NLRB v. Lenkurt Electric Company, 24035.

• Decision Date: 02 April 1971
• Docket Number: No. 24035.,24035.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LENKURT ELECTRIC COMPANY, Inc., Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

438 F.2d 1102 (1971)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LENKURT ELECTRIC COMPANY, Inc., Respondent.

No. 24035.

United States Court of Appeals, Ninth Circuit.

February 10, 1971.

Rehearing Denied April 2, 1971.

COPYRIGHT MATERIAL OMITTED

John D. Burgoyne (argued), Atty., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, John D. Burgoyne, Atty., N. L. R. B., Washington, D. C.; Roy O. Hoffman, Director, N. L. R. B., San Francisco, Cal., for petitioner.

Max Thelen, Jr. (argued), Frank B. Morgan, of Thelen, Marrin, Johnson & Bridges, Levy, Deroy, Geffner & Van Bourg, San Francisco, Cal., for respondent.

Before BROWNING and DUNIWAY, Circuit Judges, and TAYLOR^*, District Judge.

TAYLOR, District Judge:

This case is presently before the Court upon the application of the National Labor Relations Board (hereinafter "the Board") for enforcement of its order issued on February 19, 1968, against the respondent Lenkurt Electric Company (hereinafter "the Company") pursuant to the provisions of Section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e). The jurisdiction of the Board and of this Court is not in dispute.

The respondent Company is engaged in the design and manufacture of communications equipment for sale in interstate commerce. It maintains a manufacturing plant at San Carlos, California, and employs approximately 3,500 employees at the plant, of whom some 2,800 are represented by various unions. The remaining personnel are primarily supervisory and administrative personnel, engineers and other professional employees, and the employees in Department 83, the Publications Service Department. The employees in Department 83 prepare and publish the printed material which the Company ships with the products it sells.

On August 29, 1966, the Union¹ filed a representation petition with the Board seeking an election for certification as the bargaining representative of 14 unrepresented employees in the Publications Production Division of Department 83. These employees operated certain printing equipment used in the production and duplication of printed matter. After a representation hearing, the Regional Director for the Board ordered that an election be held on October 14, 1966. The election resulted in a rejection of the Union by a vote of 7 to 5, with two ballots being challenged. The Union thereafter filed an unfair labor charge and objections to certain conduct of the Company which allegedly affected the outcome of the election.

Briefly stated, the contentions of the Union, which the Board here seeks to uphold, are that in the two weeks immediately prior to the election, the manager of the printing department, one Kenneth Linka, made certain statements to groups of the printing department employees which restrained and coerced these employees in the free exercise of their rights under Section 7 of the National Labor Relations Act, thereby violating Section 8(a) (1) of the Act. The Company takes the position that Linka's statements were fair comment and permissible predictions of the consequences of unionization, and are protected under Section 8(c) of the Act.²

The unfair labor practice charge and the objections to the Company's conduct were consolidated for hearing before a trial examiner, who concluded that the Company had committed no unfair labor practice or otherwise objectionable acts, and recommended that the complaint be dismissed. The Board reversed, finding that the pre-election statements made by Linka, considered in the context in which they were made, constituted an implied threat that the Company would deprive its employees of certain benefits and employment, and would impose more rigid working conditions if the Union were elected as the employees' bargaining representative. The Board did not reject the findings and conclusions of the trial examiner, nor did it disturb his resolution of credibility of witnesses, except to the extent that the Board disagreed with the inferences and legal conclusions to be drawn from the facts found.³ We conclude, for the reasons hereafter set forth, that the petition of the Board for enforcement of its order should be denied.

It is well established law that an employer has the right to express opinions or predictions of unfavorable consequences which he believes may result from unionization. Such predictions or opinions are not violations of the National Labor Relations Act if they have some reasonable basis in fact and provided that they are in fact predictions or opinions rather than veiled threats on the part of the employer to visit retaliatory consequences upon the employees in the event that the union prevails.

The most recent and authoritative enunciation of the rule is found in N. L. R. B. v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). The Supreme Court there set forth a clarification of the standards to be used in determining the impact of an employer's pre-election statements. The Court stated, 395 U.S. at 618, 619, 89 S. Ct. at 1942:

"Thus, an employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a `threat of reprisal or force or promise of benefit.\' He may even make a prediction as to the precise effects he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer\'s belief as to demonstrably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization. See Textile Workers v. Darlington Mfg. Co., 380 U.S. 263, 274, n. 20, 85 S.Ct. 994, 13 L.Ed.2d 827 (1965). If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coercion, and as such without the protection of the First Amendment. We therefore agree with the court below 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.\' 397 F.2d 157, 160. As stated elsewhere, an employer is free only to tell `what he reasonably believes will be the likely economic consequences of unionization that are outside his control,\' and not `threats of economic reprisal to be taken solely on his own volition.\' N. L. R. B. v. River Togs, Inc., 382 F.2d 198, 202 (C.A.2d Cir. 1967)."

We read this opinion as establishing two standards by which an employer's utterances may be objectionable. It appears clear that an employer may not make predictions which indicate that he will, of his own volition and for his own reasons, inflict adverse consequences upon his employees if the union is chosen. This would constitute a threat of retaliation. Also, an employer may not, in the absence of a factual basis therefor, predict adverse consequences arising from sources outside his volition and control. This would not be a retaliatory threat, but would be an improper restraint nevertheless. N. L. R. B. v. C. J. Pearson Co., 420 F.2d 695 (1st Cir. 1969). Thus, an employer may not impliedly threaten retaliatory consequences within his control, nor may he, in an excess of imagination and under the guise of prediction, fabricate hobgoblin consequences outside his control which have no basis in objective fact.

With these basic premises in mind, we turn to an evaluation of the Company's communications to its employees in the instant case. The record reflects that in his conversations with the printing department employees, Linka suggested that if the employees were to unionize, it was possible that a more strict regimentation of working hours would be implemented. He explained that under the present working conditions, company policy with respect to coffee breaks, lunch hours and conversation while working had been fairly casual in the printing department, while in the unionized departments of the plant the employees were strictly controlled as to coffee breaks, lunch hours and general attention to their labors. Linka further explained that if these employees were unionized, and the basis of their compensation changed from monthly salary to the hourly rates which were the basis for compensation of other union employees in the plant, a more strict observance of working time would probably result. These observations were based largely on Linka's own observations when other employees in the plant were unionized and had gone to an hourly basis of compensation.

Linka further suggested that working conditions might be made more difficult by unionization because the Company might seek to reduce operating costs by using less expensive paper stock in the printing department. He explained that while the employees usually worked with "premium stock" paper, that if it were necessary to reduce costs he would probably introduce lower quality stock, which might cause more problems for the operators of the various machines.

In the course of the meetings, Linka also stated that sick leave and other fringe benefits, particularly the company's policy of providing working smocks and laundry service to the employees, might be changed by unionization. With respect to sick leave, Linka explained at the hearing that it was his understanding that employees with the International Brotherhood of Electrical Workers Union, which represented most of the employees in the plant, did not get paid if they did not come to work. The possibility of discontinuing the laundry service and working smocks was...