NLRB v. Lyman Printing Co.

• Decision Date: 28 February 1966
• Docket Number: No. 10050.,10050.
• Citation: 356 F.2d 844
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LYMAN PRINTING CO., Inc., Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

356 F.2d 844 (1966)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LYMAN PRINTING CO., Inc., Respondent.

No. 10050.

United States Court of Appeals Fourth Circuit.

Argued December 10, 1965.

Decided February 28, 1966.

Morton Namrow, Atty., National Labor Relations Board (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Elliott Moore, Atty., National Labor Relations Board, on brief), for petitioner.

J. W. Alexander, Jr., Charlotte, N. C. (Ernest W. Machen, Jr., and Blakeney, Alexander & Machen, Charlotte, N. C., on brief), for respondent.

Before HAYNSWORTH, Chief Judge, and BRYAN and BELL, Circuit Judges.

ALBERT V. BRYAN, Circuit Judge:

The National Labor Relations Board prays enforcement of its order finding Lyman Printing & Finishing Company guilty of unfair labor practices as defined in section 8(a) (1) and (3) of the National Labor Relations Act, directing desistence in the future and requiring immediate reinstatement of six discharged employees. 150 NLRB No. 66, December 30, 1964; 29 U.S.C. 158(a) (1) and (3). Resisting, the company denies the existence of the requisite evidential foundation for the decision. Our task is to measure the proof against the standard of substantial evidence "on the record considered as a whole." Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

The section 8(a) (1) violations — unfair interference, restraint and coercion — consist of a mailed and posted warning to the employees of serious harms from unionization and the interrogation of the employees in regard to union activities; the section 8(a) (3) and (1) breaches are the allegedly discriminatory discharges of six employees because of union affiliation. These are the findings of the examiner; all of them were adopted by the Board.

Lyman's response is that the warning notice was protected by section 8(c) — allowing freedom of expression — and that the questioning was solely to ascertain if employees were engaging in union membership solicitation during working hours. The company categorically disavows discrimination in the discharges. It insists that all of these releases were due to infractions of non-discriminatory company rules against such solicitation and forbidding employees to roam about the plant away from their stations, or were due to poor workmanship and attitudes.

Lyman, incorporated and located in South Carolina, processes, finishes and manufactures cotton and synthetic textile products. There are 2000 employees in the finishing department, with which this case is concerned, and 3000 throughout the entire plant. In August 1963 the Textile Workers Union of America, AFL-CIO, commenced the organization of Lyman's employees with an initial meeting on Sunday, August 18, 1963.

The mailed and posted notice contained the following paragraph:

"(1) Whether this Union shall come in at Lyman is, of course, a subject of concern to this Company. It is equally, however, a matter of serious concern to you, and our sincere belief is that if this Union were to get in here, it would not work to your benefit, but, in the long run, would itself operate to your serious harm."

Nothing in this wording do we find to exceed the bounds of section 8(c) granting an employer the right to express and disseminate its views on unionization. There is no threat or promise. The statement is not what the employer would do, but what the union would do if it entered the plant. A like publication was declared unobjectionable in Wellington Mill Division, etc. v. NLRB, 330 F.2d 579, 583 (4 Cir. 1964).

Coercive interrogation is listed by the examiner. The day following the organizational meeting, Overseer Langston, a supervisor, asked employee Owens whether he had attended the meeting and how many of "our boys were there". At the same time he passed to Owens newspaper excerpts to the effect that the CIO had furnished funds to obtain bail bonds for the "Freedom Riders" participating in racial protestations. Owens was requested to let the other employees read these clippings. Thereafter another foreman asked Owens if he had any union cards and, receiving an affirmative response, asked to see one.

The reference to CIO interest in the "Freedom Riders" was irrelevant and regrettable. However, it was but a minim of anti-union incitement, particularly as it is shown as an approach to only one employee out of 2000 or 3000. Certainly the inquiry as to the possession of union cards was harmless.

Another incident the examiner relies upon was a question by Second Hand Daniels, a supervisor, directed to employee Carlisle asking him to corroborate Daniels' retailed information that employee Williams had offered Carlisle a union card. The query was repeated by another supervisor, Overseer Hemply, the next day in a telephone call to Carlisle. Obviously, the purpose was to ascertain if Williams was recruiting for the union on company time. These inquiries do not mount to the gravity of pressure comprehended in the idea of interference, restraint or coercion.

A third episode was when Overseer Harris met employee Ward at a local launderette. He asked Ward about union advocacy during the second shift of work at the plant. Harris mentioned two or three men, and Ward verified them as attending union meetings or "talking union" in the shop. Ward was also asked if employee Owens, heretofore mentioned, had requested him to sign a union card. This approach by Owens was admitted by Ward, and Harris then urged Ward to sign a statement to that effect, explaining that he wanted to discharge Owens. Upon Ward's refusal, Harris asked Ward to follow him home because a wheel on his car was in disrepair. On reaching Harris' home he offered Ward $20 if he would sign the statement. In our judgment Harris' persistence was an impermissible importunity, but as a lone event of this kind it was hardly enough to convict the company of an 8(a) (1) offense.

The discharges comprising the discrimination were of the following employees: J. L. Johnson, R. W. Foster, James V. Shelton, Clara Mae Farmer, Defoix Campbell and Lee Barnett. All of them except Barnett's occurred on August 20, 1963 — two days after the organizational meeting — and Lee Barnett's was on September 12, 1963. The evidence in respect to each of them will be recounted seriatim in the light most favorable to the conclusions of the examiner.

J. L. Johnson was discharged for soliciting union cards during his shift and in this manner hindering other employees in their work. Having signed a card at the union meeting on August 18, 1963, he brought a number of blank cards to the plant on the night shift August 19. Johnson denied the distribution of any cards at that time. He was discharged when he came to work the next night. His testimony is, and the examiner finds, that the only card he released was to employee Burdette and that he did not leave his place of work during the shift. Burdette, he says, came to him three times and insisted on having a union card. Johnson maintains he declined each time but finally directed Burdette to get one out of Johnson's lunch box.

Against this testimony is, first, that of Burdette. He states that Johnson came to his work location, about 150 feet from his own, several times that night, insisting that Burdette sign a card and finally thrusting one into Burdette's pocket with a threat of physical violence if he did not sign it. Second Hand McGowan, one of Johnson's supervisors, testified that on the night in question he saw Johnson away from his job conversing with others six or eight times. McGowan had no authority to fire, and accordingly did nothing more than report this conduct to his supervisor, Brock, the next day. Brock fired Johnson immediately. Employee Campbell testified that on this shift Johnson had come over to Campbell's machine and solicited his union membership. He also noticed Johnson away from his work talking to others on the same shift.

Johnson made oath before the South Carolina Employment Security Commission that he had never engaged in any union solicitation whatever. Before the examiner he testified positively that he did engage in union activities, that he had taken some of the blank cards brought from the union meeting on August 18 to the plant and "got some of them signed" the next day.

In these circumstances we do not see how the examiner could discard the testimony of McGowan, Burdette and Campbell in favor of Johnson's word. The record hardly warrants the examiner's finding that Johnson's discharge was because of union interest.

R. W. Foster signed a union card on August 19 the day after the organizational meeting, at his machine in the plant. The next night he was discharged for walking about and disturbing others at work. Employee Douglas Farmer reported that Foster on the night of August 19, 1963 approached him in his department and solicited him for union membership. Foster, however, says that Farmer came to his machine. Farmer embodied these facts in a written statement prepared by the company on receiving his report. After...