Southwire Company v. NLRB

• Decision Date: 02 August 1967
• Docket Number: No. 23800.,23800.
• Citation: 383 F.2d 235
• Parties: SOUTHWIRE COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

383 F.2d 235 (1967)

SOUTHWIRE COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 23800.

United States Court of Appeals Fifth Circuit.

August 2, 1967.

Frank M. Swift, Atlanta, Ga., for petitioner.

Marcel Mallet-Prevost, Asst. Gen. Counsel, NLRB, Leonard M. Wagman, Atty., NLRB, Washington, D. C., Morgan C. Stanford, Atlanta, Ga. (Intervenor), for respondent.

Before BROWN, Chief Judge, BELL, Circuit Judge, and BREWSTER, District Judge.

GRIFFIN B. BELL, Circuit Judge:

This case comes to the court on the petition of Respondent for review of a decision and order of the Labor Board and on the cross-petition of the Board for enforcement of the same order.¹

Respondent, with approximately 900 employees in its plant in Carrollton, Georgia, a town of some 11,000 people, is engaged in manufacturing wire cable and related products. The unsuccessful efforts of unions to organize its employees in the past have resulted in prior proceedings in this court. See NLRB v. Southwire Company, 5 Cir., 1963, 313 F.2d 638 and NLRB v. Southwire Company, 5 Cir., 1965, 352 F.2d 346. In those cases we enforced orders with respect to nine out of ten employees found by the Board to have been discriminatorily discharged in violation of § 8(a) (3) and (1) of the Act. 29 U.S.C.A. § 158(a) (3) and (1). We also enforced with respect to findings of employee interrogation violative of § 8(a) (1) of the Act. 29 U.S.C.A. § 158(a) (1).

In the latter case we observed that Respondent is opposed to the unionization of its employees and has sought to leave no one in doubt of that fact. One method of putting its position across was through the distribution of a booklet to new employees. The booklet contained company rules and other data including a "Statement on Unionism" as follows:

"We are convinced that wherever there are unions there is trouble, strife and discord and that a union would not work to our employees\' benefit. In view of this it is our positive intention to oppose unionism by every proper and legal means."

We concluded that this statement was not improper. 352 F.2d 346, supra, at p. 348. We pointed out that Respondent had the right to make its opposition to unionization known so long as it was done in a fair presentation of its views. In this same case we refused to enforce that part of the order which restricted Respondent's prospective conduct by proscribing the violation of § 7 of the Act, 29 U.S.C.A. § 157, "in any other manner", in addition to the usual cease and desist language related to the specific unfair labor practices found. We did not consider the record as warranting an order of such breadth and limited its effectiveness to future conduct of a "like or related manner" to that already found to be in violation of the Act.

In the instant proceedings the Trial Examiner held that Respondent had violated § 8(a) (1) of the Act by threatening to discharge employee Shoemake because of his union activity, and also by showing the film "And Women Must Weep" to its employees as part of its new employee orientation program. The Examiner concluded that the company did not violate § 8(a) (3) and (1) of the Act by discharging employees Shoemake, Suddeth, and Mabry. The Board, however, disagreed with respect to these employees and concluded that Respondent had discharged them because of their protected union activity and had thus violated the Act. These holdings constitute the issues on appeal together with the additional contention that the order is overbroad.

I.

We have carefully examined the record as a whole. The § 8(a) (1) violation based on the threatened discharge is clear. The violation of the Act is complete when Respondent threatens an employee with discharge because of his union activity. NLRB v. Movie Star, Inc., 5 Cir., 1966, 361 F.2d 346 and NLRB v. Griggs Equipment, Inc., 5 Cir., 1962, 307 F.2d 275. The undisputed evidence makes out such a case.

The evidence with respect to the discharge of the three employees presents a closer case. The Board drew inferences from the evidence of record contrary to those of the Trial Examiner. The evidence disclosed reasons for the discharge of all three of the employees which would support a finding that the discharges were not the result of antiunion motivation. The Examiner chose this route but the record also contains facts which would support an antiunion employer motive in each discharge and the Board took this choice. In two recent cases we have gone fully into the rules which are applicable in reviewing cases such as this where the Board has substituted its judgment for that of the Examiner. NLRB v. O. A. Fuller Super Markets, Inc., 5 Cir., 1967, 374 F.2d 197; NLRB v. Camco, Inc., 5 Cir., 1966, 369 F.2d 125. The Board is to resolve factual discrepancies and conflicting inferences which may be drawn from the facts. We are not faced here with a problem of credibility choices as between the Examiner and the Board but simply a question of the Board having drawn different inferences from the same facts. The evidence on the record as a whole reasonably supports the inferences drawn by the Board and there the matter ends. The causal connection between Respondent's antiunion motivation and the discharges was established. That was the burden of the Board and where it is sustained, as here, the order is to be enforced.

We enforce as to the § 8(a) (1) violation based on the threat of discharge and as to the § 8(a) (3) and (1) violations based on the discharge of the three employees. This leaves for resolution the objection to the breadth of the order and the § 8(a) (1) violation based on the film.

As noted, in NLRB v. Southwire Company, 352 F.2d 346, supra, we declined to enforce an order which, in addition to the injunction as to specific conduct, would have enjoined Respondent from violating § 7 of the Act "in any other manner". We said that an order prohibiting conduct beyond the specific acts found by the Board as unfair labor practices should be limited to those cases where the Respondent had demonstrated a proclivity to violate the Act. Our limitation of the effectiveness of the order as against future conduct to that which would violate the Act in a like or related manner was in keeping with the teachings of May Department Stores v. NLRB, 1945, 326 U.S. 376, 66 S.Ct. 203, 90 L.Ed. 145; and NLRB v. Express Publishing Company, 1941, 312 U.S. 426, 61 S.Ct. 693, 85 L.Ed. 930. In the Express Publishing Company case the court cautioned against an order of such breadth as to contemplate the enforcement of the Act by the courts in contempt proceedings and where matters would be involved which had not been in controversy before the Board and which were not similar or fairly related to unfair labor practices which the Board had found. The court stated:

"To justify an order restraining other violations it must appear that they bear some resemblance to that which the employer has committed or that danger of their commission in the future is to be anticipated from the course of his conduct in the past."

The employer there was charged with violating § 8(a) (5) of the Act, 29 U.S. C.A. § 158(a) (5), by refusing to bargain. There was neither a charge nor a history of other violations of the Act. The broad order was denied.

We have enforced orders of the kind here involved in cases where the record demonstrates a proclivity on the part of the employer to disregard the Act; otherwise such proposed orders have been limited to like or related conduct. Each case turns on its own facts. See NLRB v. Bama Company, 5 Cir., 1965, 353 F.2d 320; Truck Drivers & Helpers Local Union No. 728 v. NLRB, 5 Cir., 1964, 332 F.2d 693; NLRB v. Moore Dry Kiln Company, 5 Cir., 1963, 320 F.2d 30; NLRB v. Lindsay Newspapers, Inc., 5 Cir., 1963, 315 F.2d 709; NLRB v. Boman Transportation, Inc., 5 Cir., 1963, 314 F.2d 497; NLRB v. Galloway Mfg. Corp., 5 Cir., 1963, 312 F.2d 322.

Respondent's conduct here and in previous litigation has involved violations of § 8(a) (1) through interrogations, threats and general interference with rights of its employees to self-organization under the Act, and to discriminatory discharges in violation of § 8(a) (3) and (1). We treat the proposed order² which is in the general language of § 7 of the Act as being limited to this type of unfair labor practice conduct and as such it will be enforced. We think that Respondent had demonstrated a proclivity to violate these sections of the Act but there is no basis for finding a predisposition to violate other sections of the Act. Violations outside the class with which we are dealing should be left to the normal unfair practice procedures under the Act rather than to the contempt power of the court. NLRB v. Express Publishing Company, supra.

II.

This leaves for decision the question of the film "And Women Must Weep". The Trial Examiner posed the issue as whether the film constituted a "threat of reprisal" to Respondent's employees for engaging in union activities. He reached no conclusion on the point but did conclude that it had the effect of restraining and coercing the employees in the exercise of their § 7 rights and that it thus violated § 8(a) (1) of the Act. The Board affirmed this conclusion but one of the three Board members hearing the case found it unnecessary to consider the film in his resolution of the case.³

The Board has considered the same film on three prior occasions. In two cases elections were set aside based on the fact that the film was exhibited by the employer to its employees in mass meetings during election campaigns; one day before the election in one case and twelve days before the election in the other. See Plochman & Harrison — Cherry Lane Foods, Inc., 1962, 140 NLRB 130; and Carl T. Mason, Inc., 1963, 142 NLRB 480. In each of these cases two of the five members of the Board dissented on the ground that the film was non-coercive and that it was permissible campaign propaganda. The...