LC Cassidy & Son, Inc. v. NLRB
| Decision Date | 16 September 1969 |
| Docket Number | No. 16940.,16940. |
| Parties | L. C. CASSIDY & SON, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
D. C. Duck, James S. Haramy, Cadick, Burns, Duck & Neighbours, Willis K. Kunz, Kunz & Kunz, Indianapolis, Ind., for petitioner.
Marcel Mallet-Prevost, Asst. Gen. Counsel, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Allison W. Brown, Jr., Ronald
William Egnor, Attys., N.L.R.B., Washington, D. C., for respondent.
Before CASTLE, Chief Judge, KNOCH, Senior Circuit Judge, and CUMMINGS, Circuit Judge.
Rehearing En Banc Denied September 16, 1969.
Pursuant to § 10(f) of the National Labor Relations Act, Title 29 U.S.C. § 160, the petitioner, L. C. Cassidy & Son, Inc., seeks to review and set aside an Order of the National Labor Relations Board issued June 4, 1968, reported at 171 NLRB No. 136. The respondent Board seeks enforcement of that Order.
The proceedings before the Board began with a complaint issued July 28, 1967, on charges by Sheet Metal Workers' International Association, Local 503, AFL-CIO, that the petitioner had interfered with, restrained and coerced its employees in violation of § 8(a) (1) of the Act, discriminatorily discharged two employees in violation of § 8(a) (3) and refused to bargain in violation of § 8(a) (5).
After a hearing on February 2, 1968, the Trial Examiner recommended dismissal of the § 8(a) (3) and § 8(a) (5) allegations. The Trial Examiner's decision covers the two discharges in great detail and concludes that both employees were discharged for cause and not in violation of the Act. He found, over several serious objections by petitioner, that when the demand to bargain was made on March 2, 1967, the Union had obtained valid authorization cards from a majority of 17 of the 32 employees in the unit. He recommended a bargaining order.
On March 2, 1967, the Union had written petitioner's president, Donald Cassidy, that a majority of the installation employees had authorized Sheet Metal Workers' International Association, Local 503, to represent them in collective bargaining, offering to prove this majority status through a disinterested third person and requesting recognition and a meeting to negotiate a contract. The following day the Union filed a petition for certification by the Board.
Under date of March 7, 1967, the petitioner's attorney, Willis K. Kunz, replied that petitioner did not believe that the Union represented a majority. As an election which would settle the issue had already been requested by the Union, Mr. Kunz thought it would serve no purpose to attempt proof of representation by other means.
The Board conducted an election on May 5, 1967, at which 10 votes were cast for and 18 against the Union. One ballot was challenged. The Union filed objections to the election charging improper offer of benefits to employees individually and as a group in addition to withholding of work from other employees all allegedly to discourage Union membership. The Trial Examiner found that petitioner's unlawful conduct during the pre-election period caused the dissipation of the Union's majority and invalidated the election.
The Trial Examiner found several violations of § 8(a) (1). It was the custom for petitioner to hold meetings with employees on Monday mornings at least twice monthly to discuss working problems and complaints. From March 13, 1967, until the election, the Union was a subject of discussion at these meetings. Six of the employees testified to various statements made. The Trial Examiner credited that testimony. He found that most of the comments attributed to Donald Cassidy, although unfavorable to union organization, were within the protection of the Act. He found no unlawful threats of reprisal. He did find implied promises of benefits conditioned on renunciation of the Union.
Although Mr. Cassidy did say several times that he could promise no benefits because of the Union campaign, he once stated he could give the employees "more" than the Union. In connection with a complaint on "Electric heat batt rates," he said he could not promise anything, but would look into it. On March 14, 1967, three employees visited Mr. Cassidy in his office to ask what benefits they might receive if they "dropped the Union action," and were told he could not promise them anything until the union action was officially dropped. At the March 20, 1967 meeting of employees, Mr. Cassidy mentioned the visit of the three employees and when one of them said the employees wished to meet elsewhere without management present, to determine whether they wanted the union, Mr. Cassidy offered the petitioner's conference room for this discussion. He also reminded them at one point that some months before he had suggested their forming a grievance committee and expressed regret that a third party, the Union, had to come in to do what the employees could do for themselves. After the employees met alone, they reported that they did not really want the Union if they could secure some benefits and correct existing problems. Mr. Cassidy replied that he could not promise anything but that they knew he was a man of his word who acted in good faith. The Trial Examiner found that Mr. Cassidy's remarks as a whole held out a promise of benefits if the employees rejected the Union and that his statements were tantamount to suggesting a committee as an alternative to the Union.
Petitioner argues that these statements at worst are only ambiguous and should be construed as within the protected area of § 8(c) in the light of the facts that the employees themselves initiated many of the discussions, there were continual assurances that the employees were free to vote as they wished and there was an absence of any threat of reprisal. However, the context of Mr. Cassidy's comments at the meetings also included references to possible closing of the plant for economic reasons and statements that in the event of a strike the employees could stay out till "hell froze over" before he would give any of his profit to anyone and that strikers would be replaced and would "no longer have employment." In the light of all of the circumstances we do not consider the Board's construction of the statements as implying an offer of benefits unreasonable.
As petitioner argues, mere interrogation of employees without threat or intimidation concerning union membership is not per se a violation of the Act (absent anti-union background and not associated as part of a pattern of conduct hostile to unionism) and standing alone will not support a finding that § 8(a) (1) has been violated. National Can Corp. v. NLRB, 7 Cir., 1967, 374 F. 2d 796, 806. However, the inquiries made by supervisory employees here were not standing alone but occurred in an atmosphere of restrained but clearly evident disapproval of a union. The various conversations between supervisors and employees raised a number of issues of credibility. Conceding that credibility presents issues for the trier of the facts, petitioner argues that Donald Cassidy, a careful man, anxious not to jeopardize his company's position, explained repeatedly to his employees that he could not promise benefits, and that it is incredible that he would allow himself to tell an employee, as employee David McPeak testified, that those who had been trying to bring in the Union were trouble-makers who were on their way out. It was David McPeak who also testified to hearing a statement by petitioner's dispatcher, Michael Bindhammer, who is a supervisor, at the conclusion of a telephone call, on the first working day after the election, that he was "going to get back at these people" who gave him "trouble over the union." We cannot agree that Mr. McPeak's evidence was so incredible as to justify overruling the Board's findings on the issues of credibility.
The Board found that a majority had been achieved by the Union. The majority was a small one and resulted from resolution of a number of close questions in favor of the Union. It was stipulated that there were 32 employees in the appropriate bargaining unit. Signed cards of 18 employees were received in evidence. Sixteen of the cards were printed as follows:
Two read:
The petitioner argued that the 16 general AFL-CIO cards did not validly designate the Union as the collective bargaining agent of the employees. The testimony of Felix McCartney, the Regional Director of Region 10 of the AFL-CIO, comprising the State of Indiana, indicated that at the time of the hearing 129 international unions were affiliated with the AFL-CIO and that he had the authority to decide with which affiliate a group of employees would be identified after they signed AFL-CIO authorization cards. Mr. McCartney had previously testified that he asked employee Virgil Harris, who telephoned him requesting an organizer be sent, to find out what union the employees desired and that Mr. Harris had later told him the employees preferred the Sheet Metal Workers' International Union.
Petitioner contends that with two exceptions Mr. McCartney in fact, and not the...
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