Corriveau & Routhier Cement Block, Inc. v. NLRB

• Decision Date: 05 May 1969
• Docket Number: No. 7194.,7194.
• Citation: 410 F.2d 347
• Parties: CORRIVEAU & ROUTHIER CEMENT BLOCK, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — First Circuit

410 F.2d 347 (1969)

CORRIVEAU & ROUTHIER CEMENT BLOCK, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 7194.

United States Court of Appeals First Circuit.

May 5, 1969.

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Alan Hall, Manchester, N. H., with whom Richard C. Kohls and Wadleigh, Langdell Starr, Peters & Dunn, Manchester, N. H., were on the brief, for petitionent.

Robert E. Williams, Washington, D. C., Atty., with whom Arnold Ordman, General Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and William F. Wachter, Atty., were on the brief, for responder.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

McENTEE, Circuit Judge.

This case involves the question of whether Corriveau & Routhier Cement Block, Inc. (the Company), a distributor of masonry supplies with places of business in Manchester and Nashua, New Hampshire, violated §§ 8(a) (3) and 8 (a) (1) of the National Labor Relations Act by interrogating one of its employees in connection with union organizational activities and by firing two of its employees in connection with reported threats to other employees. The Board, unpersuaded by the findings and reasoning of the trial examiner, concluded that the Company had violated the Act.

On May 8, 1967,¹ three days before a representation election scheduled for the Company's truck drivers, Alphonse Corriveau, the Company president, accompanied employee Jean Helie on a delivery trip to Williamstown, Massachusetts. Corriveau testified that he went on the journey to find out why the trips were taking so long since there was a danger of violating ICC regulations restricting the number of hours an employee may drive. This was the first time, however, that a representative of management had accompanied Helie on a trip in his nine years with the Company and he was not given any explanation why an exception was being made on this occasion. During the journey Corriveau, after acknowledging that he had no business talking about union activities with his employees, said to Helie, "you must know who went union." Helie replied that he didn't want to talk about such things. Although this was not exactly a shocking episode the Board found that in context these remarks by the highest Company official under circumstances unique in the employee's experience and shortly before a representation election, constituted an implied interrogation concerning union organizational activities of a coercive nature in violation of § 8(a) (1). This is a very close question. But the decision is one which the Board in its expertise was entitled to make, and one which, for that reason, we decline to disturb. Compare analysis and criteria in Bourne v. N. L. R. B., 332 F.2d 47 (2d Cir. 1964.)²

On the other hand, the Board, disturbed by what Corriveau said to Helie, is much more tolerant of what Helie and his co-worker Richard Lavoie said to their fellow employees. Approximately two weeks before the election Helie, during an unloading operation at the Nashua yard, told one of the employees that if he didn't vote union, he, Helie, would "see him down the road." This was reported to Norman Juneau, the manager of the Nashua yard, who was Corriveau's trusted subordinate of many years standing. Juneau did nothing about this threat because it involved the word of only one man and was an isolated event at the time. Later, on the evening of May 9, as a union meeting was breaking up, Helie and Lavoie stated that they would find out who voted against the union and would see such malefactors "down the road." These threats were apparently addressed to the group in general but in the commotion of the situation some of the employees heard them and some did not. On the following day, which was the day before the election, one of the employees at Nashua informed Juneau of these threats. After obtaining corroboration from another employee, Juneau telephoned Corriveau to inform him. It is not clear whether Juneau told him merely of what had occurred the night before or whether he also mentioned the previous threat by Helie alone.³ In any event, Corriveau, without further investigation, arranged to see Helie and Lavoie the same day and fired them. At the time of their discharge Corriveau told these two employees they were being discharged because they made threats of violence against fellow employees which neither denied.

The Board found that these dismissals were in violation of § 8(a) (3) and (1) of the Act although it found that the threats were in fact made and did not find that they were used merely as a pretext for the dismissals. The Board stressed that the threats had occurred at a union meeting during non-working hours that was not on Company property nor in the presence of Company supervisors and that the offense had not been of an egregious sort that was likely to impair the on-the-job efficiency of those threatened; that under these circumstances the interest of the employees in being able to organize without fear of being called to account by the employer for what they might say at organizational meetings outweighs the interest of the employer in protecting his employees from threats by their fellow employees.

On the facts of this case we find such reasoning unpersuasive. An employee's § 7 rights are a shield against employer oppression, not a sword to intimidate fellow employees. Nor do we believe that the loss of the "right" to threaten another employee will dissuade an employee from saying anything he has any...