NLRB v. Mayrath Company

• Decision Date: 27 June 1963
• Docket Number: No. 13923.,13923.
• Citation: 319 F.2d 424
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MAYRATH COMPANY, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

319 F.2d 424 (1963)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MAYRATH COMPANY, Respondent.

No. 13923.

United States Court of Appeals Seventh Circuit.

June 27, 1963.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Allison W. Brown, Jr., Atty., N. L. R. B., Washington, D. C., Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Judith Bleich Kahn, Atty., N. L. R. B., for petitioner.

Warren G. Sullivan, Don A. Banta, Chicago, Ill., for respondent; Naphin, Sullivan & Banta, Chicago, Ill., of counsel.

Before DUFFY and CASTLE, Circuit Judges, and MAJOR, Circuit Senior Judge.

DUFFY, Circuit Judge.

The National Labor Relations Board has petitioned this Court for the enforcement of its order issued against respondent on August 31, 1961. The Board's decision and order are reported at 132 NLRB 1628. The respondent is engaged in the State of Illinois in the manufacture of corn and hay elevators and related products.

In his intermediate report issued August 5, 1960, the Trial Examiner found respondent had discriminatorily discharged twelve employees, and had discriminatorily reduced the wages of Wilbur Montavon prior to his discharge. Respondent filed exceptions, and thereafter the Board found that respondent had discriminatorily discharged ten employees thereby violating Section 8(a) (3) (1) of the Act. The Board also found respondent violated Section 8(a) (1) by interfering with, restraining and coercing its employees in the exercise of the rights guaranteed to them by Section 7 of the Act.

In the proceeding now before us, respondent has elected to contest only the findings of fact and conclusions of law of the Board which resulted in the holding that the discharges of employees Harold McGregor, Jesse Lynn Richards, Frank Marrisett and Max Wells were discriminatory, and also the conclusion that Elmer Barnes was not offered reinstatement to substantially equivalent employment.

In May 1958, some of the employees in respondent's plant which was unorganized, signed authorization cards for the United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO (Union). Several union meetings were held. At a meeting held on May 29th, union buttons were distributed and it was decided to wear these buttons to work the following day.

On May 30, a number of employees appeared for work wearing union buttons. Supervisor Claude Olson asked several employees the meaning of the buttons. Employee Cummings replied the employees were trying to organize a union. Olson then asked Cummings why the employees thought they needed a union. Olson also noted that employee Woodrum was wearing a large union button. He asked him whether he was the "ring-leader of the Union." Olson also said it was a "pretty shady deal" to try to bring the union into respondent's plant.

On the same day, Martin Mayrath, the president and treasurer of respondent, went through the plant speaking to employees who wore union buttons. He said to employee Wells, "Get that damn button off or go home." He spoke twice to employee McGregor, the second time asking where his union button was. McGregor replied it was on his hat, and Mayrath said "Get out now." Mayrath then asked supervisor Joe Sims to "find out what was going on."

Sims took a poll of the employees and after each employee's name in a notebook, he recorded such employee's feeling toward the union by marking a "U" next to the names of those who wore union buttons or who stated they were favorable to the union, and an "A" next to the names of those indicating they were against the union.

Sims stated to employee Elmer Barnes who was wearing a button, "I had put you in for a 20 cent raise but you won't get it wearing that damn badge. In fact, if you want to work here you had better take that damn thing away, get rid of it, throw it away."

To employee George West who was also wearing a union button, Sims said that if West wanted to work at respondent's plant he had "better take off the button." West thereafter removed his union button.

Mayrath continued to tour the plant and spoke to about thirteen to fifteen employees about union buttons. He asked a number to take off their buttons or else leave the plant. Some employees did remove the union buttons, but employees Elmer Barnes, Millard Cummings, Charles Tedder, Harold McGregor, Don Woodrum, John Siefkin and Robert Montovan refused to do so. Mayrath then either ordered them to go to the office and pick up their checks or else told them directly that they were "fired."

A short time before employee Siefkin was fired and Siefkin refused to remove the union button as requested by Mayrath, the latter asked Siefkin whether he believed in unions. When Siefkin answered in the affirmative, Mayrath said unions had done some good but had their bad points like "politics and religion." When Mayrath requested Siefkin to reconsider, and Siefkin refused, Mayrath said he had "placed a trust in" Siefkin but the latter had "broken that trust" by joining the union. Mayrath concluded the conversation by saying "I am so mad right now I can't speak to you. You go home, and go home right now." Mayrath added that "No union, nobody was going to tell him how to run his business."

On the same day, Mayrath, in a conversation with employee Cummings, said he did not need a union to tell him how to run the business and he would have to ask Cummings to take off his button or leave. Cummings refused to remove his union button, and left.

On June 2, the next work day after respondent had discharged seven employees, respondent discharged employees Frank Marrisett, Lynn Richards and Max Wells.

On May 30, Sims spoke to Marrisett saying "I see you are wearing one of those buttons." Marrisett replied that he was, and added "I have an extra one, Joe, if you want one." Sims said that he "wasn't wearing the damn thing."

Then, on June 2, as Marrisett was about to start work, production manager Heikes said, "* * * I don't know if there is any use for you to start work, in other words you are fired." Marrisett said "Fired? What is the reason? * * * Is that over the Union?" Heikes answered, "That is exactly right." Heikes then turned to Richards and said "I guess you needn't turn yours on either. You are fired." When Richards asked if it were "over the same thing," Heikes answered in the affirmative.

We have quoted testimony as to the circumstances under which employees other than McGregor, Marrisett, Richards and Wells were terminated. Although the order of the Board is no longer contested as to such other employees, we cannot consider the issues left in the case in a vacuum. Pertinent is our statement in Sunshine Biscuits, Inc. v. National Labor Relations Board, 7 Cir., 274 F.2d 738, 741: "We do not think the evidence relating to * * * discharge can properly be considered in a vacuum, separate and apart from that relating to petitioner's anti-union attitude. * * *"

This is not the kind of case about which employers sometimes complain charging that the Board considers all witnesses on one side as worthy of credence while disbelieving all witnesses on the other. Here, the Board dismissed the complaint as to Robert Stevens, George West and Dallas West. The Board reversed the Trial Examiner's conclusion that Cecil Barnes and Wilbur Montavon had been discriminatorily discharged. The Board reversed the finding of the Trial Examiner with respect to the recommended reinstatement of Cummings, Woodrum, Montavan and Siefkin, concluding that each had been offered reinstatement to substantially equivalent employment.

Under the rights guaranteed by Section 7 of the Act, employees were entitled to wear union buttons as part of a concerted activity to assist the union. Republic Aviation Corp. v. National Labor...