NLRB v. Park Edge Sheridan Meats, Inc.

• Decision Date: 16 February 1965
• Docket Number: Docket 29125.,No. 261,261
• Citation: 341 F.2d 725
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PARK EDGE SHERIDAN MEATS, INC., Respondent.
• Court: U.S. Court of Appeals — Second Circuit

341 F.2d 725 (1965)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PARK EDGE SHERIDAN MEATS, INC., Respondent.

No. 261, Docket 29125.

United States Court of Appeals Second Circuit.

Argued December 16, 1964.

Decided February 16, 1965.

Morton Namrow, Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Elliott Moore, Atty., Washington, D. C.), for petitioner.

Ludwig Teller, New York City, for respondent.

Before FRIENDLY, HAYS and MARSHALL, Circuit Judges.

FRIENDLY, Circuit Judge.

In N. L. R. B. v. Park Edge Sheridan Meats, Inc., 323 F.2d 956 (2 Cir. 1963), we enforced an order of the National Labor Relations Board, 139 N.L.R.B. 748 (1962), finding respondents guilty of various unfair labor practices in 1961 with respect to efforts of Local 34, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, to organize employees in two supermarkets near Buffalo, N. Y. operated by corporations controlled by the Benatovich family. Union activity was dormant for a year after the unsuccessful strike of June, 1961, which is recounted in that opinion. It was resumed in July, 1962, at the Sheridan store under the leadership of a butcher named Rodeghiero. On November 7 the Regional Director ordered an election as to that store, which was held on December 6. On November 5 respondents discharged Rodeghiero, under circumstances later described.

The union immediately filed a charge alleging that the discharge was discriminatory and also, in completely general terms, that "on or about November 5, 1962, and at all times thereafter" respondent had interfered with its employees' § 7 rights. A second charge, alleging a discriminatory transfer of another employee and repeating the general language of the first, was filed after the union's loss of the election. Having conferred with Rodeghiero, the Regional Director dismissed the portion of the first charge concerning him, as he likewise did as to the discriminatory transfer alleged in the second; however, his decision as to Rodeghiero was overturned by the General Counsel and a complaint ultimately issued which alleged various unfair labor practices in addition to the discharge of Rodeghiero. The proceeding was consolidated with a hearing ordered by the Regional Director on two of the union's objections to the election because of the same unfair labor practices.

The trial examiner found that the credible evidence failed to sustain the complaint or the objections and recommended that the complaint be dismissed and the objections overruled. On exceptions by the General Counsel and the charging party, a three-man panel of the Board held that Rodeghiero had been discharged for union activity, found an unlawful no-solicitation rule and three other instances of unlawful interference, by surveillance and interrogation, and concluded that the employer's conduct warranted setting the election aside. One member dissented as to Rodeghiero's discharge. The questions before us on the Board's petition for enforcement are factual; the issue is 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. N. L. R. B., 340 U.S. 474, 490, 71 S.Ct. 456, 466, 95 L.Ed. 456 (1951). We think this a case where it does.

Even the Board's statement of the events of 1962 shows a marked diminution both in the quantum and in the intensity of anti-union activity from 1961. This change was neither an accident nor the result of a sudden increase in the Benatoviches' affection for the union. Having apparently learned a lesson from the prior proceeding, the respondents engaged an experienced labor attorney who endeavored to keep their conduct within what he considered the range permitted by law. We would not be misunderstood as saying that advice of counsel, even if precisely followed, is a defense to an unfair labor practice charge. See Welch Scientific Co. v. N. L. R. B., 340 F.2d 199 (2 Cir. 1965). But when a party that has erred in the past places itself in the hands of capable counsel who gives reasonable advice for the future, and there is a significant improvement in its conduct, it ought not be viewed as having such a propensity for sin that every episode is given the worst interpretation, or be condemned by indiscriminate repetition of the phrase that its conduct "must be assessed against the background of its earlier unfair labor practices. * * *"

The issue most sharply contested, whose resolution has a bearing on the others, was the discharge of Rodeghiero. The trial examiner found that in mid-September he was called into the office of Hyman Benatovich who warned him about any more "union talking on the company premises" on Rodeghiero's version, or "disturbing the other people" on Benatovich's, a conflict which the examiner did not resolve; that, in early October, Hyman told Rodeghiero that a "couple of girls" had made statements against him for which he could be fired; and that, on October 23, four days after Rodeghiero had testified in the representation proceeding, Hyman called him into his office, where two girl employees accused him of calling them "rebels" and "rats," whereupon Hyman gave him a mild reprimand. On Wednesday, October 31, Rodeghiero did not report for work, allegedly because of "intestinal flu"; instead he went to the County Clerk's office to transact some real estate business of his own. There he met and greeted Berg, a son-in-law of Samuel Benatovich and an assistant district attorney, whom he had seen at the representation hearing. Not recognizing Rodeghiero, Berg asked another attorney who he was; the latter described him as "a well known criminal" who "either murdered or shot someone" and also as a numbers or policy man. Searching the files Berg found that Rodeghiero had been convicted of second degree assault in 1946 and for possessing policy slips in 1952 or 1953; in addition he came upon a psychiatric report indicating that Rodeghiero had "a very vindictive character." He communicated all this to his father-in-law, to whom he also gave a "mug shot" of Rodeghiero. Samuel and Hyman then called their labor attorney in New York; he advised that, although he would not recommend a discharge because of Rodeghiero's absence from work when well enough to attend to his own affairs, the Benatoviches were under a legal duty to their help and to the public to discharge him because of his convictions and the psychiatric report. These talks coincided with issuance of the Board's decision and order (November 1) dealing with the 1961 disturbances. When Rodeghiero returned to work on Monday, November 5, he was called into Samuel's and Hyman's office. Samuel disclosed his knowledge of Rodeghiero's criminal record and, saying that he had to protect his employees, asked Rodeghiero to resign. Upon his refusal, Rodeghiero was discharged.

The trial examiner ruled that "despite the not inconsiderable suspicion which follows reasonably from above-noted facts," he was "unable to conclude that General Counsel has sustained his burden of proving that, in fact, the employee was discharged unlawfully in order to discourage union activities or because he was a witness at a Board hearing." A majority of ...