NLRB v. Buddy Schoellkopf Products, Inc.

• Decision Date: 20 June 1969
• Docket Number: No. 25943.,25943.
• Citation: 410 F.2d 82
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BUDDY SCHOELLKOPF PRODUCTS, INC., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

410 F.2d 82 (1969)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BUDDY SCHOELLKOPF PRODUCTS, INC., Respondent.

No. 25943.

United States Court of Appeals Fifth Circuit.

April 23, 1969.

Rehearing and Rehearing Denied June 20, 1969.

COPYRIGHT MATERIAL OMITTED

Marcel Mallet-Prevost, Asst. Gen. Counsel, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Ronald Wm. Egnor, Gary Green, Attys., N. L. R. B., Washington, D. C., for petitioner.

Fritz Lyne, Erich F. Klein, Jr., Lyne, Klein & French, Dallas, Tex., for respondent.

Before JOHN R. BROWN, Chief Judge, COLEMAN, Circuit Judge, and SCOTT, District Judge.

Rehearing and Rehearing En Banc Denied June 20, 1969.

COLEMAN, Circuit Judge:

The National Labor Relations Board petitions for enforcement of its order issued against Buddy Schoellkopf Products, Inc., a Texas corporation, in which the respondent was found guilty of various unfair labor practices. Specifically, the Board found that the company violated § 8(a) (3) and (1) of the Act by discharging two of its employees, Gertrude Bradshaw and Robert Maldonado, and by withholding overtime pay from Melvin Jaynes. It further found the company in violation of § 8(a) (1) by coercively interrogating and threatening its employees, in circulating a questionnaire among its employees, and in withholding from the employees the previously existing privilege of purchasing goods from the company.

The Board ordered the respondent to cease and desist from these unfair labor practices and, affirmatively, to reinstate Bradshaw and Maldonado, to make Jaynes whole for any loss he may have suffered, and to restore the privilege of purchasing company products.

The events in question took place during and after an organization campaign by the Amalgamated Clothing Workers of America, AFL-CIO in the fall of 1965.

1. The Discharge of Bradshaw and Maldonado.

The sole unfair labor practice charged against the respondent at its Mineola, Texas plant relates to the discharge of Gertrude Bradshaw, a sewing machine operator at the respondent's plant and an active and open supporter of the union.

As Bradshaw began work on October 28, 1965, Frances Dobbs, a supervisor, approached her and told her that she wanted Bradshaw and the other women who were campaigning for the union to stay at their machines and sew during working hours. Bradshaw denied leaving her machine during work and asked Dobbs why she did not tell the non-union women to stay at their machines. Dobbs replied that she intended to tell them, and as she started to leave, said to Bradshaw, "But I don't have to take any smart talk from you as yet". Bradshaw in turn said, "Well, I don't think I have to you, either".

After Dobbs reported this incident to Superintendent Hosea, Bradshaw was summoned into his office. Hosea told Bradshaw that Dobbs had reported her for saying that she did not have to take orders from her supervisor. Bradshaw denied that the conversation took place in that manner but she was nevertheless discharged by Hosea for insubordination. At the hearing before the trial examiner, Hosea admitted that he had decided to discharge Bradshaw before she was called into his office.

A week after Bradshaw's discharge, the company posted a set of work rules stating that employees could be discharged for insubordination.

The Board found that Bradshaw was discharged because of her union activity and not for insubordination, as the company claimed.

The discharge of an employee is ordinarily a matter within management's prerogative and, consequently, an unlawful discharge is not lightly to be inferred, N. L. R. B. v. McGahey, 5 Cir. 1956, 233 F.2d 406. We find, however, that there was substantial evidence on the record as a whole to support the Board's conclusion as to this employee. As we said in Great Atlantic & Pacific Tea Co. v. N. L. R. B., 5 Cir. 1966, 354 F.2d 707, 709:

"The Board is not compelled to accept the employer\'s statement when there is reasonable cause for believing that the ground put forward by the employer was not the true one, and that the real reason was the employer\'s dissatisfaction with the employee\'s union activity. N. L. R. B. v. Texas Bolt Co., 5 Cir. 1963, 313 F.2d 761. When faced with a review of findings, pegged on witness credibility, courts have generally held that a determination of credibility by the N.L.R.B. is not to be reversed unless there is uncontrovertible evidence to the contrary. N. L. R. B. v. Dixie Gas Co., 5 Cir. 1963, 323 F.2d 433; N. L. R. B. v. Camco, Inc., 5 Cir. 1965, 340 F.2d 803."

The fact that Bradshaw was not given an opportunity to explain her version of what took place between herself and Dobbs, coupled with Hosea's admission that he had determined to fire her even before he talked with her, plus the posting of the work rules so near to the time of her discharge, adequately support the Board's finding that the discharge was unlawful.

Robert Maldonado was first hired by the respondent at its Dallas plant in September, 1964, and was adjudged to be a satisfactory worker up until the time of the termination of his employment.

In June, 1965, Maldonado told his immediate supervisor (Leigh) and another supervisor (Hudson) of his plans to take a civil service examination with the hope of securing employment with the Post Office Department. Hudson asked only that the company be given two weeks notice so he could train a replacement and said that Maldonado could continue to work at the Dallas plant until called by the Post Office. Leigh expressed his delight in seeing a young man get ahead.

The union organizational campaign followed. Maldonado became a union supporter in August, after a union representative visited his home. He signed an authorization card, attended two or three union meetings, and secured authorization card signatures from two fellow employees. In addition, Maldonado's name appeared as a member of the union organizing committee on a telegram sent by the union to the company on October 27.

On November 15, Maldonado notified Leigh that the civil service examination would be given the next week, and also that he did not know if he would pass, so he was not at that time giving notice of his resignation. When asked by Hudson if he was quitting, Maldonado said he was not. That same day, he was called into Leigh's office and informed that since there was no reason to believe he would not pass the examination, his resignation would be accepted as of November 19. Upon Maldonado reiterating that he was not quitting, Hudson replied, "When you look for a better job, you know you no longer want to work for us". The entire conversation in Leigh's office was preserved by a company tape recorder.

Maldonado picked up his last check at the plant November 19, but was not given vacation pay because of the company's position that he was quitting. He returned to work the following Monday but upon being told that he had quit, was refused admission to the plant.

The Board found that the respondent's sudden shift in its attitude toward Maldonado and its ultimate discharge of him was a result of his union activity and therefore unlawful.

There can be little doubt from this evidence that the termination of Maldonado's employment was initiated by the company and not voluntary. That leaves us the question of whether the discharge was prompted by his union activity.

The thrust of the company's defense is its assertion that Supervisor Hudson knew nothing of Maldonado's union activity and therefore this could not have possibly motivated his discharge. The company concedes Maldonado was a satisfactory worker, but maintains that since he was planning to quit anyway, it was preferable for Hudson to proceed to train his replacement.

The decisive consideration here is that by virtue of the telegram of October 27 the company knew of the union activity of this particular individual. It condoned the discharge, and, in effect, ratified it. It therefore cannot successfully shield itself behind the ignorance of its own supervisor.

We are not unmindful of N. L. R. B. v. Fountainebleau Hotel Corp., 5 Cir. 1962, 300 F.2d 662, in which we noted that the Board, under similar circumstances, ignored lack of knowledge by the supervisor who ordered the discharge in question. The point in Fountainebleau was that no one in the employ of the company in any supervisory or managerial capacity was aware of the activity.

We therefore hold that there was substantial evidence to support the Board's finding that the company claim of dismissing Maldonado so it could train a replacement was pretextual only and that he was in fact discharged because of his active union participation. See N. L. R. B. v. Mira-Pak, Inc., 5 Cir. 1965, 354 F.2d 525; N. L. R. B. v. Coats & Clarke, Inc., 5 Cir. 1956, 231 F.2d 567.

2. Withholding Overtime Pay from Melvin Jaynes.

Jaynes was hired at respondent's Dallas plant in December, 1959, and continued to work there until he resigned in April, 1966. Along with other employees, he became interested in the union's campaign in the fall of 1965. He signed an authorization card and engaged in certain union activities. On October 13, he was called into Vice President Chandler's office and told that since he was not considered a foreman, he could continue his union activities.

Until that time, Jaynes had proved to be a satisfactory worker, was reprimanded only occasionally, and was awarded overtime assignments at various intervals. However, after the visit to Chandler's office, he received four harsh written reprimands within six months, allegedly for poor work, and was assigned overtime work only once in six months. From April 1 until he quit in mid April, he worked eight and one-half hours of overtime. In one instance, he overheard Supervisor Hudson tell Supervisor Leigh that everyone but Jaynes was to be assigned overtime work.

The Board found that the respondent discriminated against Jaynes by...