NLRB v. Sinclair Company, 7069.

• Citation: 397 F.2d 157
• Decision Date: 03 July 1968
• Docket Number: No. 7069.,7069.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The SINCLAIR COMPANY, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

397 F.2d 157 (1968)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The SINCLAIR COMPANY, Respondent.

No. 7069.

United States Court of Appeals First Circuit.

July 3, 1968.

Peter M. Giesey, Washington, D. C., Attorney, with whom Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and William Wachter and Nancy M. Sherman, Washington, D. C., Attorneys, were on brief, for petitioner.

Edward J. Simerka, Cleveland, Ohio, with whom Stanley, Smoyer & Schwartz, Cleveland, Ohio, was on brief, for respondent.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

McENTEE, Circuit Judge.

This is a petition for enforcement of a Labor Board order issued against the respondent, The Sinclair Company. The order is based on findings that the company interfered with the organizational rights of its employees by threatening that unionization would cause them to lose their jobs and also that the company refused to bargain with the union as the representative of its employees in violation of § 8(a) (1) and (5) of the National Labor Relations Act.¹ The basic question is whether on the record as a whole these findings are supported by substantial evidence. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

The respondent company, whose main plant is in Holyoke, Massachusetts, was founded in 1925. It was acquired by Lindsay Wire Weaving Company of Cleveland, Ohio, in 1964 and is now a division of Lindsay. David Sinclair, son of the founder and the central figure in this litigation, continued as president under the new regime.

Briefly, the company's labor relations background is as follows. From 1933 to 1952 its journeymen and apprentice wire weavers were represented by a union known as the American Wire Weavers Protective Association. (A.W.W.P.A.) This relationship terminated in 1952 after A.W.W.P.A. called a strike that lasted some thirteen weeks. From 1952 to 1965 the employees were not represented by any union.

Early in July 1965² the Teamsters Union began organizing the employees.³ By letter dated September 20, Teamsters Local 404 notified the company that it represented a majority of its journeymen wire weavers and apprentices; requested that the company bargain with it and made the usual offer to submit the signed authorization cards for authentication.⁴ The company refused to recognize the union. Local 404 filed a representation petition. The parties stipulated to a Board conducted election among the wire weavers and said election was held on December 9. With a total of thirteen ballots cast the union lost by a vote of seven to six. Thereupon it petitioned the Board to set aside the election and filed the unfair labor practice charges here involved. Adopting the findings of the trial examiner, the Board set aside the election and entered an unfair labor practice order. The issue revolves around the pre-election conduct of the company's president.

In July when Sinclair learned of the union's efforts he immediately addressed the employees in separate groups, with the view to dissuading them from joining the union.⁵ On November 2, and again on November 5, he sent them letters vigorously opposing the union.⁶

We now come to the period directly involved in the Board's findings.⁷ Two or three weeks before the scheduled election, Sinclair embarked upon an intensive campaign to induce the wire weavers to reject the union. His first message consisted of a letter or pamphlet illustrated with drawings and entitled "Who Would Buy The Groceries . . . While You Walk The Teamsters Picket Line?" Its dominant theme was "Do You Want Another 13-Week Strike?"⁸ Among other things, the pamphlet emphasized that the union has but one weapon — a strike; that the Teamsters Union is a "strike happy outfit"; that it can again close the wire weaving department and the entire plant by a strike and that only the striking employees and the company, not the union organizers, would be hurt. On November 30 he followed up with a similar letter to the wire weavers reminding them again of the disastrous effects of the long 1952 strike on both the company and the employees. He also stated that "a strike can still close the Holyoke plant." The very next day (December 1) Sinclair sent the wire weavers a third communication containing more of the same, listing the misdeeds of several top Teamster officials, denouncing the union and its tactics and urging the wire weavers to vote "No" in the election.

Next came a four page leaflet dated December 7, entitled "Let's Look At The Record" and illustrated with a cartoon. This leaflet purported to be an obituary of the companies in the Holyoke-Springfield area that allegedly had fallen victim to union demands and had gone out of business, eliminating some 3500 jobs in the area. The leaflet concluded by suggesting that the wire weavers drive past these plants before making their decision to vote for the union. The day before the election another handbill entitled "Vote Right — Avoid Strikes" was passed out by the company. In graphic form it set out several supposedly beneficial effects of voting "No" in the election and ended with a scathing attack on high Teamsters officials and the union itself. That same afternoon the president personally addressed the wire weavers in a final appeal to reject the union. Again he mentioned union corruption and reminded his hearers of the company's precarious financial condition. In his closing plea, Sinclair again told the wire weavers of the unlikelihood of their obtaining other employment because of their age and limited education. It also appears that Sinclair talked personally to about ten of the fourteen wire weavers between July and December 9 in an effort to persuade them not to vote for the union.

An employer violates § 8(a) (1) of the Act if in communicating with his employees during a union organizational campaign preceding an election he makes promises of benefits, threats of loss, or reprisal for their vote. Wausau Steel Corp. v. N.L.R.B., 377 F.2d 369, 372 (7th Cir. 1967). The respondent defends on the ground that in making the pre-election statements above mentioned it was merely informing its employees of the facts; that it made no untrue statements; that these statements considered separately are lawful and this being so, the combination of them could not result in illegal conduct. The problem is not as simple as that. Conveyance of the employer's belief, even though sincere, that unionization will or may result in the closing of the plant is not a statement of fact unless, which is most improbable, the eventuality of closing is capable of proof. The employer's prediction must be in terms of demonstrable "economic consequences." Surprenant Mfg. Co. v. N.L.R.B., 341 F.2d 756, 761 (6th Cir. 1965). Moreover, in considering coercive effect the test is the totality of the circumstances. N.L.R.B. v. Kolmar Laboratories, Inc., 387 F.2d 833, 837 (7th Cir. 1967). Daniel Construction Co. v. N.L.R.B., 341 F.2d 805 (4th Cir.), cert. denied, 382 U.S. 831, 86 S.Ct. 70, 15 L.Ed.2d 75 (1965); N.L.R.B. v. Wagner Iron Works, 220 F.2d 126, 139 (7th Cir. 1955), cert. denied, 350 U.S. 981, 76 S.Ct. 466, 100 L.Ed 850 (1956).

As stated in N.L.R.B. v. Kropp Forge Co., 178 F.2d 822, 828-829 (7th Cir. 1949), cert. denied, 340 U.S. 810, 71 S.Ct. 36, 95 L.Ed. 595 (1950):

"A statement * * * might seem * * * perfectly innocent * * *, including neither a threat nor a promise. But, when the same statement is made by an employer to his employees, and we consider the relation of the parties, the surrounding circumstances, related statements and events and the background of the employer\'s actions, we may find that the statement is a part of a general pattern which discloses action by the employer so coercive as to entirely destroy his employees\' freedom of choice and action.

* * * If, when so considered, such statements form a part of a general pattern or course of conduct which constitutes coercion and deprives the employees of their free choice guaranteed by Section 7, such statements must still be considered as a basis for a finding of unfair labor practice."

It is evident that Sinclair's communications were designed to impress upon the wire weavers (1) that the 1952 strike had left the company in a state of continuing financial...