Time-O-Matic, Inc. v. NLRB

• Decision Date: 05 March 1959
• Docket Number: No. 12424.,12424.
• Citation: 264 F.2d 96
• Parties: TIME-O-MATIC, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

264 F.2d 96 (1959)

TIME-O-MATIC, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 12424.

United States Court of Appeals Seventh Circuit.

March 5, 1959.

Edward B. Miller, Merrill Shepard, Willis S. Ryza, Chicago, Ill., for petitioner, Time-O-Matic, Inc. Pope & Ballard, Chicago, Ill., of counsel, for petitioner.

Thomas J. McDermott, Associate Gen. Counsel, Frederick U. Reel, Atty., Jerome D. Fenton, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Fred S. Landess, Atty., N.L.R.B., Washington, D. C., for respondent.

Before DUFFY, Chief Judge and HASTINGS and PARKINSON, Circuit Judges.

HASTINGS, Circuit Judge.

Petitioner, Time-O-Matic, Inc., requests this court to review and set aside an order of the National Labor Relations Board entered against it on July 28, 1958 directing it to cease and desist from conduct violative of § 8(a) (1) of the National Labor Relations Act (the Act) and to reinstate five employees discharged in violation of § 8(a) (1) and (3) of the Act, 29 U.S.C.A. § 158(a) (1, 3). The Board has asked for enforcement of its order.

Petitioner alleges that there is no substantial evidence in the record considered as a whole to support the Board's findings and, further, that the Board erred in reversing certain factual determinations of its Trial Examiner and in refusing to adopt the Trial Examiner's recommendation that the complaint be dismissed.

The International Union of Mine, Mill & Smelter Workers was, in the late summer of 1956, engaged in a campaign to organize petitioner's employees. A meeting with the company president was sought by Jesse Van Camp, the International Representative of the union, and his five-man employee committee, but such a meeting never took place. There was considerable confusion concerning this proposed meeting (petitioner's president, Edward J. Schulenburg, having refused to meet during work hours) which fortuitously resulted in a work stoppage on September 13, when certain employees left their work stations and started to leave the plant. Van Camp, who was at the plant when this occurred, instructed the men, except the committee members among them, to return to work; and they did so without further incident. Van Camp and the committee then were informed by Schulenburg that he would meet with either the committee or Van Camp but not with both. This offer to meet separately was refused.

Two days later the company sent a letter to each employee advising them that their rights to organize would be respected but that the plant would operate as usual during the organization campaign and that "absence from the plant during working hours without cause and permission is a violation of company rules and will result in disciplinary action." (Our emphasis.) A few days later petitioner's foreman cautioned employees against leaving work without permission. As of the time of these occurrences, several rules were posted on a bulletin board but no such rule (against leaving the work area without permission) was among them.

On September 19, the company learned that two members of the union's organizing committee had distributed union pamphlets in the plant. These employees were called to the plant office and informed by the company president that distribution of such literature was prohibited and that they would be discharged if they violated such prohibition again. Subsequently, on the same day, the company posted this notice:

"Notice — Any employee passing out literature either for or against a union on company premises will be subject for immediate discharge."

The notice was voluntarily removed by the company five days later. Petitioner contends that such removal was a revocation of the rule and the Trial Examiner so found.

On about September 28, after the union filed a petition for an election with the Board, one of the company's foremen, William Hughes, made a statement to prospective employees to the effect that "nonmembership in the union was a condition of employment." The company president denied having instructed Hughes to make such a statement and also testified that by the time he learned of Hughes' conduct he was informed that Hughes had been directed to discontinue making the statements.¹

On October 4, 1956, the union held a meeting at which the committee discussed a rumor that the company was considering the discharge of one Bradfield. The committee decided that if Bradfield were discharged, it would request a meeting with Schulenburg to discuss the matter. The next morning, upon learning of Bradfield's discharge, the committee went in a body to the president's reception room and were informed by the receptionist that, although the president was not in, they could wait. A few minutes later John Sutphin, assistant to the president, arrived at work. Sutphin told them that Schulenburg was in town and would be there shortly. The committee indicated it would wait and Sutphin went to his office. At 7:40 Schulenburg's son called his father and told him the committee was waiting to see him. Schulenburg replied that he "would be out there shortly."

The committee was still waiting when Foreman Oller entered the room and told Eaglan and Kilby, two of the committeemen who worked under him, that they were away from their work areas without permission and that they should return to work. Eaglan told Oller to punch their cards out but Oller replied: "I will not punch your cards out, I will pull your cards out of the rack entirely" (that is, discharge them). Foreman Hughes, supervisor of the other three employees on the committee, also came to the reception room and told his subordinates that they were absent without permission and should return to work. The committee members continued to wait for Schulenburg who arrived at 8:10 a. m.

Ten minutes later Schulenburg had the committee enter his office where he had a tape recorder in operation to record the conversation. The committee chairman attempted to discuss the Bradfield discharge, but Schulenburg interrupted and asked each committee member in turn if they had their foreman's permission to be away from the job. They all replied in the negative and Schulenburg then stated: "Well, there is nothing further to discuss, because you are no longer employees of Time-O-Matic, and your checks will be mailed to you." As the employees were leaving Schulenburg told them: "You people didn't handle this right * * * you people seem to think you are bigger than I am." Upon learning of the discharge of the committee, nineteen other employees left their work and picketed the plant for three days and then returned to work.

The Trial Examiner found that petitioner had violated Section 8(a) (1) of the National Labor Relations Act by Foreman Hughes' statements and by its promulgation of a rule against distribution of literature for or against the union. The Board accepted these findings but a majority of three of its five members disagreed with the Trial Examiner's recommendation that no remedial order should issue. It is the Board's position that the fact that the foreman had been directed to discontinue such statements and that the no-distribution notice had been removed, thus purportedly revoked, does not make unnecessary a cease and desist order with the posting of appropriate notices.

The Trial Examiner found also that petitioner had discharged the five union committee members for cause. With this finding the majority of the Board also disagreed. In the view of the majority the employees were discriminatorily discharged in violation of § 8(a) (1) and (3) of the Act for engaging in a protected union or concerted activity.

Petitioner has admitted that statements were made by its foreman, Hughes, to at least two prospective employees of the company to the effect that nonmembership in the union was a condition of employment. This occurred during the union's organizational drive. It is contended by petitioner that the record fails to establish that the statements were ever communicated to any employee or that they had any coercive effect. There is no merit to this argument. A violation of Section 8(a) (1) of the Act was complete when the statements were made to prospective employees who are employees for purposes of the Act. Phelps Dodge Corporation v. N. L. R. B., 1941, 313 U.S. 177, 182, 191-192, 61 S.Ct. 845, 85 L.Ed. 1271; 29 U.S.C.A. § 152 (3). No proof of coercive intent or effect is necessary under Section 8(a) (1) of the Act, the test being "whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act." N. L. R. B. v. Illinois Tool Works, 7 Cir., 1946, 153 F. 2d 811, 814.

It is urged further that Hughes discontinued making such statements on orders from petitioner and that this isolated conduct should not result in remedial action. Assuming, however, that Hughes was directed to discontinue this course of conduct,² there is no evidence that the company took any steps to repudiate the statements by notifying the employees that they were unauthorized (H. J. Heinz Co. v. N. L. R. B., 311 U.S. 514, 521, 61 S.Ct. 320, 85 L.Ed. 309, (1941)), and, under the circumstances, the company is responsible for the unlawful conduct. Indiana Metal Products Corp. v. N. L. R. B., 7 Cir., 1953, 202 F.2d 613, 619-620. It is also clear that this is not a case involving isolated and sporadic conduct such as was involved in Ohio Associated Tel. Co. v. N. L. R. B., 6 Cir., 1951, 192 F.2d 664, 668; N. L. R. B. v. Hinde & Dauch Paper Co., 4 Cir., 1948, 171 F.2d 240 both relied on by petitioner. The instant case does not involve "isolated expressions" of a minor supervisory employee. The statements were made by a foreman, who by his own testimony made recommendations usually followed by the company in hiring employees, to job applicants who could have reasonably concluded that the statements represented company policy. The Board properly...