NLRB v. Gentithes

• Decision Date: 27 June 1972
• Docket Number: No. 71-1373.,71-1373.
• Citation: 463 F.2d 557
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. George H. GENTITHES et al., Respondents.
• Court: U.S. Court of Appeals — Third Circuit

463 F.2d 557 (1972)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. George H. GENTITHES et al., Respondents.

No. 71-1373.

United States Court of Appeals, Third Circuit.

Argued December 2, 1971.

Decided June 27, 1972.

Michael Winer, National Labor Relations Board, Washington, D. C., for petitioner.

Robert S. Meermans, Evans, Gentithest & Meermans, Warren, Ohio, for respondents.

Before SEITZ, Chief Judge, and KALODNER and GIBBONS, Circuit Judges.

OPINION OF THE COURT

SEITZ, Chief Judge.

The National Labor Relations Board ("the Board") seeks enforcement against defendants of a cease and desist order issued August 4, 1970.

The Facts

Defendants operate an automobile dealership ("the Company"). As of 1968, their service personnel were not unionized. In the summer of that year union organizational activities were initiated by representatives of the International Association of Machinists and Aerospace Workers, District Lodge No. 63, AFL-CIO ("the Union"). Aiding these representatives were two Company employees named Thomas Richmond and Louis Vore.

The Union's efforts resulted in an election being ordered held in the spring of 1969. The election produced a tie vote and, consequently, unionization was defeated. Organizational efforts predictably subsided thereafter. However, Richmond and the Union representatives did maintain a subdued campaign in an attempt to kindle interest for another election. During this period defendant Hagan, as general manager of the Company, disclosed to employees a proposed package of employee benefits. He also announced a scheduled dinner meeting of service personnel. The purpose of the meeting was to permit representatives from General Motors to discuss changes appearing on the new models about to be released.

All service employees were invited to attend the dinner. Neither the initial announcement nor subsequent reminders suggested that those electing not to attend would face any disciplinary measures. Richmond and Vore were the only service personnel who did not attend. Several days after the dinner was held both were informed that they had been indefinitely laid off. "Lack of cooperation" was cited as the official cause for their dismissal, although their failure to attend the dinner was pointed out when specific reasons were requested.

The Complaint and Order

Following dismissal of Richmond and Vore the Union filed charges with the Board against the Company. These charges were reviewed by General Counsel who then prepared a complaint alleging that defendants had committed unfair labor practices in violation of the National Labor Relations Act ("the Act"), 29 U.S.C. § 151 et seq. Specifically, the Company was charged with violating §§ 8(a) (1) and 8(a) (3) of the Act, 29 U.S.C. §§ 158(a) (1), (a) (3), in the following respects:

(1) having announced, and then granted, economic benefits to employees to dissuade them from joining, supporting or assisting the Union in its organizational efforts;

(2) having attempted to convince employees of the futility of joining, supporting or assisting the Union; and

(3) having discriminatorily discharged employees Richmond and Vore because they were members of or engaged in activities on behalf of the Union, or in other protected activities, or both.

The trial examiner concluded that only charge (3) was supported by the record. Accordingly, his proposed order was limited to reinstatement of Richmond and Vore and enjoining further unfair labor practices by the Company involving the discharge of employees actively seeking representation by the Union or any other labor organization. The Board adopted the examiner's recommendations. However, it concluded, in addition, that the record supported charges (1) and (2). Thus, the order sought here to be enforced is an expanded version of that proposed by the trial examiner. As it now reads the order would require that the Company:

(1) Cease and desist from discouraging membership in the Union or any other labor organization by:

(a) promising or instituting economic benefits, including free health insurance, uniforms, guaranteed wages, and vacation; and

(b) discharging employees or otherwise discriminating in any manner as to such employees\' tenure or other employment conditions.

(2) Offer Richmond and Vore immediate and full reinstatement to their former positions or jobs equivalent thereto, and compensate both to the extent of pay lost by each as a result of discharge, including interest on the amount due at a rate of 6 per cent.

(a) Economic benefits

In NLRB v. Exchange Parts Co., 375 U.S. 405, 409, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964), the Supreme Court held that an employer violates § 8(a) (1) of the Act by promising or granting economic benefits, prior to a scheduled representation election, for the express or implied purpose of discouraging collective employee activities. This principle has recently been extended by at least one court to post-election circumstances. See Luxuray of New York v. N L R B, 447 F.2d 112 (2d Cir. 1971). Without deciding the propriety of such an extension we conclude that there is not substantial evidence in the record before us to support the Board's finding that the Company, in announcing the proposed benefit program, was attempting to discourage membership in the Union or any other labor organization. Cf. Universal Camera Corp. v. N L R B, 340 U.S. 474, 491, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

Defendant Hagan first announced the proposed program more than two months after unionization had been defeated by the tie-vote election. And, the benefits...