NLRB v. JW Mays, Inc.

• Decision Date: 02 March 1966
• Docket Number: No. 76,Docket 29497.,76
• Citation: 356 F.2d 693
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. J. W. MAYS, INC., Respondent.
• Court: U.S. Court of Appeals — Second Circuit

356 F.2d 693 (1966)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. J. W. MAYS, INC., Respondent.

No. 76, Docket 29497.

United States Court of Appeals Second Circuit.

Argued November 12, 1965.

Decided March 2, 1966.

Leonard M. Wagman, Atty., National Labor Relations Board (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Nancy M. Sherman, NLRB, on the brief), for petitioner.

Seymour W. Miller, New York City (Miller & Seeger, New York City, on the brief), for respondent.

Before LUMBARD, Chief Judge, and FRIENDLY and SMITH, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

The National Labor Relations Board petitions under § 10(e), 29 U.S.C. § 160(e), for enforcement of its order against respondent Mays. The Board found that Mays violated § 8(a) (1) of the National Labor Relations Act by threatening employees with loss of employment if they engaged in union activities, and by offering an employee inducements to abandon union activity, and that the company violated § 8(a) (3) and (1) of the Act¹ through discriminatory discharges and transfers. It ordered Mays to cease and desist from the violations, with provisions for reinstatement and back pay, and the usual record keeping and notice posting. 147 NLRB No. 104. We hold the findings supported by substantial evidence on the record as a whole except as to employee Richardson, modify to strike the portion of the order referring to her, and the reference to "any other labor organization," and as modified order enforcement of the Board's order.

Early in February 1963, the union began organizing respondent's store and warehouse in Brooklyn, New York. Union meetings were attended by a supervisor, Wolf, who expressed an interest in unionization of his class of employees. When the union did not show any interest in Wolf, he aligned himself with the company. He had been accompanied to the meeting by four employees, Filosa, Reid, Cohen, and Cecero. Within three days after the meeting, all four were discharged or laid off. Additionally, one employee, Segarra, recently rehired, was fired one-half hour after being seen handing out union cards, and after the warehouse manager, Kromash, pointed him out and said, "That's the kid that's handing out the union cards."

Later, Cohen, while engaged in picketing, entered the store and was told by Katz, the General Manager, "I had a lot of promise for you * * * We had a lot of things in store for you," and that if he would abandon the picket line, "We will see about taking you back in a better position."

Buckley, an employee at respondent's Massapequa store, signed a union card, distributed others, and then met with union officials, where he was seen by a company salesman, brother-in-law of the board chairman, who reported the incident to supervisory personnel. The employee was discharged that night, and was told that his work was all right, "but you have been seen and reported talking to the union men."

After signing a union card and picketing, employee Richardson was transferred to another department, and promptly said, "I quit," and submitted her resignation. She believed the transfer was designed to curb union activity. After putting up union posters, and joining a picket line, another employee, Portas, was told her work was unsatisfactory, and that she was being transferred. She refused, and eventually was discharged.

After two employees at the Massapequa store signed union cards, one consulted Military, a minor supervisor, who advised them not to let his superior, Picone, see them, and they tore up the cards.

The Board's order affirmatively requires reinstatement, with back pay except for Richardson, of all employees discharged or transferred, and includes cease and desist provisions.

The first issue is the discharge of the four employees who attended the meeting. All worked in the warehouse receiving department, managed by Kromash, with, in order of authority, Tabroff, Rosenberg, and Wolf under him. Wolf was the one who attended the meeting with the four, and who was claimed to have reported the meeting to his superiors.

The NLRB case for a discriminatory discharge of these four employees depends to a high degree on an alleged admission by Tabroff to Segarra. Segarra testified that he noticed while standing near a window with Tabroff that Reid, Cohen, Filosa, and others were passing out union cards. He said, "There is Benny Filosa," and Tabroff said, "Yes." Segarra asked why Filosa had been fired, and Tabroff, pointing down to them, said, "For that." Segarra asked, "Isn't it against the law to fire people for joining the union?," and Tabroff replied, "Yes, but we fired them for a different reason." (The Trial Examiner concluded he meant "him," not "them.")

The NLRB case on this issue rests, first, on the timing of the discharges; second, on the knowledge by Kromash, who did the firing, that they had attended the meeting, that is, on a finding that Wolf reported, and that the report reached Kromash prior to the discharges; third, on the Tabroff admission (specifically as to Filosa, and by extension to the others); and fourth, on the statement by Katz to Cohen, also alleged to be an § 8(a) (1) violation, to the effect that the management had high hopes for him.

Timing alone is an inadequate support; and as to the second element of the NLRB case, the Trial Examiner's finding that Wolf reported, and that Kromash knew of the meeting, does not appear to arise out of any evidence except disbelief of Kromash and Wolf, and belief in Segarra's testimony concerning the Tabroff admission. The Katz-Cohen conversation may show attempted inducement to abandon union activities, but it does not argue forcefully for a § 8(a) (3) violation, except incidentally to show hostility to the union.

Respondent, moreover, forcefully contends that there are legitimate reasons for the discharge. With respect to Filosa, it appears that the third floor, his responsibility, had been found "a shambles" on previous occasions, that Katz found this condition again, and Kromash discharged Filosa. Reid was chronically absent, and was warned that he would be fired if he missed another Saturday; before the next Saturday, after missing a Monday night (to attend the meeting), he was fired by Kromash, who was not a party to the previous warning, and refused to be bound by it. Cohen was allegedly fired for loitering after receiving permission to leave early for illness and Cecero was laid off for lack of work without any replacement being obtained.

Although the Examiner might have been justified in crediting Reid's testimony that he never agreed to work on the Monday night of the meeting and could have concluded that Cohen was fired for his union activity, the Tabroff admission is crucial to the NLRB case. See NLRB v. Great Eastern Color Lithographic Corp., 309 F.2d 352 (2 Cir. 1962). Respondent claims that the admission is incredible, that Sagarra was a known union supporter, and that Tabroff never would have made such an admission, even in an attempt to persuade Segarra to abandon his pro-union position. (The admission is the basis of an § 8(a) (1) violation.) But such a motive, to dissuade Segarra from pro-union views, could well explain the admission. Respondent attacks certain underlying facts of the admission: it was too dark to see who was below, or what they were doing; testimony by union sympathizers indicates union cards were not passed out at the time of the admission, and those supposedly seen were not passing out handbills either; and it appears that Cohen, one of those whom Segarra says he and Tabroff observed, may have been absent then; there was no evidence to show that Tabroff knew or had any reason to know why Kromash fired Filosa and the other union men.

This turns on credibility and cannot be said to be unsupported by the record as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. The Tabroff admission, central to the whole issue, is not without doubt, but the Trial Examiner gave convincing reasons, based on the corroborating testimony of the discharges, to support his crediting Segarra and discrediting or ignoring any impeaching testimony, even though he did not rely on Segarra's demeanor. And the Board agreed. We find no reversible error here.

The next issue is the...