Appeal from order of Court of Common Pleas No. 5 of Philadelphia County, Sept. T., 1965, No. 2453, in case of Pennsylvania Labor Relations Board v. Sand's Restaurant Corporation.
James F. Wildeman, Assistant Attorney General, with him William C. Sennett, Attorney General, for Pennsylvania Labor Relations Board, appellant.
Samuel P. Lavine, for appellee.
Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell took no part in the consideration or decision of this case. Concurring and Dissenting Opinion by Mr. Justice Cohen. Concurring and Dissenting Opinion by Mr. Justice Eagen.
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).*fn1
The basic facts are not in dispute. Between Thursday, March 11, 1965 and Saturday, March 13, 1965, ten of the fourteen employees of Sand's Restaurant were either discharged or voluntarily terminated their employment. The Board concluded that five of these employees were discharged under circumstances violative of the Labor Relations Act and thus ordered that they be reinstated with the usual back pay order; the other five, according to the Board, voluntarily terminated their employment. Only the employer appealed the Board's decision to the Philadelphia Court of Common Pleas. A reversal of the Board's action was obtained, the court holding that the administrative agency's findings lacked the requisite evidentiary support.*fn2 The Board then prosecuted this appeal.
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
rather go out of business than permit unionization and that he planned to inform each of his employees of this intention.
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.*fn3 The dispositive issue is whether, on this record, the Board could permissibly infer that five of the employees were discharged as a means of discouraging "membership in any labor organization." There is, however, one preliminary determination -- although it is undisputed that three of the five (Laura Graves, Robert Myers and Viola Stewart) were discharged by Hetelson, the employer insists that Katherine King and Bernice McKnight voluntarily terminated their employment.
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, ...