NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NU-SOUTHERN DYEING & FINISHING, INC., and Henderson Combining Co., Respondents.
No. 14960.
United States Court of Appeals, Fourth Circuit.
Argued April 5, 1971. Decided May 28, 1971.
444 F.2d 11
Generally, a sufficient remedy is provided by an evidentiary hearing to determine whether in-court identifications were based on observations other than illegal procedures or whether the admission of improper out-of-court identifications as a part of the prosecution‘s proof constituted harmless error. E. g., United States v. Wade, 388 U.S. 218, 239, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 272, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). An evidentiary hearing, however, will not provide an adequate remedy for Kimbrough. The only evidence of his guilt was the testimony that three witnesses recognized him as the robber. In view of this, every fact pertaining to identification was important, and it cannot be said that the prosecution‘s introduction of the impermissible photographic identifications to strengthen its case was “harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Kimbrough, therefore, is entitled to a new trial, at which the prosecution may not rely on the photographic identifications. Moreover, in-court identifications should be admitted on retrial only if the prosecution can establish by clear and convincing evidence that they were based on observations of Kimbrough other than the photographic identifications. United States v. Wade, 388 U.S. 218, 240, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Mason v. United States, 134 U.S.App.D.C. 280, 414 F.2d 1176, 1182 (1969).
In view of our disposition of the case, it is unnecessary to consider Kimbrough‘s other claims.
The judgment of the district court is reversed, and this case is remanded with directions to grant the writ unless the state retries Kimbrough within a reasonable time.
Reversed and remanded.
Ernest W. Machen, Jr., Charlotte, N. C. (Blakeney, Alexander & Machen, Charlotte, N. C., on brief), for respondents.
Before BRYAN, WINTER and BUTZNER, Circuit Judges.
WINTER, Circuit Judge:
Nu-Southern Dyeing & Finishing, Inc. and Henderson Combining Co., previously determined to be a single employer and hereafter called the “company,” were found by the Board to have violated
While we enforce the order as it pertains to the
I
The bargaining unit presently consists of approximately 140 employees engaged in dyeing and finishing textile products at the company‘s plant in Henderson, North Carolina. In January, 1967, the union won a Board-conducted election at the plant by a narrow margin.2 The union was certified in February, 1967; and on November 16 of that year, a one-year collective bargaining contract was executed. By its terms the contract was to be renewed automatically at the end of the year unless either party gave notice of termination 60 days prior to its expiration.
Union activity during the contract year was at an extremely low level. Only two grievances were processed, both of which were settled favorably to the employee. Only two employees ever attended union meetings; only five or six employees paid dues. Early in the contract year the union posted lists of employees to serve as shop stewards and committeemen. The union failed to fill all positions. Many of the names on these lists were crossed out in pencil, as were the names written in as replacements. The lists disappeared within four or five weeks, and no new lists were ever posted. The company experienced continuous difficulty in ascertaining who was authorized to act for the union in such matters as safety.
Early in September of 1968, union representative Moore, making only his second visit to the plant, met with company president Baldecchi and informed him that the union wished to terminate the existing contract and negotiate a new one. At this meeting, Baldecchi said that he wished the union would leave him alone, that he treated his employees fairly, and that he did not understand why the union bothered with such a small company. In response to Moore‘s request to begin negotiations at once, Baldecchi responded that it was “just too early even to discuss the thing.” Thereafter, both parties gave formal written notice of the termination
Soon after this meeting with Moore, Baldecchi had a conversation with employee Rice, a union member, about the union situation. Rice‘s testimony, credited by the trial examiner, was that Baldecchi asked “why did I fool around with anything like that; he said, at my age I should think about my security.” Apparently this was an isolated incident; there is no evidence of other such conversations.
The Board‘s decision and order are based principally on events occurring at a meeting of the employees held on September 24. This was a regularly scheduled safety meeting presided over by personnel manager Morris. The meeting lasted only 30 minutes, and it is undisputed that most of the meeting dealt with matters of safety. However, in the last few minutes, Morris brought up the union problem. He stated that he had been approached by several employees who wanted to disassociate themselves from the union and who wanted to know how this could be accomplished. He said that the way to proceed was to circulate an anti-union petition, but that it could not be done on company time or company property. He stated that, in any event, the employees were free to do as they pleased. The trial examiner, whose recommended decision was adopted by the Board, cited Morris’ own testimony as to one last comment:
Well, I said in regards to that that previously I was a rank and file employee with the Company for 11 and 1/2 years and I never had to pay a third party and if I did pay a third party, I would certainly want some representation, and I hadn‘t seen any representation in this plant during the contract.
Early in October, the company was presented with a petition signed by 86 employees which stated that union representation was no longer desired.3 There was no evidence that any company supervisor participated in the preparation of the petition or in obtaining signatures to it. On October 8, president Baldecchi wrote to Moore and stated that negotiations for the new contract would not be undertaken, because the company had reason to believe that the union no longer enjoyed the support of a majority of its employees. The unfair labor practice charges which resulted in the present decision and order were filed approximately three weeks later.
II
The Board found that Baldecchi‘s remarks to employee Rice early in September constituted a threat of reprisals because of Rice‘s union activity in violation of
The other
Coming at the very moment the personnel director was advising the assembled employees of the technique of a petition to remove the Union from the plant, they [these words] constituted as much a clear message that it was the company‘s desire that they circulate such a petition and sign it. It was for all practical purpose Morris urging the employees to take this action to reject collective bargaining.
III
The finding of a
The law is settled that during the first year following certification a union is entitled to an irrebuttable presumption of majority support. After this certification year, however, the presumption may be overcome by proof that the union no longer enjoys such support or that the company reasonably has a good faith doubt of such support. Brooks v. N. L. R. B., 348 U.S. 96, 75 S. Ct. 176, 99 L.Ed. 125 (1954); Terrell Machine Co. v. N. L. R. B., 427 F.2d 1088 (4th Cir. 1970).
Here, the Board‘s decision that the company could not rely in good faith on the anti-union petition is based on the principle that “an employer may not avoid the duty to bargain by demonstrating a loss of majority status arising from its own unfair labor practices.” N. L. R. B. v. Little Rock Downtowner, Inc., 414 F.2d 1084, 1091, n. 4 (8th Cir. 1969). While this is a correct statement of the law, the existence of
On the record before us, we think the company has presented ample evidence to show the lack of a significant causal relation between the
pressed to company supervisors a desire to disassociate themselves from the union. In fact, it was only in response to employee inquiries that the subject of the union and the petition arose at the safety meeting. The election had been extremely close, and the trial examiner found that during the contract year employee turnover exceeded 50%. Under these circumstances, Morris’ single comment about the “third party” appears insignificant, and thus the company‘s reliance on the petition was justified.
Viewing the combined effect of the anti-union petition and the indications of employee disaffection with the union just mentioned, we conclude that the company established that it possessed a good faith doubt of the union‘s majority status at the time of the refusal to bargain. The Board‘s contrary finding is not supported by substantial evidence and its bargaining order is not entitled to enforcement.
Enforced in part; vacated in part.
ALBERT V. BRYAN, Circuit Judge
(concurring in part and dissenting in part):
I concur in all of the majority‘s opinion except so much of it as holds the remark of Morris to be a
After recognizing that the employer has “a right to express opposition to the unionization of its employees“, the Court continues: “Applying this standard, Morris’ statement, while a violation of
Notwithstanding, the Court now convicts the employer because of Morris’ observation. I cannot agree to such a judgment.