NLRB v. Elias Brothers Big Boy, Inc.
| Decision Date | 12 February 1964 |
| Docket Number | No. 15298.,15298. |
| Citation | 327 F.2d 421 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ELIAS BROTHERS BIG BOY, INC., Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
William J. Avrutis, N.L.R.B., Washington, D. C., Stuart Rothman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Washington, D. C., on brief, for petitioner.
George Bashara, Detroit, Mich., George Bashara, Sr., Detroit, Mich., on brief, for respondent.
Before O'SULLIVAN, Acting Chief Judge, and CECIL and PHILLIPS, Circuit Judges.
A union organizational campaign among the employees of the Elias Brothers Big Boy restaurants in the Detroit area was initiated in May and June 1961. Details of this campaign and the operations of respondent are recounted in the opinion of this Court in N. L. R. B. v. Elias Brothers Big Boy, Inc., et al., No. 15,180, 325 F.2d 360 (C.A.6), and will not be set forth herein except in relation to the specific questions here at issue. The present case arose out of this same unionization drive and involved employees in Elias' West Grand River Restaurant.1
The Board's decision and order are reported at 139 N.L.R.B. No. 99. A petition has been filed by the Board in this Court for enforcement of its order. The Board found that Elias interfered with, restrained and coerced certain employees and discriminated against employee Ann Maniscalco by discharging her because of her efforts to assist the Union in organizing other employees. Respondent was ordered to cease and desist from the unfair labor practices found, to offer Ann Maniscalco reinstatement with back pay plus interest, and to post the customary notices.
We grant enforcement in part and deny enforcement in part.
The Board found that respondent, through actions of supervisory personnel, has interfered with, restrained and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and thereby violated Section 8(a) (1), 29 U.S.C. § 158(a) (1), in the following particulars: (1) by interrogating employees as to their union membership and sympathies, as to whether they had signed union cards and had attended union meetings and had mailed letters withdrawing from the Union; (2) in attempting to get employees to sign withdrawal letters and to mail them to the Union; and (3) in warning Ann Maniscalco that if the Union got in the employees "will probably lose the profit-sharing plan" and in telling her that the Company was good to the employees who were "loyal" to the Company and that more suitable working conditions might be arranged for her if she were for the Company instead of for the Union. These findings involve factual questions for determination by the Board and are binding upon this Court if supported by substantial evidence on the record as a whole. United Fireworks Mfg. Co. v. N. L. R. B., 252 F.2d 428, 430 (C.A.6). We find substantial evidence to support these holdings and agree with the Board that the foregoing acts by supervisory personnel of the Company during a Union organizational drive under the facts and circumstances of this case constitute a violation of Section 8(a) (1) of the Act, 29 U.S.C. § 158(a) (1). N. L. R. B. v. Elias Brothers Big Boy, Inc., et al., 325 F.2d 360 (C.A.6), supra; N. L. R. B. v. Flemingsburg Mfg. Co., 300 F.2d 182 (C.A.6); N. L. R. B. v. United Biscuit Co. etc., 208 F.2d 52 (C.A.8).
We accordingly grant enforcement of this part of the order of the Board.
A far more difficult and serious question is presented by the findings of the Trial Examiner to the effect that Ann Maniscalco was discharged discriminatorily, by his rulings on the credibility of witnesses in this phase of the case and by the action of the Board in ordering respondent to offer to her immediate and full reinstatement with back pay.
The Company contends that no unfair labor practice was committed in the termination of the services of this waitress and that the Board was in error in ordering her reinstatement with back pay because: (1) Ann Maniscalco was an organizer for the Union who was "planted" in respondent's restaurant and was not a bona fide employee within the meaning of Section 2(3) of the Act, 29 U.S.C. § 152(3) and therefore she was not entitled to the protection of the Act; and (2) in any event this waitress gave notice that she was leaving and the Company therefore was justified in hiring a replacement for her.
Mrs. Maniscalco worked as a waitress for the Company for approximately five weeks, from June 28 to August 3, 1961. The Trial Examiner found that she "played the leading role in attempting to get the employees to sign union authorization cards" and described her as the "chief protagonist for the Union"; that she met Myra Wolfgang, secretary-treasurer of the Union, before applying for a job with Elias; that during the last three weeks of her employment by Elias "she was paid $15 a week by the Union to cover expenses for telephone calls to employees during her organizing efforts and gasoline used in her car in driving employees home from work at which time she would talk to them about the Union"; and that within a few days after the termination of her services as a waitress for Elias, "she became a fulltime paid organizer for the Union."
As for the credibility of this witness, the Trial Examiner found that: "Maniscalco was not a credible witness in certain respects, such as in connection with her prior employment, her attendance at business school, and about being permitted on occasion to check out a few hours early for the purpose of attending school."
Immediately after leaving the services of Elias, Mrs. Maniscalco became a fulltime paid organizer for the Union and was placed in active charge of the campaign to organize the employees of Elias. She was serving in that capacity at the time she testified as a witness before the Trial Examiner in this case. As an illustration of her activities, she testified that she had a mailing list of Elias employees and mailed out information bulletins and letters to them from time to time. After she had devoted her time and efforts, as a paid organizer for the Union, in directing the campaign to organize the employees of Elias from August 1961 to December 1961, her Union filed charges on December 4, 1961, to the effect that she had been discharged discriminatorily by Elias on August 3, 1961. At the time these charges were filed by her Union and at the time she testified in the proceeding, Mrs. Maniscalco continued in active charge of the unionization campaign.
Thus the record clearly shows that Mrs. Maniscalco was a highly interested and prejudiced witness against Elias, not only because she was directing the unionization campaign, but also because she would be the beneficiary of back pay, if awarded. Nevertheless the General Counsel relied almost solely upon the testimony of this interested witness to prove the claim of an unfair labor practice regarding her separation from respondent's employ. The Trial Examiner credited her testimony and discredited the testimony of Company witnesses who contradicted her on the facts concerning the termination of her services as a waitress for Elias.
The employment application filed with Elias by this waitress stated that she was thirty-three years old, the mother of four children and separated from her husband. Her application showed no previous employment. The personnel manager for Elias testified that she told him when she applied for a job that she was a housewife with four children and had never been employed and that this was the first time she had to go out and work. Upon cross-examination, however, she admitted that she had held at least three previous jobs, including some previous experience as a waitress.
After several months of unemployment and "when I first realized I couldn't find a job," Mrs. Maniscalco said that she went to see Myra Wolfgang, secretary-treasurer of the Union. The Trial Examiner found that this "was the only time she saw her before her discharge." Mrs. Maniscalco testified that when she went to help prepare for picketing the Trenton Big Boy Restaurant in August of 1961, she called on Wolfgang for instructions. It is not clear from the record whether this occurred while she was working as a waitress for Elias or shortly after her services with Elias had been terminated. Her testimony on this point is as follows:
"
She further admitted that Bob Caruthers, vice president of the local Union, introduced her to Yale Soifer, who was leading the Elias organization drive. She claimed, however, that "I don't recall if I met him before or after I came to work for Elias." She admitted that Soifer was the one who arranged for her to draw $15 per week from the Union while working for Elias, and that she invited Soifer to a meeting at her home to organize Elias employees.
Charles Anders, manager of the Elias Restaurant where this waitress worked, testified that during the latter part of July Mrs. Maniscalco told him: "Well, Chuck, I suppose you know that I have been working with the union by now"; that Anders inquired, "What do you mean you have been working with the Union?"; and that the waitress responded: "Well, it is our purpose and it is my purpose to be here to organize these other people into joining the Union." Mrs. Maniscalco denied making this statement, and the Trial Examiner credited her testimony and discredited Anders.
The second contention of the Company is that, even if Mrs. Maniscalco be treated as a bona fide employee, she gave notice...
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