National Labor Relations Board v. Garry Manufacturing Company

630 F.2d 934, 105 L.R.R.M. (BNA) 2113, 1980 U.S. App. LEXIS 15224
CourtCourt of Appeals for the Third Circuit
DecidedJuly 31, 1980
Docket79-2113
StatusPublished
Cited by37 cases

This text of 630 F.2d 934 (National Labor Relations Board v. Garry Manufacturing Company) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Labor Relations Board v. Garry Manufacturing Company, 630 F.2d 934, 105 L.R.R.M. (BNA) 2113, 1980 U.S. App. LEXIS 15224 (3d Cir. 1980).

Opinions

OPINION OF THE COURT

GIBBONS, Circuit Judge.

This case comes before us on the petition of the National Labor Relations Board, pursuant to section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e) (1976), seeking enforcement of its bargaining order against Garry Manufacturing Company.

Although the facts are hotly disputed, it appears that three Garry employees first decided in April of 1977 that a union would be beneficial to them and their co-workers and spoke to representatives of District 65, an affiliate of the Distributive Workers of America, concerning the possibility of an organizational drive at Garry. When on May 17 the Union allegedly had received signed authorization cards from a majority of Garry’s 130 production and maintenance employees, a representative of the Union met with Rudolph Koppel, Garry’s President, and his son, Harry, the executive vice president, and requested recognition. When the Koppels refused, the Union filed a petition with the Board for a representation election, which election was set for June 29.

Both sides conducted a vigorous campaign. Leaflets and answering leaflets centered on the issues of job security, wages, benefits, and the advantages or dangers of unionizing. The Board found that the Company’s literature contained threats of reprisals and promises of benefits, both impermissible under section 8(a)(1) of the Act. During this same time, Rudolph Koppel suffered a phlebitis attack. He set up a telephone communications system to answer questions about the Union or the election and to hear employees’ grievances, ostensibly because his illness prevented normal personal contacts. The Board found that this was a solicitation of grievances and an implied promise of benefit which violated section 8(a)(1).

On June 20, 1977, near the end of the campaign, the Company undertook a major transfer of machinery from the plant. The Company argued that the transfer was one of seven occurring at fairly regular intervals throughout 1977 and that the purpose of the transfer was to move idle machinery and create room for greater productive capacity. However, the Board found that, in the context of the campaign and the job security theme of the Company’s leaflets, this movement of machinery was intended to create the impression that the Company could and would retaliate if the Union won the election. Therefore the Board found that this transfer also violated section 8(a)(1) of the Act.

Moreover, on June 26, 1977, three days before the election and on a day on which the Union had planned to hold its final rally, the Company sponsored an outing at Great Adventure. The Company argued that it had decided to sponsor the outing in December 1976 but had delayed announcing it and had considered cancelling it while awaiting the advice of counsel concerning whether holding the outing would be an impermissible benefit. The Board found that the outing was in fact a benefit and an implied promise of future benefits which violated section 8(a)(1).

Furthermore during the final week prior to the election, one of the Company’s supervisors discussed past and possibly future wage increases with one or two of the employees. Again, the facts are hotly disputed, but the Board found that the supervisor promised two employees a wage increase if the Union lost the election, which was also a violation of section 8(a)(1).

[937]*937Finally, during the election campaign, a supervisor issued written disciplinary notices to two of the union organizers, when admittedly in the past the practice had been to give oral warnings. The Company argued that these employees had begun so to abuse break time and tardiness privileges that the Company’s informal discipline system was becoming ineffective. The Board found, however, that the change in discipline was directed almost solely at Union supporters and therefore constituted a violation of section 8(a)(3).

The Union lost the election by a vote of 67 to 46 and filed timely objections to the election and unfair labor practice charges against the Company. The Board, in addition to the findings outlined in the preceding paragraphs, found that the Company obstructed the Board’s investigation of the Union’s charges in violation of section 8(a)(1). Coupled with its other findings of section 8(a)(1) and section 8(a)(3) violations, the Board determined that the election must be set aside and that a free and fair election in the future was extremely unlikely. It therefore ordered the Company to cease and desist, to expunge the disciplinary reprimands, and to recognize and bargain with the Union upon request. The Board petitions for the enforcement of this order.

I.

In reviewing an enforcement petition, the standard to be applied is whether substantial evidence in the record as a whole supports the Board’s findings of fact and whether these findings are sufficient to support, in turn, the Board’s conclusion that the Company committed an unfair labor practice. Universal Camera Corp. v. NLRB, 340 U.S. 474, 491, 71 S.Ct. 456, 466, 95 L.Ed. 456 (1951). The Supreme Court has defined substantial evidence as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolo v. Federal Maritime Comm’n., 383 U.S. 607, 619-20, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938). Moreover, this court should not “displace 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.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951).

Section 7 of the Act guarantees to employees the right to self-organization, to form, join, or assist labor organizations . for the purposes of collective bargaining or other mutual aid or protection[.]

29 U.S.C. § 157. In order to make effective this guarantee, section 8(a)(1) of the Act makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed' in section [7].” Id § 158(a)(1). The appropriate standard to be applied in reviewing the Board’s finding of a section 8(a)(1) violation is

whether the misconduct is such that, under the circumstances existing, it may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act.

Local 542 v. NLRB, 328 F.2d 850, 852-53 (3d Cir.), cert. denied, 379 U.S. 826, 85 S.Ct. 52, 13 L.Ed.2d 35 (1964). Accord, NLRB v. Armcor Indus., Inc., 535 F.2d 239, 242 (3d Cir. 1976);

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Bluebook (online)
630 F.2d 934, 105 L.R.R.M. (BNA) 2113, 1980 U.S. App. LEXIS 15224, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-labor-relations-board-v-garry-manufacturing-company-ca3-1980.