Lawson Milk Company, Petitioner, v. National Labor Relations Board, Respondent, 317 F.2d 756 (6th Cir. 1963)

Petitioner, Lawson Milk Company, sought review, and respondent, National Labor Relations Board, sought enforcement of an N. L. R. B. order finding petitioner guilty of violating subsections (1) (2) and (3) of Section 8(a) of the National Labor Relations Act (29 U.S. C.A. § 158(a) (1) (2) and (3)) . The violation considered by this opinion consisted of Petitioner's failure to recall to work a part time employee, Myrtle Cobb, allegedly for union activities. Petitioner was ordered to offer employment to the said Cobb and to pay her such wages as she may have lost because of petitioner's alleged discriminatory failure to rehire her (Section 8(a) (3)). Petitioner's petition for review challenged the legality of other violations found by the Board's order but, on argument here, such challenges were withdrawn. We deal only with the Cobb affair.

Lawson Milk Company, of Cuyohoga Falls, Ohio, manufactures and distributes dairy products and bakery goods, and at one time manufactured and sold candy. In the early months of 1961, the Teamsters Local Union 497 sought to organize and represent Lawson Milk Company's employees. An N. L. R. B. election was held on May 17, 1961. The union lost the election. The atmosphere of, and methods employed in, the pre-election campaign is best characterized by a post-election letter sent by an executive officer of the Teamsters Local to petitioner's personnel director on May 19, 1961, which reads as follows:

"I would like to express my appreciation for the manner in which you conducted yourself during the efforts of Local No. 497 to organize your people. In spite of our loss, it was nice getting acquainted and doing business with you on a business-like basis.

"In reference to my committee members, we are hoping that no drastic action will be taken by the Lawson Company, which would constitute a big problem and would obligate me legally.

"Your good judgment in this matter will be greatly appreciated."

Myrtle Cobb, whose complaint initiated the unfair labor charges against petitioner, had worked on and off for the company since November, 1955. She was rather steadily employed until April of 1959, when petitioner's candy department was discontinued. Thereafter, her employment was sporadic and part time. She was called in for work on May 5, 1961, and laid off on June 3, 1961, with eighteen other part time employees. It is conceded that this layoff was for legitimate reasons. Mrs. Cobb was not thereafter called in for work by petitioner, and on August 1, 1961, she filed unfair labor practice charges against Lawson Milk Company.¹  On September 8, 1961, presumably after some investigation by N. L. R. B. agents, she filed an amended charge, this time alleging that her layoff on June 3, 1961, and the company's failure to rehire were because of her union activity and membership. The amended charge was further expanded to cover other alleged unfair labor practices, viz; that the company had threatened to discharge an employee for distributing and soliciting the signing of union membership cards, and that the company had set up and supported a union-company grievance committee and made promises of wage increases in a pre-election speech. On these matters, there were some factual issues made. However, the company dissolved the allegedly management-inspired and controlled committee. The employee who was allegedly threatened with discharge for soliciting the signing of union cards²  was never discharged or disciplined for what she did. She was rehired and continued as a company employee. The contents of the campaign speech was a matter of dispute.³ 

The basis for the finding that the failure to recall employee Cobb was discriminatory and was inspired by her union activities are the following facts. In February and March of 1961, employee Cobb contacted the Teamsters Local and obtained some union membership cards which she gave to another employee to be distributed to petitioner's employees.⁴  She attended some meetings called by the union, as did others of petitioner's employees. In April, prior to the election of May 17, 1961, a meeting between representatives of the company and the union was arranged by the N. L. R. B. to plan the election. Management representatives, as well as union representatives and their counsel were present. Myrtle Cobb attended. She was the only employee present. She was not, at the time, working. It is not disputed that this was a harmonious and business like meeting, resulting in an agreement as to the time and method of holding the representation election. Following such meeting, and on May 5, 1961, Cobb was recalled for work and continued to be employed through the weeks preceding and following the election. She was laid off, with seventeen other employees, on June 3, 1961, for legitimate business reasons. Prior to such layoff, Mrs. Cobb, through a fellow employee, presented a grievance, complaining that her seniority had not been respected in a recent call-in of part time workers. It was shown that there did not exist seniority among such part time workers, and her supervisor explained that the reason she was not called in was because he was unable to contact her. A reading of Mrs. Cobb's grievance discloses its tone.⁵  About the time of such grievance, the employee who was handling it took occasion to speak to the company's personnel director as to whether a part time employee had seniority rights. The name of Myrtle Cobb came up and such personnel director said,

"And he brought out — in other words, that Myrtle Cobb had on other occasions called — he did not tell me when this related to or what it was that had caused the difficulty for the company. And they felt she had something to do with the uprising as to the union, although he said to his knowledge she had not passed out cards."

The trial examiner, affirmed by the Board, made his finding that Cobb's failure of reemployment was discriminatory solely on the basis of her appearance at the pre-election N. L. R. B. meeting and the above remarks of petitioner's personnel director. The examiner, after reciting such incidents, said, "I find, accordingly, that on the basis of the facts narrated in this paragraph only, Cobb has not been recalled because she was an active proponent of Local 497 at Respondent's plant."

Petitioner-employer offered evidence in support of its claim that Myrtle Cobb was an unsatisfactory employee and for that reason was not rehired. As a part time worker, she had no seniority rights which would regulate the time or circumstances of her being recalled after a layoff. This was known to Cobb. According to the evidence, the determination of whether Myrtle Cobb should or should not be called in for work was within the authority, and subject to the judgment of two supervisory employees, William Turnage, manager of the pastry department, and William Howard, supervisor of the pastry department. Both of these persons testified that they were the ones who decided not to rehire Myrtle Cobb. Both disclaimed that union activity had anything to do with it, and asserted that they did not know of her activity in that regard. Howard's description of his experience with her is set forth in the footnote below.⁶  Turnage described his experience with her.⁷ 

Mrs. Cobb's description of her conduct and her experience with her supervisors presents a somewhat different picture than that portrayed by the descriptions given by Howard and Turnage. She conceded some minor discussions with supervision, and described one incident when she was warned that her "squawking" would have to cease if she was to be continued as an employee.⁸ 

The trial examiner did not make a specific finding of fact as to the accuracy of Howard's and Turnage's description of Cobb as an employee. He concluded, however, that such misconduct, if it did occur, was not the reason for the petitioner's failure to recall her to work. He determined that petitioner, acting through the mentioned supervisors, was motivated by an illegal and discriminatory purpose. The Board affirmed him. This finding forbids our setting it aside if it is "supported by substantial evidence on the record considered as a whole * * *." (§ 10(e) of the Act, Title 29, U.S.C.A. § 160(e)). We are of the opinion, however, that the Board's finding fails to meet this test.

We first observe that the Board was not empowered to order reinstatement solely because of its conclusion that respondent's decision to refuse reemployment to Cobb was, in its view, without sufficient cause. N. L. R. B. v. Houston Chronicle Pub. Co., 211 F.2d 848, 854 (C.A.5, 1954); N. L. R. B. v. Wagner Iron Works, 220 F.2d 126, 133 (C.A.7, 1955). The trial examiner here recognized such rule in saying, " [A]n ultimate finding of a discriminatory refusal to rehire cannot be predicated merely upon a rejection of the Respondent's failure to establish good cause as the ground for not calling Cobb back to work. The General Counsel still has the burden of establishing a discriminatory motive." Such has been the holding of this Court, N. L. R. B. v. Mylan-Sparta Co., 166 F.2d 485, 490, 491 (C.A.6, 1948).

The Board, however, finds discriminatory motive solely from two circumstances: First, that respondent knew that Cobb had attended a meeting arranged by the N. L. R. B. to set up a plan for the election; and Second, because respondent's personnel director, Spiegel, said on one occasion that "they felt that she (Cobb) had something to do with the uprising as to the union." In making this statement, Spiegel was but stating the truth. Its utterance was without animus; it was not made as part of a threat, nor did it indicate the company's intention to visit reprisal on her. We are not persuaded that the company's knowledge of Cobb's attendance at the N. L. R. B. meeting as a union representative insulated her from a managerial decision not to rehire her. N. L. R. B. v. West Ohio Gas Co., 172 F.2d 685, 688 (C.A.6, 1949); N. L. R. B. v. Mylan Sparta Co., 166 F.2d 485, 491 (C.A.6, 1948). It should be pointed out that after Cobb's attendance at the pre-election N. L. R. B. meeting, and with knowledge of such fact, respondent rehired her. After her layoff with other part time employees on June 3, 1961, she, with about 18 other part time workers, was called in by Spiegel on June 20, 1961. He then explained the lack of seniority rights of part time workers and that decision to rehire any of them would be determined by the judgment of supervisors Howard and Turnage. Cobb was then asked, as were the others, whether under such circumstances she would be available if recalled. We cannot find support by substantial evidence for a finding that the decision of Howard and Turnage not to recall Cobb was motivated by a discriminatory purpose — her union activity. In Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S. Ct. 456, 95 L. Ed. 456, the Supreme Court comprehensively enunciated what we are to consider and the extent and limitations of the review enjoined upon us by the relevant statute. Such decision tells us that in determining whether the findings of the Board are supported by substantial evidence on the record as a whole, we are to consider whether we can "conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board's view." (340 U.S. 488, 71 S. Ct. 465, 95 L. Ed. 456.) By Universal Camera, we are admonished that " [t]he substantiality of evidence must take into account whatever in the record fairly detracts from its weight." Obedient to that admonition, we view the incidents relied on by the Board against the background of this employer's fairness in the campaign that preceded the election. Such fairness is demonstrated by the Teamster Union's post-election commendation of respondent's conduct. On the record before us, we are unable to come to a conscientious conclusion that the Board's finding of discrimination against Cobb is supported by substantial evidence on the record considered as a whole. See also, Pittsburgh S.S. Co. v. N. L. R. B., 180 F.2d 731 (C.A.6, 1950), affirmed N. L. R. B. v. Pittsburgh S.S. Co., 340 U.S. 498, 71 S. Ct. 453, 95 L. Ed. 479.

That part of the Board's order finding petitioner Lawson Milk Company guilty of an unfair labor practice in failing to rehire Myrtle Cobb is vacated, and its enforcement is denied. The Board's order is in all other respects affirmed, and its enforcement ordered.