NLRB v. SE Nichols-Dover, Inc., 17479.

• Decision Date: 04 August 1969
• Docket Number: No. 17479.,17479.
• Citation: 414 F.2d 561
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. S. E. NICHOLS-DOVER, INC.; Spencer Shoe Corporation and IMAC Food Systems, Inc.
• Court: U.S. Court of Appeals — Third Circuit

414 F.2d 561 (1969)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. S. E. NICHOLS-DOVER, INC.; Spencer Shoe Corporation and IMAC Food Systems, Inc.

No. 17479.

United States Court of Appeals Third Circuit.

Argued May 5, 1969.

Decided August 4, 1969.

Corinna Lothar Metcalf, N.L.R.B., Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Frank H. Itkin, Attorney, N.L.R.B., on the brief), for petitioner.

James L. Burke, Elmira, N. Y., for respondents.

Before McLAUGHLIN, KALODNER and VAN DUSEN, Circuit Judges.

OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

The National Labor Relations Board petitions for enforcement of its October 18, 1967, order,¹ entered in favor of the Retail Store Employees' Union (the Union) and against respondents, S. E. Nichols-Dover, Inc. (Nichols), Spencer Shoe Corporation (Spencer), and IMAC Food Systems, Inc. (IMAC). See 29 U.S.C. § 160(e). The order directed the respondents to: (a) cease and desist from certain unfair labor practices under §§ 8(a) (1) and 8(a) (3) of the National Labor Relations Act (the Act), 29 U.S.C. § 158(a) (1) and (3); (b) offer reinstatement and back pay to two employees found to have been unlawfully discharged by Nichols under § 8(a) (3) of the Act; (c) upon request, bargain collectively with the Union as the exclusive representative of the employees of Nichols, Spencer, and IMAC.

The Nichols department store in Dover, Delaware, is one of several such stores located in the eastern United States and owned by a parent corporation. Spencer and IMAC are licensees of Nichols and operate, respectively, the shoe shop and the snack bar within the Dover store. The Union has been attempting to organize the employees of the store since it opened in August 1965.²

With the summer of 1966, the Union drive entered a more intensive phase involving the solicitation of authorization cards. Conflicting testimony was given at the hearing regarding the manner in which Nichols responded to this new campaign. The examiner, however, credited testimony given by the employees, which is entitled to our acceptance, see Universal Camera Corp. v. N. L.R.B., 340 U.S. 474, 495-497, 71 S.Ct. 456, 95 L.Ed. 456 (1951), and which was to the following effect. Nichols representatives convened several meetings of store employees. The officials declared that the store did not need a middleman (the Union), and emphasized that any employee who had signed an authorization card had a right to revoke it. They also assisted with letters of revocation in ways calculated to insure their effectiveness, such as suggesting that carbon copies be made for safekeeping in the Nichols office and providing stationery, postage, the Union's address, and mailing services. Store Manager Jones and other officials spoke with several employees individually, asking them whether they had been approached by Union organizers and how they and their co-workers felt about the Union. In addition, Jones told Mrs. Ippolito, a Union sympathizer, that he could not understand why anyone would want to pay Union dues when they could simply request a raise. He also warned her that he had placed a spy at a Union meeting she had attended.

On October 27, 1966, Nichols received a letter from the Union dated the previous day, stating that it represented an "overwhelming majority of the employees in the S. E. Nichols store," offering to substantiate such majority by proof, and "requesting a meeting to commence negotiations for a collective bargaining agreement". Nichols responded, under date of November 1, that it "cannot at this time consent to recognize the * * * Union as bargaining agent at the Dover store," suggesting an election be held instead. It cited "pending charges against the union, alleging coercive activity,"³ as well as alleged statements of employees indicating that only a small minority actually desired representation and that some feared Union retaliation if they failed to support it.

Several weeks later, Jones became angry over a work dispute between three office employees, including Mrs. Ippolito and also Mrs. Hennessy, who was an active Union organizer. He threatened to fire all of them if another such argument arose, adding that he would lock the store's doors rather than open them to the Union. Three weeks later, on December 28, 1966, Mrs. Ippolito and Mrs. Hennessy were discharged along with a large number of temporary Christmas help. The Union, which had already filed unfair labor practice charges against Nichols on December 5, amended the charges to include an allegation that they had been unlawfully discharged because of their Union activity.

A complaint issued from the General Counsel and a hearing was conducted before a trial examiner. In his decision of June 20, 1967, the examiner held that the respondents had committed various unfair labor practices under § 8(a) of the Act. Specifically, he found that the statements made by Nichols representatives at the group meetings and also during interrogations of individual employees unlawfully tended to coerce the employees into revoking their authorization cards in violation of § 8(a) (1). Also found violative of § 8(a) (1) were the statements made by Jones to Mrs. Ippolito. Furthermore, her discharge, along with that of Mrs. Hennessy, was held to be discrimination for their Union sympathies in violation of § 8(a) (3). Finally, he concluded that Nichols had unlawfully refused to bargain with the Union upon request under § 8(a) (5). This finding was predicated on determinations that the Union's letter, received by Nichols on October 27, was a demand for recognition and bargaining; that the appropriate bargaining unit encompassed the employees of Nichols, Spencer and IMAC; and that, on October 27, the union numbered 133 employees, of whom 77 — a clear majority — had signed and returned to the Union valid authorization cards. A bargaining order was recommended. The Board affirmed the examiner's decision and recommended order, and now petitions us for its enforcement. For the reasons given below, we have concluded that enforcement should be granted.

There is substantial evidence on this record, considered as a whole, to support the examiner's finding that Nichols violated § 8(a) (1) and (3) of the Act. See Universal Camera Corp. v. N.L.R.B., supra, 340 U.S., at 487-488, 71 S.Ct. 456.

The credited testimony on the subject of the group meetings indicated that Nichols unlawfully attempted to persuade those employees who had signed cards to revoke them. See N.L. R. B. v. Elias Brothers Big Boy, Inc., 327 F.2d 421 (6th Cir. 1964). Questioning of individual employees designed to elicit information about the activities of Union organizers and the sympathies of co-workers was not permissible interrogation. See N. L. R. B. v. Elias Brothers Big Boy, Inc., supra; N. L. R. B. v. S. S. Logan Packing Company, 386 F.2d 562 (4th Cir. 1967). And the various statements which Jones made to Mrs. Ippolito were unlawful, not only as creating an impression of surveillance, see N. L. R. B. v. S. S. Logan Packing Company, supra, but also as constituting an implied threat of discharge for Union activity, see N. L. R. B. v. Marsh Supermarkets, Inc., 327 F.2d 109 (7th Cir. 1963), cert. den. 377 U.S. 944, 84 S.Ct. 1351, 12 L.Ed.2d 307 (1964), and an actual threat of plant closure, see N. L. R. B. v. Winn-Dixie Stores, Inc., 341 F.2d 750 (6th Cir.), cert. den. 382 U.S. 830, 86 S.Ct. 69, 15 L.Ed.2d 74 (1965). We agree with the Board that these acts interfered with, restrained, or coerced the employees in the exercise of their rights, in violation of § 8(a) (1).

As for the alleged violation of § 8(a) (3), respondents and the Union introduced sharply conflicting testimony concerning the reasons for Mrs. Ippolito's and Mrs. Hennessy's discharge. The trial examiner discredited Nichols' assertion that they were let go as part of the normal post-Christmas layoff and that Mrs. Ippolito had exhibited "incompatibility" and "bad attitude" and Mrs. Hennessy a habit of smoking in prohibited areas.⁴ He found that both had been satisfactory employees and that Nichols, knowing of their Union sympathies, had fired them for that reason. We accept such a finding since it is based on assessments of credibility. Also, the Board was entitled to infer that the justifications offered by Nichols do not have the ring of truth.

For example, such explanations as were given to Mrs. Ippolito and Mrs. Hennessy at the time of their discharge were lacking in logic and consistency. Each had begun work for Nichols-Dover when it opened in the summer of 1965. From initial assignments on the main floor of the store, they had advanced by late summer 1966 to positions in the office which entailed increased responsibilities, including the occasional training of other employees. On December 28, 1966, however, both were terminated with the explanation that they were being laid off because the Christmas rush was over. Yet neither had been hired on that account. Indeed, several store workers with less seniority were retained and 29 new employees were hired during the first three months of 1967. Nevertheless, the "layoffs" of Mrs. Ippolito and Mrs. Hennessy were not made subject to recall, nor were they ever reoffered jobs by Nichols. Moreover, the Board was entitled to infer that the revised justifications later offered at the hearing — Mrs. Ippolito's "bad attitude" and Mrs. Hennessy's smoking — bear the hallmarks of afterthought.⁵ Thus, conflicting testimony was given as to whether either was warned, while an employee, of her alleged misbehavior. And Nichols officials were vague when asked to describe specific instances of complaints about them by customers. Questioned as to why in the past Mrs. Ippolito had been promoted instead of discharged for her alleged attitude, Jones was unable to reply. Regarding Mrs. Hennessy, there was testimony that...