NLRB v. Varo, Inc.

• Decision Date: 20 April 1970
• Docket Number: No. 28220. Summary Calendar.,28220. Summary Calendar.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. VARO, INC., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

425 F.2d 293 (1970)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. VARO, INC., Respondent.

No. 28220. Summary Calendar.

United States Court of Appeals, Fifth Circuit.

April 20, 1970.

COPYRIGHT MATERIAL OMITTED

Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., Washington, D. C., Elmer P. Davis, Director, Region 16, N. L. R. B., Fort Worth, Tex., for petitioner.

John B. Nelson, Dallas, Tex., John E. Price, Fort Worth, Tex., for respondent.

Before THORNBERRY, CARSWELL and CLARK, Circuit Judges.

THORNBERRY, Circuit Judge.

This case is before this Court on application of the National Labor Relations Board pursuant to Section 10(e) of the National Labor Relations Act, 29 U. S.C. § 151 et seq. for enforcement of the Board's order issued on September 17, 1968.¹ The Board found that during an organization compaign the Company violated section 8(a) (1) of the Act by maintaining and enforcing an illegal written no-solicitation rule; promulgating and enforcing an illegal oral no-solicitation rule; coercively interrogating employees; promising its employees economic benefits if they refrained from union activity; threatening employees with reprisals if they chose representation; and representing that the Company would never sign a contract, but if the employees should strike, the Company would immediately replace them or, if unable to secure replacements, would relocate the plant. The Board further found that the Company violated section 8(a) (1) and (3) of the Act by transferring an employee in order to discourage him and other employees from union activity. The Board's order directs the Company to cease and desist from the unfair labor practices found or from in any other manner interfering with its employees' rights under the Act. Affirmatively, the order requires the Company to offer the demoted employee reinstatement to the position of inspector-trainee, to make him whole for any earnings lost because of the discrimination against him, and to post the appropriate notice.²

As has been often observed previously, this Court does not sit in de novo review of the Board's findings. We are not to decide this case as if we were sitting as a super trial examiner or a super National Labor Relations Board. Rather, our obligation is to review the entire record with care to determine if there is substantial evidence to support the Board's findings and, if there is, to direct enforcement of the Board's order.

The substantial, though often conflicting, evidence establishes that the events leading to litigation in this case were as follows: During the summer of 1967, the Union³ began an organizational campaign at the Company's two plants in Mexia, Texas. On August 18, 1967 the Union notified the Company that it represented a majority of its employees. The Company undertook steps to counteract the Union's organization campaign. On August 25, a week after the Union's claim of majority. Company foreman Woods approached employee Smith and told him that he had been observed passing out pledge cards during a work break, that this was against Company policy and the law, and that the practice would have to stop "or else." The following afternoon, Smith was told by a fellow employee that another foreman, Bob Neely, had criticized Smith for talking union during the lunch break Smith brought up the matter to Neely. who told Smith that it was against Company policy to talk union with fellow employees in the shop "whether it was break, lunchtime, or what it was."

On September 6, foreman Johnson approached employee Robert Cherry and asked if Cherry was a "union instigator." Cherry replied that he was an "agitator." Johnson then warned him he was "not to talk about the union on company time," and that while the lunch period was available, Cherry "might get into trouble if he talked about the union on coffee breaks because actually the company paid for that time." On September 11, employee Cherry was transferred from the position of inspector-trainee back to lathe operator.

On that same day, employee Smith asked foreman Johnson why Cherry had been transferred. Johnson said that it was none of Smith's business, and Smith replied that he was the union steward representing Cherry and would like an answer. That afternoon, Smith was called to the plant manager's office, where he found the manager and a secretary who took notes of their conversation. The manager asked Smith if he had been talking to Johnson on Company time and Smith answered that he might have gone over the lunch period by one or two minutes. The manager asked Smith if he was posing as a union steward. At that point, Smith requested a "union witness," whereupon employee Taylor was summoned into the room. The plant manager asked: "What do you people want out there?" After a noncommital response from Smith, the manager said: "If money is all you people are concerned with, you don't have to go through all this trouble to get it."

That same afternoon, employee Collier was called into the plant manager's office. The manager said that he had been informed that Collier "had been conducting union activity on company time that day." Collier denied this, insisting that his activity had been limited to his own time. The manager stated that "any union activity on company time was prohibited."

Sometime in October, foreman Clay told employee Cherry that the employees "would never get a contract if they did get into a union." Clay said further that if it were his company and the employees voted union, he would "shut the doors."

A Board-conducted election was held on December 18, 1967. During the week preceding the election, the Company arranged approximately twenty-two meetings with small groups of employees at both of the Company's plants on Company time. The Board found that certain statements and speeches made by Company officers at these meetings constituted violations of the Act. These speeches and the Board's findings concerning them will be discussed later in this opinion.

The No-Solicitation Rules

The Company's orientation booklet contains a rule prohibiting "solicitation on Company property for any purpose * * * at any time" without permission. The Company admits that this rule as promulgated in the old Company pamphlet is invalid under the Board's rules. The Board did not consider the validity of the promulgation of this no-solicitation rule since it had been promulgated so long before this case arose. The Board did find, however, that the rule as enforced in the pre-election campaign was unlawful. The rule was invoked by foreman Neely when he advised employee Smith that "company policy" prohibited union talk in the plant "whether it was break, lunchtime or what it was * * *"

The Board also found that another no-solicitation rule was announced and enforced against two employees by foremen Woods and Johnson. This rule allowed union talk at lunch time but barred such activity during other work breaks. Thus foreman Woods told employee Smith that he had been observed passing out authorization cards during the break period, that this was against Company policy, and that it would stop "or else." Foreman Johnson told employee Cherry that Cherry could talk about the union during lunch time, but not during coffee breaks. The Board found that the rule as announced and enforced by foremen Woods and Johnson was unlawful.

It is well established that a company rule that prohibits union solicitation by employees on non-working time is presumptively an unwarranted impediment to self organization, and may be found unlawful unless it is shown that there are special circumstances that make the rule necessary in order to maintain production or discipline. See, e.g., Republic Aviation Corp. v. N.L.R.B., 1945, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372; Republic Aluminum Co. v. N.L.R.B., 5th Cir. 1968, 394 F.2d 405, 407; Campbell Soup Co. v. N.L.R. B., 5th Cir. 1967, 380 F.2d 372. There was substantial evidence that the Company was announcing and enforcing rules that prohibited union solicitation by the employees on non-working time. The burden was thus on the Company to demonstrate that those rules were necessary for production or discipline. The record clearly reflects that the Company failed to meet that burden. There was simply no evidence that production or discipline were interrupted or even threatened by the employees' solicitation for the union on non-working time. The findings of the Board concerning the Company's no-solicitation rules must stand.

The Interrogation of Employee Smith.

As noted earlier, employee Smith was called to plant manager Yandri's office on September 11, and asked if he was "posing" as a union steward. Smith first asked for a witness, but after employee Taylor was brought to the office, Smith declined to answer before speaking to a union representative. The Board found that this was a coercive tactic on the part of the Company. The Company argues that Smith's testimony on this matter is unreliable since Yandri testified that he never made the remarks attributed to him by Smith. It is not the function of this Court to decide the credibility of conflicting witnesses. The trial examiner, who observed the demeanor of the witnesses, accepted the testimony of employee Smith, and there is nothing in the record to show that he was clearly erroneous in doing so. We accept the trial examiner's credibility resolution. See N.L.R.B. v. Soft Water Laundry, Inc., 5th Cir. 1965, 346 F.2d 930, 934.

An act of interrogation is not coercive or intimidating on its face, but may be conducted in such circumstances that it will tend to intimidate or coerce the employees. We are careful to note that the test is whether the questioning tends to be coercive, not whether the employees are in fact coerced. N.L.R.B. v. American Mfg. Co., 5th Cir. 1943, 132 F.2d 740. In order to decide whether the interrogation would tend to coerce the employees, we must look to all the...