NLRB v. Goodyear Tire & Rubber Company Retread Plant

• Decision Date: 06 May 1968
• Docket Number: No. 24663.,24663.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GOODYEAR TIRE & RUBBER COMPANY RETREAD PLANT, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

394 F.2d 711 (1968)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GOODYEAR TIRE & RUBBER COMPANY RETREAD PLANT, Respondent.

No. 24663.

United States Court of Appeals Fifth Circuit.

May 6, 1968.

Marcel Mallet-Prevost, Asst. Gen. Counsel, John D. Burgoyne, Atty., N.L. R.B., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Solomon I. Hirsh, Atty., N.L.R.B., Washington, D. C., for petitioner.

Walter E. deBruin, Akron, Ohio, for respondent.

Before John R. BROWN, Chief Judge, and GEWIN and WRIGHT,^* Circuit Judges.

JOHN R. BROWN, Chief Judge:

In this case the Board petitions for enforcement of its order against Goodyear, the Employer, finding that it violated § 8(a) (1), (3), and (5) of the Act, 29 U.S.C.A. § 158(a) (1), (3), (5), and ordering Employer to cease and desist from engaging in unfair labor practices, to reinstate with back pay a discharged employee, and to recognize and bargain collectively with the Union. We enforce except as to one modification we make in the back pay and reinstatement order as to the dischargee. Except for that phase little need be said.

The Board's conclusion that the Employer violated § 8(a) (1) of the Act by coercively interrogating and economically threatening its employees requires no discussion. Credited as the facts were, the picture was one of crude, at times obnoxious threats breaking every rule in the now compendious book of how-not-to-combat-a-union-campaign. The facts were quite enough. See Universal Camera Corp. v. NLRB, 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456; Avondale Shipyards, Inc. v. NLRB, 5 Cir., 1968, 391 F.2d 203 Feb. 28, 1968.

Likewise, the record also amply supports the conclusion that when the Employer was presented with union authorization cards signed by a majority of its employees, the Employer did not thereafter have a good-faith doubt as to the Union's majority. This Circuit, as do others, follows the rule that "an employer cannot refuse recognition pending an election unless it doubts in good faith that the union has a majority." Skyline Homes, Inc. v. NLRB, 5 Cir., 1963, 323 F.2d 642, 648; Retail Clerks Union etc. v. NLRB, 9 Cir., 1967, 376 F.2d 186; Borden Cabinet Corp. v. NLRB, 7 Cir., 1967, 375 F.2d 891, cert. denied, 389 U.S. 841, 88 S.Ct. 77, 19 L.Ed.2d 106. But see NLRB v. S. S. Logan Packing Co., 4 Cir., 1967, 386 F.2d 562.

It may be true that a bargaining order in this situation, where no election has ever been held, is "strong medicine," NLRB v. Boot-Ster Mfg. Co., 6 Cir., 1966, 361 F.2d 325. But such an order is clearly within the Board's discretion, especially when the employer has engaged in unfair labor practices such as is the case here. See Franks Bros. Co. v. NLRB, 1944, 321 U.S. 702, 64 S.Ct. 817, 88 L.Ed. 1020; NLRB v. Delight Bakery, Inc., 6 Cir. 1965, 353 F.2d 344. It is equally so where the employer takes the bold course of refusing to bargain as the means of testing representation of a majority. Even more so is it when this intransigence flows from an inflexible company policy of ignoring authorization cards and insisting on a Board election as the price for bargaining. Of course, the fact that the Union's majority may have been dissipated during the pendency of the present action affords no defense to the employer. Such reasoning would allow the employer to profit by his own wrongdoing and would encourage, not discourage, the very activities which the law so plainly forbids. See D. H. Holmes Co. v. NLRB, 5 Cir., 1950, 179 F.2d 876; NLRB v. Delight Bakery, Inc., supra.

The § 8(a) (3) situation in regard to the dischargee Carter is slightly more complicated. The complication does not stem, however, from any doubt as to the cause of his discharge. Taking into account the now-judicially determined § 8(a) (1) threats by management to get the union ringleader — a status soon identified with Carter — the discharge by plant manager Lucas on Saturday, September 25 for the supposed reason of Carter's failing to report for overtime work that day was more than enough to warrant the conclusion of a pretextual discharge naively masking anti-union motivation.

What and all that complicates it is Carter's status as a temporary employee on the local Atlanta payroll subject to having his employment terminated by the Division Personnel office after receipt and evaluation by it of the usual personnel inquiry composed generally of reports from former employers. Carter was hired on August 25. On Tuesday, September 21, an adverse report, marked "employment disapproved" by the Division Personnel Manager, was received by King, a subordinate to the Division Manager but immediate supervisor of the retreading plant where Carter worked.

Here the action gets packed and it hits from several directions with apparently no pre-planning, design, or complicity, but always against Carter as the single target. For on Saturday morning, September 25, King called the Retread Manager (Lucas) to inform him that "* * * the Personnel Department has disapproved this employee and it will be necessary for you to discharge him." To this Lucas replied: "Well, I've already discharged him, due to him not reporting to work this morning." Carter was informed of this "termination" on the following Monday morning.

The Trial Examiner, finding first a discriminatory discharge earlier by plant manager Lucas, nonetheless declined to order reinstatement with back pay because of the Personnel directive for a lawful discharge.¹ The Board disagreed and ordered reinstatement with back pay until reinstatement,² presumably because Carter was not necessarily a corpse with two bullet holes or a "dead duck"³ so long as there was an opportunity to demonstrate that the adverse inquiry-report was incorrect.⁴

We sustain that part of the Board's conclusion that the same antiunion motivation which earlier produced the "Lucas" discharge denied him the opportunity of overcoming the adverse employment report. But it does not follow, as the Board so readily concluded, that denial of that opportunity is equated with reinstatement as though Carter had successfully persuaded the Employer of the inaccuracy of the report.

An employer is required only to place an unlawfully discharged employee "in the same position — with no more advantages and no fewer advantages — than * * * he was in before the discrimination against him for union activity." NLRB v. American Steel Bldg. Co., 5 Cir., 1960, 278 F.2d 480, 482. For Carter this means that he must have been afforded a fair opportunity to demonstrate to the appropriate supervisors acting with like fairness that despite the credit-employment-check-report his employment would have been continued and he would have been put on the Akron payroll as a permanent employee. Conversely, the Employer was entitled to demonstrate the opposite to sustain the contention that had there been no "Lucas" discharge Saturday morning, September 25, nevertheless Carter would have been terminated not later than the following Monday.

The place now for this inquiry is not in the present enforcement proceeding. Rather, this relates to, and is appropriate for, the further administrative proceedings now required to ascertain the amount of lost wages sustained by Carter. NLRB v. J. H. Rutter-Rex Mfg. Co., 5 Cir., 1957, 245 F.2d 594. The expiration date of the back pay award...