NLRB v. GLENN BERRY MANUFACTURERS, INC.

• Court: U.S. Court of Appeals — Tenth Circuit
• Writing for the Court: HICKEY and HOLLOWAY, Circuit , and EUBANKS
• Citation: NLRB v. GLENN BERRY MANUFACTURERS, INC., 422 F.2d 748 (10th Cir. 1970)
• Decision Date: 21 January 1970
• Docket Number: No. 225-69.,225-69.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GLENN BERRY MANUFACTURERS, INC., Respondent.

422 F.2d 748 (1970)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GLENN BERRY MANUFACTURERS, INC., Respondent.

No. 225-69.

United States Court of Appeals Tenth Circuit.

January 21, 1970.

Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, John I. Taylor, and Ian D. Lanoff, Attys., N.L.R.B., for petitioner.

Ben T. Owens and Melvin H. Landers of the firm Wallace & Owens, Miami, Okl., for respondent.

Before HICKEY and HOLLOWAY, Circuit Judges, and EUBANKS, District Judge.

EUBANKS, District Judge.

This is a proceeding to enforce a decision and order of the National Labor Relations Board finding Glenn Berry Manufacturers, Inc., guilty of violating Section 8(a) (3) and (1) of the Act by discharging Dorothy Green for discriminatory reasons.

After the complaint charging violation was filed Trial Examiner, Milton Janus, conducted extensive hearings on June 1 and 2, 1967, and thereafter said examiner made exhaustive Findings of Fact and Conclusions of Law on October 24, 1967, wherein, among other things, he recommended that Respondent:

Offer to Dorothy Green immediate and full reinstatement of her former or substantially equivalent position, without prejudice to her seniority or other rights or privileges, and make her whole for any loss of earnings she may have suffered by reason of the discrimination against her, in the manner set forth in the section of this Decision entitled "The Remedy."

Thereafter and on February 14, 1968, the National Labor Relations Board upon consideration of the record made at the hearing before the Trial Examiner adopted the Findings, Conclusions and Recommendations of the Trial Examiner.

In determining whether we should decree enforcement of said order we are mandated by Universal Camera v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, and N.L.R.B. v. Wylie Manufacturing Company, 417 F.2d 192 (10th Cir. 1969) to carefully examine the entire record so as to ascertain whether the finding and order is supported by substantial evidence. If so, we must order enforcement. Further, we observe that the question of the credibility of the findings are peculiarily within the province of the examiner and the board and are ordinarily entitled to affirmance on review. See American Sanitary Products Co. v. N.L. R.B., 382 F.2d 53, 55 (10th Cir.) and N.L.R.B. v. United Nuclear Corp., 381 F.2d 972 (10th Cir.) and N.L.R.B. v. Wylie, supra.

Respondent, Glenn Berry Manufacturers, Inc., has its principal place of business in Commerce, Oklahoma, and operates two plants manufacturing mens pants at Commerce, Oklahoma, and at Oswego, Kansas. The women employees at both plants were represented by separate locals of the United Garment Workers of America. The International representative serving both unions was one Earl Carroll. Apparently good relations existed between the union and the Respondent at all times herein pertinent. In January 1967 the existing bargaining agreements were reopened by mutual consent because of the recently enacted Federal Wage and Hour Law although the existing contract had sometime to run. Bargaining committees of the two locals with the assistance of Carroll engaged in negotiations with company officials and a tentative agreement was reached between the committees and the company but when this tentative agreement was submitted to the employees for ratification it was rejected. This occurred in January 1967. The parties then resumed bargaining and a second agreement was reached which was submitted to and ratified by the employees on February 8, 1967. During the negotiations employee Dorothy Green became dissatisfied with the assistance Carroll was rendering and commenced circulating a petition calling for the discharge of International Representative Carroll. Dorothy Green had talked to her union president, Martha Lawrence, before she started circulating the petition and had obtained the suggestion and approval of such procedure from Martha Lawrence who also was an employee of Respondent. It is hotly disputed between parties as to when management learned that Green was circulating a petition trying to get Carroll fired, but in any event it is not disputed that management knew she was circulating a petition. The activity by Green in connection with the petition had occurred during the period prior to and including the date of February 8, 1967. On the morning of Saturday, February 11, 1967, a non-working day, local union president, Martha Lawrence, went to the office of Mr. Heydt and told him of the activities of employee Green in circulating the petition. While Mrs. Lawrence insists that she did not tell Heydt of the contents of the petition and Mr. Heydt contends he did not know the purpose of same all of the evidence militates against these contentions because as heretofore noted President Lawrence had even suggested the petition in the first instance to employee Green. At this Saturday morning conference Edward Morris, Plant Manager, was present and he also had known of the activities of employee Green during the preceding period but he too says that he had not seen the petition and did not know of its contents. When Mr. Heydt was asked if he considered it unusual that the union president should complain to him about the activities of one of the employees he said: "No, because we have rather cordial relations with our whole union setup, and anything that is a problem for the company is a problem for the union, and anything that's a problem for the union is a problem for the company."

On Monday, February 13th, Green was...