J. P. Stevens & Co. v. National Labor Relations Board

406 F.2d 1017

• Court: Court of Appeals for the Fourth Circuit
• Decided: December 30, 1968
• Docket: Nos. 11715, 11867, 11718
• Status: Published

Opinions

BUTZNER, Circuit Judge:

J. P. Stevens & Co., Inc., and the Textile Workers Union of America, AFL-CIO, petition for review of orders of the National Labor Relations Board issued against the company. The Board cross-petitions for enforcement of its orders.¹ Stevens owns and operates textile mills in a number of states along the eastern seaboard. It has 43 plants in North and South Carolina employing approximately 28,000 people. In May 1963 the union began an organizing campaign in approximately half the company’s plants in these two states.

This campaign has resulted in numerous unfair labor charges against the company. Stevens I involved the first year of the organizational campaign. The Board found that the company engaged in massive violations of the National Labor Relations Act and discriminatorily discharged 71 employees. The Court of Appeals for the Second Circuit sustained the Board and enforced its order with modifications. J. P. Stevens & Co. v. NLRB, 380 F.2d 292 (2d Cir.), cert. denied, 389 U.S. 1005, 88 S.Ct. 564, 19 L.Ed.2d 600 (1967). Stevens II embraced the company’s conduct from September 1964 through May 1965. The Board found that the company repeatedly violated the Act and unlawfully discharged 18 employees. Again the Court of Appeals for the Second Circuit enforced its order with modifications. Textile Workers Union of America, etc. v. NLRB, 388 F.2d 896 (2d Cir. 1967).² Stevens III, one of the cases before us, involves alleged violations of the Act between April 16, 1965 and April 7, 1966.³ Stevens IV, the other case here, concerns the discharge of three employees in August 1966.⁴ In assessing the company’s conduct in Stevens III and IV, the Board properly took into consideration the unfair labor practices that Stevens I and II disclosed, and we, in turn, cannot ignore this evidence. Maphis Chapman Corp. v. NLRB, 368 F.2d 298, 303 (4th Cir. 1966).

I.

Stevens III and IV involve charges of discrimination against 27 employees. The Board found that the company violated §§ 8(a) (1), (3), or (4) of the Act⁵ by discriminating against 20 employees in five plants. The Board also found no violation in the discharge of seven employees. Although the testimony and the inferences that can be drawn from it often were in sharp conflict, substantial evidence on the record as a whole supports the Board’s findings with respect to 26 of these employees, and we enforce the Board’s orders concerning them. ⁶ Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Our review calls for the application of familiar principles of law which were recently restated for this court by Judge Russell in Filler Products, Inc. v. NLRB, 376 F.2d 369, 377 (4th Cir. 1967):

“[A] justifiable ground for dismissal of an employee is no defense to an unfair labor charge arising out of such dismissal if such ground was a pretext and not the moving cause for the dismissal. * * * And in determining the reason for such discharge, ‘The circumstances of each case (of employee discharge) must be weighed to determine what motivations truly dominated the employer in laying off or discharging the employee.’ * * * If there is a conflict in the testimony or in the inferences to be drawn from such testimony, ‘* * * we must uphold “the Board’s choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.” ’ ”

The company’s complaint that “the rulings of- the Board place this company in the position of being unable to discharge or discipline an employee, no matter what his failures may be — if only he shows to the Board that he is connected with the Union” is refuted by the record. For example, the Board upheld the trial examiner’s finding that the company did not violate the Act in discharging Thomas 0. Simpson, a company employee for 12 years, who was responsible for the production of a large amount of underweight material. Although Simpson was a member of the union, the trial examiner said, “I fail however to find evidence to support a conclusion that union activity was the cause, and believe this discharge would have been made if Simpson had not been a union adherent.” Four other employees, Aliison, Evans, Hawthorne, and McAlexander, were not merely union supporters. Three of them testified in Board proceedmgs, and one served as a union election observer. Nevertheless, the trial examiner and the Board held that they had not been discriminatory discharged.

The company urges as the “crucial injustice” that “the Examiner and the Board moved on by main strength to the ‘inference’ of unlawfulness and guilt — turning indifferently away from the explanation favorable to the company, systematically rejecting or ignoring it, as if it had never been brought forward at all!” Again we find the record considered as a whole refutes this indictment. The Board accepted the company’s explanation in upholding the discharge of seven union members. Frequently, however, the Board found the company’s factual claims were contrary to the weight of credible evidence, but this in itself provides no ground for us to reject the Board’s decision. NLRB v. Walton Mfg. Co., 369 U.S. 404, 82 S.Ct. 853, 7 L.Ed.2d 829 (1962); see NLRB v. Pittsburgh S. S. Co., 337 U.S. 656, 659, 69 S.Ct. 1283, 93 L.Ed. 1602 (1949).

We conclude, however, that evidentiary support is lacking for the Board’s decisión that David S. Beam was unlawfully discharged. The trial examiner failed to find sufficient evidence in the record f° support the allegation that Beam was discharged for his union activities. The Board reversed. Before Beam joined the union, he received two written reprimands. The first recited that Beam kept leaving his job. The second related to the production of bad beams and warned that anY more would result in discharge, On March 5, 1965, Beam admittedly produced another bad beam. After March 5, the company learned of Beam’s union affiliation. On April 1, the bad beam was discovered in an area where good beams are stored, and Beam was discharged.

The Board emphasized that although the bad beam wag produced on March g> Beam was not discharged until Apri] L Relying upon the fact that the company keeps an inventory on the beams jn storage an(j an overseer checks them daily> it concluded that the company knew of the bad beam on March 5 but took no action until it learned of Beam>s un¡on activities. The evidence, however, does not disclose company knowledge of this defective material before April 1. Beam himself failed to report the incident, and he attached a ticket to the work which failed to indicate that it was defective. The trial examiner discredited an employee, Miles, who claimed to have marked the beam “bad” when he put it in the storage area. In any event, the trial examiner properly concluded that Miles’ testimony was of no great consequence in light of the admitted fact that Beam had produced the defective material after being warned that this would result in discharge. We conclude that the company did not wrongfully seize upon Beam’s failure to perform his duties and use it as a pretext for discharging him.

II.

The Board, with minor modifications, adopted the trial examiner’s findings in Stevens III that the company frequently violated § 8(a) (1) of the Act. Prohibited conduct included threats of reprisals, promises of benefits, interrogation, creating the impression of surveillance, enlisting employees for surveillance, and attempting to coerce an employee to remove union insignia. These findings of § 8(a) (1) violations are supported by substantial evidence on the record considered as a whole.

We decline, however, to enforce the Board’s order with respect to one of the § 8(a) (1) charges. The company posted a notice which said, among other things: “[The union campaign] is, of course, one of concern to the company. It is also, however, a matter of serious concern to you and our sincere belief is that if this Union were to get in here, it would not work to your benefit, but in the long run, would itself work to your serious harm.”

This notice has been widely used by employers in organizational campaigns, and courts differ on its validity.⁷ We have held on several occasions that similar statements do not violate § 8(a) (1), and we adhere to our previous rulings. NLRB v. Greensboro Hosiery Mills, Inc., 398 F.2d 414 (4th Cir. 1968) ; NLRB v. Kayser-Roth Hosiery Co., 388 F.2d 979 (4th Cir. 1968); Wellington Mill v. NLRB, 330 F.2d 579, 583 (4th Cir. 1964), cert. denied, 379 U.S. 882, 85 S.Ct. 144, 13 L.Ed.2d 88 (1965) ; NLRB v. Threads, Inc., 308 F.2d 1 (4th Cir. 1962).

III.

In addition to the usual order requiring reinstatement and restitution, and the usual cease and desist order, the Board in Stevens III directed the company to post appropriate notices for 60 days at all of its plants in North Carolina and South Carolina; to mail a copy of the notice to each employee; to grant the union, upon request, reasonable access to the company’s bulletin boards for a period of one year; and in the plants where the unfair labor practices had occurred, to read, or allow a Board agent to read, the notice to employees during working time.⁸ Similar remedies were enforced in Stevens I and II.9 We are in accord with the reasons assigned in those cases. The unfair labor practices disclosed in Stevens III and Stevens IV are a continuation of the unfair labor practices condemned in Stevens I and II. This in itself is relevant in framing an appropriate order. NLRB v. Lundy Mfg. Co., 316 F.2d 921, 924 (2d Cir.) cert. denied, 375 U.S. 895, 84 S.Ct. 171, 11 L.Ed.2d 124 (1963). The extended period of time during which the company has persistently violated the Act, the varied forms which the violations have taken, and the fact that the company has discriminated against more than 100 employees in about half its plants in North Carolina and South Carolina demonstrate that the Board’s order, although unusually broad, is not an abuse of discretion. Cf. Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 216, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964); Virginia Elec. & Power Co. v. NLRB, 319 U.S. 533, 540, 63 S.Ct. 1214, 87 L.Ed. 1568 (1943). As the Court said in Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194, 61 S.Ct. 845, 852, 85 L.Ed. 1271 (1941):

“[I]n the nature of things Congress could not catalogue all the devices and stratagems for circumventing the policies of the Act. Nor could it define the whole gamut of remedies to effectuate these policies in an infinite variety of specific situations. Congress met these difficulties by leaving the adaptation of means to end to the the empiric process of administration. The exercise of the process was committed to the Board, subject to limited judicial review. Because the relation of remedy to policy is peculiarly a matter for administrative competence, courts must not enter the allowable area of the Board’s discretion and must guard against the danger of sliding unconsciously from the narrow confines of law into the more spacious domain of policy. On the other hand, the power with which Congress invested the Board implies responsibility — the responsibility of exercising its judgment in employing the statutory powers.”

In Stevens IV the Board, as an additional remedy, required the company, at the request of the union made within one year, to furnish the union a list of the names and addresses of all employees in its plants in North Carolina and South Carolina. This order is not found in Stevens III. A similar remedy was sought in Stevens II, but enforcement was denied on the ground that it was not designed to effectuate the policies of the Act. Textile Workers Union of America, etc. v. NLRB, 388 F.2d 896, 905 (2d Cir. 1967). There the court relied on NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956), which denied non-employees access to the company’s property for distribution of union literature. In rejecting the Board’s argument that furnishing the list of employees would enable the union to contact all employees outside the plant and make known its views in an atmosphere relatively free of restraint and coercion, the court emphasized that “the policies of the Act call instead for a change in the plant’s atmosphere.” Textile Workers Union of America v. NLRB, 388 F.2d 896, 906 (2d Cir. 1967). But in Stevens HI and IV, in spite of the Second Circuit’s enforcement of remedies which should have been effective, the company has persisted in maintaining an anti-union atmosphere in its plants. The examiner and the Board expressly found in Stevens IV that the company’s unfair labor practices were a continuation of the pattern revealed earlier. Even if a list of company employees is deemed to be the sole property of the company, dictum found in NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112, 76 S.Ct. 679 (1956), is applicable:

“This is not a problem of always open or always closed doors for union organization on company property. Organization rights are granted to workers by the same authority, the National Government, that preserves property rights. Accommodation between the two must be obtained with as little destruction of one as is consistent with the maintenance of the other. The employer may not affirmatively interfere with organization; the union may not always insist that the employer aid organization. But when the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels, the right to exclude from property has been required to yield to the extent needed to permit communication of information on the right to organize.

“The determination of the proper adjustments rests with the Board. Its rulings, when reached on findings of fact supported by substantial evidence on the record as a whole, should be sustained by the courts unless its conclusions rest on erroneous legal foundations.”

We believe the Board’s findings set forth in Stevens II,¹⁰ coupled with the unfair labor practices found in Stevens III and IV, show that requiring the list is reasonably designed to facilitate union communication with employees in the face of surveillance and other difficulties imposed by the company. NLRB v. Hanes Hosiery, 384 F.2d 188 (4th Cir. 1967), required the production of a list of employees who were eligible for a scheduled certification election. Though the reasons for furnishing the list were quite different, company objections to placing a list of employees in the hands of the union were discussed and answered there in a way relevant to our case.

The Board’s order, however, will be modified to limit the list of employees to those working at the three plants involved in Stevens IV.11 We impose this limitation because the Board has not asked for the order in Stevens III and because it has not made findings of fact that the channels of communication are obstructed in all of the company’s 43 plants in North and South Carolina.¹²

The several petitions and cross-petitions are granted in part and denied in part.

1 . The proceedings in Nos. 11,715 and 11,-867 were consolidated for hearing before the trial examiner and the Board. J. P. Stevens & Co., 167 NLRB No. 37, 66 LRRM 1024 (1967). The combined case is termed Stevens III. The proceedings in No. 11,718 were conducted before a different trial examiner. J. P. Stevens & Co., 167 NLRB No. 38, 66 LRRM 1030 (1967). Tliis case, Stevens IV, was consolidated with Stevens III for argument in this court.

2 . On motion of the union, this court transferred petitions in Stevens I and II to the Second Circuit, where a petition for the union in Stevens I had previously been filed. Motions to transfer Stevens III and TV were denied. J. P. Stevens & Co. v. NLRB, 388 F.2d 892 (4th Cir. 1967).

3 . The portion of the Board’s order setting aside the second election and ordering a third election is not before the court in this proceeding. Holly Hill Lumber Co. v. NLRB, 380 F.2d 838, 840 (4th Cir. 1967).

4 . Stevens V, arising out of an organizational campaign beginning in August 1967, was decided by the Board on June 12, 1968. J. P. Stevens & Co., 171 NLRB No. 163, 69 LRRM 1088.

5 . 29 U.S.C. § 158:

“(a) It shall be an unfair labor practice for an employer—

“(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;

* * * *

“(3) by discrimination in regard to hire or tenure of employment or any term, or condition of employment to encourage or discourage membership in any labor organization * * *.

“(4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this subchapter.”

6 . The unlawfully discharged employees are: from the Dunean plant, Greenville, S. C., Robert W. Arrowood, Talmadge C. Clardy, Billy Davis, Amos E. Fend-ley, Mrs. Amos E. Fendley, James E. Griggs, Jack H. Hembree, Mrs. Jack H. Hembree, Jackie Holbrooks, Aubrey Kent, and J. T. E. Moore; from the Rosemary plant, Roanoke Rapids, N. C., Lloyd A. Boyd, Mrs. Maurine Hedgepeth, and John Love; from the Roanoke No. 2 plant, Roanoke Rapids, Herbert King; from the Delta No. 4 plant at Roanoke Rapids, Norman Shearin; and from the Republic No. 3 plant at Rock Hill, S. C., Mrs. Ollie Varnadore.

Employees unlawfully subjected to other discrimination are: from the Dunean plant, James E. Griggs (denial of overtime), Robert Hamblin (demotion), and Calvin E. James (denial of overtime and promotion).

The company did not violate the Act with respect to the determination of employment of these employees for whose reinstatement the union petitions: from the Dunean plant, Danny Allison, Richard Evans, William R. Hawthorne, Mrs. Doris Waldrop, and J. B. Wilson; from the Estes plant, Piedmont, S. C., Thomas O. Simpson; from the Patterson plant at Roanoke Rapids, Coy McAlexander.

7 . The identical notice was held coercive by the Second Circuit in Stevens I, J. P. Stevens & Co. v. NLRB, 380 F.2d 292, 302 (2d Cir. 1967) ; accord, Serv-Air, Inc. v. NLRB, 395 F.2d 557, 561 (10th Cir. 1968) ; see NLRB v. Southwire Co., 352 F.2d 346, 348 (5th Cir. 1965). Contra, Surprenant Mfg. Co. v. NLRB, 341 F.2d 756, 758 (6th Cir. 1965) ; cf. Amalgamated Clothing Workers, v. NLRB, 124 U.S.App.D.C. 365, 365 F.2d 898, 909 (1966).

8 . The union also requested access to the company’s parking lots and an opportunity to answer under similar circumstances any anti-union speech. These requests the Board denied, and the union does not seek review of this action.

9 . J. P. Stevens & Co. v. NLRB, 380 F. 2d 292 (2d Cir.), cert. denied, 389 U.S. 1005, 88 S.Ct. 564 (1967) (Stevens I) and Textile Workers Union of America, etc. v. NLRB, 388 F.2d 896 (2d Cir. 1967) (Stevens II). The Board’s order giving the union access to the company’s bulletin board was denied enforcement in Stevens I. It was later enforced by the same court in Stevens II, after a Board showing that the company was using the bulletin boards for anti-union purposes. See NLRB v. H. W. Elson Bottling Co., 379 F.2d 223, 226 (6th Cir. 1967) and Scott’s Inc., 159 NLRB No. 146, 62 LRRM 1543, 1549 (1966), enforced subnom., International Union of Elec., Radio & Mach. Workers v. NLRB, 127 U.S.App.D.C. 303, 383 F.2d 230 (1967), cert. denied, Scott’s Inc. v. NLRB, 390 U.S. 904, 88 S.Ct. 818, 19 L.Ed.2d 871 (1968).

This court has enforced oral notice of a Board order but without comment. Taylor-Collquitt Co., 47 NLRB 225, 12 LRRM 5, enforced, 140 F.2d 92 (4th Cir. 1943). Other circuits have declined to enforce a reading requirement. International Union of Elec., Radio & Mach. Workers v. NLRB, 127 U.S.App.D.C. 303, 383 F.2d 230, 232 (1967), cert. denied, Scott’s Inc. v. NLRB, 390 U.S. 904, 88 S.Ct. 818 (1968) ; NLRB v. Laney & Duke Storage Warehouse Co., 369 F.2d 859, 869 (5th Cir. 1966) ; cf. Jackson Tile Mfg. Co., 122 NLRB No. 94, 43 LRRM 1195, 1200 (1958), enforced, 272 F.2d 181 (5th Cir. 1959).

Authority for enforcing the Board’s posting order in all plants in Heck’s Inc., 159 NLRB No. 104, 62 LRRM 1473 (1966) , enforced, 387 F.2d 65 (4th Cir. 1967) ; see NLRB v. Lummus Co., 210 F.2d 377, 381 (5th Cir. 1954). Contra, Reliance Mfg. Co. v. NLRB, 125 F.2d 311, 321 (7th Cir. 1941).

Support for the mailing order is found in International Union of Elec., Radio & Mach. Workers v. NLRB, 127 U.S.App.D.C. 303, 383 F.2d 230, 232 (1967) , cert. denied, 390 U.S. 904, 88 S. Ct. 818 (1968). See NLRB v. United Brotherhood of Carpenters & Joiners, 321 F.2d 126, 129 (9th Cir.), cert. denied, 375 U.S. 953, 84 S.Ct. 444, 11 L.Ed.2d 313 (1963).

10 . J. P. Stevens & Co., 163 NLRB No. 24, 64 LRRM 1289, 1291 (1967) :

“ ‘The record also shows that the Respondent carried on a long campaign of illegal intimidation and unlawful discharge of those employees who were actively soliciting for the Union. The Respondent’s efforts to eliminate those Union members who might recruit others to the Union banner were, as the Trial Examiner herein indicated, largely successful ; in some departments where there once had been a number of Union supporters, not one was left. They had been discharged, or withdrew from the Union because of fear of reprisals. Meanwhile, antiunion employees were free to talk about the Union during working hours.

“ ‘In these circumstances, we believe that a simple cease and desist order will not suffice, for it would be unrealistic to believe that such an order could retrieve the employees’ thwarted rights of self-organization or restore the Union to its previous position where it was able to make known its views and solicit memberships with the help of employee members within the plant. Few, if any, Union supporters are left, and those who might espouse the Union cause, such as reinstated employees who previously had been discharged for the union activity, would probably be afraid to promote the Union for fear that they would be discharged again. The atmosphere of fear generated by the illegal threats, interrogations, and discharges in the plant undoubtedly will hinder lawful propaganda activities during nonworking time on company premises. We note, furthermore, that union organizers ordinarily have no right of access to the plant and that, so far as the record shows, this Union now has no other effective means of personally contacting all of the Respondent’s employees. Accordingly, we have decided to grant the Charging Party’s request that the Respondent be required to supply the Union, upon request made within 1 year, with the names and addresses of all employees in its North and South Carolina plants. This will enable the Union to contact all employees outside the plant and make known its views in an atmosphere relatively free of restraint and coercion. As the Respondent was responsible for the unfair labor practices in the plants and for the attendant lack of organizational opportunities, and as all the employees’ names and addresses are not available from sources other than the Respondent, we think it reasonable to require it to furnish the list.’ ”

11 . Those plants are Dunean, Greenville, South Carolina ;• Republic No. 3, Rock Hill, South Carolina; and Rosemary Delta #4, Roanoke Rapids, North Carolina.

12 . In Stevens Y the Board required the company to furnish a list of employees only in those plants where unfair labor practices had been found. J. P. Stevens & Co., 171 NLRB No. 163, 69 LRRM 1088 (1968).