NLRB v. Finesilver Manufacturing Company

• Decision Date: 20 September 1968
• Docket Number: No. 24830,25070.,24830
• Citation: 400 F.2d 644
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FINESILVER MANUFACTURING COMPANY, Respondent (two cases).
• Court: U.S. Court of Appeals — Fifth Circuit

400 F.2d 644 (1968)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FINESILVER MANUFACTURING COMPANY, Respondent (two cases).

Nos. 24830, 25070.

United States Court of Appeals Fifth Circuit.

September 20, 1968.

Marcel Mallet-Prevost, Asst. Gen. Counsel, NLRB, Hans J. Lehman, Atty., NLRB, Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Paul J. Spielberg, Edith Nash, Attys., N.L.R.B., for petitioner.

Allen P. Schoolfield, Jr., Schoolfield & Smith, Dallas, Tex., Paul M. Green, Dalton Cross, San Antonio, Tex., for respondent.

Before THORNBERRY and SIMPSON, Circuit Judges, and ATKINS, District Judge.

THORNBERRY, Circuit Judge:

In these consolidated appeals, the National Labor Relations Board petitions this Court, pursuant to Section 10(e) of the National Labor Relations Act (29 U.S.C. § 151 et seq.), for enforcement of orders against Respondent, Finesilver Manufacturing Company of San Antonio, Texas. The orders were designed to remedy numerous violations of section 8(a) (1) of the Act and the discharges of eight employees in violation of section 8(a) (3). Except for the order that employee Felipa Palacios be reinstated with backpay, we enforce.

The findings of interference with the rights of self-organization, i. e., the violations of section 8(a) (1), were based largely on the testimony of employees as to interrogation, surveillance, and other forms of veiled or blatant coercion. While much of this testimony was disputed, the trial examiner and the Board made credibility determinations in favor of the employees which we, according to our usual practice, must accept. NLRB v. Monroe Auto Equipment Co., 5th Cir. 1968, 392 F.2d 559. Having accepted these credibility determinations, we hold that substantial evidence supports all the 8(a) (1) violations found. Discussion of the individual findings is wholly unnecessary except for the finding that a certain notice posted by the company was coercive. On September 21, 1965, after having learned on the previous day that the union was gaining strength, respondent posted on its bulletin board and enclosed in the pay envelopes of all employees the following notice:

1. The union says the signing of cards will be confidential.

The TRUTH:

ANY EMPLOYEE WHO SIGNS A CARD FOR A UNION MAY BE CALLED UPON TO TESTIFY IN

OPEN COURT UNDER A SUBPOENA.

COMMENT:

The best way to avoid this is to stay away from union meetings, and then you can\'t be forced to sign cards. NO ONE HAS TO SIGN A CARD OR ANYTHING ELSE.

2. The union says this company can't close down.

The TRUTH:

WE DO NOT INTEND TO CLOSE DOWN UNLESS WE HAVE TO. HOWEVER, THE SUPREME COURT OF THE UNITED STATES HAS SAID THAT ANY COMPANY CAN CLOSE DOWN COMPLETELY FOR ANY REASON AT ALL REGARDLESS OF A UNION.

COMMENT:

This company will continue to run its own business, union or no union, strike or no strike.

The company argues that the propositions stated are legally correct and that a notice which simply tells employees the truth should not constitute an unfair labor practice. Whether they be legally correct or not, however, the statements have unlawfully coercive implications, especially when considered in the context of the company's widespread pattern of antiunion conduct. See NLRB v. Griggs Equipment, Inc., 5th Cir. 1962, 307 F.2d 275, 278. Taking the first proposition, we see no reason for informing employees that they might be required to testify in open court other than to let them know that the names of union adherents could be ascertained and appropriate reprisals taken. As for the statement that a company can close down completely for any reason at all, we need only look to the Supreme Court decision which established that proposition for confirmation of the rule that an employer cannot interfere with organization activities by threatening to close the plant. Textile Workers Union of America v. Darlington Mfg. Co., 1965, 380 U.S. 263, 274, 85 S.Ct. 994, 1001, 13 L.Ed.2d 827, n. 20; see Carolina Mirror Corp., 1959, 123 N.L.R.B. 1712; Newton Co., 1955, 112 N.L.R.B. 465; cf. Collins & Aikman Corp., 1963, 143 N.L.R.B. 15, enforced in part, 5th Cir. 1964, 338 F.2d 743. Considering the statement in the context of the antiunion hostility, we believe it constituted an unlawful threat to close the plant in the event of a union victory.

The discriminatory discharges will be considered individually though most of the Board's findings are based on credibility determinations which we accept.

Elisa Moreno. The Board found that this woman's discharge was intended by the company as a warning that it could use its economic power to defeat unionism. While there is no direct evidence that she was fired for union activity, we sustain the Board's inference that she was on the basis of her allegiance to the union,¹ of which the company had knowledge, and also the background of antiunion animus and widespread pattern of antiunion conduct on the part of the company. See Schwob Mfg. Co. v. NLRB, 5th Cir. 1962, 297 F.2d 864, 868.

The company contends that Moreno was fired for excessive absenteeism. From 1958 to 1965, she worked at creasing flaps to be attached to the backs of pants pockets and was considered so proficient that her absenteeism was tolerated. However, when this job was phased out in 1965, the company says it could not justify retraining her for another spot in light of her miserable attendance record. The Board answers that she could do and had done other kinds of work and that her absenteeism had always been tolerated because of her skill. Moreover, it argues that the company has a policy of tolerating the frequent absences of the many women who work in the plant. As there is no evidence that her attendance record was worse than average, we must agree with the Board that the reason advanced by the company for discharging her does not withstand scrutiny.

Gilbert Perez. The Board found that Perez was fired because of his membership on the union organizing committee. It emphasizes Perez' undisputed testimony that two days after the company learned of his membership on this committee Hertzel Finesilver told him, "I'm going to wait for you to make just one mistake and then I am going to fire you." The Company, on the other hand, argues that he continually made errors in his job of order filling and that after having received a final warning about making mistakes, he was fired for erroneously filling a J. C. Penney order. The company makes a persuasive case for the point that Perez was inordinately careless, but the Board found that he was not the one who filled the J. C. Penney order which supposedly brought about his discharge. The company's argument to the contrary is also persuasive, but we must defer to the Board's assessment of the conflicting testimony. At any rate, the official warnings received by Perez against union activity and in particular the warning he received from Hertzel Finesilver two days after joining the organizing committee will support a finding that he would not have been fired but for his union activity. See Mel Croan Motors, Inc., v. NLRB, 5th Cir. 1968, 395 F.2d 154, 155. The company's side of the story represents, at best, a "fairly conflicting view" which we are not at liberty to accept as against the Board's decision though we might justifiably have made a different choice had the matter been before us de novo. NLRB v. Monroe Auto Equipment Co., supra; NLRB v. Certain-Teed Products Corp., 5th Cir. 1968, 387 F.2d 639.

Gilbert T. Palacios and Vito Fabian. Palacios and Fabian got into a heated argument during working hours with employee Gonzalez whom they accused of being a company informer. Gonzalez and Fabian scuffled briefly before being separated and sent back to their machines. Shortly thereafter, Gonzalez advanced on Palacios who in turn pulled a knife out of his pocket. They were separated before either was hurt. According to Mervin Finesilver's testimony, all three were summoned to his...