NLRB v. Swan Super Cleaners, Inc.

• Decision Date: 25 October 1967
• Docket Number: No. 16952.,16952.
• Citation: 384 F.2d 609
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SWAN SUPER CLEANERS, INC., Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

384 F.2d 609 (1967)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SWAN SUPER CLEANERS, INC., Respondent.

No. 16952.

United States Court of Appeals Sixth Circuit.

October 25, 1967.

COPYRIGHT MATERIAL OMITTED

Vivian Asplund, Atty., N.L.R.B., Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Nancy M. Sherman, Atty., N.L.R.B., Washington, D. C., on the brief), for petitioner.

Winthrop A. Johns, Washington, D. C. (Gerard D. Reilly, Washington, D. C., John J. Chester, Columbus, Ohio, on the brief; Reilly & Wells, Washington, D. C., Chester & Rose, Charles D. Minor, Vorys, Sater, Seymour & Pease, Columbus, Ohio, of counsel), for respondent.

Before O'SULLIVAN and PHILLIPS, Circuit Judges, and CECIL, Senior Circuit Judge.

O'SULLIVAN, Circuit Judge.

We consider the National Labor Relations Board's petition to enforce its order against respondent Swan Super Cleaners, Inc. In its Decision and Order, reported as Swan Super Cleaners, Inc., 152 N.L.R.B. 163 (1965), the Board found that respondent, a laundry and dry cleaning plant, had violated the National Labor Relations Act (29 U.S.C. § 158(a) (1), (3) and (5)); first, by coercive interrogation, threat of reprisal, and promises of benefits, in resisting a 1963 union¹ organizing campaign; second, by discriminatory discharge of an employee; and third, by refusal to bargain with the union without good faith doubt of the union's assertion that it had signed up a majority of respondent's employees. We deny enforcement of the Board's order as to its finding of discriminatory discharge and refusal to bargain, but enforce its order relating to the § 8(a) (1) violation.

1) Illegal resistance to union campaign. § 8(a) (1).

The union's organizing campaign began early in 1963. After learning of it, the company resisted. There was evidence from which it could be found that by interrogation, threats, and promise of benefits, the respondent violated the Act. The Board's Decision and Order with its Trial Examiner's Decision, reported at 152 N.L.R.B. 163, adequately sets out the evidence offered to support and resist the § 8(a) (1) charge; it shows the usual pattern of company and union conduct characteristic of such campaigns. The trial examiner, affirmed by the Board, resolved factual issues against the company by crediting the General Counsel's witnesses and drawing inferences from the testimony. We are bound by such findings of fact because we cannot say they are without support by substantial evidence in the record. § 10(e) of the Act, 29 U.S.C. § 160(e); Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). It would not be informative to the litigants or of any precedential importance for us to review the facts and repeat well-known principles controlling the fact-finding functions of the Board.

2) Alleged discriminatory discharge. § 8(a) (3).

An employee, Sonjia Wade, was discharged on April 29, 1963. The trial examiner held that her discharge was not in violation of § 8(a) (3) and dismissed the charge. The Board reversed the examiner. As part of her work, she operated a so-called "touchup" press to finish ironing shirts that could not be handled on other equipment in the laundry. In disagreement with supervision, Wade asserted that she could not iron certain kinds of shirts on her machine; her supervisor contended that it could be done and essayed to show her how. There was evidence that while he was attempting to show her how to do the work, Wade ignored him, folded her arms, and looked out the window, thus exhibiting an insubordinate and contemptuous attitude. For this, she was discharged; and there was evidence of previous insubordination on her part. Although she denied the previous insubordination, Wade's account of her conduct on the morning she was discharged cannot be read as a denial of her impudence, which was witnessed not only by her supervisor, but by another employee. She testifies as follows:

"So, I kept on working that day. And so I was over on the press, helping to press up, and Mr. Johnson came over there, and he says, `I am sorry to do this, Sonjia.\' And I said, `Do what, Mr. Johnson?\' and he says, `Let you go.\' And I said, `Okay.\' He said, `Because this morning when I showed you how to do that shirt, you acted like you didn\'t want to do it.\'

* * * * * *

"He said that I was, I didn\'t pay no attention to him — not that I didn\'t pay any attention to him, but that he was sorry he had to let me go. And I said, `Okay.\' And he said that I didn\'t pay no attention to him, that I was uncooperative, and that is all that was said, and I just went in to the rest room and changed my clothes, and left."

It is unclear whether the trial examiner accepted the company's account of Wade's discharge. He disposed of the matter as follows:

"There is no evidence in the record to support the allegation in the complaint that Sonjia Wade was discharged in violation of the Act. The complaint in that respect should be dismissed."

The Board, however, found that the company's avowed reason for Wade's discharge was a pretext and that she was released because of her interest and activity in behalf of the union. This finding is without support.

There was evidence that, prior to her discharge on April 29, Sonjia Wade had signed an authorization card for the union, had allowed a union meeting, attended by eight or nine employees, to be held in her home, and had distributed and obtained signatures on five or six union cards. However, there is no evidence that respondent or any of its executives or supervisors knew of Wade's above activity. She was not known to them as a union protagonist unless such knowledge can be inferred. All of the evidence, except for a doubtful statement of one Hall, was to the effect that the respondent company's earliest knowledge of union activity came on May 3, 1963, when management found some union pamphlets that were being distributed. Sonjia Wade had been discharged prior to that date.

The allegedly coercive conduct upon which the Board relied for finding violation of § 8(a) (1) occurred after that date. One Lillian Hall, however, testified that on April 24 — five days before Wade's discharge on April 29 — a supervisor asked her whether she (the witness Hall) had attended a union meeting on the previous night. From this, the Board infers that the respondent company knew of the union campaign prior to Wade's discharge on April 29. Then, by some quite long, inferential steps, it concludes that the company must have known of Wade's union activity, and therefore, contrary to all the testimony, that her discharge was motivated by a company desire to get rid of a union activist.

While it is not of controlling importance, the probative worth of the witness Hall's fixing of April 24 as the date of the company's critical inquiry concerning the union meeting is indeed thin. The following is her first fixing of this date, clearly placing the inquiry after Wade's discharge on April 29th.

"Q. Now, Miss Lillia, have you ever had any conversation with any supervisor or boss at the plant regarding the Union since this meeting? a meeting of May 7, 1963 (Emphasis supplied.)

"A. Yes, I have.

* * * * * *

"Q. Do you remember when it took place, what month it was in?

"A. It was in May, I remember that. It was in May, because I remember the last — the fourth Tuesday in May I always go to the Eastern Star meeting, and it was the next day after that."

She thereafter moved the date of the inquiry into April. But even if the reported conversation between Johnson (a supervisor) and Hall took place on April 24, that fact does not provide a permissible basis for inferring that the company thereby became aware of Wade's activities. The meeting talked of was not a meeting at Wade's house and there is no evidence that she even attended such meeting. It should be observed that other than the witness Hall's account, there is no evidence from the General Counsel's witnesses or from those offered by respondent that before May 3rd the latter had any knowledge of union activity by anyone. Neither Wade nor any other witness claimed that the company knew of, and in discharging Wade was motivated by, her union adherence.

The incidents of coercive interrogation and union surveillance, referred to by the Board, which began in the middle of May, cannot be related back to demonstrate that on April 29th respondent's supervisory personnel must have known of Wade's union sympathies. The Board indeed has the right to draw inferences of fact and from there move on to infer, in proper circumstances, the discriminatory purpose necessary to strike down a particular discharge. NLRB v. Link-Belt Co., 311 U.S. 584, 597, 61 S.Ct. 358, 85 L.Ed. 368, 378 (1941); NLRB v. Power Equipment Co., 313 F.2d 438, 441 (C.A.6, 1963); NLRB v. Bendix Corp., 299 F.2d 308, 310 (C.A. 6, 1962), cert. den. 371 U.S. 827, 83 S.Ct. 47, 9 L.Ed.2d 65. But we still have the duty to consider whether there is substantial evidence to support such inference. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). And this meager testimony that one minor supervisor asked Hall about a meeting does not prove, or permit the inference, that such supervisor knew of the activities of Wade. Rivers Manufacturing Corp. v. NLRB, 376 F.2d 511, 515 (1967). The burden of proof was on the Board's general counsel to prove that some part of the company's motivation was discriminatory. NLRB v. Murray Ohio Manufacturing Co., 326 F.2d 509, 513 (C.A.6, 1964); NLRB v. Cleveland Trust Co., 214 F.2d 95, 99 (C.A.6, 1954). Even if the company knew that Sonjia Wade was a union activist, such knowledge by the company would not insulate her from being discharged for a nondiscriminatory, good cause. Lawson Milk Co., v. NLRB, 317 F.2d 756, 760 (C.A.6, 1963). Such discriminatory motive cannot reside entirely in...