Chauffeurs, Teamsters and Helpers, Local 633 of New Hampshire v. N.L.R.B.

• Decision Date: 23 December 1974
• Docket Number: No. 73--1704,73--1704
• Citation: 509 F.2d 490,166 U.S.App.D.C. 157
• Parties: 88 L.R.R.M. (BNA) 2072, 166 U.S.App.D.C. 157, 75 Lab.Cas. P 10,519 CHAUFFEURS, TEAMSTERS AND HELPERS, LOCAL 633 OF NEW HAMPSHIRE, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner, v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 490

509 F.2d 490

88 L.R.R.M. (BNA) 2072, 166 U.S.App.D.C. 157,

75 Lab.Cas. P 10,519

CHAUFFEURS, TEAMSTERS AND HELPERS, LOCAL 633 OF NEW HAMPSHIRE, affiliated with the International Brotherhood of Teamsters, Chauffeurs Warehousemen and Helpers of America, Petitioner, v. NATIONAL LABOR RELATIONS BOARD.

No. 73--1704.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 31, 1974.

Decided Dec. 23, 1974.

Angelo V. Arcadipane, Washington, D.C., for petitioner.

Charles P. Donnelly, Atty., N.L.R.B., of the bar of the Supreme Court of Texas, pro hac vice, by special leave of court with whom John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and Robert A. Giannasi, Asst. Gen. Counsel, N.L.R.B., were on the brief for respondent.

Before BAZELON, Chief Judge, and WRIGHT and McGOWAN, Circuit Judges.

BAZELON, Chief Judge:

George Law is Treasurer of and owns a controlling interest in three sister transport corporations based in Nashua, New Hampshire. The largest of these three, Law Motor Freight, employed in June, 1972, approximately 80 non-supervisory workers and recognized as the sole bargaining representative of those employees Teamster Local 633. The other two corporations were respectively Bulk Haulers, Inc., which employed six non-supervisory workers, and Law Warehouses, Inc., which employed five non-supervisory workers. Neither of these two corporations had recognized a union in June of 1972. Ronald Hall was employed as a driver for Law Motor Freight in May, 1970, and pursuant to a then-existing union security agreement between Law Motor Freight and Local 633 became a member of the Teamsters. In November of 1970, Hall was transferred to Bulk Haulers where he was assigned to deliver certain shipments of liquor under a contract between Bulk Haulers and the New Hampshire State Liquor Commission. His immediate supervisor in that job was one Charles McKay and McKay's immediate superior was Henry Therriault. Stephen McKay was hired subsequent to Hall and also drove for Bulk Haulers under the supervision of Charles McKay and Therriault.

In November, 1971, after some tension between Hall and Therriault over a few late deliveries by Hall, Hall contacted Local 633 and held a meeting at his home which included Stephen McKay, a representative of the union and himself. Hall later spoke with at least two other drivers about the union on the telephone and at the terminal of Bulk Haulers. Sometime between November 23 and December 5, 1971, Therriault called Stephen McKay into his office and questioned him about union. On December 9, 1971, Therriault fired Ronald Hall. On December 14, 1971, Local 633 filed unfair labor practice charges against Bulk Haulers. On January 31, 1972, the General Counsel of the National Labor Relations Board filed a complaint alleging that Bulk Haulers had violated § 8(a)(1) of the National Labor Relations Act ¹ by questioning Stephen McKay and had violated § 8(a)(1) and (3) ² by discharging Ronald Hall. The Trial Examiner found against the General Counsel on both counts and the Labor Board adopted without opinion the trial examiner's findings and order. ³ Local 633 petitions this Court to review and set aside this order. Finding the Union's arguments persuasive, we reverse and remand the case for proceedings consistent with this opinion.

I. The Questioning of Stephen McKay

We first turn to the alleged violation of § 8(a)(1) through the questioning by Therriault of employee Stephen McKay. According to the trial examiner, Therriault initiated the questioning by calling McKay into the company's conference room. Therriault then asked McKay whether McKay had been approached by the union, adding that McKay did not have to answer this question if he did not wish to. McKay stated in response that he had indeed been approached by the union. Therriault then remarked that he expected that sooner or later Bulk Haulers would go union but that McKay would be wise to ensure that the benefits obtained through unionization were sufficient to offset any union dues. Therriault also stated that if the union came in, the senior driver would get the better work, if that driver wanted it, and that McKay who was relatively less senior 'could come up short.' The trial examiner found that the questioning was limited and that Therriault, by assuring McKay that he did not have to answer his question, 'blunted what otherwise might have been the coercive nature of the inquiry.' ⁴ The trial examiner further found that statements relating to the adverse effects of a union seniority system were permissible predictions with a reasonable basis in fact and thus were legally protected speech under § 8(c) of the National Labor Relations Act. ⁵

We begin our analysis with a brief discussion of the nature of the § 8(a)(1) offense of 'coercive interrogation'. The policy of § 8(a)(1) is to protect employee free choice in the decision whether to accept union representation, ⁶ a free choice explicitly preserved in § 7 of the NLRA ⁷ and implicit in a number of related areas of national labor policy. The specific focus of § 8(a)(1) is the prohibition of the use of employer economic power to interfere with this free choice. ⁸ But neither § 8(a)(1) or its union counterpart, § 8(b)(1), could reasonably be read to eliminate employer and union attempts to persuade workers of the benefits or costs of accepting the union. First, such a result would lead to the absurd conclusion that free choice means a relatively uninformed choice and, second, the result would be inconsistent with § 8(c) of the Act which implements traditional First Amendment policies. ⁹ The burden of § 8(a)(1) is thus to distinguish between employer attempts to persuade workers of the disadvantages of unionization and employer attempts to use their economic power to 'coerce' workers into voting against the union. But, as should be immediately obvious, there is no clear cut distinction between these two kinds of activity. There is always an iron 'fist inside the velvet glove' ¹⁰ of persuasion. Established First Amendment doctrine would seem to indicate that this inability to easily distinguish protected from non-protected speech is cause for restricting the government's ability to remedy the non-protected speech, ¹¹ but the Supreme Court has expressly rejected that analogy. ¹² It is thus the task of the Labor Board in the first instance and this Court on appeal to 'judge the impact of utterances made in the context of the employer-employee relationship.' ¹³

The Board has since the inception of the National Labor Relations Act recognized that interrogation by an employer of a worker's attitude toward the union and that statements by the employer about what might happen if the union is selected as the representative of the employees have a tendency to coerce workers in the exercise of their § 7 rights. ¹⁴ The Labor Board and the courts have over the years crystallized a number of 'factors' to be considered in determining whether employer questioning and predictions as to the consequences of unionization pass beyond permissible persuasion into impermissible use of employer economic power. A number of these factors were enunciated in the leading case of Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964) and other factors were suggested in a subsequent case in the Fifth Circuit. ¹⁵ Virtually every Circuit Court of Appeals has adopted, explicitly or implicitly, the Bourne factors ¹⁶ and we think that these factors supply the proper starting place ¹⁷ for judicial and administrative analysis of whether particular employer questioning was in the totality of circumstances 'coercive' or merely persuasive. Passing from the coercive nature vel non of questioning about an employee's attitude toward a union to employer statements as to the effect of unionization, the recent decision in NLRB v. Gissel Packing Co., 395 U.S. 575, 616--620, 89 S.Ct. 1918, 1942, 23 L.Ed.2d 547 (1969) establishes that such statements must be either non-coercive or a prediction 'carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control . . ..' ¹⁸ Whether statements as to the effect of unionization are coercive involves an inquiry essentially similar to that suggested in Bourne. ¹⁹

It is apparent from even a cursory reading of the trial examiner's decision in this case, adopted without opinion by the Labor Board, that the type of inquiry mandated by Bourne and related cases was not conducted here. The trial examiner properly considered the extent of the questioning by Therriault. Surely, an isolated and limited set of questions would not rise to the level of employer 'coercion'. ²⁰ However, the trial examiner did not stop there but also stated that Therriault 'by assuring McKay that he need not answer unless he wanted to . . . blunted what otherwise might have been the coercive nature of the inquiry.' We find this conclusion highly problematic. Without a supporting discussion of the totality of circumstances surrounding the questioning, we are not prepared to hold that the bare 'assurance' that the employee need not answer is sufficient to eliminate what would otherwise be employer economic coercion. We think the Board should conduct a more searching inquiry into the nature of the questioning and the circumstances in which it was conducted before concluding the questioning was not coercive. As to Therriault's prediction that McKay might 'come up short' because of union seniority provisions, we are not prepared to evaluate this statement under the Gissel test until the Board has more fully considered whether the circumstances of the questioning were coercive. We also note that there was no evidence in the record to support the trial examiner's conclusion that Therriault had a reasonable basis in fact for his suggestion that the union might...