NLRB v. Laney & Duke Storage Warehouse Co.

• Decision Date: 06 December 1966
• Docket Number: No. 22963.,22963.
• Citation: 369 F.2d 859
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LANEY & DUKE STORAGE WAREHOUSE CO., Inc., and Laney & Duke Terminal Warehouse Co., Inc., Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

369 F.2d 859 (1966)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LANEY & DUKE STORAGE WAREHOUSE CO., Inc., and Laney & Duke Terminal Warehouse Co., Inc., Respondents.

No. 22963.

United States Court of Appeals Fifth Circuit.

December 6, 1966.

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Marcel Mallet-Prevost, Asst. Gen. Counsel, Marcus W. Sisk, Atty., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Glen M. Bendixsen, Atty., N.L.R.B., Washington, D.C., for petitioner.

O. R. T. Bowden, David A. Bartholf, Hamilton & Bowden, Jacksonville, Fla. for respondents.

Before WISDOM, BELL, and GODBOLD, Circuit Judges.

GODBOLD, Circuit Judge:

The National Labor Relations Board petitions for enforcement of its order against Respondents, pursuant to § 10(e) of the National Labor Relations Act (29 U.S.C.A. § 151 et seq.)

Respondents, two corporations operating as a single employer (hereinafter, the company), operate warehouses in Jacksonville, Florida. United Steelworkers of America, AFL-CIO, won a Board-conducted consent election held December 20, 1963. The company filed objections to the election, and the Board adopted the findings of the Regional Director recommending the objections be overruled, and certified the Steelworkers as bargaining agent, on March 24, 1964.

A. Pre-election violations

There is abundant evidence of flagrant pre-election violations by the company of § 8(a) (1) of the Act — interrogation of employees about union activity, encouragement to engage in anti-union activity, surveillance of union activity, promises of economic benefits and threats of economic reprisals. The company's position on this issue is simply that the Trial Examiner should have rejected the testimony of Board witnesses as not credible and accepted the company's evidence. The findings by the Trial Examiner of pre-election violations are not clearly erroneous, in fact are fully supported by substantial evidence on the record considered as a whole. An enforcement order is appropriate as to these violations.

B. The Election

The company filed an objection to the election on the ground Herbert Amos, a union observer and leader in organizational activity, wore a union button throughout the day of the election and during the balloting. The button was 1 3/8 inches in diameter, red, white, and blue in color, and bore on it stars and the inscription, "Vote U.S.A." Amos was wearing it during the pre-election conference, held immediately preceding the balloting, and attended by the company attorney and representatives and company election observer, and the Board representative. He was identified to those present as the union observer. No objection was made to the union button. The election began at 4:00 p m. Shortly before the polls opened official NLRB observers' badges were passed out, and Amos pinned his on his shirt two or three inches below the union button. Objection was first made after the balloting at the vote count. The Regional Director investigated, concluded that the wearing of the button did not interfere with the employee's freedom of choice, and recommended the company's objection be dismissed, which the Board did.

The company relies on NLRB Form 722, "Instructions to Election Observers,"¹ and the provisions of the Board's Notice of Election stating "Electioneering will not be permitted at or near the polling place," and the general policy of the Board requiring "laboratory conditions" at an election. The company also claims that the letters "U.S.A.," being the same as the abbreviation for United States of America, were coercive in implying approval by the federal government of the union's cause.

In passing on objections to elections it is for the Board to decide whether the conduct charged reasonably tends to interfere with the voters' free choice. NLRB v. Dallas City Packing Co., 5th Cir., 1958, 251 F.2d 663. Judicial review is limited to ascertaining whether the Board's determination is within reasonable bounds. Olson Rug Co. v. NLRB, 7th Cir., 1958, 260 F.2d 255. The burden was not on the Board to show the election was fairly conducted but on respondents to show it was not. NLRB v. O.K. Van Storage, Inc., 5th Cir., 1961, 297 F.2d 74.

The Board has held that the wearing by election observers of buttons or similar insignia bearing the name of the union will not invalidate the election, Western Electric Company, Incorporated, 87 NLRB 183 (1949); and that the presence of the additional word "vote" does not invalidate, Electric Wheel Company, 120 NLRB 1644 (1958). We do not in this case adopt a principle that under no circumstances can wearing of forbidden buttons or insignia by an observer invalidate the election. We do hold that under the circumstances here presented the Board's determination, which included consideration of the abbreviation "U.S.A.," was not unreasonable. As pointed out in Western Electric the identity of the union observer, and his special interest, are generally known to the employees, and, we add, the name of and abbreviation for the union are generally known also.

C. The Application Forms

On January 24, 1964, the company distributed to some employees an "employment application" with instructions to fill it out and return it. The four-page form called for extensive personal data about the "applicant" of the nature generally required for personnel files of a business. But it also required the "applicant" to agree to take mental examinations or polygraph tests at the company's request or resign upon refusal to do so, to agree that his employment would be probationary for a period of six months and if laid off that he would be considered for reemployment only for a period of 60 days, and to agree to accept present and future policies, rules and regulations of the company including transfer from one department to another at the direction of the company. See LeRoy Machine Co., Inc., 147 NLRB 1431, 1438-39, holding a requirement that tardy and absentee employees take physical examinations is a condition of employment. The form called for the signature of the applicant and of one witness. Previously a single-page application form had been used for some employment applications, in other cases no form at all; such of the simpler forms as the company had were destroyed in a fire nine months before.

The day following there was a union meeting at which the forms were discussed, particularly that they read as though the company could discharge the employees who signed and hire others. The employees complained to union representative Mills, who was present, about the forms. Employee Herbert Amos, who was recognized as a leader in union activities, told Mills there would have to be "some understanding" about the forms before he signed. After discussion the employees decided they would not turn in the forms and turned them over to Mills instead. Mills designated Amos to go to the homes of members not present and pick up their forms; Amos did so and turned them over to Mills.

On January 27, Mills wrote the company stating the forms were matters of collective bargaining and suggesting the matter be held in status quo until the union's certification, not then issued, was issued. (Company attorneys replied to this letter on February 7.)

On January 28 forms were distributed to more employees, some of whom turned them over to Amos at his request. The following day the company notified Amos he had company property (i. e., the forms) without its consent and demanded return of the applications. There ensued a series of discussions involving Amos and the company and Amos and Mills, and all applications held by Amos and Mills were returned. On Thursday Amos was suspended for two weeks without pay on the ground he had taken company property by taking possession of the forms and had lied repeatedly about them.

As a matter of business judgment the company was entitled unilaterally to require information from present employees but not by unilateral action to require answers the giving of which changed or affected conditions of employment. The action of the employees in holding the union meeting, agreeing not to turn the forms in and instead turning them over to Mills, and subsequent collection by Amos (at the designation of Mills) of other forms, were concerted activities about a matter legitimately the subject of organized activity and concerted protest — unilateral changes in conditions of employment — and as such were protected by § 7 of the Act.

Most concerted activities engaged in for the purpose of presenting to an employer complaints concerning working conditions are protected under § 7 (subject to exceptions not here applicable) and discharge of an employee for engaging therein is a violation of § 8(a) (1). NLRB v. Washington Aluminum Co., 370 U.S. 9, 82 S.Ct. 1099, 8 L.Ed.2d 298.² Whether gathering and withholding the forms was wise or unwise is not the test of the legality of such concerted action if it is a protected activity. NLRB v. Holcombe, 5th Cir., 1963, 325 F.2d 508.

The Board found Amos had not lied about having the applications, and this finding is adequately supported by the record. The company's belief, even if bona fide, that he had lied is not a defense. § 8(a) (1) is violated if the discharged employee was engaged in a protected activity, the employer knew it was such, the basis of the discharge was an alleged act of misconduct in the course of that activity, and the employee was not, in fact, guilty of that misconduct. NLRB v. Burnup & Sims, Inc., 1964, 379 U.S. 21, 23, 85 S.Ct. 171, 13 L.Ed.2d 1; NLRB v. Jackson Tile Manufacturing Company, 5th Cir., 1960, 282 F.2d 90. Thus, this suspension of Amos violated § 8(a) (1). It also violated § 8(a) (3); prior to the suspension the company knew that the taking up of the applications was a union endeavor and not a mere personal undertaking by Amos. NLRB v. Bowman Transportation,...