Vogue Lingerie, Inc. v. NLRB

• Decision Date: 05 July 1960
• Docket Number: No. 13065.,13065.
• Citation: 280 F.2d 224
• Parties: VOGUE LINGERIE, INC., Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

280 F.2d 224 (1960)

VOGUE LINGERIE, INC., Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 13065.

United States Court of Appeals Third Circuit.

Argued March 22, 1960.

Decided July 5, 1960.

Gerard D. Reilly, Washington, D. C. (Lawrence T. Zimmerman, Washington, D. C., Reilly & Wells, Washington, D. C., McNerney, Page & Vanderlin, Williamsport, Pa., on the brief), for petitioner.

Melvin Welles, Washington, D. C. (Stuart Rothman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Marion L. Griffin, Attorney, National Labor Relations Board, Washington, D. C., on the brief), for respondent.

Before McLAUGHLIN, KALODNER and HASTIE, Circuit Judges.

HASTIE, Circuit Judge.

The issues presented in this petition of Vogue Lingerie, Inc., a manufacturer of ladies' wear, for review and modification of an order of the National Labor Relations Board, and a cross-petition of the Board for enforcement of that order, are largely factual. Contention centers around alleged discharges of certain Vogue employees.

One substantial controversy concerns the Board's finding that petitioner discharged employee Sylvia Robison on August 21st in such circumstances as to make that action a violation of Section 8(a) (1) of the National Labor Relations Act, as amended. 29 U.S.C.A. § 158(a) (1). Petitioner begins his argument on this point with a procedural contention. It is urged that this finding cannot stand because the complaint did not inform the petitioner how or why the discharge constituted a Section 8(a)(1) violation. The complaint did allege that Sylvia Robison was discharged on August 21st and that this discharge constituted a violation of Section 8(a) (1). It did not state what attendant circumstances made the discharge thus wrongful. But petitioner made no point of this omission at the time or when the matter came on for hearing. Rather, it stated in its answer that the discharge was for just cause, as it would prove at the hearing. Moreover, at the hearing the employer was not surprised or disadvantaged on this issue because the circumstances of the discharge and the reason for it were developed in large measure through testimony of petitioner's own plant manager who had ordered the termination of this employee's services. In the circumstances the argument of inadequate notice of the alleged unfair labor practice fails.

On the merits of this claim of unfair dismissal the Board found, and it is not now disputed, that on August 7th petitioner discharged Sylvia Robison from a supervisory position in its plant. The evidence as to subsequent events was conflicting. However, the Board's finding that Miss Robison was subsequently reemployed by the petitioner on August 20th in a nonsupervisory position as a sewer, only to be discharged from that job on the following day, August 21st, was a permissible conclusion on all of the evidence. There was substantial indication that both a desire to avoid labor controversy and recognition of this employee's competency to perform routine production work without supervisory duties were causes of this rehiring.

It is the next step of the Board's factual analysis with which the petitioner takes most serious issue. The Board found that Sylvia Robison was discharged on August 21st, the day after her rehiring, because the petitioner had learned in the interim that an unfair labor practice charge had been filed against it in connection with the earlier August 7th discharge of this employee. The petitioner insists that the record does not support this finding against it. However, the employer's own plant manager, who ordered the discharge, testified before the trial examiner that the basic reason for his action was the receipt of a registered letter with the charge in it. We have considered the employer's argument that other explanatory testimony indicates that the manager did not mean what his answer standing alone says. We have read all of the testimony in this connection and think the Board was justified in treating this admission as sufficient evidence that the discharge was the employer's reaction to the filing of an unfair labor practice charge in the interest of this employee. Of course a discharge for such a reason may tend, as the Board found it did in this case, to restrain employees from using the legal procedures of the Act to vindicate their rights and thus constitute a violation...