NLRB v. Lou De Young's Market Basket, Inc.

• Decision Date: 17 January 1969
• Docket Number: No. 18160.,18160.
• Citation: 406 F.2d 17
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOU De YOUNG'S MARKET BASKET, INC., Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

406 F.2d 17 (1969)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOU De YOUNG'S MARKET BASKET, INC., Respondent.

No. 18160.

United States Court of Appeals Sixth Circuit.

January 17, 1969.

COPYRIGHT MATERIAL OMITTED

Herbert Fishgold, Atty., N.L.R.B., Washington, D. C., for petitioner; Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Allison M. Brown, Jr., Peter M. Giesey, Attys., N.L.R.B., Washington, D. C., on brief.

Eugene Alkema, Grand Rapids, Mich., for respondent; Varnum, Riddering, Wierengo & Christenson, Gary P. Skinner, Grand Rapids, Mich., on brief.

Before PHILLIPS, EDWARDS and CELEBREZZE, Circuit Judges.

CELEBREZZE, Circuit Judge.

Pursuant to Section 10(e) of the National Labor Relations Act, 29 U.S.C. § 151 et seq., the Board seeks enforcement of its order of June 21, 1966, directing Respondent Lou De Young's Market Basket, Inc., to bargain with Local 20, Retail Clerks International Association, AFL-CIO on request as the exclusive representative of the employees of Respondent's Grand Rapids, Michigan store. In addition to the bargaining order, the Board directed Respondent to cease and desist from certain unfair labor practices in violation of Section 8(a) (1) of the Act; to reinstate with back pay three employees discharged in violation of Section 8(a) (3) and (1) of the Act; and to post the usual notices. Jurisdiction is admitted.¹

Respondent is a Michigan corporation. Its sole stockholders, De Young and Wedgwood, manage the Grand Rapids store and another store that Respondent owns in Holland, Michigan. The Union, which began its organizational campaign on December 8, 1964, limited all of its efforts to the Grand Rapids store and successfully obtained valid authorization cards from a majority of that store's employees. When Respondent refused to recognize it, the Union filed unfair labor practice charges. The Board based its order on these events:

On December 7, 1964, Union Representative Vander Werff gave employee Wassen several Union authorization cards. Wassen divided them among some other employees, including Breedlove and Boosamra. On December 8th, Boosamra procured about ten signatures, obtained additional cards, and returned to the store to solicit more signatures. On the same day, Wedgwood and De Young began an antiunion campaign consisting of threats, surveillance, and interrogation. The Board found that this conduct violated Section 8(a) (1) of the Act.² Although Respondent does not seriously disagree with these findings, it challenges the Board's conclusion that these violations were substantial, preferring instead to characterize them as slight or "technical" infractions. This contention will be dealt with more fully in connection with our discussion of the Board's bargaining order. Finding substantial evidence in the record as a whole to support the Board's findings as to the foregoing violations, we grant enforcement of the Board's order respecting them.

BOOSAMRA'S DISCHARGE:

On December 9th, while Boosamra was talking with two other employees, De Young walked in and summoned him to the loading dock in the rear of the store. De Young told Boosamra that he was out of a job and handed Boosamra's time card to an office employee with instructions to write out his check. After telling Boosamra to leave by a side door, De Young exclaimed, "that was just the beginning and there would be more."

Respondent urges that Boosamra was discharged for cause related to economic reasons: business had fallen off considerably and Respondent was taking corresponding steps to reduce its labor costs. Since Boosamra had been warned in the past about "goofing off", his discharge was essentially "just the beginning" of Respondent's attempts to align its labor force with the economic realities facing it.

Respondent's contention, however, is not borne out by the record. During the unfair labor practice hearing the following colloquy took place between the Board's counsel and De Young:

"Q. Now, Mr. DeYoung, you testified, as I recall that as a result of business slump your employment complement was away out of line with the volume of business you were doing, is that correct? A. Yes.

"Q. And consequently you were in the process of cutting back the number of employees. Is that correct? A. Yes.

"Q. But this had nothing to do with the discharge of Boosamra, is that your testimony? A. I fired Boosamra.

"Trial Examiner: I beg your pardon?

"The Witness: Boosamra was discharged for his activities."

The Trial Examiner concluded that Boosamra's "unsatisfactory activities," were his support for the Union and that this prompted his discharge by Respondent in violation of Section 8(a) (3) of the Act. The Board agreed and ordered Boosamra's reinstatement with back pay. We enforce the Board's order.

BREEDLOVE AND ALBIN'S DISCHARGES:

On December 10th, Breedlove solicited employees during working hours. He was observed by Wedgwood. As Breedlove prepared to leave for the day, Wedgwood approached him and warned Breedlove that he was neglecting his work and not to spend working time on "outside activities." Breedlove asked if Wedgwood meant union activities, and if this was an ultimatum. Wedgwood gave affirmative answers to both questions.

The next day, Breedlove and Albin asked their supervisor if they could see Wedgwood. They entered Wedgwood's office together and Wedgwood asked what they wanted. Breedlove replied that he and Albin were "100 percent for the Union." Wedgwood asked why they were telling him something he already knew; Breedlove said that he felt it was his duty. Wedgwood asked Albin if he felt the same way; Albin said he did. Wedgwood then reminded Breedlove about the warning he had given him. At this point De Young walked in, he and Wedgwood exchanged glances, and Wedgwood, "threw up his hands" and told Breedlove and Albin to "go punch out."

The Trial Examiner found no violation of Section 8(a) (3) of the Act in Respondent's discharge of Breedlove and Albin: "I find that it was the extent of Breedlove's activity when he should have been working, not * * * his support of the Union which prompted the discharge." The Board, however, disagreed:

"In this context of vigorous antiunionism we conclude that Wedgwood\'s discharge of Breedlove and Albin * * * was in furtherance of the Respondent\'s effort to stop the union campaign by coercive measures, and not merely because he considered that their brief, excused absence from their work stations and the announcement to him of their union support amounted to insubordination. Their declaration of sympathy and support for the Union, made to Wedgwood at a time when he and De Young were intent upon blocking the Union, we find was the real motivation for the discharges, thereby constituting those discharges a violation of Section 8(a) (3)."

The "context" of Breedlove and Albin's discharges, according to the Board, consisted of Respondent's numerous unfair labor practices — the threats, interrogations, and surveillance; Boosamra's unlawful discharge; and a further finding that Wedgwood's ultimatum to Breedlove was an invalid no-union solicitation rule.

Respondent urges, on the other hand, that Breedlove and Albin were fired for neglect of work — "for a particularly brazen and provocative neglect of duties done in the face of a specific warning against it."

Neglect of work is of course good cause for discharge, and a context of vigorous antiunionism does not transmute such neglect into protected activity. Yet if Wedgwood's aim in discharging Breedlove and Albin was to strike at the Union, the discharges would be unlawful even if Wedgwood had cause to discharge them. N.L.R.B. v. Challenge Cook Bros., 374 F.2d 147 (6th Cir. 1967); N.L.R.B. v. Mid-West Towel & Linen Service, Inc., 339 F.2d 958 (7th Cir. 1964). The Board, not the courts, has the delicate task of divining an employer's motives from the confusion generated when spirited organizational activity clashes with comparable efforts to eliminate it. N.L.R.B. v. Bersted Mfg. Co., 124 F.2d 409 (6th Cir. 1942). Consequently, we must defer to the Board's construction of Wedgwood's motives if there is substantial evidence in the record as a whole to support that construction. Universal Camera Corp. v. N.L.R. B., 340 U.S. 474, 17 S.Ct. 456, 95 L.Ed. 456 (1950); N.L.R.B. v. Power Equipment Co., 313 F.2d 438 (6th Cir. 1963). The fact that the Trial Examiner disagreed with the Board's conclusion does not alter our search for substantial evidence since the Board may, without consequence, reject the recommendations of its Trial Examiners. Universal Camera Corp., supra; Joy Silk Mills v. N.L.R.B., 87 U.S.App.D.C. 360, 185 F.2d 732 (1950), cert. denied, 341 U.S. 914, 71 S.Ct. 734, 95 L.Ed. 1350.

Wedgwood's warning of December 10th to Breedlove was, as the Board concluded, an invalid rule against union solicitation and a violation of Section 8(a) (1) of the Act. Its invalidity rested on the fact that other kinds of solicitation flourished during working hours.³ Although an employer may lawfully restrict solicitation on working time, he cannot discriminate against union solicitation. See National Labor Relations Board v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975; TRW, Inc. v. N.L.R.B., 393 F.2d 771 (6th Cir. 1968). Wedgwood's warning, insofar as it amounted to an unfair labor practice, indicates Respondent's improper motive in discharging Breedlove. N.L.R.B. v. Bersted, 124 F.2d 409 (6th Cir. 1942).

In further support of the Board's conclusion that Respondent discharged Breedlove and Albin for their union sentiment is the fact that Albin had never been warned. Since Wedgwood discharged Breedlove and Albin as one, the Board could rightly conclude that their simultaneous declaration of union support, made in the context of Respondent's antiunion activity and at a time when union activities were on Wedgwood's mind, triggered the...