NLRB v. Monroe Auto Equipment Co.

• Decision Date: 29 November 1966
• Docket Number: No. 18339.,18339.
• Citation: 368 F.2d 975
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MONROE AUTO EQUIPMENT CO., Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

368 F.2d 975 (1966)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MONROE AUTO EQUIPMENT CO., Respondent.

No. 18339.

United States Court of Appeals Eighth Circuit.

November 29, 1966.

Elliott C. Lichtman, Atty., N. L. R. B., for petitioner; Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Herman M. Levy and Elliott C. Lichtman, Attys., N. L. R. B., were on the brief.

Jerome Schur, Chicago, Ill., for intervenor International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO; Messrs. Harold A. Katz, Irving M. Friedman and Glenn P. Schwartz, Chicago, Ill., were with him on the brief.

John E. Tate, of Nelson, Harding, Acklie, Leonard & Tate, Lincoln, Neb., for respondent; William P. Trusdale, Deines & Trusdale, Cozad, Neb., was with him on the brief.

Before VOGEL, Chief Judge, MATTHES, Circuit Judge, and DUNCAN, Senior District Judge.

DUNCAN, Senior District Judge.

This case is before the court on a petition of the National Labor Relations Board pursuant to Section 10(e) of the National Labor Relations Act, as amended, 61 Stat. 136, 29 U.S.C. Section 151 et seq., for enforcement of its order issued against the Respondent, Monroe Auto Equipment Co., on June 30, 1965. The Board's decision and order are reported in 153 N.L.R.B. 69.

This Court has jurisdiction under Section 10(e) of the Act, the unfair labor practices having occurred at Cozad, Nebraska, where the company is engaged in the manufacture, reconditioning, and wholesale distribution of automobile shock absorbers.

The Board found that the Company violated Sections 8(a) (1) and 8(a) (3) of the Act by discharging employee, Burton Slack, because of his union activities. The Board further found that Company supervisors, by certain remarks and other conduct, interfered with, restrained and coerced employees in their exercise of rights guaranteed by Section 7 of the Act, in violation of Section 8(a) (1).

The International Union of Automotive, Aerospace and Agricultural Implement Workers of America, AFL-CIO, began its organizational efforts at the Company plant, at Cozad, Nebraska, in 1963. In a previous case, reported at 146 N.L.R.B. 1267, the Board found that the Company, at that time, was guilty of violating Section 8(a) (1) of the Act by engaging in an anti-union campaign. The Union's attempt to organize, at that time, was unsuccessful.

The Board's findings, in the present instance, were based upon circumstances which occurred during the months of April, May, and June, 1964.

The dischargee, Burton Slack, had been an employee of the Company since January, 1962. He was discharged on June 4, 1964. It is clear that he was an early supporter of the Union's organizational efforts at the plant and was a member of the plant organizing committee prior to the 1963 election. It is also clear that Slack's propensity toward unionization was well known to the Company management and supervisors. In fact, on May 1, 1964, when the Regional Director held a hearing on the Union's petition for a representation election, Slack and a co-worker, Keith Schmit, appeared on the podium with the Union representatives throughout the proceedings.

At this time, Slack's foreman was Ollie Goa, quality control manager at the plant. Galen Gengenbach, an inspector in Goa's department, testified that on the morning after the aforesaid meeting, foreman Goa commented to him that "both Keith Schmit and Burt Slack, who were representing or supporters of the United Auto Workers, thought they were pretty smart sitting down there with the other union men and (that) he felt like getting up and busting both Keith Schmit and Burt Slack." Gengenbach further testified that during the last week in May, foreman Goa warned him about associating with Slack, admonishing him that "I was a good man and that I shouldn't associate with a no-good union ... ... ...."

Gengenbach also testified that a foreman's desk was located about 25 feet from the area where Slack normally worked. He stated that prior to the aforesaid union meeting of May 1, foreman Goa and plant superintendent Smith came to this location only once or twice an hour, and, then, for only short periods of time.

Slack testified that this practice abruptly changed after the aforesaid meeting, and that during the month of May, and until June 4, when he was discharged, Goa and Smith spent long periods of time at this desk each day, thereby keeping him under almost constant surveillance. Goa denied that his practice, in this connection, varied at all, subsequent to the May 1 union meeting.

Joseph Schenk, who was employed by the Company as an assistant quality control manager from October, 1961, to April, 1964, (prior to the union meeting of May 1, 1964 and Slack's discharge, which occurred on June 4, 1964) gave the following testimony regarding a conversation which occurred at a gathering of some of the plant supervisors, during the last week of March, 1964:

"* * * Gene Peterson and Wayne Fyfe (Company foreman) were talking, one just about as much as the other, about the meeting they had held that day with Mr. Tate in the office, and they were supposed to relay the message to the night foreman and the night superintendent, and in the course of the meeting, Wayne Fyfe and Peterson said that Mr. Tate had said that we were supposed to ignore all union employees as much as possible, just don\'t pay any attention to them unless it was strictly business. He also said that there would never be an election in the Monroe Auto Equipment Company for two reasons, one that as they posted notice of the election, they would go right down the line and start firing union employees, for instance, Burt Slack and Keith Schmit, Bill Kuefelt. That way the UAW would file charges against the company and that would hold the election off again and we would go through this rigmarole that we did the time before, which meant nothing, or if the UAW didn\'t file charges, it would scare the people so bad knowing that Burt and Keith and the other fellows got discharged for union activities, they would be afraid they would get discharged for union activity and they would vote the opposite of what they would vote in the first place."

There are several assembly lines in the plant, each about 300 feet long. Approximately 150 people work on each line, and each has an inspector, whose duty it is to inspect certain tubes before they are placed on the product, at the proper point on the line. Slack was employed as an inspector on one of these lines, and, as heretofore stated, Goa was his supervisor, on the day he was discharged.

On the morning of June 4, 1964, the day of Slack's discharge, operations began, as usual, at 7:00 A.M. At about 8:00 A.M., Slack told his co-worker, Gengenbach, that he was going to leave his line for a few minutes in order to get a doughnut and carton of milk in another part of the plant.

Slack testified that as he was returning to his work station, 5 to 7 minutes later, Goa saw him and called out: "Get the hell down here on the line". When he reached his work station, Slack continued, a material handler gave him a tube to inspect and measure. As he began to do this, Slack stated that Goa returned to the scene and vulgarly declared to him: "Keep your ....... down here on the line. You got all the line shut down." However, Slack testified that, in fact, the line had not shut down, at that time, because of his absence from his work station. When he ascertained this, Slack continued, he said, "Oh b. s." Goa then asked what Slack had said, and Slack repeated this vulgarity. Goa then instructed Slack to come with him and "punch out", and, concluded the encounter, according to Slack, by stating, "I don't have to take b. s. off anybody like you". This version of the encounter between Slack and Goa was corroborated substantially by two other witnesses called on behalf of the General Counsel.

Goa was the only witness called in behalf of the Respondent. He testified that plant manager Fisk had issued instructions to the Company supervisors to stay away from "union pushers" and not get involved with them because the impending union election might be put off.

In connection with the foregoing encounter with Slack, Goa testified that on the morning of June 4, he was in supervisor Fisk's office when Fisk received a phone call from production relating that the assembly line was down and that the inspector (Slack) was not in the area. Upon instruction from Fisk, Goa started toward the production area to find out why the line was down. On the way, he encountered Slack, who had a doughnut and carton of milk in his hand talking to a group of men. Goa testified that he told Slack that he could not leave the production area and had to keep the line going. When he started to walk away, Goa testified that Slack said, "b. s.", and when asked by Goa what he said, he repeated the expression. The following exchange then took place, according to Goa:

Goa: "I don\'t have to take that talk off you."

Slack: "What are you going to do about it?"

Goa: "You are fired".

Slack: "B. S."

Goa: "Come with me."

Slack: "B. S.".

After further conversation of the same nature, Goa testified that he walked away and reported the incident to Mr. Fisk.

Prior to the foregoing encounter, the record reveals that Slack's employment with the Company had been marked by repeated derelictions of duty followed by criticism and, on at least one occasion, disciplinary action by the Company. At one time, he had been suspended for seven days for having someone else punch the time clock for him, and, on numerous other occasions, he had been reprimanded by Goa for being late to work.

In addition, there had been complaints made against Slack for loitering in areas of the plant away from his work area and talking to girls. Goa testified that Slack ceased this practice after being warned three times...