Winchester Spinning Corp. v. NLRB

• Citation: 402 F.2d 299
• Decision Date: 08 October 1968
• Docket Number: No. 11946.,11946.
• Parties: WINCHESTER SPINNING CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

402 F.2d 299 (1968)

WINCHESTER SPINNING CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 11946.

United States Court of Appeals Fourth Circuit.

Argued May 7, 1968.

Decided October 8, 1968.

COPYRIGHT MATERIAL OMITTED

Frank A. Constangy, Atlanta, Ga. (Constangy & Prowell, Atlanta, Ga., and Parker, McGuire & Baley, Asheville, N. C., on brief), for petitioner.

Herbert Fishgold, Atty., N. L. R. B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Allison W. Brown, Jr., Atty., N. L. R. B., on brief), for respondent.

Before BRYAN, CRAVEN and BUTZNER, Circuit Judges.

CRAVEN, Circuit Judge.

Winchester Spinning Corp. petitions this court for review of a decision and order of the National Labor Relations Board dated November 27, 1967, and the Board cross petitions for enforcement of the same order. The Board has found the company in violation of sections 8(a) (1) and 8(a) (3) of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., with respect to coercive and discriminatory practices of Winchester in the course of an election campaign. To remedy the violations the Board has entered a routine cease and desist order and has ordered an offer of reinstatement (with back pay) to five employees found to have been discriminatorily discharged.

We enforce the order of the Board in part. We hold that insubstantial evidence supports the Board's finding that employees James B. Meece and Fred Shook Jr. were discriminatorily discharged and accordingly deny enforcement to that part of the order requiring reinstatement. The rest of the order is enforced in its entirety as we hold it is founded on substantial evidence. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

Winchester moved its textile plant from Winstead, Connecticut, to Asheville, North Carolina in 1964. Organizational efforts were begun by the Textile Workers Union of America in Winchester's plant in the latter part of April, 1966, culminating in an election in August which the union lost by a vote of 39 to 38. Eight ballots were challenged, and were not opened pending disposition of the unfair labor practice charges now before us for review. Four of the challenged ballots were cast by employees (Mahaffey, Wheeler, Meece and Shook) found by the Board to have been discriminatorily discharged. Since the unfair labor practices attributed to Winchester emanated from the conduct of the election campaign, the Board ordered a second election if upon the opening of the challenged ballots it was found that the union had lost the election. This order is not before us to review for lack of administrative finality. However, since we hold that the Board's finding with respect to the discharge of Meece and Shook is founded on insubstantial evidence, we direct that their ballots not be counted in the election returns.

Without admitting that it is in violation of the Act, Winchester concedes that the record contains substantial evidence to support some of the section 8(a) (1) violations found by the Board. Illustrative of these, the Board found that supervisor Emory told employee Mahaffey that the plant office had instructed him "to find out what he could in the winding department," and asked Miss Mahaffey whether she knew of union activity in that department Supervisor Callahan told employee Penland that two employees (Mahaffey and Rollins) who had been discharged were discharged for attending "too many union meetings." In July, after the union had filed an election petition, supervisor Crisp warned employee Shook that the company was looking for an excuse to fire him because his name was "on the union committee list." Whenever an employee was discharged whose name appeared on the posted committee list, the name was pointedly struck from the list by Plant Manager Moses. Additionally, Crisp testified that Moses instructed the plant supervisors that if they could "discharge or release any one for just cause who had some affiliation with the union, to do so." Thus it is fair to conclude that the company was infected with anti-union animus, a factor relevant to our review of the Board's contested findings.

THE CONTESTED § 8(a) (1) VIOLATIONS

Early in May supervisor Emory asked employee Blanche Rollins: "What do you think about the Union?" Although Miss Rollins had previously signed a union authorization card she replied that she did not know much about it. The Trial Examiner found that Emory's remark constituted an unlawful interrogation. We hold that in the context of demonstrated employer hostility to the union the Examiner's finding was not unwarranted. Emory did not indicate to Miss Rollins that he was acting in any capacity other than as a representative of management. The employee's response may be interpreted, in the light of her having signed up with the union, as indicating a cautious apprehension of reprisal. It is enough that employer interrogation has a tendency to inhibit the free exercise of rights protected by the Act. N. L. R. B. v. Associated Naval Architects, Inc., 355 F.2d 788, 791 (4th Cir. 1966). Real or presumed injury to employee organizational rights must in all section 8(a) (1) cases be balanced against legitimate business interests of the employer in his conduct, American Ship Bldg. v. N. L. R. B., 380 U.S. 300, 339, 85 S.Ct. 955, 13 L.Ed.2d 855 (1964) (Goldberg, J., concurring), and we perceive no permissible business interest of the Respondent fostered by probing into the union sentiments of Miss Rollins.¹ While we think the violation was at the most a marginal one, it is not our function to review the Board's findings de novo. We hold that the substantial evidence test is met.

Conner, an active union adherent, was discharged on July 1. According to the credited testimony of employee Shook, the next day Shook remarked to Plant Manager Moses, "* * * I see that you got rid of Martin Conner yesterday," whereupon Moses replied that Conner had been working for the interests of the union and not for the interests of Respondent. Moses then asked Shook: "Are you working for the interest of the company?" Shook stated that that was for Moses to find out. We think, again in the context of demonstrated anti-union animus, that the remarks of Moses represented unlawful probing into union sentiment.² In reviewing the Board's finding that Respondent violated section 8(a) (1), we hold that the substantial evidence rule is satisfied.

On May 11, 1966, Respondent posted a notice in its plant which, in material part, provided:

"It is important that our plant and the plant\'s premises be kept clean at all times. Therefore, no notices, posters, stickers or similar material may be posted at any place on company property, except on official bulletin boards, and then only after approved by management. No such notice may be distributed or littered on any part of the Company premises.

* * * * * *

"Failure to comply with the above rule is sufficient cause for dismissal."

It is settled law that a plant no-solicitation, no-distribution rule is presumptively invalid if it applies to non-working areas and non-working hours. Republic Aviation Corp. v. N. L. R. B., 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372, 157 A.L.R. 1081 (1945); N. L. R. B. v. Lexington Chair Co., 361 F.2d 283 (4th Cir. 1966). Instantly, the only objectionable portions of the notice are these words in the first paragraph: "and then only after approved by management" and "distributed or." Respondent has shown no special circumstance for us to weigh against the injury presumptively done to organizational rights by such a rule. Therefore we concur in the Board's finding that the promulgation of the rule violated section 8(a) (1), insofar as it includes the objectionable words just mentioned.

THE § 8(a) (3) VIOLATIONS

Employees Mahaffey and Rollins were union activists. On June 17 both were notified of their discharge, allegedly for excessive absenteeism. The Board rejected this explanation as pretextuous and found that both employees had been discriminatorily discharged. Evidence of unlawful motive later appeared (according to the credited testimony of employee Penland) in the admission of Supervisor Callahan to Employee Penland that Mahaffey and Rollins had been fired for attending "too many union meetings." Additionally, it is uncontradicted that on April 21 or 22 Supervisor Emory warned Mahaffey that if management learned of her attendance at union meetings she would "no longer be an employee of Winchester."

It is not disputed that Mahaffey and Rollins were guilty of absenteeism. However, Respondent's attendance records show that other employees, who were not discharged, had similar or worse absentee patterns.³ Mahaffey and Rollins were known to management as union activists. Respondent's absenteeism policy was not uniformly enforced as inexplicably other employees guilty of the same offense were retained. Mindful that union activity does not insulate an employee from ordinary discipline, we think in the context of demonstrated anti-union animus, and in the light of unlawful motive supplied, supra, by supervisor Callahan, the Board was within its prerogative in rejecting Respondent's business explanation. To support a finding of a section 8(a) (3) violation, it is enough that a discriminatory motive was a factor in the employer's decision. N. L. R. B. v. Dove Coal Co., 369 F.2d 849, 852 (4th Cir. 1966). Therefore, we hold that the substantial evidence rule is satisfied in respect of the Board's finding that the two employees were discriminatorily discharged.

Wheeler, a union activist, was discharged on August 16 (a week before the representation election) for the assigned reason of "continual inability to perform his job," culminating in an incident on August 15 when Wheeler, by his own admission, permitted the level of yarn in his hopper to run low.⁴ Former supervisor...