NLRB v. Yale Manufacturing Company, 6572.

• Decision Date: 01 February 1966
• Docket Number: No. 6572.,6572.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. YALE MANUFACTURING COMPANY, Inc., Respondent.
• Court: U.S. Court of Appeals — First Circuit

356 F.2d 69 (1966)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. YALE MANUFACTURING COMPANY, Inc., Respondent.

No. 6572.

United States Court of Appeals First Circuit.

Heard January 3, 1966.

Decided February 1, 1966.

Bernard M. Dworski, Washington, D. C., Atty., N. L. R. B., with whom Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Allison W. Brown Jr., Atty., N. L. R. B., Washington, D. C., were on brief, for petitioner.

Julius Kirle, Boston, Mass., for respondent.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

McENTEE, Circuit Judge.

In this proceeding the National Labor Relations Board petitions us to enforce its order of January 18, 1965, against the respondent, Yale Manufacturing Company, Inc. The order is based upon the Board's findings¹ that the respondent engaged in a number of unfair labor practices proscribed by Section 8 of the National Labor Relations Act. (29 U.S.C. § 158). The only findings challenged by the respondent in this proceeding are as follows: (1) that the respondent violated Section 8(a) (1) of the Act in that it threatened employees with economic reprisals for adhering to the union; (2) that it solicited its employees to retract union authorizations executed by them and (3) that the respondent violated Section 8(a) (3) and (1) of the Act in that it discriminatorily discharged four employees.²

The respondent contends that these findings, considered on the record as a whole, are not supported by substantial evidence and therefore the order against it should not be enforced. Respondent also contends it was deprived of a full and complete hearing in this case by the Board's denial of its motion to reopen the case for the purpose of introducing certain exhibits. As to this last, the record indicates that this motion was untimely and was also objectionable on other grounds.³ The question whether it should have been granted seems to us to be one which is solely within the discretion of the Board and under the circumstances here, we cannot say the Board abused its discretion or deprived the respondent of its rights in denying the motion. See Metal Blast, Inc. v. N. L. R. B., 324 F.2d 602, 604 (6th Cir. 1963).

A determination of the substantial evidence question raised by the respondent requires some recital and discussion of the evidence upon which the challenged findings are based. Respondent is engaged in the manufacture and sale of chrome furniture, wrought iron furniture and related products. Its place of business is in Roxbury, Massachusetts. In the latter part of December 1963 some of respondent's employees decided they wanted a union in the plant and took immediate steps to bring this about. As a result, a union representative appeared at the plant on the morning of January 16, 1964, and passed out union literature and union authorization cards to the employees as they entered the plant. The activities of this union representative were observed by foreman Eugene Biaggi and shortly thereafter the events which are the basis of the complaint in this case began to happen.

Substantially, they are as follows. During the morning of January 16th Biaggi separately questioned two of the employees as to whether they were going to join the union.⁴ Later the same morning foreman William Stone asked employee Dunnell "who started the union," and when told by this employee at a pre-arranged meeting later that day that employee Arthur Gear started it, Stone expressed surprise and asked if he thought it would do any good "if we talked to the boys. * * *" When Dunnell indicated it would not, Stone said to him "All right go ahead down and keep your ears open."⁵ Perhaps the most important happening of that day from the standpoint of the findings in this case was a meeting of the employees called by management and held in the plant shortly before closing time. Present at this meeting, in addition to the employees, were foremen Biaggi and Stone, Gershorn Rosenthal, treasurer, and his brother Benjamin Rosenthal, who was also an officer of the company. Benjamin Rosenthal convened the meeting with the statement that he heard some of the employees had signed and mailed in union authorization cards.⁶ At that point he admonished the employees to think very carefully about what they were doing; that they had always gotten fair treatment in the shop; that there wasn't a man there who could remember him laying anybody off and that no matter how slow things were the company always found something for the men to do. Then Stone said the men should think over very carefully how they had classified themselves on the union authorization cards and singling out one employee as to how he had classified himself, stated that if he was going to have to pay union wages he was going to get union help that could do that type of work. He then added that if the union came in a lot of men would get fired or released or laid off and a lot of men would take a cut in pay. Finally, treasurer Rosenthal concluded the meeting by inviting the men to retract the authorizations given to the union.

There was also evidence that after this meeting foreman Biaggi warned the two Gear brothers that if the union came in they would be the first to go, because of their lack of experience. Both Gears testified that on the very next day (January 17th) when each of them asked Biaggi about a pay raise which he had promised them at the time they were hired, Biaggi replied that due to the union activity in the plant all raises were cancelled until further notice, or words to that effect. Also, employee Brown testified that during this period Stone told him if the union came in he (Stone) would take certain unpleasant drastic action against him.

Employee Denniston testified that in January 1964 Biaggi told him there never would be a union in Yale Manufacturing Company because he wouldn't allow it. Then after chiding Denniston about joining the union, Biaggi admonished him as follows: — "You're buying a new house, keep my advice and keep your nose clean."

Although at the meeting with the employees on January 16th, one of the Rosenthals stated it was up to the men whether they wanted the union or not, it is clear from the record that the respondent all during this period manifested a strong anti-union animus and took prompt action to suppress the union once it had learned about it. The respondent's officers and foremen either denied or gave different versions of most of the happenings cited above, but it is to be noted that, by and large, the trial examiner and the Board credited the testimony of the employees. This court has held that questions of credibility are for the Board subject to judicial review only when the Board oversteps the bounds of reason. N. L. R. B. v. Bangor Shoe Mfg. Co., Inc., 308 F.2d 948, 949 (1st Cir. 1962). No such overstepping is found here. There was abundant evidence to support the Board's findings that the respondent threatened its employees with economic reprisals for adhering to the union and that it solicited them to retract their union authorizations. It is well settled that such conduct clearly violates Section 8(a) (1) of the Act. See N. L. R. B. v. Lowell Sun Publishing Co., 320 F.2d 835, 840 (1st Cir. 1963); Edward Fields, Inc. v. N. L. R. B., 325 F.2d 754, 759 (2d Cir. 1963); N. L. R. B. v. Jack Smith Beverages, 202 F.2d 100, 101 (6th Cir. 1953).

We now come to a consideration of the four discharges. Arthur Gear and his brother Edward were laid off⁷ on February 3, 1964, during the height of the union organizing campaign. Both were members of the union. In fact it was Arthur who made the initial contact which resulted in the union coming into the plant. He was credited by his fellow employees with starting the union and was perhaps the most active employee in it.⁸ The management knew Arthur Gear was instrumental in starting the union, having been so informed by employee Dunnell. It was also aware of his continued union activities, having seen him conferring several times with the union representative. As previously stated, both Arthur and his brother Edward had been singled out by their foreman as being the first to go if the union came in, yet Arthur continued openly in his union organizing activity.

Respondent claims the layoff of the Gear brothers was precipitated by economic reasons. Evidence was introduced showing that the company's sales figures for January and February 1964 indicated a drop in orders. Respondent also claims that due to lack of work two employees had to be laid off and it decided upon the Gear brothers because they were the most recent employees hired and also because foreman Biaggi was dissatisfied with their work. The Board rejected these reasons as mere pretexts and found that the layoff of Arthur Gear was discriminatorily motivated because of his union activity and that Edward Gear was also discriminatorily discharged not only because he was Arthur's brother and was likely to have the same union attitude, but to lend credence to the reasons advanced for the dismissal of Arthur who was the employee the company was really anxious to remove from the scene.⁹

Employees Dunnell and Garvin were discharged some two weeks later. Both were upholsterers who worked side...