Self-Reliance Ukrainian American Coop. Ass'n v. NLRB, 71-1198.

• Decision Date: 04 May 1972
• Docket Number: No. 71-1198.,71-1198.
• Citation: 461 F.2d 33
• Parties: SELF-RELIANCE UKRAINIAN AMERICAN COOPERATIVE ASSOCIATION, Inc. d/b/a Certified Foods, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Retail Food and Drug Clerks Union, Local 1550, Affiliated With Retail Clerks International AFL-CIO, Intervenor.
• Court: U.S. Court of Appeals — Seventh Circuit

461 F.2d 33 (1972)

SELF-RELIANCE UKRAINIAN AMERICAN COOPERATIVE ASSOCIATION, Inc. d/b/a Certified Foods, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Retail Food and Drug Clerks Union, Local 1550, Affiliated With Retail Clerks International AFL-CIO, Intervenor.

No. 71-1198.

United States Court of Appeals, Seventh Circuit.

May 4, 1972.

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George P. Blake, Arthur B. Smith, Jr., Chicago, Ill., for petitioner; Vedder, Price, Kaufman & Kammholz, Chicago, Ill., of counsel.

Neal D. Rosenfeld, Chicago, Ill., for intervenor.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Allison W. Brown, Jr., Atty., N.L.R.B., Washington, D.C., Eugene G. Goslee, Acting Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Charles R. Both, Attys., National Labor Relations Board, for respondent.

Before CASTLE, Senior Circuit Judge, KILEY and SPRECHER, Circuit Judges.

KILEY, Circuit Judge.

Petitioner Self-Reliance Ukrainian American Cooperative Association, Inc. (employer) seeks to set aside a Labor Board decision that it violated Sections 8(a)(1), 8(a)(3) and 8(a) (5) of the National Labor Relations Act.¹ We deny the employer's petition and grant the Board's cross-petition for enforcement of the order.

The employer's work force in its neighborhood food store² numbered 19 when on December 22, 1969, employee Irene Burtniak began a Union³ organizational drive. At that time she requested cards from the Union authorizing the Union to act as the employees' bargaining representative. On January 14 the Union orally requested discussion of a contract with the employer, and on January 15 it made a formal written demand for recognition. The employer on January 21 refused recognition, and the Union then filed charges with the Board alleging violation of Sections 8(a)(1), 8(a)(3) and 8(a)(5).

The Examiner, after the hearing, concluded that the 8(a)(1) and 8(a)(3) charges were proven, but that the 8(a)(5) charge was not proven. The Board adopted the Examiner's findings, conclusions and recommendations, except as to the 8(a)(5) charge. The Board concluded that the employer had violated Section 8(a)(5) and it ordered the employer to bargain with the Union if requested to do so.

The employees involved in the charges are Irene Burtniak and her daughter Lydia, Debra Romanchuk, and John Chorkawciw. All four were included as "regular part time employees" in the unit for which the Union claimed to be representative. Irene Burtniak had obtained signatures of the other three for Union authorization cards⁴ in the period December 25 to December 31, 1969. Except for Irene Burtniak, the employees involved here were teen-age high school students.

The relevant testimony⁵ concerns a statement made by Pylawka over the telephone on the afternoon of January 14, and his separate conversations with each of the four employees within the following three day period. The conversations took place after two Union agents, on January 14, with seven authorization cards, had called on Pylawka at the store. When they disclosed their purpose to discuss representing the employees, Pylawka referred them to Datzco, whose office as secretary of Self-Reliance was a few doors away. The employer's refusal to recognize the Union demand for recognition followed.

I.

The Examiner found that the employer violated § 8(a)(1) of the Act by coercive interrogation of John Chorkawciw and Debra Romanchuk concerning their Union activities. In this appeal, however, the employer directs his argument only to the interrogation of John Chorkawciw.

John Chorkawciw testified that on January 14 Pylawka asked him whether he had signed a Union card. John said he first denied signing, but then admitted signing, after Pylawka told him there was no use lying about it since Pylawka knew everyone who had signed. Pylawka in his testimony admitted talking to John about the Union, but denied saying he knew who had signed the cards.

In cross-examination John was confronted with an affidavit made before the hearing. In the affidavit he had made no mention of Pylawka's inquiry concerning others who had signed the cards. The affidavit, except for this omission, was generally consistent with John's credited testimony. And the statement that he first denied signing a card, before admitting it, is significant. An employer's question concerning union activities which inspires fear among employees is unlawful under the Act, and here the initial denial of signing a card is one of the factors from which the employer's coercion might reasonably be inferred. Bourne v. N L R B, 332 F.2d 47, 48 (2nd Cir. 1964); N L R B v. My Store, Inc., 345 F.2d 494, 497 (7th Cir. 1965). Furthermore, the inquiry was directed toward a high school student, sixteen years of age. We think the Examiner was not required to find that Pylawka's interrogation of John was a mere innocent question for the lawful purpose of learning whether the Union had a card majority, as the letters were held to be in this court's opinion in Lake City Foundry Co. v. N L R B, 432 F.2d 1162, 1175 (7th Cir. 1970).

In view of the context in which the inquiry was made, the Examiner did not err in finding an 8(a)(1) violation. Pylawka knew that Union activity was in progress. The finding that the interrogation was coercive is indicated by John's age and his initial denial that he signed the card, and is supported by the whole evidence.

II.

The Examiner found that Irene Burtniak, her daughter Lydia, and Debra Romanchuk were discharged for their Union activities, in violation of § 8(a)(3) of the Act. If their testimony was properly credited,⁶ the finding must be sustained as having substantial support in the record as a whole.

Assistant manager Kurylo knew in early December that Irene Burtniak was interested in organizing the employees. The Examiner could properly attribute his knowledge to Pylawka. Thereafter, on January 14 the Union representatives appeared at the store and talked to Pylawka.

1. Irene Burtniak

Irene Burtniak testified that she heard Pylawka talking on the telephone the afternoon of January 14 and that she heard him say, "She is here," and that he had no one to replace her. Later he told her that she did not know how "stupid" she was. The next afternoon he told her that she was "stupid" trying to be a "union leader" and bringing the "union to my store." She testified that Pylawka told her to go home and not to come back until the Union troubles were over and to have her husband Basil talk to him. She left, and was not reemployed at the store.

Pylawka testified that Irene Burtniak "quit" over a dispute concerning conditions of employment. He denied the telephone statements of January 14 and also Irene's version of their conversation the next day. Irene's husband Basil testified that he did talk to Pylawka who told him that Irene was at fault for the Union troubles of the store, and that she could not return to work until the troubles were over.

We are not persuaded by the employer that Pylawka's testimony rather than Irene's should have been credited. Our reading of his testimony supports the Examiner's discrediting Pylawka's story. True, in her pre-hearing affidavit Irene did not state that Pylawka had accused her of being a "union leader" or that Pylawka had used the word "union" in referring to the "troubles." However, she said she later gave an oral statement when she recalled the whole case.

The determination of whom to believe was for the Examiner. He observed Irene Burtniak when she was cross-examined about the omission in her affidavit and was in a proper position to evaluate her explanation. Furthermore, her husband appears to have been a credible witness. His testimony agreed with Pylawka's that they discussed the conduct of his daughter Lydia. However, he also testified that Pylawka said Irene could not work until the Union troubles were over, since they were "her fault."

2. Lydia Burtniak

Lydia Burtniak testified that she was accused of trying to bring the Union into the store and of trying to "cover up" for Debra Romanchuk who had been accused both of stealing cube steaks and of failing to charge hamburger meat to a customer. Lydia testified that she was also told on January 15 not to come back until the Union troubles were over.

Pylawka admitted that Lydia had been discharged but denied the discharges were for her Union activity. He testified she was discharged for "lying" to "cover up for Debra." Lydia's father testified that in his conversation with Pylawka the latter criticized Lydia, but only for neglecting her work by flirting with her boy friend working in the store.

The Examiner credited Lydia's story, and considered in context of events of January 15 we cannot say he erred. Even if Lydia was discharged for both Union activity and for "lying," the Examiner's finding of an 8(a)(3) violation can be sustained since the "lying" incident was not the sole reason for the discharge. N L R B v. Symons Mfg. Co., 328 F.2d 835, 837 (7th Cir. 1964); Nachman Corp. v. N L R B, 337 F.2d 421, 423-424 (7th Cir. 1964).

3. Debra Romanchuk

The last day Debra Romanchuk worked, as cashier, was January 10. She testified that she was subsequently in the store as a customer January 14 and had a conversation with Kurylo. He admitted telling her that she might not be able to work on the 16th because of some "trouble" with the Union. Debra further testified that she had been scheduled to work January 15, 16 and 17, but was unable to do so because of illness. She telephoned Pylawka on January 17 to report her illness. He told her it was "unnecessary" to come to work, asking whether she remembered the trouble "about the meat" and then adding "Well, now we have bigger trouble."

In his testimony Pylawka admitted asking Debra the question but denied making the statement. He testified he intended during the conversation to discharge Debra because of two "meat" incidents involving Debra's work as a...