NLRB v. Johnnie's Poultry Co.

Citation344 F.2d 617
Decision Date29 April 1965
Docket NumberNo. 17843.,17843.
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. JOHNNIE'S POULTRY CO., and John Bishop Poultry Co., Successor, Respondent.
CourtU.S. Court of Appeals — Eighth Circuit

Laurence Gold, Atty., N.L.R.B., Washington, D. C., made argument for petitioner. Arnold Ordman, Gen. Counsel, N.L.R.B., Washington, D. C., Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Elliott Moore and Vivian Asplund, Attys., N.L.R.B., Washington, D. C., were on the brief.

Paul S. Kuelthau of Moller, Talent & Kuelthau, St. Louis, Mo., made argument for respondent and filed brief with Glenn L. Moller of Moller, Talent & Kuelthau, St. Louis, Mo.

Before VAN OOSTERHOUT and BLACKMUN, Circuit Judges, and YOUNG, District Judge.

VAN OOSTERHOUT, Circuit Judge.

This case is before the court upon petition of the National Labor Relations Board pursuant to § 10(e) of the National Labor Relations Act as amended (29 U.S.C.A. § 151 et seq.), hereinafter referred to as the Act, for the enforcement of its order issued against respondent employer Johnnie's Poultry Co. on April 13, 1964, reported at 146 N.L.R.B. No. 98. This court has jurisdiction, the alleged unfair labor practices having occurred in Perryville, Missouri, within this circuit. The jurisdictional facts as determined by the Board are established.

The facts are set out in the trial examiner's intermediate report and the Board's decision. No purpose will be served in setting out the facts in detail here. This litigation arises out of the efforts of the District Union 99, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, hereinafter called the Union, to organize the employees of Johnnie's Poultry Co., of which John Bishop was the principal officer. On October 27, 1961, the Union lost a Board-conducted consent election by a vote of 41 to 27 after the Union had succeeded in obtaining some 55 authorization cards. The Union renewed its organizational activities on September 20, 1962. On December 6, 1962 the Union sent a letter to the employer enclosing photostats of 49 authorization cards signed by employees and requested recognition as the bargaining representative of "your employees". The payroll of the employer showed 98 employees. The Board ultimately determined that the appropriate unit consisted of 93 members.

On December 10, 1962, the employer responded to the Union's request, stating, "we do not regard the copies of cards which you sent us as a reliable indication of the present desires of our employees. * * *" The employer expressed a willingness to cooperate in expediting the election.

The Union filed charges and amendments thereto against the employer which resulted in a complaint filed by the Regional Director. After hearing, the Trial Examiner made extensive findings and concluded that the employer was not guilty of the unfair labor practices charged and he recommended the dismissal of the complaint. Upon review, the Board, overruling the Examiner, found that the employer had violated § 8(a)(1) of the Act by coercively interrogating employees as to protected activities, threatening to close part of the plant if unionized, and promising benefits for voting against the Union. The Board, with one member dissenting, in disagreement with the Trial Examiner, determined that upon receipt of the authorization cards the employer did not in good faith doubt the Union's majority status and hence, the employer violated § 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union.

The Board urges that substantial evidence on the record as a whole supports its findings and inferences that the employer was guilty of the violations found by the Board as above set out and that it is entitled to the enforcement of its order. The employer insists that there is no substantial evidence to support the Board's order, particularly in the light of the contrary findings by the Trial Examiner who heard and observed the witnesses.

Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, teaches that the findings of the Board must be supported by substantial evidence on the record as a whole, that the findings of the Trial Examiner are part of the record, and that evidence supporting a conclusion may be less substantial when an experienced examiner, who has seen and heard the witnesses, reaches a conclusion contrary to that reached by the Board, and that this is particularly true where the credibility of witnesses is involved. See N.L.R.B. v. Blades Mfg. Corp., 8 Cir., 344 F.2d 998; (May 10, 1965) Greco v. N.L.R.B., 3 Cir., 331 F.2d 165; N.L.R.B. v. Porter County Farm Bureau Co-op. Ass'n, Inc., 7 Cir., 314 F.2d 133, 144.

The Board asserts no credibility findings are here involved. We disagree. The Examiner credited the testimony of the attorneys who took the employees' statements as being more accurate than that of the employees. The Examiner also heard Mr. Bishop's testimony setting out the reasons why the employer did not accept the cards as proof of Union majority and thus was in a favorable position to judge his sincerity and good faith. Moreover, the Board uses the finding of coercion as a factor in making its finding of lack of good faith in refusing to bargain.

The Board, in support of its coercion order, relies upon the Haynes incident and the interrogation of employees by the employer's attorneys. The Examiner thus summarizes the Haynes incident:

"Haynes, whose wife also worked for the Company, stated that in the last week of August, he asked John Bishop for a loan of $50 and Bishop told him to come to the office the next day, Saturday, which he did. Bishop, after making the loan, said the Union would try to organize the plant but he could not afford to pay union wages and would shut down rather than have the Union in the plant. Bishop remarked he had helped Haynes and his wife by giving them jobs and lending them money and, if the Union tried to get in the plant, `you know how to vote.\' Haynes said, `we\'d see,\' and, apparently, that ended the conversation. Admittedly, there were no organizational activities at the plant at that time."
* * * * * *
"I question whether Bishop\'s statement to shut down the plant was coercive since it was predicated upon his inability to meet the union wage scale. In any event, the Union was not engaging in organizational activities at that time, so I cannot see how this conversation has any evidentiary value in determining the Company\'s position towards organization when it commenced a month or so later."

At most, the challenged statement is an isolated incident made in a friendly conversation more than a month before the organizational campaign commenced. We have denied enforcement in similar situations. See N.L.R.B. v. Council Mfg. Corp., 8 Cir., 334 F.2d 161, 165, and cases there cited.

With respect to the interviewing of employees, we have examined the record, the Examiner's report and the Board's decision, and without detailed discussion, we state that we are of the view that the Board's determination on this issue is not supported by substantial evidence. The facts are adequately set out in the Examiner's report which resulted in his conclusion, reading: "On all the evidence I find the interviews were confined to matters well within the scope of the amended charge and...

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