NLRB v. Threads, Incorporated

• Decision Date: 29 August 1962
• Docket Number: No. 8464.,8464.
• Citation: 308 F.2d 1
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. THREADS, INCORPORATED, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

308 F.2d 1 (1962)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. THREADS, INCORPORATED, Respondent.

No. 8464.

United States Court of Appeals Fourth Circuit.

Argued March 21, 1962.

Decided August 29, 1962.

COPYRIGHT MATERIAL OMITTED

Warren M. Davison, Atty., N. L. R. B. (Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Samuel M. Singer, Atty., N. L. R. B., on brief) for petitioner.

J. W. Alexander, Jr., Alexandria, N. C. (Blakeney, Alexander & Machen, Charlotte, N. C., on brief), for respondent.

Before SOBELOFF, Chief Judge, and HAYNSWORTH and BOREMAN, Circuit Judges.

BOREMAN, Circuit Judge.

On July 26, 1961, National Labor Relations Board, by a duly constituted and authorized three-member panel, issued its decision and order¹ against Threads, Incorporated (hereinafter called Company or Threads), and now petitions this court for enforcement.

The Board found that Threads violated section 8(a) (1) of the Act, 29 U.S.C.A. § 158(a) (1), by attempting to induce employees previously discriminatorily discharged to waive their rights to reinstatement; by unlawfully interrogating an employee; by subjecting employees to excessive watching; and by threatening its employees that there would never be a union in the plant and that a union would be to their detriment. The Board further found that Threads violated section 8(a) (3) and (1) of the Act, 29 U.S.C.A. § 158(a) (3) and (1), by discriminatorily discharging two of its employees, William Bell and Leonard Fields. The Board ordered the Company to reinstate discharged employees Fields and Bell without loss of pay, seniority or other rights and privileges and to post at its Gastonia, North Carolina, plant a certain notice to employees.

Preliminarily, it appears necessary to review certain facts. In 1958, following an organizational campaign, Textile Workers Union of America, AFL-CIO, petitioned for a representation election among Threads' employees, which election was directed and which the Union lost. Pursuant to charges filed by the Union, the Board issued a decision and order on September 18, 1959, determining that the Company had violated section 8(a) (1) of the Act by interrogating employees concerning their union activities and by threatening employees with various forms of economic reprisal if they engaged in such activities. The Board then ordered Threads to cease and desist from this unfair labor practice, directed that the election be set aside and that a new election be conducted when the circumstances would permit the free choice of a bargaining representative. Threads sought no judicial review. The second election has not yet been conducted.

In a second complaint case the Trial Examiner found, as charged, that Threads was guilty of unfair labor practices and had discriminatorily discharged Leonard Fields, James Goodson and Glenn Underwood. On August 17, 1960, the Board adopted the Examiner's findings and ordered Threads to reinstate the three discharged employees with back pay. On April 14, 1961, this court granted summary enforcement of the Board's order.²

THE INSTANT PROCEEDING

The present proceeding, which is a third complaint case, followed happenings subsequent to the Board's order directing the reinstatement of Goodson, Fields and Underwood. In the latter part of February 1960, some two weeks after the issuance of the Intermediate Report in the second complaint case, J. W. Thompson, the Company's personnel director, instituted negotiations with Goodson, Fields and Underwood concerning possible waivers of their rights to employee reinstatement. Each of these employees was separately contacted and interviewed. Goodson refused an offer of $1,000 but about a week later accepted an offer of $2,000 and signed a waiver of his right to reinstatement. After Thompson had met on more than one occasion with Fields and Underwood, each of these discharged employees demanded $5,000 for a waiver of reinstatement rights, which demands were refused.

On April 13, 1960, Fields and Underwood were offered jobs and were ordered to report for work on April 21. Prior to reporting as directed, they were again separately interviewed by Thompson, who told them they were being reinstated to their old jobs despite the Company's conviction that their previous discharges had been for just cause. Thompson had each sign an employment application form which concluded with the statement: "I have read (or have had explained to me) the Company and plant rules and I understand that I am expected to observe these rules." Thompson told them that any changes in the rules would be explained by their foreman although there had been no changes since they were discharged.

Following reinstatement of Fields and Underwood, they and all the other dye-house employees on the second shift were assembled and addressed by Koppen, Company general superintendent. Koppen opened by "welcoming back" Fields and Underwood. He reaffirmed the Company's conviction that they had been previously discharged for cause and stated that, although the Company could have contested the Board's ruling, it had chosen not to do so but instead "to offer these men another chance to do their jobs satisfactorily." He continued:

"To these two men I would like to make this specifically and directly clear — we are willing to have you back so long and only so long as you do your work satisfactorily. In order to stay here, you will be expected, just like every other employee, to perform your job and perform it right."

Next, Koppen discussed note-taking by the employees. He emphasized the confidential nature of the Company's dyeing formulas and methods and warned that the removal of such data from the plant, which could adversely affect the Company's competitive position in the market, would be grounds for immediate discharge.

Finally, Koppen turned to the subject of the Union:

"Now with regard to the Union I want to make the Company\'s position on this subject as clear and plain as I can:

"We are opposed to the Union. We consider it not only a matter of concern to the Company but also a serious concern to you. It is our sincere belief that if this Union were to ever get into this plant it would not work to your benefit but to your serious harm.

"It is therefore our positive intention to oppose the Union and by every proper means to prevent it from coming into the plant.

"Those who might join or apply to a union will never get any advantage or any preferred treatment of any sort over those who do not join or apply to any union.

"No person will ever be allowed to carry on union organizing activities on the job here. If anybody undertakes to do so and thereby neglects his own work or interferes with the work of others, that person will be discharged.

"It is not necessary, and it is not ever going to be necessary, for anybody to belong to any union in order to work for this company!" (Emphasis supplied.)

The ceremonies concluded with Koppen reminding the employees that the Company had given them two pay increases during the past year. He subsequently read the same speech with certain irrelevant deviations to the other dyehouse employees on the first and third shifts.

Except as hereinafter particularly noted and except for relatively minor details, the Board adopted the Intermediate Report and Recommended Order of the Trial Examiner. Before us for review on the petition for enforcement are the provisions of the Board's decision and order.

Before considering the questions here presented, it seems appropriate to look closely to the rules which should be applied on this review of the Board's findings, conclusions and order.

Following enactments of the Administrative Procedure Act in 1946, 5 U.S.C.A. § 1001 et seq., and amendments to the National Labor Relations Act (Labor Management Relations Act, 1947) and prior to 1950, a conflict of opinion developed among certain United States Courts of Appeals regarding the effect of the new legislation on the duty of such courts when called upon to review orders of the National Labor Relations Board. The Supreme Court of the United States took note of the situation and agreed to settle this clash of opinion as to the scope of judicial review. On February 26, 1951, that Court decided Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 and National Labor Relations Board v. Pittsburgh S. S. Co., 340 U.S. 498, 71 S.Ct. 453, 95 L.Ed. 479. The decision in the latter case was stated by the Court to be controlled by the decision in the former. Mr. Justice Frankfurter delivered the opinion in each case.

In Universal Camera the Court referred to what appeared to have been a general understanding of the standard for reviewing the evidentiary validity of the Board's findings as determined by the courts under the provisions of the Wagner Act (Act of July 5, 1935, § 10 (e), 49 Stat. 449, 454, 29 U.S.C.A. § 160(e)), that is, a narrow and limited scope or power of review. At 340 U.S. 479, 71 S.Ct. 460, the Court stated:

"* * * Protests against `shocking injustices\' and intimations of judicial `abdication\' with which some courts granted enforcement of the Board\'s orders stimulated pressures for legislative relief from alleged administrative excesses." (Footnotes omitted.)

The Court reviewed carefully the legislative history of the Administrative Procedure Act and the National Labor Relations Act as amended and stated:

"From the legislative story we have summarized, two concrete conclusions do emerge. One is the identity of aim of the Administrative Procedure Act and the Taft-Hartley Act regarding the proof with which the Labor Board must support a decision. The other is that now Congress has left no room for doubt as to the kind of scrutiny which a Court of Appeals must give the record before the Board to satisfy itself that the Board\'s order rests on adequate proof." 340 U.S.

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