NLRB v. Milco, Inc., No. 108

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: WATERMAN, MOORE and HAYS, Circuit
• Citation: 388 F.2d 133
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MILCO, INC., Tod Manufacturing Company, Inc., and Allan Marine Division of Jervis Corp., Respondents.
• Docket Number: No. 108,109,Dockets 31412,31418.
• Decision Date: 02 January 1968

388 F.2d 133 (1968)

NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
MILCO, INC., Tod Manufacturing Company, Inc., and Allan Marine Division of Jervis Corp., Respondents.

Nos. 108, 109, Dockets 31412, 31418.

United States Court of Appeals Second Circuit.

Argued October 19, 1967.

Decided January 2, 1968.

388 F.2d 134

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388 F.2d 135

Corinna Lothar Metcalf, Atty., NLRB; Arnold Ordman, General Counsel; Dominick L. Manoli, Assoc. Gen. Counsel; Marcel Mallet-Prevost, Asst. Gen. Counsel; Gary Green, Attorney, NLRB, for petitioner

Harry H. Rains, Bertrand B. Pogrebin, Mineola, N. Y., for respondents.

Before WATERMAN, MOORE and HAYS, Circuit Judges.

WATERMAN, Circuit Judge:

The National Labor Relations Board, having found that respondents had engaged in unfair labor practices in violation of § 8(a) (1) and § 8(a) (3) of the National Labor Relations Act, 29 U.S. C. §§ 158(a) (1) and 8(a) (3), petitions for enforcement of its order, 159 N.L.R. B. No. 76. The Board found that the respondents had violated Section 8(a) (1) by threatening plant closure or removal if the employees selected a bargaining representative and by coercively interrogating employees about the union; and that they had violated Section 8(a) (1) and 8(a) (3) of the Act by discharging an employee, one Ronald Thorpe, because of his union activities, and by refusing to reinstate and make whole fifteen employees who struck to protest the discharge of Thorpe. The respondents were ordered to cease and desist from such unlawful threats and interrogation, and to offer full reinstatement to Thorpe and the fifteen strikers. On the Board's petition to enforce that order we must ascertain whether the record "clearly precludes the Board's decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both." Universal Camera Corp. v. NLRB, 340 U.S. 474, 490, 71 S. Ct. 456, 466, 95 L.Ed. 456 (1951). We hold that, though triers of fact may well have drawn different inferences from the inferences drawn here, there is substantial evidence in the record considered as a whole to support the Board's findings, and accordingly we direct enforcement of its order.

The respondents are affiliated companies with common ownership and management, and a uniform labor policy. They have a common facility in Hicksville, New York, where they are engaged in the manufacture and sale of marine and aircraft parts and related products. In December of 1964 the union, Processing and Fabricating Workers Union, Local 321, National Organization of Trade Unions, initiated an organizing campaign at the plant. The union solicited support among the employees by distributing leaflets and by direct appeals by the organizers who stationed themselves at the driveway to the plant and spoke to the employees when they were entering or leaving the facility. The examiner found that the companies opposed the organizational efforts and attempted to influence the employees against choosing a bargaining agent by devices that included speeches and letters, as well as by a request made of all foremen to ascertain each employee's position on the question of representation and to influence the employees to vote against the union.

During the course of the election campaign there was the inevitable speculation about the likely result, and about the consequences of a union victory. The evidence indicated that the possibility of plant closure, or removal from Hicksville, was a general topic of conversation. One week before the election Foreman Torriere asked employee Doce what Doce's opinion was concerning the union situation. Doce replied to the effect that the election seemed close, and Torriere stated that if the union won "there will be lots of trouble and layoffs and perhaps the company would close out and will move this company. * * * I don't know what the old man might do."

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There was also evidence that the General Manager, Rienzo, had asked one employee, Cocheo, how Cocheo felt about the union situation, and Cocheo replied that he thought more people were for the union than the company thought. It was testified, too, that on another occasion Rienzo asked employee Kuke if she "knew how to vote." She said she did, and Rienzo indicated to her his belief that the employees did not need a union. He invited her to come to his office if she did not know how to vote. In mid-March before the holding of the election Foreman Sobeck asked employee Thorpe what Thorpe thought of the union. Thorpe, although an ardent unionist, evaded the question. After the election Sobeck and Thorpe talked again; this time Sobeck expressed surprise at the extent of union support and challenged Thorpe to deny that he had supported the union. On this occasion Thorpe acknowledged that he had voted for the union.

The election was held on April 7, 1965. An initial tally indicated that the union had won, but after there had been hearings on challenges a revised tally, which finally issued on January 12, 1966, showed that the union had not won but had lost. On April 22, 1965, fifteen days after the election, employee Thorpe was absent from work. The testimony was that he had asked another employee, Haist, to report him sick, but Haist had not done so, Haist claiming he was unable to find the nurse who had the responsibility for keeping the attendance records. Later that day Foreman Sobeck asked Haist about Thorpe's absence and Haist told him that Thorpe was home ill. That afternoon Thorpe was called by the Personnel Manager, Reardon, and she told him he was being discharged for failure to call in sick for that day. The asserted ground for the discharge was subsequently changed from that ground, and, when changed, was based upon Thorpe's record of absenteeism and the alleged delivery to and receipt by him of two prior warnings about his absence from work. Thorpe's absentee record was, indeed, a bad one; it amounted to nine days on seven occasions in the few months after his return to the company in December 1964. It was, however, subsequently proved that warning slips were never delivered to Thorpe and that the warning slips allegedly delivered were fabricated after he was discharged.

Thorpe was denied reinstatement by the company. He got a new job where he received more pay than he received from respondents. Some time later, however, on June 6 or 7, he was contacted by the union organizer who told him that a strike was scheduled for June 10 to protest his discharge. On that day eight employees, joined by Thorpe, were on the picket line, and by the end of the strike on July 14 sixteen employees were involved. On July 14 fifteen of the strikers requested and were refused reinstatement. Four were subsequently rehired, but were not reinstated to their former places on the seniority list, and as "new employees" they suffered a loss of employment benefits, including paid holidays, sick leave, and rights to participate in profit-sharing plans, accruing to older employees.

On these facts the Trial Examiner found violations of Sections 8(a) (1) and 8(a) (3) of the Act, and the Board adopted her proposed order, which it now seeks to enforce. We will discuss separately the various practices found unlawful.

I. Threats of Plant Closure or Removal.

The finding that respondent violated § 8(a) (1) of the Act by threatening to close or move the plant in the event of a union victory in the election is primarily based on the statement made by Foreman Torriere to employee Doce. Although Torriere denied making the statement, the Trial Examiner found Doce to be the more forthright witness and believed his testimony rather than that of Torriere. The issue was thus essentially one of credibility, "an issue for the Trial Examiner and the Board to resolve." E. g., Mak-All Mfg. Inc. v. NLRB, 331 F.2d 404, 405 (2 Cir. 1964). There was evidence of general talk about

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a possible closing or removal of the plant, but Torriere's statement, if believed to have been a threat, was unlawful whether it initiated the talk or merely added to the ferment. This case points up that unless employers are prepared to have inferences adverse to them drawn from the activities of their supervisors they must take care to instruct their supervisors not to engage in idle gossip of this sort and not to act so as to feed the flames of such rumors during a representative campaign. It may well be that Torriere had no intention of threatening or intimidating Doce, but the effect of his statement determines the consequences of his act, and the administrative tribunal found that the statement was of the sort that might have inhibiting effects and was therefore an unfair labor practice

II. Interrogation of Employees.

In evaluating questions arising from the interrogation of employees, the issue is whether the activity is "calculated to frustrate the union's organization campaign by installing fear of reprisals in the employees." NLRB v. L. E. Farrell Company, 360 F.2d 205, 207 (2 Cir. 1966). Where, as here, there is no explicit threat, interrogation is lawful unless the circumstances indicate that...