NLRB v. Griggs Equipment, Inc.

• Decision Date: 30 October 1962
• Docket Number: No. 19016.,19016.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GRIGGS EQUIPMENT, INC., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

307 F.2d 275 (1962)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GRIGGS EQUIPMENT, INC., Respondent.

No. 19016.

United States Court of Appeals Fifth Circuit.

August 24, 1962.

Rehearing Denied October 30, 1962.

Standau E. Weinbrecht, Atty., Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Stuart Rothman, Gen. Counsel, Allison W. Brown, Jr., Atty., N.L.R.B., Washington, D. C., for petitioner.

Alto B. Cervin, Dallas, Tex., Byron Skelton, Temple, Tex., Lee Curtis, Belton, Tex., for respondent Griggs Equipment, Inc.

Before RIVES, CAMERON and GEWIN, Circuit Judges.

GEWIN, Circuit Judge.

This case is before this Court upon a petition of the National Labor Relations Board pursuant to § 10(e) of the National Labor Relations Act, 29 U.S.C. A. § 160(e), for enforcement of its order issued against respondent, Griggs Equipment, Inc., on December 23, 1959. The respondent manufactures school, church and theatre seating equipment in Belton, Texas, and is engaged in interstate commerce.

During the summer of 1958, the Union¹ engaged in a campaign to organize respondent's work force of about 400 employees. At that time respondent employed about 100 temporary employees to supplement its regular complement of about 300. This was the respondent's annual practice to meet the increased seasonal demand for its products. There is an abrupt decline in production in September when the schools open and a layoff of these temporary employees is necessary. About September 1, Superintendent Frank Elliott called Mill Foreman Albert Copeland into his office and said, "the union was trying to organize and we was going to have to be on the watchout for it". Elliott also informed Copeland that J. L. Richards was going from "house to house to the employees to sign them up in the union"; that "Ray Trail was working for the union"; and that "Dayton Lee was working for the union"; and "had an office out at his home".

Early in September, Elliott called employee Troy Richards into his office and according to Richard's testimony told him that there was "some union activity going around, some cards around the plant", and asked "if I know who was passing them out, and began to explain to me what it would do to the Company, that they would cut hours and bonus and so on". Elliott further stated that if he knew the identity of those who had cards, he would "talk to them and might get them to break a loose from it". On September 5, respondent sent a letter to each of its employees at his home referring to the union's organizing efforts and setting forth reasons why "your Company is very much opposed to any outside interference. * * *".

Employee E. Henry Karl signed a union card in July 1958, and during the course of the organizing drive secured signed authorization cards from 72 of respondent's employees. Karl's union activities were commented on by his co-workers. His foreman, Bill Tyrock, accused him of being "the one that was passing cards around". Karl denied this activity. Several weeks later, Karl told Boyd Waters, Superintendent of Plant No. 1, and Louis Richardson, Vice-President in Charge of Production, of his conversation with Tyrock in an effort to assure them of his loyalty to the company. However, Waters asked Karl if he had changed his mind concerning the Union, informing him that "the office" had received information that Karl was going around to the employees' homes to sign them up. Karl again denied such actions.

Karl was employed by respondent as an are welder for ten years, even though he was handicapped by a short leg which caused him to walk with a limp and made it necessary for him to sit down while working. During his ten years of work for respondent, Karl had never been laid off in one of the seasonal reductions in force, and his work as an arc welder had never been criticized by his supervisors. Although the layoff in 1958 was no more severe than usual, Karl was laid off in the middle of his shift on September 11 by his Foreman, Tyrock. At the time he laid Karl off, Tyrock stated he was unable to give a reason for the action. However, he later told him that it was because he (Karl) was considered to be the one who had broken into the candy machines in the plant, an incident which had occurred some 8 or 9 months previously. At the time of Karl's layoff, there was still arc welding work being done, and three men with less seniority than Karl were retained. Two months after his layoff, there were five men on the payroll classified as arc welders, all of whom had less service with respondent than Karl.

Dayton Lee was the leadman on the night shift in respondent's glue room where he had worked for six years without a layoff. Lee was active on behalf of the union, having obtained authorization cards from all seven of the glue room employees. When Lee reported for work on September 28, he found the glue room had been cleaned up by the day shift and was informed there would be no night shift. He was assigned by Foreman Hamilton to temporary work. While Lee was working, Hamilton brought his check to him and laid him off before the end of the shift; telling him that his glue room job "didn't exist anymore". Three glue room employees with less service and experience than Lee were retained by respondent and production in that department was resumed two days after Lee's layoff.

Upon the foregoing facts, the Board found that respondent, by threatening and interrogating its employees regarding their union activities, violated § 8 (a) (1) of the Act, 29 U.S.C.A. § 158(a) (1). The Board also found that respondent laid off E. Henry Karl and Dayton Lee because of their activities on behalf of the Union, thereby violating § 8(a) (3) and (1) of the Act.

The Board order requires respondent to cease and desist from the unfair labor practices found, and from, in any other manner, interfering with, restraining or coercing its employees in the exercise of their statutory rights. Affirmatively, the order requires respondent to reinstate Lee and Karl with backpay and to post appropriate notices.

Viewed with the background of the many cases in this circuit and in others, we are obliged to uphold the Board's cease and desist order and enforce the same. As was stated in N. L. R. B. v. Fox Manufacturing Co. (5 Cir., 1956), 238 F.2d 211:

"Nevertheless, if there is substantial evidence on the record taken as a whole which permits the inference that questioning of job applicants and employees as to their attitude towards the union and that comments that unionization will cause a reduction in hours and that union activity might cost a man his job amount to threats or coercion, then we may not substitute our judgment for the Board\'s in reviewing its finding that these acts showed a purpose to interfere with the employees\' rights in violation of Section 8(a) (1) of the Act, 29 U.S.C.A. § 158(a) (1). N.L.R.B. v. Coats & Clark, Inc., 5 Cir., 231 F.2d 567; N.L.R.B. v. McGahey, 5 Cir., 233 F.2d 406; N. L.R.B. v. Newton Co., 5 Cir., 236 F. 2d 438."

Also the Board properly concluded that Waters' interrogation of E. Henry Karl, as to whether he had changed his mind about the union, was a violation of § 8(a) (1) of the Act. Stokely Foods, Inc. v. N.L.R.B. (5 Cir., 1952), 193 F.2d 736; N.L.R.B. v. Cen-Tennil Cotton Gin Company (5 Cir., 1952), 193 F.2d 502. The statements in and of themselves might possibly be lawful and non-coercive, but viewed in its entirety, there is sufficient evidence of a background of union hostility in context with the statements made to bring them within the proscription of § 8 (a) (1) of the Act. See Blue Flash Express, Inc., 109 N.L.R.B. 591.

There is substantial evidence to support the Board's finding that the respondent violated § 8(a) (3) and (1) of the Act by discriminatorily laying off employee E. Henry Karl. At first, his foreman did not tell Karl the reason for his layoff, which alone would be enough to support an inference that the layoff was discriminatory. N.L.R.B. v. Dell (5 Cir., 1960), 283 F.2d 733; N.L.R.B. v. S. S. Coachman & Sons (5 Cir., 1953), 203 F.2d 109. The reasons finally brought forth for the dismissal are insufficient to show that Karl was fired for cause. The first reason presented by respondent is that Karl broke into some candy machines eight months previously. It is reasonable to assume that...