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National Labor Relations Board v. United Mineral & Chemical Corp.

decided: January 16, 1968.


Waterman, Moore and Friendly, Circuit Judges.

Author: Friendly


The NLRB asks us to enforce an order, 155 N.L.R.B. 1390, finding that an employer had violated §§ 8(a) (1), (3) and (5) of the National Labor Relations Act during a union organizing campaign in the spring of 1964. In addition to usual cease and desist and notice provisions, the order directed reinstatement and back-pay for two workers, a small amount of back-pay for a third, and bargaining. The petition, stoutly resisted in an able brief and argument for the employer, raises a number of close issues. We agree with the Board on some and with the employer on others.

One of the few points of concord is that the Board was warranted in considering together the employees of United Mineral & Chemical Corporation, which is engaged in converting and selling mica, abrasives, packaging material and related products, at 16 Hudson St., New York City; Consolidated Distributors, Inc., which is engaged in importing capacitors and related products, also at 16 Hudson St.; and Titan Plastics Corporation, which is engaged in the manufacture and sale of plastics, plastic laminations and related products, at 46 Beach St., some five blocks away. There is also a warehouse, at 173 Duane St., about one block from 16 Hudson St. and six from 46 Beach St. Three brothers, Alexander, Samuel and Emanuel Lipetz, are the stockholders of United; Alexander is the sole stockholder of Consolidated and Titan. Alexander is the president and chief executive officer of all three corporations; Emanuel and Jack Gelblum are officers and directors of all three; Samuel and Herbert M. Rosenthal are officers and directors of United only. The unit consisted of the production and maintenance employees of the three corporations, hereafter collectively referred to as United, the company or the employer.

It will be useful to begin with a summary statement of the major incidents in the controversy, postponing more detailed consideration of them and statement of others of less importance. The union activity began on April 13, 1964, when an employee, Marvin Wiprovnick, later assisted by Aurora Rojas, who spoke Spanish, and Adolph Thomas, a supervisor, started to solicit authorization cards on behalf of United Mechanics' Union Local 150 F, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO (the Union).*fn1 On Monday evening, April 20, some 12 employees, including Wiprovnick and Thomas, attended a meeting at Union headquarters. At 8:10 A.M. on April 21, Wiprovnick was discharged by his supervisor, Boris Kushner, who said, "Mr. Lipetz, the night before, told me to fire you and you know the reason why very well." Twenty minutes later Kushner called another employee, Giraud, into the hallway and, according to the latter's reasonably credited testimony, said "Juan I know where you was last night. I want to know why you went there, you went to the meeting with the union . . . . So I told Boris. If you want to find out, find somebody else . . . . He told me why Marvin Wiprovnick was fired, because of his attitude . . . . He told me as soon as Marvin started in the company, I change."

Wiprovnick promptly reported his discharge to the Union. Two representatives went to the company to demand his reinstatement and also recognition, although, as the General Counsel concedes, the Union did not have a majority at that time. They were told that Alexander Lipetz was unavailable and, when they insisted on waiting for him in his office, that if necessary the police would be called to throw them out. In the morning of April 22 the Union distributed a handbill inviting employees to a meeting that evening and saying, incorrectly, that "most of the workers in your shop have already joined our Union." After the meeting more authorization cards were signed; over the next few days a card majority was gained. On April 22 the Union filed a representation petition and an unfair labor practice charge based on Wiprovnick's discharge.

In the course of a visit to the Duane St. warehouse on April 23, Alexander Lipetz found that Thomas and two employees, Werbitzkij and Hernandez, were punching each other's time cards in violation of posted company rules. By this time Lipetz had become aware of his need for legal advice, and consulted Benjamin Mandelker, Esq., an attorney experienced in labor matters. When he told Mandelker what he had discovered but that he preferred to fire Thomas only, Mandelker advised that such action would inevitably lead to a claim that Thomas was being discharged for union activity and that a discharge for cause should therefore include all the wrongdoers; this was done the following afternoon. Also on April 23, after a union representative had forced his way into Lipetz' private office, Mandelker met with the Union to discuss Wiprovnick's discharge and the Union's claim to majority status. After conferring with his client, he informed the Union that Wiprovnick would not be reinstated and that the company believed the employees should be divided into five units. The Union agreed to this and was informed that a card check by a government agency would be required.

On Friday, April 24, the Union's attorney, Harold Cammer, Esq., informed Mandelker that the New York City labor department had agreed to conduct the card check and that if the parties signed an agreement immediately the NLRB would hold an election the following Thursday. Mandelker said he would be unable to go to the Board's office that day and would have to consult with his client as to the appropriate course. On Monday, April 27, Mandelker informed Cammer that United had advised him that some of the employees had been coerced into signing and that a card check was therefore unacceptable. He also announced United's intention to file unfair labor practice charges against the Union because of coercion; these were filed that day. The Union countered with a strike characterized by a number of incidents of violence, which lasted from April 28 to July 3, when the Board issued its complaint.

Illegal Discharges

Wiprovnick. Whether Wiprovnick was discharged in violation of § 8(a) (3) is important not only in and of itself but because the affirmative finding on this score constituted a principal basis for the Board's rejection of the defense of good faith doubt with respect to the Union's majority. United mounted the two-fold defense of good cause for discharge and lack of knowledge of Wiprovnick's union activity. Kushner testified that as he and another employee, Elfreida Mehlberg, were leaving the plant late in the afternoon of April 20, he complained that Wiprovnick and Giraud "were very lax in their work"; that this led Mehlberg to volunteer that Wiprovnick, who had had some responsibility for sending Christmas gifts to customers, "was stealing liquor during Christmas time," and that when Kushner inquired why he hadn't been informed earlier, Mehlberg responded that she had received the information from another employee, Olga Galay, who had seen Wiprovnick "putting liquor in the garbage can" but had pledged her to secrecy. Kushner said he had reported this early next morning to Alexander Lipetz who, on being satisfied that Kushner believed Wiprovnick "might have" stolen liquor, instructed Kushner to fire him but to make no explanation since that might interfere with efforts to detect others who were implicated. Kushner and Lipetz denied knowing of Wiprovnick's union activity prior to the discharge.

The Board was justified in refusing to credit this. The circumstances -- abrupt discharge of the spearhead of the organizing drive early in the morning after the first union meeting -- were as suspicious as could be imagined, cf. NLRB v. L.E. Farrell Co., 360 F.2d 205, 208 (2 Cir. 1966). While this alone might not suffice, the company's evidence was of the very sort warranting a trier of the facts in believing the truth to be the opposite of what was asserted. It would indeed be an amazing coincidence that Mehlberg should have revealed the Christmas theft late on the April afternoon preceding the Union meeting.*fn2 Moreover the Examiner was warranted in crediting Galay when she denied knowing anything of the theft or telling Mehlberg about it, in believing Giraud's testimony which indicated that the company had substantial knowledge of the union's activity only twenty minutes after the discharge, and in inferring that what it knew then, it knew shortly before. Regardless of the accuracy of the Examiner's "reconstruction" of the events, wherein the true revelation by Mehlberg to Kushner concerned Wiprovnick's union activity, there was ample evidence that in some way the employer had learned of this and that Wiprovnick was discharged on that account, with the supposed theft of the bottle of liquor at best an excuse. Because of Wiprovnick's conduct during the strike the Board refused to order his reinstatement and limited back-pay to May 4, the first of several assaults he committed on employees who had not joined. We grant enforcement of this portion of its order.

Werbitzkij. It is common ground that the company had good cause to discharge Werbitzkij*fn3 and had no knowledge of any union activity on his part. Indeed, the Board does not assert that his discharge violated § 8(a) (3). The finding of the Trial Examiner, sustained by the Board, is rather that the discharge nevertheless " interfered with, restrained, or coerced employees in the exercise of the rights guaranteed in section 7" in violation of § 8(a) (1). This rests on the basis that Lipetz would have discharged only Thomas save for the advice of his attorney that such a course would very likely subject United to a colorable claim of violation of § 8(a) (3), and "thus, it was only because of the existence of the organizational campaign at Respondent's plants that Werbitzkij was discharged."

We know of no principle and have been cited no authority that such "but-for" causation suffices to support a violation of § 8(a) (1).*fn4 This is not like a case where an employer who had previously been lax in enforcing rules suddenly became severe when a union appeared so that employees might conclude that unionization would cause the employer to get tough,*fn5 or replaced all of a class of personnel with management representatives when a majority of the class had voted for a union, as in Allis-Chalmers Mfg. Co. v. NLRB, 162 F.2d 435 (7 Cir. 1947). Neither is it like a case where an employee not known to have engaged in union activity was discharged simply to give "cover" to an illegal discharge of one who was, as in Wonder State Mfg. Co. v. NLRB, 331 F.2d 737 (6 Cir. 1964) and NLRB v. Superex Drugs, Inc., 341 F.2d 747 (6 Cir. 1965), on which the Board mistakenly relied. Here it is undisputed that the discharges were not for engaging in any protected activity but for a serious breach of company rules going to the core of the employment relation, and that there would have been no violation of the Act if Lipetz had fired all three men on the spot. We fail to see how § 7 rights were violated because Lipetz thought it wise to consult an attorney and follow the latter's reasonable advice that under the circumstances he could not prudently display the quality of mercy he would otherwise have extended to Werbitzkij and Hernandez.*fn6 We decline to enforce this portion of the order.

Minski. The third allegedly illegal discharge was of Ingrid Minski. She had been laid off from the mica department on April 17, three days before the first union meeting; General Counsel conceded this was for legitimate economic reasons and not for known union activity. The Trial Examiner credited the testimony of Alexander Lipetz, in charge of the mica department, and of Herbert Rosenthal, his assistant, that the layoff was permanent, although the simultaneous layoff of another employee, Grace Hall, was temporary. Their testimony was impressively confirmed by the reports filed by Gelblum on behalf of the company on April 20, with respect to Minski, and April 22, with respect to Hall, with the New York State Department of Labor. When Minski ascertained from the Unemployment Insurance Office at the end of May that her layoff was permanent, rather than temporary as she claimed the bookkeeper, Ann Schiano, had told her, she telephoned Samuel Lipetz to ...

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