NLRB v. Louisville Chair Company, 17803.

• Decision Date: 01 December 1967
• Docket Number: No. 17803.,17803.
• Citation: 385 F.2d 922
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOUISVILLE CHAIR COMPANY, Inc., Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

385 F.2d 922 (1967)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOUISVILLE CHAIR COMPANY, Inc., Respondent.

No. 17803.

United States Court of Appeals Sixth Circuit.

December 1, 1967.

George B. Driesen, N. L. R. B., Washington, D. C., for petitioner, Arnold Ordman. Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, J. Richard Theising, Atty., N. L. R. B., Washington, D. C., on the brief.

Martin Raphael, New York City, for intervenor.

James U. Smith, Jr., Louisville, Ky., for respondent, Louis E. Woolery, Louisville, Ky., Stuart Rothman, Washington, D. C., on the brief, Smith & Smith, Louisville, Ky., Royall, Koegel, Rogers & Wells, Washington, D. C., of counsel.

Before EDWARDS, CELEBREZZE and PECK, Circuit Judges.

CELEBREZZE, Circuit Judge.

The National Labor Relations Board brings this petition to enforce its order against Respondent Louisville Chair Company, Inc. United Furniture Workers of America, AFL-CIO, Local 236, was granted permission to intervene. The Board found that in opposing the organization of its workers by Local 236, United Furniture Workers of America, AFL-CIO, the Respondent violated Sections 8(a) (1), (3), and (5) of the Labor Management Relations Act, 29 U.S. C. § 158(a) (1), (3) and (5). The Board ordered¹ the Company to cease its unfair labor practices, to bargain collectively with the Union, to reinstate the striking employees with back pay, and to offer employment with back pay to Joseph E. Sweet, who had been refused employment because of his past Union activities. We grant enforcement of the Board's order.

1) Violations of § 8(a) (1) and (3).

The charge that the Respondent restrained or coerced its employees in the exercise of their right to self-organization in violation of § 8(a) (1) is based upon two incidents. In one a Company foreman, Pry, engaged an employee, Vittitow, in what the Trial Examiner characterized as a "bantering" conversation. In the course of the conversation Pry asked Vittitow how the Union meeting had gone the night before. Vittitow replied that it had gone all right but that he had not seen anything of Pry or his spies there. Pry retorted that "his spies were smart for staying out of the Union and he said anybody involved in the Union would definitely be fired." The Trial Examiner found that Pry did not temper the remark either by additional comment or manner of delivery and, therefore, concluded that Pry's conduct tended to interfere with the free exercise of employees' rights under the Act.

The second incident concerned discriminatory application of a rule against solicitation during working hours. A foreman reported to the Respondent's general superintendent, Wedding, that he had observed an employee, Spencer, showing some Union buttons to other employees during working hours. The following day Wedding went to Spencer's department and stood for about ten minutes on a landing ten feet behind Spencer's work station from which position he observed Spencer showing a Union button, which Spencer was wearing, to Green, a deaf mute employee who worked beside him. Spencer said something to Green similar to "you should be wearing one of these." Green continued to work; Spencer, whose job was to turn sewn chair back covers inside out and to sort them, paused in his work while showing the button to Green and talking to him. Wedding estimated that the incident took no more than fifteen or twenty seconds.

After observing this exchange, Wedding approached Spencer and told him that if he would spend more time on his work and less on Union activity, they would get along better and warned Spencer that if he was caught passing out Union buttons or literature on Company time, he would be discharged. Wedding then told the department foreman to inform him if Spencer engaged in any Union activity whatsoever on Company time. With respect to momentary pauses in work, Wedding testified on cross-examination:

"Q. Was it unusual for an employee regardless of what he does now to take a five second interval between turning backs occasionally?

"A. It would be very unusual for an employee to take five seconds out to engage in Union activity.

"Q. That\'s not my question, Mr. Wedding.

"A. If an employee took five seconds out just to stop for five seconds I wouldn\'t say anything to him, but if he\'s engaged in Union activity he\'s going to get it.

"Q. What if he took ten seconds out just to stop?

"A. I wouldn\'t say anything about that.

"Q. How about twenty, how about a minute?

"A. No. If he\'s engaged in Union activity he would.

"Q. But if he was engaging in Union activity you would toss him right out of the joint?

"A. I might, it all depends. I have warned them, I warn them usually my procedure would be to warn them as in the case with Saul Spencer."

From this testimony it was obvious that the Company permitted momentary pauses in work and that employees were generally free to talk while working, as long as they worked efficiently. Therefore, the Trial Examiner concluded that the only vice Wedding perceived in Spencer's conduct was that the pause and talking were utilized for Union activity; hence, he determined that Wedding's threat of discharge unfairly enforced the Respondent's no solicitation rule.

Respondent's violation of § 8(a) (3) is predicated upon its refusal to employ Joseph E. Sweet because of his Union activity at his previous place of employment. Sweet, upon referral by the State Employment Service, applied for a job at Respondent's factory at the height of the controversy concerning the legality of the representation election. On his application form Sweet listed Huttig Sash & Door Company, Inc., as his last place of employment, and under the heading, "Why did you leave?", he wrote the single word "Discharge." After looking over the application, Miss Ohmann, Respondent's personnel director, asked Sweet why he was discharged by Huttig. When informed that Union trouble had occurred at Huttig and that Sweet was fired because he was fulfilling his duties as a chief steward of the Union,² she told him that she could not hire him because the Respondent was having Union problems too. Other evidence was presented, but the Trial Examiner concluded that the refusal to hire Sweet was based on his Union activity.

Respondent concedes that sufficient evidence was presented to support the Board's findings in these matters. But the Respondent contends on the one hand that the violations of § 8(a) (1) are so minor and trivial as not to warrant the issuance of an order and on the other hand that since Sweet has been reinstated by Huttig an offer of employment to him would be a useless gesture. The Act provides that upon a finding "* * * that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board * * * shall issue and cause to be served on such person an order * *." 29 U.S.C. § 160(c) (emphasis added). In International Woodworkers of America, AFL-CIO Local 3-10 v. N.L.R.B., 380 F.2d 628 (D.C. Cir. 1967), this provision was interpreted as a mandatory requirement that the Board issue an order upon the finding of an unfair labor practice. Whether the provision is mandatory or discretionary, however, we need not decide; for we find that the issuance of an order under the facts of the instant case would not be an abuse of the Board's discretion.

Respondent's reliance upon N.L. R.B. v. Tennessee Coach Company, 191 F.2d 546 (6th Cir. 1951), and Pittsburgh Steamship Company v. N.L.R.B., 180 F.2d 731 (6th Cir. 1950), aff'd 340 U.S. 498, 71 S.Ct. 453, 95 L.Ed. 479 (1951), for the proposition that a remedial order is inappropriate when unlawful remarks by supervisors to employees are of an isolated nature is misplaced. In both of those cases the actions of the employer were held not to be unlawful. Pittsburgh Steamship Company concerned an employer's letter to his employees setting out his position on a representation election. The letter was held not coercive and not a misrepresentation of the facts. Tennessee Coach Company concerned antiunion statements of supervisors, but the Court found that the statements were not accompanied by any threats or coercion. Here the antiunion actions of Respondent's supervisors were accompanied by a threat of discharge, which is one of the most effective means of coercion. On review of the entire record we are satisfied that when these acts are coupled with the Respondent's refusal to hire Union advocates and its continued refusal to bargain with Local 236, enough substantial evidence is presented to justify the issuance of the Board's order as to these matters. Cf. Sheffer Corporation v. N. L. R. B., 380 F.2d 1007 (6th Cir. 1967).

Also Respondent's contention that Sweet's reinstatement by Huttig renders moot the back pay order as to him is not supportable. It seems clear that even compliance with an order does not deprive the Board of its right to a decree enforcing that order. N. L. R. B. v. Mexia Textile Mills, Inc., 339 U.S. 563, 70 S.Ct. 833, 94 L.Ed. 1067 (1960); N. L. R. B. v. Heck's, Inc., 369 F.2d 370 (6th Cir. 1966). Here facts necessary to determine the amount of back pay for which the Respondent is liable were neither raised nor resolved in the proceedings before the Board. Such matters can better be resolved in compliance proceedings. Cf. N. L. R. B. v. Talladega Cotton Factory, 213 F.2d 209, 40 A.L.R.2d 404 (5th Cir. 1954).

2) Violations of § 8(a) (5).

On May 27, 1965, a representation election was held among the Respondent's furniture workers. Local 236 received a majority of the votes cast in the election, but the Respondent raised objections to the conduct of the election and to certain discrepancies in the election. After an administrative investigation, without a hearing, the Regional Director overruled the Respondent's objections and on July 16, 1965, certified Local 236 as the employees' collective bargaining...