NLRB v. Ra-Rich Manufacturing Corporation
| Decision Date | 23 March 1960 |
| Docket Number | Docket 25741.,No. 120,120 |
| Citation | 276 F.2d 451 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. RA-RICH MANUFACTURING CORPORATION, Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
Richard H. Frank, National Labor Relations Board, Washington, D. C. (Stuart Rothman, Gen. Counsel, Thomas J. McDermott, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Melvin J. Welles, National Labor Relations Board, Washington, D. C., on the brief), for petitioner.
Leonard S. Kimmell, Mineola, N. Y. (Jacob Gersten, New York City, and Kimmell & Kimmell, Mineola, N. Y., on the brief), for respondent.
Before LUMBARD, Chief Judge, and MOORE and FRIENDLY, Circuit Judges.
The National Labor Relations Board petitions the Court for enforcement of its order directing Ra-Rich Manufacturing Corporation to (1) cease and desist from (a) interrogating its employees concerning their union activities in a manner constituting interference or coercion; (b) threatening employees with reprisals for engaging in union activities; (c) discouraging union membership by discrimination in regard to hire and tenure of employment; and (d) otherwise interfering with or coercing its employees in the exercise of their right to organize, all in violation of § 8(a)(1) and § 8(a) (3) of the National Labor Relations Act, 29 U.S.C.A. §§ 158(a)(1), (3);1 (2) reimburse ten named employees for loss of pay resulting from unlawful discrimination against them; and (3) post the usual notices of compliance.
The issues raised by this petition are whether the Board's findings of unlawful coercion and discrimination are supported by substantial evidence and whether the Board, after it found that the Trial Examiner had mistakenly refused to permit respondent to examine pre-trial statements of witnesses of the General Counsel, was in error in limiting respondent upon remand to cross examination of the General Counsel's witness, rather than granting a trial de novo. We find that the record contains substantial evidence to support the Board's findings and that there was no prejudicial error in the procedure followed by the Board. We grant enforcement to the order.
Ra-Rich is engaged in manufacturing plumbing supplies at its plant in Holtsville, New York, where it employed about 19 persons in December, 1956. From the testimony before the trial examiner there was evidence to support the following findings. Early in December a representative of Local 142, Cooper's International Union, Aluminum Metal Alloys and Affiliated Trades, visited the Ra-Rich plant to organize the employees and obtained the signatures of 11 workers to union authorization cards. On December 11 Joseph Hendel, the president of Ra-Rich, held a meeting of all the employees, told them that he would close down the business rather than bargain with a union, and directed all those employees who had signed union cards to raise their hands. Nine employees raised their hands and Hendel thereupon discharged them. The following day the discharged employees began picketing the plant, carrying signs reading, "This is a lockout." On December 26, after the union had filed a representation petition with the Board, the discharged employees returned to work, each having received a letter from the company stating that they had not been discharged but had walked off the job of their own accord.
Subsequently, on February 8, 1957, employee Taliercio, one of the most vocal of the union supporters at the December 11 meeting, was again discharged, allegedly for lack of work. On February 26, employees Vogel and McGee were also discharged for the same stated reason. At the hearing before the Trial Examiner, respondent's bookkeeper testified that the company had experienced a slump in orders in early 1957 and a concurrent rise in its inventory. Company records were introduced to support this testimony. On the other hand, employee witnesses for the General Counsel testified that they did not notice any apparent lack of business or unusually large inventory at the time. There was also testimony that the discharges took place in a manner out of the ordinary in that no advance notice was given the employees of their discharge, notice was posted in the plant of their discharge, and the discharged men were informed of their dismissal by letter rather than in person and were given their final pay by check rather than in cash. In addition, contrary to the letters of discharge sent the three employees, there was evidence that two of them were senior to another employee who had not been discharged and who had not been among the nine who had raised their hands at the December 11 meeting. Furthermore, less than a month prior to the discharges respondent's president testified at the hearing upon the union's representation petition that he contemplated hiring a few more men.
Upon this evidence the Trial Examiner found that respondent had violated §§ 8(a)(1) and (3) of the Act by threatening its employees with economic reprisals for engaging in union activities and by discharging them on December 11. However, the Trial Examiner accepted the employer's contention that the February discharges were motivated by business considerations and found these discharges lawful. The Board accepted the Trial Examiner's conclusions as to the December discharges but reversed him as to the February dismissals, finding that these violated §§ 8(a)(1) and (3). It ordered that all the discharged employees be made whole for their losses of pay.
Respondent does not contest that there was substantial evidence to support the findings that it unlawfully discharged nine employees on December 11. However, it does urge that the Board's finding that it discharged a tenth employee, Edward Baker, on December 11 is not supported by the evidence. Baker, a company truckdriver, had signed a union card but had been absent from the plant at the time of the December 11 meeting. The evidence showed that upon his return to the plant late that afternoon, Baker...
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