Montgomery Ward & Co. v. NLRB

• Decision Date: 09 May 1967
• Docket Number: No. 16961.,16961.
• Citation: 377 F.2d 452
• Parties: MONTGOMERY WARD & CO., Incorporated, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

377 F.2d 452 (1967)

MONTGOMERY WARD & CO., Incorporated, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 16961.

United States Court of Appeals Sixth Circuit.

May 9, 1967.

COPYRIGHT MATERIAL OMITTED

Narcisse A. Brown, Chicago, Ill., for petitioner. Roy W. Short, Cincinnati, Ohio, Richard C. Scheidt, William F. McNally, Christoper J. Michas, Chicago, Ill., on the brief. Davis, Farley, Short & Roberts, Cincinnati, Ohio, of counsel.

George B. Driesen, N. L. R. B., Washington, D. C., for respondent. Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, George B. Driesen, Allen M. Hutter, Attys., N. L. R. B., Washington, D. C., on the brief.

Before WEICK, Chief Judge, CELEBREZZE, Circuit Judge and NEESE,^* District Judge.

CELEBREZZE, Circuit Judge.

Montgomery Ward & Company (Company) seeks to reverse the decision and order of the National Labor Relations Board (Board) entered on November 5, 1965. The Board has cross-petitioned for enforcement of its order. The Board found that the Company violated Section 8(a) (3) and (1) of the National Labor Relations Act, 29 U.S.C. Section 158(a) (1), (a) (3), by discharging employees Bishop, O'Bannon, Wright, Robinson, Milby and McCandless, as part of a scheme to eliminate the Union's leaders. The Board found the Company also violated Section 8(a) (1) of the Act by coercively interrogating its employees, and by threatening to suspend, and, in fact, suspending employees Wright, Robinson, Bishop and O'Bannon for refusing to answer a Company questionnaire. Further, the Board found that the Company violated Section 8(a) (5) and (1) of the Act by refusing to bargain with the Union.

In October, 1963, Montgomery Ward opened a catalog store in Louisville, Kentucky. The Company employed approximately twenty people. In March, 1964, an organizational campaign was begun by the Union.¹ On April 20th, an International Union representative sent a letter to the Company stating that the Union represented its employees, and that employees Robinson, Milby, Bishop, McCandless, Wright, and Swindall were members of the organizing committee. The Union sent a telegram to the Company on April 22, 1964 demanding recognition. The Union then decided to let the Board determine the question of representation through an election, and a representation petition was filed on April 24, 1964. An election was scheduled for June 12, 1964, but was never held because of the filing of the charges in the initial case, which was later consolidated with other charges filed thereafter.

A brief chronology of the events will be helpful. On May 5, 1964, Store Manager Frazier spoke to all the Company employees. On May 19th, Frazier made his second speech. On June 3rd, the Company laid off employees McCandless and Milby. On June 5th, Frazier made his third and final speech to all Company employees. The election scheduled for June 12th was not held. On July 27th, a complaint was filed by the Board. In August, employees, Robinson, Wright, Bishop, and O'Bannon were suspended two days for refusing to answer a Company questionnaire. In August, employee Robinson quit after she was transferred to a different job. On September 8th, employee Wright was discharged. On October 14th employees Bishop and O'Bannon were discharged.

1. Whether the Company violated Section 8(a) (1) of the Act by its pre-election conduct and speeches to the employees?

We do not find it necessary to recite the speeches Manager Frazier delivered to his employees. On June 5th Frazier promised the employees they would receive time and a-half pay for over forty hours. On June 10th, Frazier told employee Robinson that a Company merit raise would amount to more money than a Union raise. We find there is substantial evidence to support the Board's finding that the speech of June 5th and the discussion of a merit raise with employee Robinson violated Section 8(a) (1) of the Act.

2. Whether the Company violated Section 8(a) (1) of the Act by suspending employees for failure to answer a questionnaire relative to the unfair labor practice charges?

In August the Company attorneys distributed a questionnaire to the employees asking whether any management or supervisory employee questioned the employees regarding their interest, sympathy and activity in the Union. The questionnaire also asked if any employee had been interviewed by a representative of the National Labor Relations Board, and whether a written statement was given to the representative of the Board. The employees were told that their answers would not affect their jobs. Employees Robinson, Wright, Bishop and O'Bannon refused to fill out the questionnaire, and were suspended for two days. Upon threat of discharge, these four employees filled out the questionnaire.

The Board found that in order for the questioning of employees to be held valid, their participation must be on a voluntary basis. The Board held that the threat of discharge coerced and restrained the employees in their right to engage in protected concerted activity in violation of Section 8(a) (1) of the Act.

An employer may question his employees in preparation for a Board hearing, but is limited to questions relevant to the charges of unfair labor practices. In balancing the right of the employer to prepare his defense against the risk of intimidation which interrogation as to Union matters generally entails, the Court said in Texas Industries, Inc. v. National Labor Relations Board, 336 F.2d 128, 133 (C.A.5, 1964):

"Any interrogation by the employer relating to union matters presents an ever present danger of coercing employees in violation of their § 7 rights. On the other hand, fairness to the employer dictates that he be given a reasonable opportunity to prepare his defense. Accommodation of these interests requires that the scope and manner of permissible questioning be strictly confined to the necessities of trial preparation. We hold that by interrogating its employees as to the contents of statements given to Board agents, and by seeking copies of these statements, the company exceeded these limits and thereby violated § 8 (a) (1)."

This Court has held that interrogating employees as to the contents of statements given to Board agents infringes upon employee's Section 7 rights to invoke and participate in Board proceedings and is prohibited by Section 8(a) (1) of the Act. Surprenant Manufacturing Co. v. National Labor Relations Board, 341 F.2d 756, (C.A.6, 1965); National Labor Relations Board v. Winn-Dixie Stores, Inc., 341 F.2d 750, (C.A.6, 1965). In Surprenant Manufacturing Co. v. National Labor Relations Board, supra, quoting with approval Texas Industries, Inc. v. National Labor Relations Board, this Court said:

"The employee will be understandably reluctant to reveal information prejudicial to his employer when the employer can easily find out that he has done so. No employee will want to risk forfeiting the goodwill of his superiors, thereby lessening his job security and promotion opportunities. It is no answer to say that the employee is free to refuse to furnish his employer with a copy of his statement. A refusal under such circumstances would be tantamount to an admission that the statement contained matter which the employee wished to conceal from the employer. In order to assure vindication of employee rights under the Act, it is essential that the Board be able to conduct effective investigations and secure supporting statements from employees. We feel that preserving the confidentiality of employee statements is conducive to this end."

However, the Board has held that while the employer may not prior to the hearing, ask for a copy of a statement given to the Board, the employer may ask if the employee has given a statement to the Board. Montgomery Ward & Company, 146 NLRB No. 1, National Labor Relations Board v. Winn-Dixie Stores, Inc., supra. In Montgomery Ward, supra, the Board held that the purpose of the questionnaire was to "obtain information for use as the basis for a proper demand for such affidavit, to which the Respondent would be entitled in the event the person queried" appeared as a witness against it in the Board proceeding. The Board found the information "clearly relevant and necessary".

In National Labor Relations Board v. Winn-Dixie Stores, Inc., supra, this Court said:

"It is to be emphasized that the Board recognized, as do we, that the respondents had the right to `interview employees for the purpose of discovering facts within the limits of the issues raised by a complaint, where the employer, or its counsel does so for the purpose of preparing its case for trial and does not go beyond the necessities of such preparation to pry into matters of union membership, to discuss the nature or extent of union activity, to dissuade employees from joining or remaining members of a union, or otherwise to interfere with the statutory right of self-organization.\'"

Here the Board found that while the questionnaire did not go beyond the issues raised by the complaint, the threat of, and actual suspension of several employees violated Section 8(a) (1) of the Act. The Board found that questioning must occur in a context free from employer hostility, must not be itself coercive, and that employee participation must be obtained on a voluntary basis. Johnnie's Poultry Co., 146 NLRB No. 770. The reversal of this case by the Eighth Circuit, 344 F.2d 617 (1965) has not been regarded as a rejection of these principles. See National Labor Relations Board v. Neuhoff Bros., Packers, Inc. (C.A.5, decided March 23, 1967, Case No. 23330) 375 F.2d 372.

In Retail Clerks International Association, AFL-CIO v. National Labor Relations Board, Respondent, Montgomery Ward & Co., Inc., Intervenor, (Court of Appeals, District of Columbia, decided January 6, 1967, Case No. 19766) 373 F.2d 655, the Court upheld the Board's finding that the...