National Labor Relations Board v. George H. Gentithes, 463 F.2d 557, 3rd Cir. (1972)

463 F.
2d 557
80 L.R.R.M. (BNA) 3057, 68 Lab.Cas. P 12,840
NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.
George H. GENTITHES et al., Respondents.
No. 71-1373.
United States Court of Appeals,

Third Circuit.
Argued Dec. 2, 1971.
Decided June 27, 1972.
Michael Winer, National Labor Relations Board, Washington, D. C., for

petitioner.
Robert S. Meermans, Evans, Gentithest & Meermans, Warren, Ohio, for
respondents.
Before SEITZ, Chief Judge, and KALODNER and GIBBONS, Circuit
Judges.
OPINION OF THE COURT
SEITZ, Chief Judge.
The National Labor Relations Board ("the Board") seeks enforcement against
defendants of a cease and desist order issued August 4, 1970.
The Facts
2
Defendants operate an automobile dealership ("the Company"). As of 1968,

their service personnel were not unionized. In the summer of that year union
organizational activities were initiated by representatives of the International
Association of Machinists and Aerospace Workers, District Lodge No. 63,
AFL-CIO ("the Union"). Aiding these representatives were two Company
employees named Thomas Richmond and Louis Vore.
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.
The Complaint and Order

5
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:
6 having announced, and then granted, economic benefits to employees to dissuade

(1)
them from joining, supporting or assisting the Union in its organizational efforts;
7 having attempted to convince employees of the futility of joining, supporting or
(2)
assisting the Union; and
8 having discriminatorily discharged employees Richmond and Vore because they
(3)
were members of or engaged in activities on behalf of the Union, or in other
protected activities, or both.
9
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
only nexus between disclosure of the proposed benefits and unionization,

apparent beyond mere speculation, was the series of comparisons made by
Hagan in his announcement between the Company's program and those of a
nearby competitor as well as those promised by the Union during its earlier
campaign. We are unable to hold, faced with these inconclusive facts, that the
Company's announcement was designed to undermine whatever organizational
activities then persisted among the employees. The comparisons appear to be
nothing more than a reasonable attempt by the Company, by the use of
examples familiar to its employees, to emphasize the merits of its program.
(b) Expressions of antiunion sentiment
17
18
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.
(c) Discharge of Richmond and Vore

19
20
Although there might exist a justifiable cause for discharge of an employee,

there is a violation of the Act if the real motive for the discharge is found to be
the employer's dislike of union activity or affiliation. See N L R B v.
Challenge-Cook Bros., 374 F.2d 147, 152 (6th Cir. 1967). Such real motive will
be found where union activity by the employee is recognized as a substantial or
motivating cause of his discharge. See N L R B v. Mid-West Towel & Linen
Service, 339 F.2d 958, 962 (7th Cir. 1964); N L R B v. Symons Mfg. Co., 328
F.2d 835, 837 (7th Cir. 1964). Assuming without deciding that nonattendance
at the announced dinner meeting would have been sufficient cause to sustain
the dismissal of Richmond and Vore, nevertheless, we conclude that the record
as a whole substantially supports the Board's finding that a motivating reason
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.

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463 F.

NATIONAL LABOR RELATIONS BOARD, Petitioner,

United States Court of Appeals,

Michael Winer, National Labor Relations Board, Washington, D. C., for

Defendants operate an automobile dealership ("the Company"). As of 1968,

The Complaint and Order

6 having announced, and then granted, economic benefits to employees to dissuade

only nexus between disclosure of the proposed benefits and unionization,

(c) Discharge of Richmond and Vore

Although there might exist a justifiable cause for discharge of an employee,

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