However, because of the violent and threatening conduct of Hanger on the day of his discharge, the trial examiner declined to order his reinstatement with back pay. Upon review, the Board sustained its trial examiner in all respects except the denial of reinstatement of Hanger. Reversing, the Board said,

"In these circumstances, unlawful discharge of Hanger we find that Hanger\'s threats did not exceed the bounds of resentment which would normally be aroused in a moment of `animal exuberance.\'"

Respondent asks that we deny enforcement for the following reasons: First, that the statements made to Hanger, Masinick and other employees in April, May and June did not constitute unfair labor practice. Second, that procedurally such pre-election conduct should not have been considered because the charges filed by Hanger and Masinick had neither described nor relied upon such conduct as a violation, and because some of the pre-election conduct occurred more than six months before the complaint was issued and would be barred under Section 10(b) of the Act, 29 U.S.C.A. § 160(b). Third, that the finding of discriminatory discharge of Hanger, and discriminatory reprimand and denial of pay raise to Masinick were without substantial support in the evidence. Fourth, that there was neither charge, complaint, allegation or evidence that the September 12 general pay raise was motivated by antiunion purpose. Fifth, that, as found by the trial examiner, Hanger's post-discharge conduct disqualified him from reinstatement and back pay.

I. Pre-election interrogation and threats.

The trial examiner, affirmed by the Board, found as a fact that the interrogation and threats as set out above were actually made by respondent's supervisors. We cannot say that such findings were without substantial evidentiary support "on the record considered as a whole" and we are, therefore, by Section 10(e) of the Act, precluded from disturbing them. 29 U.S. C.A. § 160(e). Universal Camera Co. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1950). It is further argued that the interrogations and other observations by respondent's supervisors were neither coercive nor designed or calculated to interfere with the employees' rights guaranteed by Sec. 7 of the Act. Whether they were of such illegal nature was a matter of inference which, if validly made with evidentiary support, was within the exclusive province of the Board. N. L. R. B. v. Ford, 170 F.2d 735, 739 (CA 6, 1948); N. L. R. B. v. Link-Belt Co., 311 U.S. 584, 596-597, 85 S.Ct. 368, 85 L.Ed. 368 (1940); N. L. R. B. v. Nevada Consolidated Copper Corp., 316 U.S. 105, 62 S.Ct. 960, 86 L.Ed. 1305 (1941). We have held that interrogation of employees as to Union membership is not, per se, violative of Section 8(a) (1) of the Act, N. L. R. B. v. Tennessee Coach Co., 191 F.2d 546, 555 (CA 6, 1951); N. L. R. B. v. Flemingsburg Mfg. Co., 300 F.2d 182, 184 (CA 6, 1962), but may become so when...