Sunshine Biscuits, Inc. v. NLRB

• Decision Date: 08 February 1960
• Docket Number: No. 12695.,12695.
• Citation: 274 F.2d 738
• Parties: SUNSHINE BISCUITS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

274 F.2d 738 (1960)

SUNSHINE BISCUITS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 12695.

United States Court of Appeals Seventh Circuit.

February 8, 1960.

David B. Buerger, Pittsburgh, Pa., Buchanan, Ingersoll, Rodewald, Kyle & Buerger, Pittsburgh, Pa. (William F. Jetter, Jr., Long Island City, N. Y., of counsel), for petitioner.

Thomas J. McDermott, Assoc. Gen. Counsel, Morton Namrow, Atty., Stuart Rothman, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Rosanna A. Blake, Washington, D. C., Attys, N. L. R. B., for respondent.

Before DUFFY, SCHNACKENBERG and MAJOR, Circuit Judges.

MAJOR, Circuit Judge.

This case is before the court upon the petition of Sunshine Biscuits, Inc. (hereinafter referred to as petitioner or the company), to review and set aside an order of the National Labor Relations Board, issued June 16, 1959, pursuant to Sec. 10(c) of the National Labor Relations Act, as amended (61 Stat. 136, 29 U.S.C.A. § 151 et seq.). The Board's decision and order are reported at 123 NLRB No. 205. In its answer to the petition, the Board requests enforcement of its order. This court has jurisdiction pursuant to Sec. 10(e) and (f) of the Act, as petitioner is engaged in the manufacture, sale and distribution of bakery products for interstate commerce in the states of this judicial circuit.

Following the usual proceedings under Sec. 10 of the Act, the Board, consistent with the report of its Trial Examiner, found that the company violated Sec. 8 (a) (3) and (1) of the Act, by discharging salesman William P. Cawley because of his union organizational activities. The Board also found that the company violated Sec. 8(a) (1) by threatening employees with reprisals if they engaged in union activities, by promising benefits to employees if they refrained from such activities and by interrogating employees concerning their union membership and activities.

The contested issues arise from petitioner's contention that the unfair labor practices found by the Board are without substantial evidentiary support, and the Board's contention to the contrary.

We have carefully checked with the record the intermediate report of the Trial Examiner, approved by the Board, and conclude that it in the main contains a fair summary of the evidence offered by the respective parties. We shall, therefore, utilize such report in our statement of the facts, with such additions as seem important and such deletions as appear immaterial. Respondent maintains and operates places of business in numerous states where it is engaged in the manufacture, sale and distribution of cookies, crackers, biscuits and other related bakery products. Only its Pittsburgh, Pennsylvania, place of business is involved in this proceeding. During the calendar year 1957, and for several years prior thereto, it had nineteen sales territories in the Pittsburgh area, each serviced by a salesman. During the time material herein, Hugh Millsop was its district sales manager and John Faloona its sales supervisor.

One of such salesmen was William P. Cawley, who the Board found was discriminatorily discharged on March 1, 1957. Prior to his discharge, Cawley had been a salesman for more than five years. In January 1956, he became interested in organizing a union. After ascertaining that other salesmen were interested, he contacted the business agent of Local 485 of the Teamsters (herein called Local 485). At the suggestion of the business agent, Cawley invited the salesmen to a union meeting which was held early in February 1956, at which seven of the salesmen signed union cards. Cawley was active, apparently without success, in attempting to induce other salesmen to join the union. In June 1956, Millsop stated to salesman Zabel, "If Mr. Cawley put as much enthusiasm into his work as he did into the union, he could be the best salesman we had in the area. * * * There is always a fellow like Cawley in most organizations. * * * It was easy to combat because Mr. Cawley, if he was segregated from the more susceptible men, he wouldn't be as able to work on this type of thing." Up to this time, all of the salesmen attended a single monthly meeting. Thereafter, the company directed that two meetings be held, with half of the salesmen attending the first and the other half attending the second. After Cawley was discharged the following March, the company reverted to its old practice of holding only one monthly meeting.

Neither Cawley nor the business agent of Local 485 made any marked progress in their organizational efforts. Some of the salesmen suggested that "a salesman's union" would be more appropriate Thereupon, in January 1957, Cawley contacted officials of Amalgamated Meat Cutters and Butcher Workmen of North America, Salesmen and Office Workers' Union Local 490. The officials of this Local arranged for a meeting of the company's salesmen on February 1, 1957. Cawley notified the salesmen of the meeting, at which four, including Cawley, signed union cards. (The record does not disclose whether these four were included in the seven who had previously signed union cards.)

In January 1957, Faloona arranged a meeting with two of petitioner's salesmen, Toy and Reese. He met the former shortly after January 1, 1957, and the latter about February 1, 1957. During his meeting with Faloona, Toy referred to rumors that he had been "connected with the union" and that his name was "kind of black for that" with the company. Faloona stated that he had "more or less" come to see Toy and discuss the report and to "check" Toy's "story." When Toy insisted that he was "completely innocent" and had no intention of joining a union, Faloona replied, "That's good enough for me."

While Reese was on his route, he was met by Faloona and, at the latter's suggestion, they had lunch together. Faloona brought up the subject of the union but warned Reese that he would deny his statements if later repeated by Reese. He informed Reese that the company had ways and means of finding out who started it, who had joined the union, and stated that those who were "for the company" would be taken care of. He stated that the Pittsburgh branch "would close down" if union activities started, just as was done in New York. Among other things, Faloona also told Reese, "Mr. Millsop received a letter from one of the employees that at first they thought the union was just talk, but this particular salesman was contacted by a union man and he was getting worried about his job." Faloona further told Reese that he should contact someone like Don Travis and that Travis would straighten him out on the union situation; that Reese "should talk to him and see how he is getting along without a union." Faloona suggested to Reese that if he was for the union, to get out for his own good.

On February 21, 1957, Millsop had a conversation with salesman Zabel, during which he stated, "I understand that five or six men signed cards in the union, and I also understand that you are one who has signed. If you are, I would advise you to get your name off the list immediately. I am only telling you this for the protection of all of us, that the company wouldn't hesitate for a minute to close this plant down, if the union, if the salesmen, unionized." Millsop told Zabel that when the salesmen unionized at their New York bakery, it was closed for a three year period, and he felt sure that they would not hesitate to close down a branch with nineteen men in it. He also stated that when the union election came, the company would see who had signed these cards and, after the plant was closed, the men who hadn't signed cards would be taken care of with jobs in other districts, other branches; that the company would see that the men who were loyal to the company wouldn't starve. Millsop further stated in the same conversation, "This fellow thinks he can save his job by organizing a union, but he can't. I have already mailed in bad reports to Philadelphia. I am only awaiting Mr. Inman's approval before firing him." While Millsop did not mention Cawley's name, Zabel testified that the reference was to Cawley. On March 1, one week after this conversation, Millsop discharged Cawley and thereafter "all talk of union activity died."

It is evident that the testimony which we have related abundantly supports the Board's finding and conclusion that petitioner violated Sec. 8(a) (1) of the Act by threatening employees with a shut-down of the business if the union organized it, by promising benefits to employees if they abandoned their union activities and by interrogating employees in a coercive manner as to their union membership and activities. We have not overlooked the fact that some, in fact much, of the incriminating evidence above related was denied by witnesses for petitioner. We also take notice of petitioner's contention that the testimony of Zabel, Toy and Reese is unworthy of belief, contrary to the finding of the Trial Examiner and the Board that the witnesses were credible. We have read all the testimony and do not agree with petitioner's contention. True, there are some discrepancies in the testimony of these witnesses but we discern nothing which would furnish...