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Revere Camera Co. v. National Labor Relations Board

June 12, 1962


Author: Castle

Before HASTINGS, Chief Judge, CASTLE and SWYGERT, Circuit Judges.

CASTLE, C. J.: This case is before the Court pursuant to Section 10(e) and (f) of the National Labor Relations Act,*fn1 as amended, (29 U.S.C.A. ยง 160(e) and (f)) on the petition of Revere Camera Company to review and set aside an order of the National Labor Relations Board issued against it, and the Board's request for enforcement of that order. The Board's decision and order are reported at 133 NLRB No. 159.

The Board found that petitioner violated Section 8(a)(1) of the Act*fn2 by promulgating a no-union solicitation rule to impede the Union's*fn3 campaign, by discriminatorily applying that rule, by interrogating an employee about her union activity, and by promising benefits to induce employees to vote against the Union; and that petitioner violated Section 8(a)(3) and (1)*fn4 of the Act by discharging four employees because of their union membership and activity.

The Board's order requires the petitioner to cease discouraging union membership by discriminatorily selecting employees for layoff, discriminatorily promulgating or applying any no-union solicitation rule for the purpose of impeding union organization, promising wage increases or other economic benefits to induce employees to reject the union as their representative, coercively interrogating employees concerning union activities, and in any other manner interfering with employee rights guaranteed under the Act. Affirmatively, the order requires petitioner to offer reinstatement to the four employees by, in the light of the economic justification for layoffs at the time of their discharges, recognizing their continued employment rights under petitioner's established seniority policy; and if work is not available for them pursuant to those rights to place them on a preferential hiring list; to make them whole for any loss of pay suffered; and requires petitioner to post appropriate notices.*fn5

The contested issues are whether there is substantial evidence, on the record considered as a whole, to support the Board's factual findings that:

(1) Petitioner's no-union solicitation rule was promulgated for discriminatory reasons and applied in a discriminatory manner.

(2) Petitioner discharged employees Liberti, Donlan, Schaffer and Stamper because of their union membership and activity.

(3) Petitioner promised a wage increase shortly before the representation election to affect the results thereof. and its conclusion that:

(4) Petitioner's interrogation of employee Moore and threat to discharge her was, under the circumstances, a coercion of her in the exercise of a right guaranteed by the Act.

Our review in so far as factual findings of the Board are concerned is limited to a determination of whether or not those findings are supported by substantial evidence on the record considered as a whole. Board findings so supported are conclusive. Universal Camera Corp. v. N.L.R.B ., 340 U.S. 474, 487-8; N.L.R.B. v. Kiekhaefer Corporation, 7 Cir., 292 F.2d 130, 132. And, conclusions which are reasonable inferences of fact may not be set aside upon judicial review because the courts would have drawn different inferences. N.L.R.B. v. Southern Bell Telephone & Telegraph Co ., 319 U.S. 50, 60; N.L.R.B. v. Walton Mfg. Co ., - U.S. - .

Except for inferences drawn from facts the Board's findings for the most part are the result of the trier of the facts' resolutions of conflicting testimony on the basis of expressed determinations made as to credibility and from our examination of the record we cannot say the findings lack substantial support in testimony to which credence was given and from facts from which reasonable inferences were drawn. And, the Board is entitled to consideration of its findings, not as isolated and unrelated units, but as facets of the setting in which the acts upon which they were based occurred. Butcher Boy Refrigerator Door Company v. N.L.R.B ., 7 Cir., 290 F.2d 22.

An employer may have and enforce a plant rule prohibiting union solicitation by employees during working hours. Republic Aviation Corp. v. N.L.R.B ., 324 U.S. 793. And, as was noted in that case (p. 803, n. 10) such a rule must be presumed valid in the absence of evidence that it was adopted for a discriminatory purpose. But where such a rule is motivated by the employer's desire to interfere with employees' exercise of their rights under the Act - intended to impede the Union and not for a proper purpose - it is subject to a Board cease and desist order. Time-O-Matic, Inc. v. N.L.R.B ., 7 Cir., 264 F.2d 96. Moreover, where an employer discriminates in the enforcement of a no solicitation rule in favor of anti-union solicitation by employees the employer's act is an unfair labor practice. The basis for the rule is an employer's rightful concern over production and discipline - not a right in the employer to aid the objective of those employees opposing union representation.

The rule here involved was adopted a few days after the Union began its representation election campaign and was aimed solely at union activity. There was evidence that it was communicated to the individual employees through their foreman instead of by posting on the bulletin board as was customary and that it was immediately enforced in so far as pro-union activities were concerned. Employees wearing union "campaign jackets" were restricted in their movement about the plant and union adherents were warned of the consequences of violating the new rule - threatened with discharge. In contrast, petitioner did not invoke the new rule to interfere with the activity of those of its employees who were soliciting against the Union. And, a previous rule forbidding solicitation of employees, but not addressed to union solicitation or activity, had been the subject of breaches with petitioner's knowledge if not condonation.

Shortly after the no-union solicitation rule was issued petitioner's general manager addressed the assembled employees, reviewed employment benefits the employees had received without a union, and stated that "We don't want a union - we don't think a union is needed"; accused the Union of offering "exaggerated, irresponsible, and meaningless campaign promises, in short any form of propaganda to turn you against your company"; and concluded with the admonition to "continue to work together as a team, ...

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