NLRB v. Zimnox Coal Company
| Decision Date | 14 September 1964 |
| Docket Number | No. 15335.,15335. |
| Citation | 336 F.2d 516 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ZIMNOX COAL COMPANY, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Leo N. McGuire, N. L. R. B., Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Elliott Moore, Atty., N. L. R. B., Washington, D. C., on the brief), for petitioner.
Henry M. Wick, Jr., Pittsburgh, Pa., and Dominic J. Bianco, Steubenville, Ohio (Coleman & Bianco, Steubenville, Ohio, Richard J. Smith, Delisi, Wick & Vuono, Pittsburgh, Pa., on the brief; Jack B. Josselson, Schmidt, Effron, Josselson & Weber, Cincinnati, Ohio, of counsel), for respondent.
Before O'SULLIVAN, Circuit Judge, MAGRUDER, Senior Circuit Judge, and LEVIN, District Judge.
This matter is before the court upon the petition of the National Labor Relations Board for enforcement of its order of February 13, 1963, against respondent, Zimnox Coal Company, issued pursuant to unfair labor practice proceedings under Section 10 of the National Labor Relations Act, 29 U.S.C. § 151 et seq. The Board's decision and order are reported at 140 N.L.R.B. 1229 (1963).
The respondent urges that the Board was estopped to hear this cause. This is so, it claims, because a previous complaint based on the same conduct as is here involved was, as part of an agreement for a representation election, withdrawn by the union, with the approval of the Regional Director. After the union won the election, these same charges were refiled, and the Regional Director issued the complaint upon which it made the decision before us. The refiling of the charges was obviously in retaliation for respondent's refusal to accede to a post-election demand of the union. It is not contended that this refusal, or any post-election conduct of respondent, amounted to an unfair labor practice. The National Labor Relations Act does not forbid what was done here, and it was within the broad discretion of the Regional Director to permit the refiling of these charges. Wallace Corp v. N. L. R. B., 141 F.2d 87, 91 (4th Cir. 1944), affirmed 323 U.S. 248, 65 S.Ct. 238, 89 L.Ed. 216. However, we have recently had occasion to recognize "the salutary policy of the Board in not reviving old charges where voluntary settlements of disputes have been made." N. L. R. B. v. Superior Tool & Die Co., 309 F.2d 692, 695 (6th Cir. 1962). This policy of the Board does not, of course, amount to a rule which will restrain a Regional Director who chooses to ignore it. Primary responsibility for preventing the revival of settled charges as a bargaining bludgeon must remain with the Regional Directors and the General Counsel. Cf. Dunn v. Retail Clerks International Ass'n, 307 F.2d 285, 289 (6th Cir. 1962).
The Board, in agreement with the Trial Examiner, found that respondent interfered with, restrained, and coerced its employees, in violation of Section 8(a) (1) of the Act, by interrogating them with regard to their union activities and threatening them with reprisals if they supported the Union.1 The Board further found, in agreement with the Examiner, that respondent violated Section 8(a) (3) and (1) of the Act by discriminatorily discharging employee Alvin Ross and laying off employees McDonald, Nicholson, Nelson, and Risdon through discontinuance of its trucking operations because of union activities.
As noted by this court in United Fireworks Mfg. Co. v. N. L. R. B., 252 F.2d 428, 430 (6th Cir. 1958), "interrogation of employees about membership in the union may or may not amount to coercion, depending upon the manner in which it is done and the surrounding circumstances." Substantial evidence supported the Board's conclusion that Zimnox's interrogatories "were not merely casual, nonhostile inquiries but carried a coercive implication." N. L. R. B. v. A. E. Nettleton Company, 241 F.2d 130, 132 (2nd Cir. 1957); N. L. R. B. v. Flemingsburg Mfg. Co., 300 F.2d 182 (6th Cir. 1962).
Even if we assume that respondent was free to completely and permanently terminate one segment of its business, see Darlington Mfg. Co. v. N. L....
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