NLRB v. Lipman Brothers, Inc., 6526.

• Decision Date: 21 January 1966
• Docket Number: No. 6526.,6526.
• Citation: 355 F.2d 15
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LIPMAN BROTHERS, INC., et al., Respondents.
• Court: U.S. Court of Appeals — First Circuit

355 F.2d 15 (1966)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LIPMAN BROTHERS, INC., et al., Respondents.

No. 6526.

United States Court of Appeals First Circuit.

Heard December 6, 1965.

Decided January 21, 1966.

Anthony J. Obadal, Atty., with whom Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Solomon I. Hirsh, Atty., N.L.R.B., Washington, D. C., were on brief, for petitioner.

Murray Brown, Boston, Mass., with whom William F. Joy and Morgan, Brown, Kearns & Joy, Boston, Mass., were on brief, for respondents.

Before ALDRICH, Chief Judge, and McENTEE and COFFIN, Circuit Judges.

McENTEE, Circuit Judge.

This is a petition brought by the National Labor Relations Board for enforcement of its order issued on June 30, 1964, against the respondent, Lipman Brothers, Inc., et al, following the usual proceedings taken under Section 10(c) of the National Labor Relations Act. The order is based upon the Board's findings¹ that the respondents interfered with, restrained and coerced their employees in violation of Section 8(a)(1) of the Act (29 U.S.C. § 158) by promising benefits to, threatening, interrogating and otherwise harassing said employees because of their union activities; that the respondents violated Sections 8(a) (3) and (1) of the Act in that, acting under various pretexts, they suspended three and discharged four other employees² for engaging in union activities and that in addition the respondents discriminatorily discharged one of said employees (Levasseur) in violation of Section 8(a)(4) of the Act because he testified in favor of the union at the Labor Board hearing.

The respondents are resisting enforcement of the Board's order on only two grounds: (1) The Board's findings that the discharge of Gilbert, Duplessis, Bolduc and Levasseur violated the Act were not based upon substantial evidence in the record taken as a whole, and (2) the scope of the Board's order is too broad in that it should not have been issued against all the respondents.³

The evidence upon which the Board's findings are based may be summarized as follows. Respondents are engaged in the business of raising, processing and selling poultry.⁴ In mid-July of 1962 the union⁵ began a campaign to organize respondents' employees at its Augusta plant and appointed an eleven man employee organizing committee. From the latter part of July until the election which was held on September 20 and 21, the union conducted an intensive membership campaign. It was during this period that three of the four employees who are the subject of this proceeding were discharged. The fourth employee (Levasseur) was discharged on February 4, 1963, shortly after he had testified at a hearing before the trial examiner in this case. The events relating to said discharges are these.

1. SIMON GILBERT.

This employee was fired on August 6, 1962. He was a very active member of the union organizing committee which had only recently been appointed, had actively solicited his co-workers to join the union and secured signed authorization cards from thirty-five to forty fellow employees. On two occasions within two weeks prior to his discharge, he distributed handbills and union literature in front of respondents' Augusta plant. There is evidence that on both of these occasions his activities were observed by the management.

Gilbert's duties required him to work at a trough where running water was sprayed from a pipe for use in the eviscerating process. On the morning of August 6th the water was running too rapidly and failing to find some pliers, he used a pair of poultry shears, known as neckcutters, to adjust the flow. In doing so, the cutting blade on the shears was damaged. Immediately thereafter Gilbert was ordered to the foreman's office and was summarily dismissed for having misused the shears.⁶ There was testimony that other workers, including the floorlady, had occasionally used shears to turn down the water. Also there was testimony that prior to this time two bosses saw Gilbert use neckcutters to reduce the water flow and did not complain; that Gilbert was a good worker and in view of this was assigned to work at various jobs in the plant wherever and whenever he was needed. On the day after Gilbert's discharge, Roger Lavallee, a fellow employee in the same room and also a member of the union organizing committee, received the following warning from the assistant foreman, "Draw your birds right, or you are going to get fired. You're next on the list. * * * We fired one yesterday."

The respondents sought to justify this discharge on the ground that Gilbert in adjusting the water flow, disobeyed company instructions and in misusing and damaging the neckcutters, violated a posted company rule.

2. ROBERT G. DUPLESSIS.

Duplessis was discharged on August 29, 1962, after being employed by the respondents for more than three years. He was a good worker, never had been a disciplinary problem and on occasion had been complimented for his work. He worked on a processing line in the eviscerating room.

Duplessis was chairman of the union organizing committee and was very active in the union campaign. He obtained between thirty-five and forty signed authorization cards from fellow employees. Respondents were aware of this effort and also of his activity in distributing union literature at the plant entrances. On the day of his discharge Duplessis needed to attract the attention of a co-worker, one Mary Tuttle, who was stationed a few feet away from him in the line. In doing so, he reached over and nudged Tuttle's boot with his foot. Thereupon she turned to Duplessis and said "Just because you're in the Union, that doesn't mean you can boss everybody on the line." Nothing more was said. Shortly thereafter, Duplessis was ordered to report to the main office where he found his bosses talking with three policemen. The policemen escorted Duplessis into a private office and first asked him if he had signed a union card. After answering that he had, he was asked whether he had kicked employee Tuttle. This he denied and said that he had only nudged her. Tuttle confirmed the fact that Duplessis had only nudged her, and when asked whether she cared to press charges, declined to do so. Later she was again asked if she wanted to press charges and again she declined. Thereupon Frank Lipman⁷ conferred with Tuttle alone in his office and when they emerged, Lipman announced, "We'll press charges."⁸ He then told Duplessis he was discharged.

The respondents contend that Duplessis was discharged for violating a company policy that any employee involved in a fight while on duty is subject to immediate dismissal, and cited instances where this policy had been enforced.

3. CHARLES BOLDUC.

Bolduc, a four year employee, was also an active supporter of the union's campaign to organize the plant. He approached about one hundred of his co-workers to join the union and secured about thirty-five signed authorization cards. He was also a member of the union's bargaining committee and his union activities were a matter of common knowledge in the Augusta plant.

It was Bolduc's testimony that on the day he returned from his vacation in late July his foreman said to him, "I hear you are a Union man." He replied that he was and according to Bolduc his troubles at the plant then began. That morning he was told by his foreman that his job of releasing birds⁹ was discontinued. In assigning him to a more arduous job, the foreman commented, "You have had it easy enough around here long enough. You're going to do some work." On this job he was required to work in a very hot, uncomfortable room and when he complained about this and mentioned his seniority, the foreman replied, "The Union isn't in here * * * there is no seniority."¹⁰ During the six weeks that followed Bolduc was transferred again and again, each time to a job requiring a great deal of tiring effort. Bolduc testified that on his first day of his last re-assignment, the foreman remained close by and frequently criticized his work in a loud, profane manner. That evening Bolduc obtained a statement from his doctor that he was under treatment for coronary insufficiency and should not be required to perform any strenuous work. This statement was presented to the company nurse when he reported for work the next morning.

During the morning Bolduc requested a fellow employee to relieve him while he went a short distance to get a drink of water. The foreman observed this and immediately ordered him back to his job, declaring to the fellow employee that Bolduc was a "union agitator and that he was going to see that he did some work." Later that morning, Bolduc was called to the main office where he was questioned about his heart condition. While there, Frank Lipman commented, "I hear you made quite a speech at the union meeting." In answer to questions regarding his heart condition, Bolduc explained that his heart had not bothered him on his old job, and it was not until he had been given strenuous work that he had difficulty. Bolduc was then given the rest of the day off with pay.

The evidence shows that after this meeting Bernard Lipman phoned Bolduc's doctor who told him that Bolduc should be given "light work." Lipman asked if a night watchman's job would be suitable and the doctor replied that this was the type of job he should have. The next day, August 14, Lipman offered Bolduc a night watchman's job at respondents' grain mill which was located several miles away. Bolduc objected to being assigned to solitary night work so far away and requested his old job back, but Lipman replied that this was the only available work which was suitable for him. Bolduc refused the night watchman's job and thereupon was given his final pay check. The respondents testified that Bolduc was not fired but that he quit voluntarily when offered the watchman's job.

4. LEO...