Betts Baking Co. v. NLRB, 8813.

• Decision Date: 26 May 1967
• Docket Number: No. 8813.,8813.
• Citation: 380 F.2d 199
• Parties: BETTS BAKING CO., Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

380 F.2d 199 (1967)

BETTS BAKING CO., Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 8813.

United States Court of Appeals Tenth Circuit.

May 26, 1967.

William G. Haynes, Topeka, Kan. (O. B. Eidson, Philip H. Lewis, James W. Porter, Charles S. Fisher, Jr., Charles N. Henson, Peter F. Caldwell, R. Austin Northern, Roscoe E. Long and Brock R. Snyder, Topeka, Kan., on brief), for petitioner.

Morton Namrow, Washington, D. C. (Arnold Ordman, Dominick L. Manoli, Marcel Mallet-Prevost and Warren M. Davison, Washington, D. C., on brief), for respondent.

Before MURRAH, Chief Judge, HICKEY, Circuit Judge, and CHRISTENSEN, District Judge.

MURRAH, Chief Judge.

This case presents the familiar question whether on the whole record there is substantial evidence to support the findings of the National Labor Relations Board. The Board found that the employer violated § 8(a) (1) of the Act by coercively interrogating employees concerning union activities, threatening economic reprisals, instituting wage increase and retirement benefits, and encouraging and fostering employee withdrawal from the union.¹ It further found that the employer violated § 8(a) (3) and (1) by discriminatorily discharging two employees for their union activities. The Board entered the conventional cease and desist order, and affirmatively ordered the employer to offer reinstatement to the two discharged employees, to make them whole, and to post appropriate notices. The Employer petitions for review and the Board cross-petitions for enforcement. We enforce.

The employer, Betts Baking Company, is engaged in Hutchison, Kansas, in the manufacture and wholesale of bakery products. At the time in question (mid-September, 1964-February, 1965) it employed 88 workers in its wholesale division, 13 of whom were transport drivers whose task it was to deliver baked goods on overnight runs from the Hutchison plant to various points in Kansas, unloading the goods in preordered amounts into smaller route trucks. About September 15, several of these transport drivers decided to try to organize for collective bargaining purposes. Union cards were acquired and signed by some. The employer's anti-union campaign allegedly took place in the ensuing months, and either because of the alleged anti-union campaign or for some other reason the union in November withdrew its petition for certification.

Two of the found violations of 8(a) (1) are not controverted by the employer. Thus, no issue is taken with the finding that President Betts and Sales Manager Hilton openly questioned several employees concerning whether they and other employees had signed union cards.² Nor is it disputed that 8(a) (1) was violated when the employer encouraged employees to withdraw from the union.³

Of the findings which are disputed we consider first the alleged threats by the employer that economic reprisals would follow should the union organization drive be successful. Such activity, if proved, clearly constitutes a violation of 8(a) (1). See N.L.R.B. v. Beatrice Foods Co., 10 Cir., 183 F.2d 726; N.L.R.B. v. Bear Brands Roofing, Inc., 10 Cir., 312 F.2d 616. Three of the alleged threats were uttered by employee Van Stock, and were to the effect that there would be "some boys going up and down the road talking to themselves", "some of the boys were going to lose their jobs", and "it was going to be awful rough on some of the drivers". The fourth alleged threat was made by Betts or Hilton to the effect that "there will be new faces in the spring". It is either admitted or not denied that these statements were made.

The employer's contentions go to its liability for the utterances of Van Stock on the theory that if the employer did not violate the Act through his three statements, the remaining one statement by Betts or Hilton would be an isolated act not rising to the status of an 8(a) (1) violation, i. e., see J. S. Dillon and Sons Stores Co. v. N.L.R.B., 10 Cir., 338 F.2d 395. Following this tack, the company first asserts that Van Stock's statements were not threats but instead were mere expressions of opinion, and as such protected under the Act. See § 8(c). But, even if we assume, as did the trial examiner, that Van Stock qualified one or two of his statements by adding that what he said was based on prior experience with unions, nevertheless it is a reasonable inference that his utterances were intended to be threats. See N.L. R.B. v. McCatron, 9 Cir., 216 F.2d 212; N.L.R.B. v. Williams, 4 Cir., 195 F.2d 669. The drawing of such inferences is the peculiar province of the Board, i. e. see N.L.R.B. v. Bear Brands Roofing, supra.

The company argues, however, that even if the statements were threats, it is not responsible for them because Van Stock was found by the Board to be a non-supervisory employee with no power to hire and fire. The company also points to Van Stock's testimony to the effect that Betts reprimanded him for one such statement he made, and that Betts was ignorant of the fact that Van Stock continued to make such statements.

We considered the question of employer responsibility for employee acts in Furr's, Inc. v. N.L.R.B., 10 Cir., Feb. 20, 1967, 381 F.2d 562. To be sure, in that case the employees in question were supervisors within the meaning of § 2(11). But, supervisory status was not held to be conclusive of employer responsibility. Instead, the crucial inquiry was found to be whether the other employees had justifiable cause for believing that these supervisors were acting for and on behalf of management when they did the acts in question. We think this test is equally applicable to the actions of non-supervisory employees, a conclusion amply supported by case law. See N.L.R.B. v. Des Moines Foods, Inc., 8 Cir., 296 F.2d 285, and cases cited at 287; N.L.R.B. v. Solo Cup Co., 8 Cir., 237 F.2d 521; and see N.L.R.B. v. Champa Linen Service Co, 10 Cir., 324 F.2d 28. Following this test, the Board found that Van Stock occupied such a status with the company, different from other drivers, that the other employees could and did regard him as a management spokesman.

We find ample support in the record for the Board's finding. There was creditable testimony to the following effect: Van Stock had the title of "transport supervisor"; as such he reported to and received instructions from Hilton, and his job was to "get them the drivers to do their work properly"; the drivers brought to him problems with improper loading, routes, equipment, and illness (he was the relief driver); he attended one meeting of company supervisors and the discharge interviews for two employees; he was paid $14 per week more than the next highest paid driver. Van Stock's special status as a management spokesman is also indicated by his participation in other facets of the anti-union campaign. Thus, he testified that early in the union drive he reported to Hilton concerning employee activities and was told to report conversations concerning the union so that Hilton would "know how things were going, and what I could find out." There is testimony that he was present when Betts and Hilton interrogated drivers concerning union activities. And, Van Stock took an active part in the company effort to stimulate employees to leave the union, see footnote 3 supra. In view of all this evidence Betts' reprimand, if issued, could in no way operate to relieve the company of responsibility, especially since no effort was made to inform the employees that Van Stock's statements did not represent company policy, if indeed they did not. Cf. Furr's, Inc. v. N.L.R.B., supra, and cases cited.

The company next denies that it violated 8(a) (1) by granting a wage increase shortly after the union drive began, and retirement benefits a few days later on October 1. As to the wage increase, the company points out that it gave all 88 wholesale employees a raise, not just the transport drivers (although it does not deny that the increase given the drivers was greater than that given the other wholesale workers), and that this was the time of year when increases were normally given. With respect to the retirement plan it relies on evidence to the effect that a retirement system had been under company study as early as March, 1964; that about a week before the union drive started the company held a supervisory meeting at which the plan was discussed and the office manager directed to gather the information necessary to institute retirement benefits; that the manager was delayed by heavy fair business and for this reason the plan was not effectuated until October 1. The company thus argues that the wage and retirement benefits were unrelated to the union activities, i. e. that these "* * * well-timed increases did not suggest a fist inside the velvet glove." N.L.R.B. v. Exchange Parts Co., 375 U.S. 405, 409, 84 S.Ct. 457, 460, 11 L.Ed.2d 435.

But, the employer conveniently overlooks testimony by employee Fuller that Hilton gave him a list of the transport drivers who had signed union cards and asked him to find out if these men would "accept a $6 raise". Fuller did as directed, reported back, and the increase was given. (Fuller's testimony was corroborated by Hilton.) About a week later, Betts observed to Fuller: "* * * the boys have their retirement plan, have their raises * * * that is all I am going to do, that is it * * * As far as unions are concerned, I don't need the union to fire any of our boys * * *". There is also testimonial evidence that a few days before October 1 an employee told Betts that one thing he thought a union would accomplish was the acquisition of a retirement program. There is no evidence that the company definitely decided prior to September 15 to grant retirement benefits nor evidence that implementation of the plan was announced before October 1.

From this evidence, and in view of the other conduct in violation of 8(a) (1), it is entirely reasonable to conclude that the...