484 F.2d 1108 (7th Cir. 1973), 72-1730, Peerless of America, Inc. v. N.L.R.B.

Docket Nº:72-1730.
Citation:484 F.2d 1108
Party Name:PEERLESS OF AMERICA, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Case Date:August 03, 1973
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1108

484 F.2d 1108 (7th Cir. 1973)

PEERLESS OF AMERICA, INC., Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 72-1730.

United States Court of Appeals, Seventh Circuit.

Aug. 3, 1973

Argued April 17, 1973.

As Amended Sept. 6, 1973.

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Lawrence M. Cohen, Chicago, Ill., for petitioner.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Robert Sewell, Atty., N. L. R. B., Washington, D. C., for respondent.

Before HASTINGS, Senior Circuit Judge, CUMMINGS and STEVENS, Circuit Judges.

CUMMINGS, Circuit Judge.

Petitioner sells and distributes heating and refrigeration products and their components manufactured at its Effingham, Illinois, plant. It commenced operations there in September 1969, and not quite a year later, in August 1970, the Union 1 initiated its campaign to organize

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the Company's production and maintenance employees. An open and vigorously contested campaign ensued. On October 2, 1970, the Union claimed to have been designated as the employees' exclusive bargaining representative on the basis of authorization cards and offered to prove its majority status. It requested that the Company bargain with it, but the Company refused, preferring a Labor Board-supervised election to determine the true desires of the employees. Thereafter the Union filed an election petition, and an election was scheduled to be held on January 14, 1971. The election was postponed indefinitely because two days beforehand the Union filed a charge principally asserting that the Company discriminatorily withheld overtime from employees because of union activities and that for the same reason the Company effectuated a layoff on December 18, 1970, substantially reducing its Effingham work force.

The Regional Director refused to issue a complaint because his investigation established, with respect to the first allegation, that the Company did not diminish employee opportunities for overtime after the commencement of the Union's organizational campaign and, with respect to the second, that (1) the layoff occurred after a marked decline in purchase orders without any anticipation of an increase in the foreseeable future; (2) a substantial inventory of manufactured goods was still on hand; and (3) the least senior employees were selected for layoff. However, on March 22, 1971, the Regional Director issued a complaint after the filing of an amended Union charge asserting that between late August 1970 and the middle of the following December the Company committed various violations of Section 8(a)(1) of the National Labor Relations Act (29 U.S.C. § 158(a)(1)) and that it refused to bargain with the Union in violation of Section 8(a)(5) (29 U.S.C. § 158(a)(5)) on and after October 2, 1970, the date when the Union demanded recognition while holding authorization cards of a majority of employees in the appropriate bargaining unit. No election was ever held.

The Trial Examiner found no violation in the majority of the alleged instances of conduct violative of Section 8(a)(1) but concluded that the Company had engaged in unfair labor practices defined in that Section and had refused to bargain with the Union in violation of Section 8(a)(5). In recommending that the Company be ordered to bargain with the Union, he stated without further elaboration:

"Before and after the Union's demand for recognition the Company engaged in numerous unfair labor practices of a character inherently capable of affecting the results of any election procedures and requiring in the instant case a bargaining order as the only effective and appropriate remedial relief. I conclude on the basis of the facts herein and on the authority of Gibson Products Company, 185 NLRB No. 74, that the Company's refusal to bargain was unlawful and can only be remedied by an order to bargain."

The Board disagreed with the Trial Examiner's findings of Section 8(a)(1) violations in two instances, dismissed several alleged violations concerning which the Trial Examiner made no findings, and found a violation in one instance where the Trial Examiner had not. With these exceptions the Board adopted the Trial Examiner's Section 8(a)(1) findings. It likewise adopted the Trial Examiner's conclusion that the Company had violated Section 8(a)(5). In this regard the Board agreed that the Union represented a majority of its employees when it sought recognition on October 2, 1970. It decided that the critical date for determining the majority status where no election has been held was the date the Union sought recognition. It held that the Union then had 24 clearly valid authorization cards out of a unit of 39 employees, so that the Union represented a majority of the employees when it sought recognition.

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In support of its decision and order requiring the Company to bargain with the Union (198 NLRB No. 138), the Board stated simply:

"The facts show that, as soon as the Union began to organize, Respondent began to undermine the Union. Thus Respondent [1] systematically polled union sentiment, [2] created the impression of union surveillance and [3] directed a supervisor in the presence of an employee to segregate a union supporter, 2repeatedly interrogated employees about their own and others' union sympathies and about attendance at a union meeting, [5] made repeated efforts to have an employee persuade others to give up their support of the Union, [6] promised a change for the better in working conditions, [7] threatened worsened working conditions, and [8] threatened a plant shutdown and layoff-all in discouragement of union support. These unfair labor practices were directed at undermining union strength and impeding the election process. Applying the standards of N. L. R. B. v. Gissel Packing Co., [395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547], we consider whether there is still a possibility of ensuring a fair election. We believe that possibility is slight because of the lingering coercive effect of the unfair labor practices. [Footnote omitted.] We therefore hold that the employees' majority designation of the Union as expressed in their authorization cards provides in this case a more reliable measure of the employees' true desires than would be provided by an election."

The Company has requested us to set aside the Board's order, prompting the Board to file a cross-petition for enforcement. We deny enforcement of the bargaining order but, with three exceptions as to the Section 8(a)(1) unfair labor practices, enforce the remainder of the Board's order remedying them.

Section 8(a)(1) Unfair Labor Practices

First of all, the Board found that the Company thrice violated Section 8(a)(1) when Plant Manager Richard W. Kritzer, Jr. conversed with other supervisors in the presence of his confidential secretary, Vicky Steele. In one conversation which occurred on about September 11, 1970, Kritzer inquired of supervisors Becton, Stigers, Embry and Hardiek 3

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about their knowledge of employees' Union sympathy and asked them to check probable sympathy against an employee check list. This conversation occurred in the privacy of Kritzer's office, but because his confidential secretary was then present, the Board found that "such systematic inquiry and tabulation" coerced or restrained her in the exercise of her Section 7 rights. A few minutes after this conversation, Kritzer engaged in another conversation with Embry, who remained in Kritzer's office after the other supervisors had left. They conferred about who among the employees was the chief instigator of the Union movement and decided it was employee Benny Kessler. Again since Vicky Steele overheard this conversation -she was seated at her desk during both conversations-the Board found it created the impression of surveillance, thus violating her Section 7 rights. When Kritzer and Embry thereupon decided that Kessler should be segregated from the other employees, 4 the Board found still another Section 8(a)(1) violation because this coerced Vicky Steele.

As the Board concedes, these three violations are premised upon its view that a confidential secretary is an "employee" within the meaning of the Act and therefore entitled to its protections. However, we cannot accept this premise. For the reasons persuasively stated by Judge Craven in National Labor Relations Board v. Wheeling Electric Co., 444 F.2d 783 (4th Cir. 1971), we hold that Mrs. Steele's position as confidential secretary rendered her a supervisor excluded from the protection of the Act by Section 2(3) thereof (29 U.S.C. § 152(3)). 5 Consequently, the finding that the Company committed the foregoing three unfair labor practices is set aside.

The majority of the remaining unfair labor practices found by the Board consist of eight incidents of interrogation concerning Union sentiment; the others involve a promise of improved benefits and working conditions, three incidents of threats, and several anti-Union solicitations.

Plant Manager Kritzer was found to have unlawfully interrogated employee Layton when on or shortly before September 4, 1970, he asked him if he was planning to attend a Union meeting scheduled for that evening, remarking that he should take a pad and pencil and jot down notes. Shortly thereafter Layton signed a Union authorization card. Subsequent to the meeting Kritzer asked Layton how many employees had attended, to which Layton candidly responded, and Kritzer was again found to have made an unlawful interrogation.

The Board found that supervisor Embry 6 made an unlawful interrogation when in the course of a mid-November conversation, which quite possibly occurred in a tavern over beer, he asked employee Shope, apparently a friend, what he thought about the Union. When Shope responded that he had not given it...

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