NLRB v. Marsh Supermarkets, Inc.

Citation327 F.2d 109
Decision Date20 December 1963
Docket NumberNo. 14202.,14202.
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. MARSH SUPERMARKETS, INC., Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Marcel Mallet-Prevost, Asst. Gen. Counsel, Harold B. Shore, Atty., National Labor Relations Bd., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Elliott Moore, Atty., National Labor Relations Bd., for petitioner.

William E. Roberts, Robert A. Lichtenauer, Indianapolis, Ind., for respondent.

Before HASTINGS, Chief Judge, and KNOCH and KILEY, Circuit Judges.

KILEY, Circuit Judge.

The Board seeks, under § 10(e) of the National Labor Relations Act,1 enforcement of its cease and desist order against respondent which the Board found guilty of unfair labor practices at its Yorktown and Muncie, Indiana places of employment.

The union2 lost a decertification election at the six Marsh stores in Muncie, and a representation election at its Yorktown warehouse. The union filed objections to the elections and subsequently the Board's General Counsel issued a complaint. The case before us is a consolidation of the issues in the objection and under the complaint.

The Board found that Marsh was guilty of unfair labor practices in violation of § 8(a) (1) of the Act and ordered both the Muncie and Yorktown elections set aside;3 and further found that Marsh had violated §§ 8(a) (3) and 8(a) (1) of the Act by discharging employee Farinella and shortening the regular work hours of employee Wulff during a two week period.4 140 N.L.R.B. 899 (1963). The Board's order was entered in accordance with these findings.

Subsequent to the Board's order of January 28, 1963, a second election was held at Yorktown, on May 23, 1963. The union again lost the election, and the Board certified the result. Because this subsequent election was held and the result certified, respondent contends that portion of the Board's order with respect to its conduct at the Yorktown election of April 21, 1962, is moot. It relies on General Engineering, Inc. v. N.L.R.B., 311 F.2d 570 (9th Cir. 1962).

We are not persuaded that we should follow the General Engineering decision which relied solely upon statements in N. L. R. B. v. Jones & Laughlin Steel Corp., 331 U.S. 416, 428, 67 S.Ct. 1274, 91 L.Ed. 1575 (1947). Those statements beg the question of mootness and are concerned with procedure.

When the Board finds that unfair labor practices have been committed, it is entitled to have its order enforced by the courts to prevent repetition of that unlawful conduct in the future. Neither compliance with the Board's order, N.L.R.B. v. Mexia Textile Mills, Inc., 339 U.S. 563, 567, 70 S.Ct. 833, 94 L.Ed. 1067 (1950), nor a subsequent certification of the union as bargaining representative, N. L. R. B. v. Pennsylvania Greyhound Lines, Inc., 303 U.S. 261, 58 S.Ct. 571, 82 L.Ed. 831 (1938), renders the cause moot.

In a factual situation close to the one at bar, the Second Circuit in N. L. R. B. v. Clark Bros. Co., 163 F.2d 373 (2d Cir. 1947), decided that the holding of a second election, as ordered by the Board, and the certification of an independent association as bargaining representative, did not render moot the question whether the company's conduct in the original election violated the Act. The court said, 163 F.2d at 375, "The CIO will doubtless continue its organizational efforts and may hereafter petition for another election. If the court makes no decision as to respondent's former conduct, it may then be repeated; hence a decision as to its legality will not be a futile exercise of jurisdiction."

In the case before us if the Board's order is justified, it is entitled to have it enforced as a means of insuring that in future elections the conduct may not be repeated. We conclude the Yorktown questions are not moot.

To support its conclusion that Marsh violated § 8(a) (1) at both Yorktown and Muncie, the Board found speeches of Marsh's officials to employees at Muncie and Yorktown contained threats of loss of benefit and economic reprisal.5 The statements found to have been made are that "if a union got in and we started negotiations * * *, everything would be wiped clean," and that the employees would lose some benefits, especially the existing vacation plan, and would have to "start from scratch."

The Board relied on its decision in Dal-Tex Optical Co., 137 N.L.R.B. 1782 (1962). Respondent relies upon the Board's decision in Universal Producing Co., 123 N.L.R.B. 548 (1959). The "only specific language in the speech" in Universal is short of, and the language used by the "Employer's president" in Dal-Tex went farther than, that before us. We cannot say the Board erred in concluding that the statements of respondent's official — which, in our view, fall between those in Universal and Dal-Tex — were not protected by § 8(c) and that they violated § 8(a) (1) of the Act. The Board could have reasonably inferred that the "listener-employees" took the statements as threats of loss of benefits and of economic reprisal. Hendrix Mfg. Co. v. N. L. R. B., 321 F.2d 100, 104 (5th Cir. 1963).

We think there is substantial evidence on the record as a whole to support the Board's finding that Marsh's conduct interfered with, restrained and coerced its employees in violation of § 8(a) (1) of the Act, and that as a result both elections must be set aside.

There was substantial evidence also on the record as a whole to support the Board's findings that a "carry-out boy" was asked by a "district supervisor" whether he had any problems with which he needed help, or any questions about the election, and if he was "going to make the right vote;" that another employee was told that if the union was rejected she would have the benefit of less night work; and that employee Wulff was impliedly threatened with discharge for union activity through the profane and abusive language of Marsh's supervisor, Franklin, suggesting that she quit. The conclusion that such conduct violates § 8(a) (1) of the Act is not contrary to law.

These actions were not isolated from the totality of respondent's conduct, which according to the justified findings was not "a fair and friendly attitude...

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  • General Electric Co., Battery Prod., Cap. Dept. v. NLRB
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • October 28, 1968
    ...activity occurred prior, during, and after the October, 1963, election which was won by the union. And see NLRB v. Marsh Supermarkets, Inc., 7 Cir. 1963, 327 F.2d 109, 110-111, which questions the General Engineering 3 The Trial Examiner based his conclusions in great part on the Board's ru......
  • Surprenant Manufacturing Company v. N. L RB
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • February 27, 1965
    ...647; N.L.R.B. v. McCatron, 216 F.2d 212, 216, C.A. 9th, cert. denied, 348 U.S. 943, 75 S.Ct. 365, 99 L.Ed. 738; N.L.R.B. v. Marsh Supermarkets, Inc., 327 F.2d 109, 111, C.A. 7th, cert. denied, 377 U.S. 944, 84 S.Ct. 1351, 12 L.Ed.2d 307. In such cases, if the inference or conclusion found b......
  • NLRB v. Clapper's Manufacturing, Inc.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • March 8, 1972
    ...for union activity, see N. L. R. B. v. Barney's Supercenter, Inc., 296 F.2d 91, 94-95 (3rd Cir. 1961); N. L. R. B. v. Marsh Supermarkets, Inc., 327 F.2d 109, 111 (7th Cir. 1963), cert. denied, 377 U.S. 944, 84 S.Ct. 1351, 12 L.Ed.2d 307 (1964), as were the cited statements conveying the imp......
  • Hedstrom Co. v. N.L.R.B.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • July 5, 1977
    ...violative of § 8(a)(1). See, NLRB v. Erie Marine, Div. of Litton Industries, 465 F.2d 104, 106 (3d Cir. 1972); NLRB v. Marsh Supermarkets, Inc., 327 F.2d 109, 111 (7th Cir. 1963), cert. denied, 377 U.S. 944, 84 S.Ct. 1351, 12 L.Ed.2d 307 (1964); NLRB v. Barney's Supercenter, Inc., 296 F.2d ......
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