NLRB v. Quality Manufacturing Company

• Decision Date: 19 July 1973
• Docket Number: No. 72-1663.,72-1663.
• Citation: 481 F.2d 1018
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. QUALITY MANUFACTURING COMPANY, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

481 F.2d 1018 (1973)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. QUALITY MANUFACTURING COMPANY, Respondent.

No. 72-1663.

United States Court of Appeals, Fourth Circuit.

Argued December 6, 1972.

Decided July 19, 1973.

Stanley J. Brown, Atty., N. L. R. B. (Peter G. Nash, Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Marcel Mallet-Provost, Asst. Gen. Counsel, and William F. Wachter, Atty., N. L. R. B., on brief), for petitioner.

Bernard P. Jeweler, Baltimore, Md. (Bernard W. Rubenstein, and Edelman, Levy & Rubenstein, Baltimore, Md., on brief), for intervenor.

John E. Jenkins, Jr., Huntington, W. Va. (Jenkins, Schaub & Fenstermaker, Huntington, W. Va., on brief), for respondent.

Before BOREMAN, Senior Circuit Judge, and RUSSELL and FIELD, Circuit Judges.

BOREMAN, Senior Circuit Judge:

This case is before the court on the application of the National Labor Relations Board for enforcement of its order, issued on January 28, 1972, against the Quality Manufacturing Company (hereinafter "Quality" or "the Company"). The Board's decision and order are reported at 195 N.L.R.B. No. 42.

The Company's owners and principal officers are Lawrence Gerlach, Sr., president; his wife, Mary Kathryn Gerlach, production manager; and their son, Lawrence Gerlach, Jr., general manager. The Upper South Department, International Ladies' Garment Workers' Union, has been certified as the collective bargaining representative of the Company's employees in an appropriate unit since 1968. The Union's chairlady, or steward, who represented the employees in disputes with management under the collective bargaining agreement was, at all times pertinent to this case, Delila Mulford.

On the morning of October 10, 1969, Mulford and three other employees met with all three Gerlachs, during which meeting the employees complained that they could not make a satisfactory wage under the piece work system then in effect. One of those so complaining was Catherine King, a long-time employee. The discussion ended with Gerlach, Jr., ordering Mulford to return to her work station and telling her "if the employees didn't like the way it was there in the company to go elsewhere."

Later that same day, Mrs. Gerlach noticed that King had shut down her machine and was waving her arms, gesturing, and causing some minor disturbance. Two other employees had stopped their machines and were watching King. Mrs. Gerlach directed her to resume production, but King told her to "tend to your business," whereupon Mrs. Gerlach ordered King to go to Mr. Gerlach's office. Upon King's request, Mulford left her own work station and accompanied King to the anteroom of Mr. Gerlach's office despite Mrs. Gerlach's warning to Mulford that she "had no business down there." When Mrs. Gerlach informed her husband of what had transpired he told Mulford to return to her work station because "it wasn't a grievance and they didn't have any business with her," but Mulford refused. He then ordered King to come into his office for a discussion but King replied that she would not go without Mulford. Mr. Gerlach then told both King and Mulford to return to their work stations, and they did so. On Sunday, October 12, Mr. Gerlach telephoned Mulford and informed her that she was suspended for two days. No reason for the suspension was given but, according to Mulford, she thought it was because of her conduct in seeking to represent King on October 10 in Mr. Gerlach's office.

On Monday, October 13, King found upon reporting for work that her timecard was not in the rack, which indicated under plant practice that she was wanted in Mr. Gerlach's office. This time King asked Martha Cochran, the assistant chairlady, to accompany and represent her. Cochran accompanied King without first "punching in" on her own timecard. They met Mrs. Gerlach outside the office and she warned Cochran that "your timecard is upstairs and my advice to you is to go on upstairs and go to work if you want your job." Mrs. Gerlach added that they (the Gerlachs) wanted to talk only to King and "take up where we left off Friday." Cochran replied "Well, Mrs. Gerlach, I'm sorry, but if that's what you want to talk to her about, that is Union business and she has asked me to represent her," stating that she was a union steward and that was her duty. Cochran and King then spoke to Mr. Gerlach and asked him if he was going to give King her timecard. He said that he would not until she came into his office and talked to him in private. Cochran and King sat and waited in or near the office for the remainder of that day. In the meantime, Cochran's timecard was also "pulled" from the rack.

On Tuesday morning, October 14, Cochran and King again went to Mr. Gerlach's office and asked Mr. Gerlach if he was going to return King's timecard. Gerlach again replied that he would not until King talked to him in private. Cochran asked about her own card and was informed that she had been suspended for two days for being away from her work station the prior day. King and Cochran then left the plant.

The next day, Wednesday, October 15, Mulford's suspension had ended and she returned to Mr. Gerlach's office along with Cochran and King. Mulford inquired as to the status of Cochran and King and was told that Cochran was under suspension and that King was wanted in Mr. Gerlach's office alone. Mulford then returned to work and Cochran and King left the plant.

On Thursday, October 16, Cochran's suspension had expired. She, Mulford and King returned to Mr. Gerlach's office when they were met by Mr. and Mrs. Gerlach. Mrs. Gerlach gave Cochran her timecard and she went to work. Mrs. Gerlach then told King that Mr. Gerlach wanted to see her in the office alone. King asked, "With Delila Mulford?" Mr. Gerlach said, "No, not with Delila," and added that if King "went out the door she was finished." King left the plant. Mulford then asked if she should go to work and Mr. Gerlach replied, "You've abandoned your job. Your finished." Mulford left the premises.

That same day, October 16, Cochran went to the office of Gerlach, Jr., during the noon hour and sought to present written grievances on behalf of Mulford, King and herself. Gerlach, Jr., told her he didn't have time to fool with them since he was leaving town, and refused to accept the grievances. Cochran laid them on his desk but he picked them up and threw them in the trash. Gerlach, Jr., then walked into the work area, pulled Cochran's timecard, and told her, "You worked this morning, but you're not working this afternoon." Subsequently, Cochran went to the office of Mr. Gerlach and asked if she had been fired. He responded, "Just go home. You wanted to draw unemployment now go on and draw it." Cochran left the plant but telephoned the office later that afternoon and requested that Mr. Gerlach's secretary ask him if she was to report to work the next day. She was told, "He said no." She told the secretary to "tell him that he can reach me at my home phone when he needs me." Cochran was never notified to come back to work.

The full Board held that the Company violated Section 8(a) (3) and (1) of the Act upon a finding that Cochran was discharged because she sought to engage in a protected union activity, i.e., filing grievances on behalf of herself, Mulford, and King. The record contains substantial evidence to support the Board's finding and its order with respect to Cochran's illegal discharge will be enforced.

The Board also found (member Kennedy dissenting) that the Company violated Section 8(a) (1) of the Act by discharging King because of her insistence on union representation when summoned to an interview at which she had "reasonable grounds to believe that disciplinary action might result from the Employer's investigation of her conduct," and by suspending and discharging chairlady Mulford and suspending assistant chairlady Cochran because they sought to represent her at such an interview. We hold that on the facts of this case King had no right to have a union representative present at the requested meetings with her employer, and deny enforcement of that portion of the Board's order.

In N.L.R.B. v. Ross Gear & Tool Co., 158 F.2d 607 (7 Cir. 1947), a female employee named Ford had engaged in a serious dispute with other employees. When several employees threatened to resign unless Ford was discharged, she was ordered to report to a supervisor's office to discuss the controversy. After Ford twice refused to attend unless accompanied by union representatives, she was discharged for insubordination, i.e., refusal to comply with the order of the supervisor. The Board found that her discharge was because of her insistence on her right to have the union represent her at the meeting and that such discharge was in violation of Section 8(a) (1) and (3) of the Act. The court rejected this determination, commenting (158 F.2d at 613):

The Board in its brief states: "As the Board has pointed out the legality of Ford\'s dismissal turns upon the issue whether or not she was within her statutory right in insisting upon the presence of the Union committee when Strecker the supervisor ordered her to report to his office alone." A decision of this issue favorable to the Board would mean that any employee could with impunity refuse to comply with a direction by management and in effect abrogate a rule such as the one here involved. Assuming that an employee has a right to be represented by the union in the discussion or presentation of a labor grievance with an employer, such a right does not exist in the instant case. This is so, in our view of the matter, because there is no basis for the contention that such a grievance was involved.

In Dobbs Houses, Inc., 145 N.L.R.B. 1565 (1964), an employee was called in for an interview by her employer concerning reported misconduct. Her request that a union representative be present was denied, and at the conclusion of the interview she was...