Borek Motor Sales, Inc. v. National Labor Relations Board
425 F.2d 677
7th Cir.
1970
Check Treatment

*1 hay un- ployee elevator in an had set the frequent- roadway position near a stable thin, nonetheless ed children —was charge clearly circum- delineated the could the doctrine under

stances substance, and applied, was correct evidentiary support. wholly without Billings, Vt. See Watterlund

23 A.2d 540 Moreover, merit we see no charged judge claim that

defendant’s in vi nuisance of attractive

the doctrine can precedents; nor

olation of Vermont con agree that his

we defendant failing hay elevator to secure duct in support a properly was insufficient negligence.

finding of court judgment the district

affirmed. SALES, INC., MOTOR

BOREK Petitioner, LABOR RELATIONS

NATIONAL Respondent. BOARD,

No. Appeals, Court

United States Seventh Circuit.

April *2 HASTINGS, Before Senior Circuit

Judge, CUMMINGS, FAIRCHILD and Judges. Circuit Judge. CUMMINGS, Circuit petition This asks us to set aside order the National requiring petitioner to cease and threatening employees desist from giving for assistance to the Union1 reinstate em- ployee. is a Pontiac automobile Island, perti- dealer in Blue Illinois. part, nent the evidence on which the trial examiner based his shows that on November a salesman gave agency Ralph from another Pontiac Ambriz, petitioner’s one of salesmen and manager, eight its assistant sales six to envelopes containing literature au- thorization cards the Union. Ambriz envelopes three of distributed these Riley, fellow salesmen Howard A1 Dono- hue, Ralph petition- Teeter. When general manager, er’s Robert asked about the material which examining, salesmen were ex- Ambriz plained that it was union literature with authorization cards. Ambriz Before material, ap- had read the Farino proached him and took He the material. next reached for the material in Teeter’s possession. responded When Teeter reading it, he had not finished Farino you going remarked to “If him: sign, then, don’t bother because fire I’ll you first.” denied this George B. Christensen Richard and another salesman he testified that Vitkus, Chicago, 111., F. for Borek Motor threat, had not heard such a the trial ex- Petitioner; Winston, Strawn, Sales, Inc., testimony aminer credited the of Am- Patterson, 111., briz, Chicago, Riley Teeter, Smith & all of at- whom tested counsel. to the threat. Mallet-Prevost, Forty-five later, Marcel Asst. Gen. re- minutes Ambriz

Counsel, Burgoyne, Atty., L. envelopes John D. N. trieved two and their B., Washington, C., Arnold Ord- R. enclosures from the D. wastebasket Fari- Manoli, man, Counsel, Dominick L. no’s office. Gen. About Am- November McCaa, Counsel, Janet briz Associate Gen. C. received authorization Donohue, Atty., B., respondent. Riley, possibly L. R. N. sales- 1. American Federation of Professional the Union has been known as American Organizing Committee, Salesmen, Local Federation of Salesmen Professional Lo- of Amer cal Communications Workers Unaffiliated. January ica, Since AFL-CIO. place. placed some Farino “assumed” Ambriz man Conti. Sam present, envelope but he his salesmen were in an his own cards with Teeter “not for sure” know whether petitioner’s mailbox dropped into evening January Union, mailed On the attended. posting discharged by Fari- Farino. directly The Un- the Union. his card discharge was authorization no asserted Teeter’s received ion record, early poor prompted Consequently, card. *3 including to letters new autho- his refusal to send executed salesmen the other prospective telephone customers. Teeter then mailed rization cards which telling discharge, protested Teeter his to the Union. “only Farino that three ears he was Borek, president, Ted Petitioner’s top ill from hind man.” the organization ef- learned of the Union’s early Janu- about until Christmas 1967 Farino when November fort on ary, actually deliv- two was re- Borek it to his attention. called in ered behind Ambriz December. ears it as follows: ferred to disagreeing Apart in- with his * * from *, a situa- a sudden “All of terpretation of Borek’s November they up and kind comes tion of this talk, adopted the the breakfast you. sudden All of a don’t confide findings peti- and held that examiner’s know pretty don’t thick. I the air is 8(a) (1) of the tioner violated Section like it.” why I didn’t it be. should (29 Act National Labor Relations U.S.C. meeting a 21 breakfast At November threatening 158(a) (1)) by salesmen, them that Borek told with his signed a union if he privilege. their union 8(a) that Section violated them that if He also advised (3)) (3) (29 of Act the U.S.C. § union, or- should the entire state be sup- discharging joining by him for go ganized other would to or customers porting that We conclude Union. cheaper Illinois towns to obtain must the Board’s order be enforced. wouldn’t He said “he automobiles.2 Desist The Order Cease individual want to be a victim of the one team], opposing which would [on There was substantial union,” joined and that union Board could conclude from fancy membership not “was [cure] petitioner violated Section that the ills of the world.” by virtue of the coercive of the Act according manager January 6, 1968, Farino. On to threat of testimony, Ambriz to the threat credited Farino asked. Three witnesses testified sign meeting for some information about a of Teeter should ened January Be- spite held the Union to be 7. the Union’s authorization card. interruption, infringement Ambriz of the em cause of of this clear respond, but he organizational ployees’ “knew” that Farino Section meeting. against supervisor, would have been their now claims Borek day, volunteered to On the same Ambriz that Board should not have issued petitioner’s salesmen to drive other four Petitioner the cease and desist order. meeting. All five of them were asserts isolated the violation was following evening. was, event, attendance “cured” Company’s president on remarks of the from time Teeter considered that disagree. November 21. We passed information time salesman Conti engage pro- along January 8, need in a Farino There no to Farino. On longed the issuance of discussion learned from the scheduled Conti organize predicated had taken cease and desist orders the Union dealership threatening accept repudiation move of the his the Board’s We Island, interpretation Blue that unless examiner’s statewide, Borek was unionization was insignificant petitioner, havior or isolated instances remarks fail La- undercut the National the Board’s conclusions or technical violations of propriety Here Relations Act.3 a review its cease and desist bor order. Time-O-Matic, See Board evinces Inc. v. La- National bor nor in- isolated Relations the violation neither 99- significant. threat National weap- Supermarkets, Relations Board v. Marsh one of the most effective Inc., management. 1963), F.2d ons available certiorari v. Louisville 377 U.S. Labor Relations Board 84 S.Ct. Company, L.Ed.2d 307. Chair 1967), 1264, 20 Discriminatory Discharge Moreover, warning Teeter, after argues next its dis- virtually literature confiscated charge of Teeter did violate Section and discarded and authorization *4 (3) prohibiting discriminatory the em- in the them his whence wastebaske discharge employee discourage of an ployees retrieve them. forced membership organization. in labor suggesting is There even evidence that Borek contends that the dismissal was placed in the authorization result, any the not of anti-union animus Company’s were removed and mailbox part, poor performance its the of reaching prevented Union. from the of Teeter as a salesman. events, Farino Some after these months concerning quizzed Ambriz pres It is that well settled the night. to be that On the held grounds ence of valid employee’s for an following day, learned from Con- legalize does not a dismissal meeting and, day, of ti the that same which was nevertheless due to a desire attended who discourage activity. meeting. certainly justi- The Board was Symons Labor Relations Board v. Manu construing fied in these events indi- facturing Co., 835, 328 (7th 837 cating expression of continued hostili- 1964); Cir. Corp. Nachman v. National ty to the Union which intimidated Bo- 421, 337 F.2d employees. rek’s (7th 1964); 423-424 Cir. see also Na tional Labor Relations Board v. Stafford accept petitioner’s Nor do we Trucking, Inc., 244, (7th 371 F.2d 247 president contention that Borek’s No 1966). case, assuming Cir. In this ar vember 21 remarks breakfast vitiated guendo performance that the unwholesome effects Farino’s ac justified dismissal, would have “spe tions. These remarks were was substantial evidence from which the cific, unambiguous assurances reasonably Board inferred that the dis employees” Playwood present in Plastics charge solely upon Co., was not based Inc., 306, (1954). 110 NLRB 313 ground illegal. Viewed the context the overall was therefore particular radically supported by 3. Petitioner is different not well orders Congress from the which Board’s refusal to issue wide discretion occasional cease agency. See, upon has desist situations. bestowed Cf. L. & orders such g., Trucking, 104, Co., Inc., e. H. 155 NLRB West Texas 85 NL 104- Utilities Taycox (1949), enforced, 105, (1965) ; U.S.App. RB 1396 116 see also Sani 87 179, tary Grove, (1950), Inc., D.C. 184 F.2d Service Garden 161 233 (1966). Moreover, 341 71 NLRB 545 un S.Ct. 1366; Storage proper Division, circumstances, L.Ed. der the Atlas P the Board Center, Inc., & V Atlas has determined even Industrial an isolated in requires (1955), enforced, Chauffeurs, NLRB 1175 terference with Section 7 Helpers, g., B., Teamsters & such an M. Etc. v. N. L. R. order. Lever Brothers (7th 1956). Company, 233 F.2d The role 163 NLRB Cir. determining propriety of courts in taining discriminatory Farino’s threat In addition to made in the issue. Teeter which to fire employees, there was presence of other procedu purposes of the could which the Board in Section requirements outlined ral 557(c) Company, inferred

have objections preserve through of his con was aware parties and inform the record and to activity the Union. tinued timing reviewing disposition body of the supports also grounds case the agency’s was fired inference that Teeter By its “decision” based. good sup threat and order to make terms, only requires the the statute port intimidating fellow effect exception, not to rule on each employees. Labor Rela Cf. National its deci therefor. state the reasons Casting v. Serv Board American tions here, it had sion the Board stated (7th ice, Inc., 365 F.2d 171-172 Cir. Compa exceptions considered Relations Board National Labor adopted ny examin and nevertheless Incorporated, Camco, 340 F.2d findings, recommen er’s conclusions and 1965), certiorari (except respect in to his dations terpretation president No Borek’s 339; Relations Board National Labor statements). adopting By vember 21 Incorporated, Ambox, 357 F.2d opinion fash in this trial examiner’s Broadway Mo Unlike ion, adequately presented the the Board Inc. Rela tors Ford v. National findings, conclusion, there and reasons *5 Procedure the Administrative 1968), upon petitioner, by here relied requires. Act The Board indicated a threat oth were and passed exception presented it each bias, but er of anti-union also indicia by Company. exceptions were Some convincing than evidence that Tee less decision; the ob others discussed perform employee job ter was whose overruled, viously Board for the long discharge. marked him for ance findings, conclusions, adopted and “the See National Relations Board v. Labor Examin Trial recommendations of the Berggren Sons, Inc., Harry F. & 406 F. than er, as modified herein.” More 246, (8th 1969), 239, 2d note cer 10 Cir. and that is not demanded the statute denied, 823, 64, 90 tiorari 396 S.Ct. U.S. upon the place would a severe burden Considering totality 24 L.Ed.2d agency justification has for which no evidence, the Board’s determina presented. peti been The substance tion that violated Sec tioner’s has considered contention been supported tion by of the Act was consistently rejected, respect and substantial the rein Board as the National Labor Relations remedy appropriate. statement agencies as well other of the Govern Board ment. National Compliance the Administrative 215, Corporation, v. 412 F.2d Process Procedure Act (7th 1969); Presi 217 American Cir. urged Lines, Rela It is next that the Board failed dent Ltd. Labor v. National (9th 490, requirements comply of Sec- 492 Cir. with the 340 (c) 1965); Proce- Labor tion 557 Administrative 1142 Division v. National 68, Bord, failing U.S.App.D.C. rea- dure Act4 to state its 111 Relations 264, overruling exception per- (1961); La- sons for each 294 F.2d 268 National provides pertinent part sions, part That Section of the record shall (5 557(c)) of— : include a statement U.S.C. conclusions, ruling “(A) “The record shall show the on finding, conclusion, exception therefor, all the each or or basis on reasons presented. decisions, law, including fact, All or discre- ini- material issues tial, recommended, presented and tentative record.” deei- tion 682 1017,

bor Relations Board v. Wichita Televi certiorari 87 S.Ct. Corporation, sion 277 F.2d 18 L.Ed.2d 455. these cir- Under 1960), presently the Board cumstances 93; required proposal U.S. 81 S.Ct. to decide whether National Labor Relations Board Shar violated the Sherman Act. Cf. Leedom ples Chemicals, Inc., Union, 652- 209 F.2d International U.S. 1954); (6th Cir. L.Ed.2d 201. Relations Board v. Ware State Center petition denied; review Storage Co., & house Cold cross-petition grant- for enforcement Minneapo also see ed. Ry. States, lis St. Louis & v. United 173, 193-194, 229, 80 S.Ct. L.Ed. FAIRCHILD, Judge, Circuit concur- 2d 223. ring. agree respects my except I in all Alleged Antitrust Violation alleged respect price- views with fixing proposal duty and the Board’s longer petitioner no serious- recognize illegality are set forth in ly challenges that is a labor Union my concurring opinion in Schmerler meaning within of Sec- Ford, Inc. v. National Labor Relations 2(5) (29 tion the Act U.S.C. § 424 F.2d 1335 ), 152(5) does contend that an price-fixing proposal of the con- Union HASTINGS, Judge Senior Circuit templates a violation of the Sherman dissenting. Act and therefore should cause processes withhold its from the On this first' review we are asked deny charging party Union as the consider whether is substantial ev- protection National Labor Re- idence record considered employees joining support lations Act to the it. whole to find- the Labor Board’s ing holding employer, Bo- cannot use the as Sales, Inc.,1 rek Motor Section violated serted antitrust violation as a shield to (1) of the National Labor Rela- *6 justify improper its own in re actions by threatening tions Act2 its automobile sistance to unionization. salesman, Teeter, Ralph E. with dis- illegal propa could have countered union charge signed if he and ganda employing without 8(a) (3) that Borek violated Section threat and unfair which this discharging join- the Act3 Teeter for If record reveals. the Union should ulti ing supporting the union. mately representational win at majority, to With deference as I concern, petitioner the Borek could not read and understand the record before compelled then be to violate the anti us, I do not find substantial evidence to by accepting illegal trust laws provi an support challenged findings the Board’s Ford, sion in its contract. Schmerler deny and would enforcement of its re- Board, Inc. v. National Labor Relations sulting order. ap F.2d 1335 propriate legality time to consider the In the first half Borek’s sales plan critically the Union’s depleted. will be if the Union was places petitioner salesman, Faren, before as matter a new car died first. compulsory bargaining. Bonn, manager, Cf. Retail car died next. used Verdett, general manager, Clerks International Association Na sales was Farino, tional Labor Relations third one die. to another App.D.C. 63, (1966), years’ experience, salesman was president 1. 158(a) (1). A. Ted Borek was of Borek 2. 29 U.S.C.A. Sales, Inc., Motor and reference made herein to each as Borek. 3. 29 U.S.C.A. § manager general fol- effect his breakfast promoted to sales verse White, lowing another the salesmen. death. Later all salesmen Verdett’s salesman, quit long experienced union cards. No one else time was discharged. gen- promoted Apparently job to was not because manager group. five of Farino. salesmen in the instead entire eral sales a normal salesmen were About seven carefully I have reviewed entire complement. pertaining record to the Teeter dis- charge. Farino, manager, compelled I am be- conclude that and his Borek valid, sup- quite made a des- was well concerned came ported experienced economic perate effort to recruit reasons.4 their atten- salesmen. Teeter came concluded, I have further on consider- Donohue, through salesman. another tion ing whole, the record as a experienced salesman Teeter was employer Board’s Bo- employed good Borek with a record. rek threatened Teeter with September him. He to work on started discharged protected later him for performance not His activities violation Sections expectations Borek meet Borek’s 8(a) (1) Act, of the Labor Farino, during insisting gan Novem- supported not substantial evi- dis- ber and basis, dence. On deny this I would en- charged. However, Farino wanted forcement of the Board’s order. give opportunity make further I do not reach the vi- antitrust good. Finally, ill Teeter became olation in separately this case. I have hospitalized Fa- December. late my my stated views thereon in dissent persuaded dis- rino Borek to defer the companion case of Schmerler charge until Teeter another week Ford, Inc. et al. v. National Labor Rela- try again Finally, Fa- after his return. (1970), F.2d 1335 con- private confer- rino into a called Teeter hearing solidated for instant evening January 8, ence case. reviewing unsat- After in detail Teeter’s performance, isfactory work and sales reference him. No or- time to

was made at that labor

ganization. present dur- Borek was

ing early final as this interview November, 1967 had been middle of America, STATES UNITED suggesting step this should be tak- Appellee, Borek, en. It who had discharge. insisted CILENTI, Appellant. William Examiner The Board overruled the *7 252, Docket 33579. No. anti- Borek had no and found Mr. union animus. I cannot believe Appeals, States Court United made on the Farino’s isolated statement Circuit. Second day organizational first Argued Nov. campaign, impulsive and the attendant May Decided incidents, any before salesman had is entitled to controlling effect accorded to later,

Board. A Borek in effect week

purged any ad- this statement majority opinion

4. The notes Teeter’s tes- shown from the record. could be timony, together event, employer was not satisfied statistic, indicating prerogative legitimate of man- favorable exercised a summary countervailing agement. A record.