NLRB v. Selwyn Shoe Manufacturing Corporation

• Decision Date: 08 June 1970
• Docket Number: No. 19774.,19774.
• Citation: 428 F.2d 217
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SELWYN SHOE MANUFACTURING CORPORATION, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

428 F.2d 217 (1970)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SELWYN SHOE MANUFACTURING CORPORATION, Respondent.

No. 19774.

United States Court of Appeals, Eighth Circuit.

June 8, 1970.

Michael Messite, Atty., N.L.R.B., Washington, D. C., for petitioner; Arnold Ordman, Gen. Counsel, N.L.R.B., Dominick L. Manoli, Associate Gen. Counsel, N.L.R.B., Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., and Leonard M. Wagman, Attys., N.L.R.B., Washington, D.C., on the brief.

Karol A. Korngold, St. Louis, Mo., for respondent.

Before BLACKMUN, GIBSON and LAY, Circuit Judges.

GIBSON, Circuit Judge.

The National Labor Relations Board petitions for enforcement of its order issued against Selwyn Shoe Manufacturing Corporation on June 27, 1968, pursuant to § 10(e) of the National Labor Relations Act as amended, 29 U.S.C. § 160(e). The Board, in a decision reported at 172 NLRB No. 81, found that the Company violated: (I) § 8(a) (4) and (1) of the Act, 29 U.S.C. § 158(a) (4) and (1), by conditioning the rehire of Evelyn Craig on her withdrawal of unfair labor practice charges filed with the Board against the Company; (II) § 8(a) (1) of the Act, 29 U.S.C. § 158(a) (1), by discharging employee Earlene Reinbold for her vigorous presentation of a grievance; and (III) § 8(a) (3) and (1) of the Act, 29 U.S.C. § 158(a) (3) and (1), by discharging employee Mildred Solter for circulating a petition opposing the recognized union.¹ No jurisdictional issue is presented.

The Board's order requires the Company (1) to cease and desist from the unfair labor practices found; (2) to offer reinstatement to Earlene Reinbold and Mildred Solter to their former or substantially equivalent positions of employment, without prejudice to their seniority or other rights and privileges, and to make them whole for any loss of earnings suffered as a result of the Company's unlawful conduct; and (3) to offer Evelyn Craig employment on a job for which her former employment qualifies her and to make her whole for any loss of earnings suffered since March 27, 1967, as a result of the Company's unlawful conduct.

The Company is an Illinois corporation engaged in the manufacture of women's shoes at its factory in Boonville, Missouri, and has about 300 to 350 employees. United Shoe Workers of America, Local No. 235, AFL-CIO, is the certified bargaining agent for the employees of this factory and has been so for approximately 16 years, including the times when the alleged unfair labor practices took place. We enforce the Board's order on (II) Reinbold and deny enforcement on (I) Craig and (III) Solter.

I

The contract between the Union and the Company provided that during the first 60 days of a new employee's employment, he or she would be considered a probationary or temporary employee and such employment could be terminated by the Company at will and was not subject to grievance procedure. Evelyn Craig was employed less than 60 days when she was discharged on February 9, 1967, because her job had been eliminated for economic reasons. She did not apply for reinstatement or reemployment but on March 3, 1967, she filed charges with the NLRB that she had been dismissed because of her union membership and activities.²

In the latter part of March, union President Ruth Minor spoke to Superintendent Mize on another matter. During this conference, Mize allegedly stated to Minor that he felt sorry for Craig and he had a job on which he could use Craig if she would drop the charges she had filed with the Board. On March 27 Minor visited Craig in her home and told her what Mize had said to her. On June 20 Craig filed an amended charge against the Company alleging that she was denied reinstatement because she had filed charges against the Company.³ Mize denied making the alleged statement but recalled that at a meeting with Minor and union representative Gerald Crane, Crane had suggested Craig be reemployed if she would withdraw her charges, but he (Mize) stated he couldn't get involved in it.

The Board's finding that the Company discriminated against Evelyn Craig because she filed charges under the Act, in violation of § 8(a) (4) and (1) of the Act, is not supported by substantial evidence on the record as a whole. Craig was discharged under the probationary employees clause of the contract because her job was abolished. She had no basis for her original charges and at no time did Craig seek reinstatement or reemployment with the Company. There is no evidence that Mize told Minor to tell Craig she would be rehired if she dropped her charges. Furthermore, the Board has held that it is not reasonable to assume a statement made by an employer to a union representative would be repeated by the union representative to the employee. Norman E. Kopp and Larry K. Evans, etc. and Alton-Wood River Building & Construction Council, 143 NLRB No. 78,63-2 CCH NLRB Dec. 19601, 19602 (1963). Finally, an isolated statement made by an employer to a union representative is not coercive, even though such a statement made directly to the employee might be. NLRB v. Council Manufacturing Corp., 334 F.2d 161, 165 (8th Cir. 1964). At no time did Mize speak to Craig or ask anyone else to do so. We conclude that Mize's alleged statement to Minor was too isolated and too removed to constitute a violation of § 8(a) (4) and (1).

II

Earlene Reinbold was employed by the Company in June, 1964. On February 27, 1967, she was working in the prefitting department when at 10 a.m. she ran out of work. She advised Floorlady Meredith Arnold that she was out of work and asked for more work. Arnold referred Reinbold to Department Foreman Bentley. Reinbold told Bentley she had completed her work but would not "clock out" while employee Ola Mae Schrader, who was her junior in seniority, continued to work on a job she could perform. Bentley called for Superintendent Mize and reported Reinbold's refusal to clock out.

Reinbold repeated her complaint to Mize and there followed a short colloquy between Mize and Reinbold as to who was running the plant. Mize told Reinbold to ring out and go home, but Reinbold again refused to leave while less senior employees worked. Mize then told Reinbold she was fired, which brought the reply from Reinbold that he was a son of a bitch. Reinbold left the plant without clocking out and went to the home of Mildred Solter, the prefitting department steward, who was absent from work that day. Reinbold and Solter returned to the plant shortly and met with Mize, Foreman Bentley and Minor. This meeting was brief and terminated when Mize told Reinbold she had been dismissed in part because of her uncomplimentary reference to him but mainly because she had left the plant without clocking out.

Before the Board the Company contended that Reinbold was discharged before she left the plant for insubordination, that is, for her refusal to clock out and leave the plant as instructed. However, Mize's testimony indicates that he did not consider Reinbold discharged until she returned with Solter because he stated the grounds for her discharge were the son of a bitch reference and her departure from the plant without clocking out in violation of a company rule.

The Company argues that Reinbold was not following any grievance procedure at the time of her discharge since she was discharged before she brought Solter to the factory, that a discharge for insubordination is a valid discharge, that an employer's action in giving preference to an employee contrary to seniority rule, for allegedly insufficient reason, does not constitute an unfair labor practice where both employees were members of the same union and that a purely personal claim of an employee and his action in pressing such a claim does not constitute concerted activity within the purview of § 7 of the Act and is not protected thereby.

Regardless of whether Reinbold was discharged before she left the plant or upon her return, we think there is substantial evidence to support the Board's finding that the Company discharged Reinbold because she vigorously presented her grievance. We think it is also clear that Reinbold properly invoked the grievance procedure outlined in Article XIII of the collective bargaining agreement when she protested first to Floorlady Arnold and then to Foreman Bentley. Section 2 of Article XIII provides in pertinent part:

"If any controversy, claim, dispute, or grievance arises between * * * the Company and any of its employees covered hereunder, in regard to questions of operation of the factory or the application or construction of any provision of this Agreement, * * * it shall be settled in the following manner, by negotiation:

"(a) It shall first be presented by the aggrieved employee or the Shop Steward to the Foreman of the department involved, within three (3) days from the date of occurrence."

While we are not concerned here with the merit or lack thereof of Reinbold's grievance, it seems clear that she had a contractual right under Article XIII to "construction of any provision of this Agreement," which would of course encompass the "Seniority" provision of Article VII, § 1:

"Layoffs shall be based solely on job seniority. When it becomes necessary to reduce the working force, those laid off shall have the privilege of taking any other job which their seniority will permit."

Was Reinbold's presentation of her personal grievance based on a right granted by the collective bargaining agreement protected by § 7 of the Act, 29 U.S.C. § 157, which provides "employees shall have the right * * * to engage in * * * concerted activities for the purpose of * * * mutual aid or protection"? We think it was.

The Board posits that the voicing of a grievance connected with one's work or his employer's conduct constitutes "mutual aid or protection," citing NLRB v. New England Tank Industries, Inc., 302 F.2d 273 (1st Cir.), cert. denied, 371 U.S. 875, 83 S.Ct. 147, 9 L.Ed.2d 114 (1962), NLRB v. Halsey W....