National Labor Relations Board v. George H. Gentithes, 463 F.2d 557, 3rd Cir. (1972)
National Labor Relations Board v. George H. Gentithes, 463 F.2d 557, 3rd Cir. (1972)
National Labor Relations Board v. George H. Gentithes, 463 F.2d 557, 3rd Cir. (1972)
2d 557
80 L.R.R.M. (BNA) 3057, 68 Lab.Cas. P 12,840
The National Labor Relations Board ("the Board") seeks enforcement against
defendants of a cease and desist order issued August 4, 1970.
The Facts
2
The Union's efforts resulted in an election being ordered held in the spring of
1969. The election produced a tie vote and, consequently, unionization was
defeated. Organizational efforts predictably subsided thereafter. However,
Richmond and the Union representatives did maintain a subdued campaign in
an attempt to kindle interest for another election. During this period defendant
Hagan, as general manager of the Company, disclosed to employees a proposed
package of employee benefits. He also announced a scheduled dinner meeting
of service personnel. The purpose of the meeting was to permit representatives
from General Motors to discuss changes appearing on the new models about to
be released.
All service employees were invited to attend the dinner. Neither the initial
announcement nor subsequent reminders suggested that those electing not to
attend would face any disciplinary measures. Richmond and Vore were the only
service personnel who did not attend. Several days after the dinner was held
both were informed that they had been indefinitely laid off. "Lack of
cooperation" was cited as the official cause for their dismissal, although their
failure to attend the dinner was pointed out when specific reasons were
requested.
Following dismissal of Richmond and Vore the Union filed charges with the
Board against the Company. These charges were reviewed by General Counsel
who then prepared a complaint alleging that defendants had committed unfair
labor practices in violation of the National Labor Relations Act ("the Act"), 29
U.S.C. Sec. 151 et seq. Specifically, the Company was charged with violating
Secs. 8(a) (1) and 8(a) (3) of the Act, 29 U.S.C. Secs. 158(a) (1), (a) (3), in the
following respects:
The trial examiner concluded that only charge (3) was supported by the record.
Accordingly, his proposed order was limited to reinstatement of Richmond and
Vore and enjoining further unfair labor practices by the Company involving the
discharge of employees actively seeking representation by the Union or any
other labor organization. The Board adopted the examiner's recommendations.
However, it concluded, in addition, that the record supported charges (1) and
(2). Thus, the order sought here to be enforced is an expanded version of that
proposed by the trial examiner. As it now reads the order would require that the
Company:
10 Cease and desist from discouraging membership in the Union or any other labor
(1)
organization by:
11 promising or instituting economic benefits, including free health insurance,
(a)
uniforms, guaranteed wages, and vacation; and
12 discharging employees or otherwise discriminating in any manner as to such
(b)
employees' tenure or other employment conditions.
13 Offer Richmond and Vore immediate and full reinstatement to their former
(2)
positions or jobs equivalent thereto, and compensate both to the extent of pay lost by
each as a result of discharge, including interest on the amount due at a rate of 6 per
cent.
(a) Economic benefits
14
15
In N L R B v. Exchange Parts Co., 375 U.S. 405, 409, 84 S.Ct. 457, 11 L.Ed.2d
435 (1964), the Supreme Court held that an employer violates Sec. 8(a) (1) of
the Act by promising or granting economic benefits, prior to a scheduled
representation election, for the express or implied purpose of discouraging
collective employee activities. This principle has recently been extended by at
least one court to post-election circumstances. See Luxuray of New York v. N
L R B, 447 F.2d 112 (2d Cir. 1971). Without deciding the propriety of such an
extension we conclude that there is not substantial evidence in the record before
us to support the Board's finding that the Company, in announcing the proposed
benefit program, was attempting to discourage membership in the Union or any
other labor organization. Cf. Universal Camera Corp. v. N L R B, 340 U.S.
474, 491, 71 S.Ct. 456, 95 L.Ed. 456 (1951).
16
Defendant Hagan first announced the proposed program more than two months
after unionization had been defeated by the tie-vote election. And, the benefits
were not to become completely effective until almost another three months had
elapsed. Cf. Luxuray of New York v. N L R B, 447 F.2d at 118 (benefit
program announced the day following the election). At the time of the
announcement unionization efforts were demonstrably curtailed. Indeed, the
During discussions with the employees throughout the months following the
Union's election defeat, Company management infrequently acknowledged its
opposition to unionization. Defendant Hagan, in particular, was unequivocal in
stating that he was "anti union, naturally." The complaint asserted that such
remarks by management were designed to demonstrate to the employees the
futility of any attempt seeking to establish a bargaining representative. And,
despite a finding to the contrary by the trial examiner, the Board agreed with
this assertion. We cannot accept the Board's conclusion. For it remains that no
interpretation of the limited number of such remarks appearing in the record
suggests a coercive attempt by the Company to impose upon its employees its
own aversion to unionization. As noted by the trial examiner the occasional
statements attributed to Hagan are devoid of any indication that they were
intended as threats directed toward those employees involved in the continuing
campaign of the Union. Cf. N L R B v. Howard Quarries, 362 F.2d 236, 239240 (8th Cir. 1966). Absent a coercive character the statements cannot be
considered violative of Sec. 8(a) (1) of the Act.
for the discharge of these employees was the Company's awareness of their
union activities. Therefore, the Board was correct to the extent that it found the
Company guilty of violating Sec. 8(a) (3) of the Act.
Conclusion
21
The Board's order will be enforced insofar as it adopts the Recommended Order
of the trial examiner.