Montgomery Ward & Co. v. NLRB

Decision Date30 November 1967
Docket NumberNo. 18701.,18701.
Citation385 F.2d 760
PartiesMONTGOMERY WARD & CO., Incorporated, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
CourtU.S. Court of Appeals — Eighth Circuit

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Narcisse A. Brown, Chicago, Ill., for petitioner; Daniel Walker, John P. Brundage, William F. McNally, Jack D. Brousard, Chicago, Ill., and Roy E. Breckenridge, of McMahon & Berger, St. Louis, Mo., on the brief.

Hans J. Lehmann, Atty., N. L. R. B., Washington, D. C., for respondent; Arnold Ordman, Gen. Counsel, N. L. R. B., Dominick L. Manoli, Associate Gen. Counsel, N. L. R. B., Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., and Gary Green, Atty., N. L. R. B., Washington, D. C., on the brief.

Before VAN OOSTERHOUT, MATTHES and MEHAFFY, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

Montgomery Ward & Co. (Wards) has petitioned us for review of the order of the National Labor Relations Board adopting in its entirety the findings and conclusions and recommended order of the Trial Examiner determining Wards guilty of a number of violations of § 8(a) (1), National Labor Relations Act as amended (29 U.S.C.A. § 151 et seq.) and of a § 8(a) (5) violation.1

The Board has cross-petitioned for enforcement of its order in its entirety. Its decision and order are reported at 160 NLRB No. 137. Wards' store here involved is located in Bloomington, Minnesota, within this Circuit. Jurisdiction is vested in this court by § 10(e) and (f) of the Act.

The § 8(a) (1) Violations.

Wards urges that the Board erred in finding it guilty of any § 8(a) (1) violation. The complaint contains seven specifically described § 8(a) (1) violations. The Board found three of such violations were established, to wit: (1) Presence of supervisory personnel in a bowling alley in a portion of which a union organizational meeting was being held constituted illegal surveillance. (2) Coerced interrogation of employees by supervisory personnel. (3) Unlawful offer to promote Miller, a union supporter, to a supervisory position in another store for the purpose of removing him from the bargaining unit.

The Board found the other § 8(a) (1) violations specifically charged were not established.

When proper legal standards are applied, we find no substantial evidentiary support on the record considered as a whole to support the Board's findings of § 8(a) (1) violations under the teaching of Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456.

On the surveillance issue, the record discloses that four of Wards' supervisory employees held a meeting at a table in the beer parlor portion of an adjacent bowling alley for the purpose of discussing a performance report just received, on August 26, 1965. Such meetings were held there on both prior and subsequent occasions. The employees were having an organizational meeting at the same bowling alley on the same date and this was known to the supervisors. The employees' meeting room was located some 150 feet distant from the place occupied by the supervisors. The supervisors did see and exchange greetings with some of the employees who passed by. The supervisors were at a public place where they had a right to be and were using the facilities for its intended purpose. Such activity does not constitute unlawful surveillance. See N. L. R. B. v. Monroe Auto Equip. Co., 8 Cir., 368 F.2d 975, 981; N. L. R. B. v. Davidson Rubber Co., 1 Cir., 305 F.2d 166, 170.

The alleged coerced interrogation of employees took place in a nearby coffee shop where one of the supervisors held separate interviews with various employees over a cup of coffee. The employees were reminded of the election date and told to be sure to vote. The company's position opposing the union was discussed. Some employees were asked how they were going to vote but were not pressed. One employee was told, "I hate to see you get hurt." In one interview the supervisor made a notation forecasting his view of how the individual employees would vote at the election. We have held that the right of free speech guaranteed by the First Amendment and § 8(c) of the Act should not be defeated by narrow or strained construction. N. L. R. B. v. Howard Quarries, Inc., 8 Cir., 362 F.2d 236, 240; N. L. R. B. v. William J. Burns Int'l Detective Agency, Inc., 8 Cir., 346 F.2d 897, 903. Free speech, guaranteed by § 8(c), is by the terms of such section permitted "if such expression contains no threat of reprisal or force or promise of benefit."

In N. L. R. B. v. Ralph Printing & Lithographing Co., 8 Cir., 379 F.2d 687, 690, we held interrogation of an employee "not in itself threatening or coercive, would not violate Section 8(a) (1) unless it were conducted against a background of employer hostility and discrimination towards unionization, such as would induce its employees a fear of reprisal for lawfully pursuing their union activities." See Dierks Forests, Inc. v. N. L. R. B., 8 Cir. 385 F.2d 48 (November 16, 1967).

In our present case, the Board specifically rejected claims that discharge was threatened for union activity. The Board also rejected the contention that employees Miller and Wersal were constructively discharged by oppressive treatment occasioned by their union activity. Nothing said in the coffee shop conversation and interrogations can fairly be said to contain any threat of reprisal or force or promise of benefit.

Miller, a union supporter, was offered a position at a Wards station in a nearby small community where he would be the only mechanic. A vacancy existed in such shop. Miller was given a free choice of accepting or rejecting the position and turned down the offer after several days consideration. We find no substantial evidentiary basis for determining that the offer of the job had any relationship to Miller's union views.

Additionally the Examiner, upheld by the Board, determined Wards to be guilty of a number of § 8(a) (1) violations not charged in the complaint. The complaint charged specific violations and contained no catchall provision. The Board concedes that it attempted to prove additional violations not charged in the complaint and that no attempt was made to amend the complaint. The Administrative Procedure Act, 5 U.S.C.A. § 1004, and the Board's own rule, 29 C.F.R. § 102.15, require that the complaint apprise the parties proceeded against of the violations charged. "Evidence without a supporting allegation cannot serve as the basis of a determination of an unfair labor practice." "It offends elemental concepts of procedural due process to grant enforcement to a finding neither charged in the complaint nor litigated at the hearing." Engineers & Fabricators, Inc. v. N. L. R. B., 5 Cir., 376 F.2d 482, 485. See N. L. R. B. v. Majestic Weaving Co., 2 Cir., 355 F.2d 854, 861; N. L. R. B. v. Threads, Inc., 4 Cir., 308 F.2d 1, 9-10.

We recognize that National Labor Relations Board complaints do not have to conform to the technicalities of common law pleadings and that in appropriate situations, issues fairly tried even if not specifically pleaded are to be considered. However, this is not such a case. The additional violations were not referred to in the General Counsel's opening statement. When evidence was first introduced on the non-charged violations, Wards objected on the ground the evidence was not within the scope of the issues pleaded. No attempt was made to amend and Wards, under the record here, cannot be held to have consented to the trial of issues not raised by the complaint. The Board erred in finding Wards guilty of unfair labor practices which were not properly charged.

The § 8(a) (5) Violation.

The Board determined that Wards, by refusing to recognize the Union as the exclusive representative of its employees, engaged in an unfair labor practice within the meaning of § 8(a) (5) and (1), and ordered Wards upon request to bargain collectively with the Union. Wards contends the bargaining order has no basis in law or in fact, because (1) the request of the Union for recognition in an appropriate unit did not raise a duty to bargain and can not form the basis for a violation of § 8(a) (5); (2) General Counsel failed to prove that the cards were not obtained by misrepresentation; and (3) Wards' good faith doubt was abundantly proved and the finding that Wards sought delay to thwart organization is directly contrary to the record.

The Union held a final organizational meeting on August 26, 1965. On August 27, 1965, it wrote Wards a letter, signed by the Union business manager, reading:

"Due to the fact that we have the majority of the Application Cards from
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