429 Pa. 479 | Pa. | 1968
Lead Opinion
Opinion by
This litigation presents but a single issue: are the findings of the Pennsylvania Labor Relations Board [hereinafter the Board] supported by the statutorily required standard, i.e., by “substantial and legally credible evidence.” Pennsylvania Labor Relations Act, Act of June 1, 1937, P. L. 1168, §9, as amended, 43 P.S. §211.9(b); see generally, Pennsylvania Labor Relations Board v. Kaufmann Department Stores, Inc., 345 Pa. 398, 29 A. 2d 90 (1942). Upon union complaint, a proceeding was instituted against appellee Sand’s Restaurant charging violations of §6(1) (a) and (c) of the Labor Relations Act: “(1) It shall be an unfair labor practice for an employer—(a) To interfere with, restrain or coerce employes in the exercise of the rights guaranteed in this act. ... (c) By discrimination in regard to hire or tenure of employment, or any term or condition of employment to encourage or discourage membership in any labor organization: . . .” Act of June 1, 1937, P. L. 1168, §6, as amended, 43 P.S. §211.6(1) (a) and (c).
At approximately 8:00 a.m., March 11, Sydney Hetelson, president of appellee corporation, received an anonymous telephone call at his home informing him that a number of his employees had signed cards evidencing an intention to unionize. One half-hour later Hetelson telephoned the restaurant; the call was answered by Katherine King, one of the allegedly discharged employees. Hetelson asked Miss King whether she had signed a card and received a negative answer. He then told her that he knew the names of those employees desiring to join a union and that she was to inform the other employees that, if they'had signed a. union card, they would be fired. According to Miss King’s testimony, Hetelson insisted that he would
Hetelson arrived at the restaurant at 11:00 a.m. He thereupon spoke to several employees, questioned each as to whether they had signed a union card and told each that, if they were not satisfied with their salaries or working conditions, they could leave, adding that “the door swings both ways.” The record thus amply supports the Board’s finding that the employer, Hetelson, displayed a strong anti-union animus.
Unless the record supports a finding of constructive discharge, to support its back pay order the Board must find an actual discharge, rather than merely a termination of employment in anticipation of the employer’s contemplated action. See Act of June 1, 1937, P. L. 1168, §8, as amended, 43 P.S. §211.8(c). A constructive discharge occurs only where the employer
Mrs. McKnight testified that, when she arrived for work on Friday morning, James Burton, the cook, informed her that she had been fired because Hetelson had received a card bearing her name. She refused to leave stating that only Hetelson could terminate her employment. Hetelson, upon his arrival, told Mrs. McKnight that he was informed that she had joined a union. She replied that she did not understand what Hetelson was talking about but that Hetelson had fired other employees yesterday and that Burton had told her that she had been fired. Hetelson made no reply; Mrs. McKnight then said: “Just make up my money and give it to me.” Hetelson complied, his reply consisting of the sole comment that he did not know what he had done to deserve all this. We believe that the Board correctly concluded that Hetelson’s failure to inform Mrs. McKnight that she was not fired and that Burton was not expressing Hetelson’s wish placed him in the position of ratifying Burton’s statement and in effect discharging Mrs. McKnight.
Since the employer did not tell any employee that he or she was fired because of union activity, the Board must infer that the discharges were designed to curtail union activity.
Kaufmann makes clear that our relationship to the Board is not identical to our review of an inferior judicial tribunal. As the Supreme Court has long recognized, effect must be given to the expertise of an administrative agency: “An administrative agency with power after hearings to determine on the evidence in adversary proceedings whether violations of statutory commands have occurred may infer within the limits of the inquiry from the proven facts such conclusions as reasonably may be based upon the facts proven. One of the purposes which lead to the creation of such boards is to have decisions based upon evidential facts under the particular statute made by experienced officials with an adequate appreciation of the complexities of the subject which is entrusted to their administration. [Citations omitted.] In these cases we but restated a rule familiar to the law and followed by all fact-finding tribunals—that it is permissible to draw on experience in factual inquiries.”
Both the Board and its trial examiner, evaluating the employer’s strong anti-union animus, the timing of the discharges and the credibility of the employer’s, reasons therefor, inferred that the discharges were de
The employer insists, however, that Pennsylvania Labor Relations Board v. Sansom House Enterprises, Inc., 378 Pa. 385, 106 A. 2d 404 (1954) requires a contrary conclusion. The employee in Sansom House whs discharged immediately following a foiir-day absence from work and the employer anti-union statements followed the discharge. We there carefully distinguished this factual pattern from the one hére pre
We agree with the employer that, as to two of the discharged employees, the Board’s order must be modi-, fied. Both Graves and Myers testified that they intended to leave Hetelson’s employ at the end of March. The Board, however, awarded both employees back pay for a period extending beyond the end of March. Back pay awards must be designed to effectuate the policies of the Act. See Act of June 1, 1937, P. L. 1168, §8, as amended, 43 P.S. §211.8(c). For example, a wrongfully discharged employee is bound to use reasonable efforts to find work and, if he does, not do so, wages he could have earned are deducted from his back pay award. See W. T. Grant Company, Inc. v. United Retail Employees, 347 Pa. 224, 31 A. 2d 900 (1943). An employee discharged in violation of the Act is entitled only to back pay for the period he normally would, have been employed had he not been wrongfully discharged. Crivelli Bros. Coal and Builders Supplies, Inc. v. Pennsylvania Labor Relations Board, 385 Pa. 1, 122 A. 2d 32 (1956); Del Buono, Jr. v. Pennsylvania Labor Relations Board, 370 Pa. 645, 89 A. 2d 323 (1952). We thus believe that this back pay award extending beyond the period these employees would otherwise have been employed must be modified. On this record, it cannot be determined precisely how long Graves and Myers would have been employed by Sand’s Restaurant and this, litigation must be remanded to the Board for that determination.
Both the standard of judicial review and the requirements for an employer unfair labor practice under our Act and the National Labor Relations Act are in the context of this case substantially identical. Compare 29 U.S.C. §160(e) and 29 U.S.C. §158(a)(1) and (3). Reference to the decisions of federal courts, although not binding on this Court, is certainly appropriate. See, e.g., Pennsylvania Labor Relations Board v. Fortier, 395 Pa. 247, 150 A. 2d 122 (1959); Pennsylvania Labor Relations Board v. Sansom House Enterprises, Inc., 378 Pa. 385, 106 A. 2d 404 (1954); Pennsylvania Labor Relations Board v. Kaufmann Department Stores, Inc., supra.
The Board, in addition to back pay orders covering five employees, issued the standard order requiring the employer to cease and .desist from violating §6(1) (a) of the Act and to post notices .to that effect. The record leaves unclear whether the common pleas court reversed only the back pay orders or the cease and desist order as well. Since we have decided, see text infra, that four of the five employees were discharged in violation of the Act, the cease and desist order should be reinstated.
Under the National Labor Relations Act there are some employer unfair labor practices which are so “inherently destructive of employee interests” that the employer action is deemed proscribed without any need for proof of an underlying improper motive. See, e.g., National Labor Relations Board v. Great Dane Trailers, Inc., 388 U.S. 26, 87 S. Ct. 1792 (1967).' We need not ■treat the applicability of such a doctrine to the Pennsylvania Labor Relations Act for the simple reason that this record contains sufficient evidence to demonstrate the existence of an underlying motive to discourage unionization.
We do not here hold that Burton was an “employer”, i.e., “any person acting, directly or indirectly, in the interest of the employer,” within the definition of that term in the Act. See Act of June 1, 1937, P. L. 1168, §3, as amended, 43 P.S. §211.3(c) ; cf. Pennsylvania Labor Relations Board v. Cadman, 370 Pa. 1, 87 A. 2d 643 (1952). The Board’s finding that Burton had no supervisory authority or authority to fire employees is not disputed. However, we do not believe that Hetelson could stand mute in face of Mrs. McKnight’s statement that Burton told her she was fired without in effect ratifying Burton’s statement.
Hetelson offered no reason to support Ms actions vis-a-vis King and McKnight, contending that these two individuals quit. He stated that Stewart was discharged because she was too attractive and thus caused “too much carrying on” in the kitchen; that Graves was discharged because she was pregnant; and that Myers was discharged because he planned to leave in three weeks and a replacement was now available. Although the employees bear the burden of demonstrating that their discharges were for the purpose of discouraging union activity, the trial examiner may, we believe, reject the employer’s justification for the discharges on the basis of credibility alone. See National Labor Relations Board v. Walton Manufacturing Co., 369 U.S. 404, 82 S. Ct. 853 (1962), reversing National Labor Relations Board v. Tex-O-Kan Flour Mills Co., 122 F. 2d 433 (5th Cir. 1941).
Radio Officers’ Union v. National Labor Relations Board, 347 U.S. 17, 48-49, 74 S. Ct. 323, 340 (1954), quoting in part from Republic Aviation Corp. v. National Labor Relations Board, 324 U.S. 793, 800, 65 S. Ct. 982, 986 (1945).
Concurrence in Part
Concurring and Dissenting Opinion by
I concur in the ruling of the Majority except as it relates to the claim of Katherine King. I believe there was “substantial and legally” credible evidence from which the Board could properly infer that Hetelson directed Burton to fire Miss King.
Concurrence in Part
Concurring and Dissenting Opinion by
I agree with the majority that as to McKnight and Stewart the order of the court of common pleas should be reversed and the order of the Pennsylvania Labor Relations Board reinstated. Contrary to the majority, I would also reverse the order of the court of common pleas and reinstate the Board’s determination with respect to King, Graves and Myers.