Clear Pine Mouldings, Inc. v. N.L.R.B., 78-3547
| Decision Date | 24 November 1980 |
| Docket Number | No. 78-3547,78-3547 |
| Citation | 632 F.2d 721 |
| Parties | 105 L.R.R.M. (BNA) 2132, 89 Lab.Cas. P 12,173 CLEAR PINE MOULDINGS, INC., Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Verne W. Newcomb, argued, James B. Ruyle, Newcomb, Sabin, Meyer & Schwartz, Portland, Or., on brief, for petitioner-cross-respondent.
Barbara A. Atkin, Washington, D. C., argued, Andrew F. Tranovich, Washington, D. C., on brief, for respondent-cross-petitioner.
Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.
Before KENNEDY and PREGERSON, Circuit Judges, and BONSAL *, District Judge.
Clear Pine Mouldings, Inc. ("Clear Pine" or "the company") petitions for review of a decision by the National Labor Relations Board ("the Board") that Clear Pine violated §§ 8(a)(1), (3), and (5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), (3), and (5), by improperly interrogating and reprimanding employees, by unilaterally altering the terms of employment, and by refusing to bargain in good faith with the International Woodworkers Ass'n (the union). Clear Pine also petitions for review of the Board's bargaining order. The Board cross-petitions pursuant to 29 U.S.C. § 160(e) for enforcement of its order.
This court will enforce the Board's decision and order if the Board correctly applied the law and if its findings of fact are supported by substantial evidence on the record as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951); Los Angeles Marine Hardware Co. v. NLRB, 602 F.2d 1302, 1305 (9th Cir. 1979). When conflicting testimony is presented at a hearing, the administrative law judge, having observed the witnesses and heard the testimony, is required to determine the credibility of witnesses. Great Chinese American Sewing Co. v. NLRB, 578 F.2d 251, 254 (9th Cir. 1978); Penasquitos Village, Inc. v. NLRB, 565 F.2d 1074, 1078-79 (9th Cir. 1977). Accordingly, in reviewing the record, we give special weight to the administrative law judge's determinations concerning the credibility of witnesses. Id. at 1079.
§§ 8(a)(1), 8(a)(3) VIOLATIONS
The union was first certified as the collective bargaining representative of the company's production and maintenance employees on August 4, 1965. During the ensuing years, the union and the company entered into a series of collective bargaining agreements, the last of which expired on June 1, 1977.
In March 1977, in anticipation of forthcoming contract negotiations, the union began a membership drive among employees who had not yet joined. At an organizational meeting on March 25, the union urged employees to join the union to ensure its strength during negotiations. Some employees who attempted to speak on behalf of the company were shouted down. At this meeting approximately 40 employees joined the union and signed dues check-off authorization forms. All forms were then delivered to the company.
Immediately after the company received the check-off authorizations, employees Andrew Randle and Laura Stephens were called into the office of Personnel Manager Lockyear who asked them why they had joined the union. He also asked Stephens the name of the person who had solicited her union membership and whether the solicitation had occurred on the job.
On June 7, a week after the expiration of the contract, Lockyear interviewed and hired job applicant Kenneth Hertz. During the interview, Lockyear raised the subject of the union, told Hertz he could choose whether or not to join, and then attempted to persuade Hertz not to join.
Later that summer on July 13, Plant Superintendent Hensley summoned employee Darlene Forseth to his office. Forseth, a leading union adherent and a member of the in-plant negotiating and grievance committee, had worked for the company for four years as a vinyl machine operator. She had a good work record and had never suffered a reprimand. When Forseth arrived at Hensley's office, she found other members of the union grievance committee present, as well as Hensley, Lockyear, and three plant employees, Mary Ann Tooley, Wrilda Chancellor, and Elvis Jones, who had apparently lodged complaints against Forseth. Lockyear handed Forseth a written reprimand alleging that she had engaged in union activity during working hours in violation of Article XX of the Collective Bargaining Agreement. He informed Forseth, in non-specific terms, that her harassment of and threats against other employees prompted his reprimand.
The administrative law judge found, and the Board agreed, that the company's treatment of Randle and Stephens violated § 8(a)(1) and its treatment of Forseth violated §§ 8(a)(1) and (3). The administrative law judge found that Lockyear questioned Randle and Stephens to investigate rumors, circulating among employees, concerning the employer's future course of conduct if the union were defeated. The administrative law judge found, however, that since the rumors were couched in terms of possibilities rather than in certainties, the company had no legitimate reason to interrogate the employees. The company now contends that its interrogation of Randle and Stephens was justified since it felt compelled to investigate what it regarded as unfavorable and untrue rumors about the company.
Section 7 of the Act grants employees "the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining . . . ." 29 U.S.C. § 157. Section 8(a)(1) of the Act implements this guarantee by making it an unfair labor practice to "interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in (§ 7)." 29 U.S.C. § 158(a)(1).
Interrogation of employees concerning union activities is not a per se violation of § 8(a)(1). NLRB v. Super Toys, Inc., 458 F.2d 180, 182 (9th Cir. 1972). The test to determine if a § 8(a)(1) violation has occurred is whether, under all the circumstances, the interrogation reasonably tends to restrain or interfere with the employees in the exercise of their protected § 7 rights. Penasquitos Village, Inc. v. NLRB, 565 F.2d 1074, 1080 (9th Cir. 1977).
There is no evidence in the record that the company assured Randle and Stephens against reprisal or that Lockyear told them why they were being questioned. See NLRB v. Varo, 425 F.2d 293, 298 (5th Cir. 1970). Moreover, the record supports the finding that the rumors were too speculative to be taken seriously. Ron Boothe, the employee who reported the rumors to Lockyear, testified that he did not believe the rumors. Plant Superintendent Hensley testified that he found the employees unconcerned about the rumors. We find that the administrative law judge properly rejected the company's position and correctly characterized the interrogations as coercive. Therefore, we affirm the Board's conclusion that the interrogation of Randle and Stephens violated § 8(a)(1) of the Act.
As to Kenneth Hertz's employment interview, the administrative law judge found that the company used the interview coercively in violation of § 8(a)(1) of the Act to dissuade Hertz from joining the union. Clear Pine now argues that this finding is unsupported by the record and contradicted by the fact that Lockyear did not expressly threaten Hertz during the interview.
We disagree. While the testimony of both Hertz and Lockyear was vague, Hertz's testimony does support the conclusion that Lockyear's questioning carried with it the clear implication that the answers given by Hertz affected his chances of employment. W. A. Sheaffer Pen Co. v. NLRB, 486 F.2d 180, 182 (8th Cir. 1973); NLRB v. Bighorn Beverage, 614 F.2d 1238, at 1240 (9th Cir. 1980). The administrative law judge credited Hertz's version of events and since the administrative law judge had the benefit of observing the witness's demeanor, we can reverse only if a clear preponderance of the evidence convinces us that he was incorrect. NLRB v. Broadmoor Lumber Co., 578 F.2d 238, 241 (9th Cir. 1978). Because we find it reasonable to infer coercion when a personnel manager urges a prospective employee not to join the union, we affirm the Board's conclusion that the company violated § 8(a)(1) in this instance. The absence of express threats by the company does not alter that conclusion. See NLRB v. Ayer Lar Sanitarium, 436 F.2d 45, 49 (9th Cir. 1970).
Next the administrative law judge found that the company's reprimand of Darlene Forseth violated §§ 8(a)(1) and (3) of the Act in that the company deliberately attempted to discourage union activity by disciplining Forseth, an active and visible union member. Under § 8(a)(3) an employer may not discriminate against an employee because of the employee's union activities or sympathies. The employer's purpose in discriminating, however, is controlling. Without a finding of anti-union animus, there is no unfair labor practice unless the conduct was so inherently destructive of employee rights that the unavoidable and foreseeable consequences of the employer's conduct bear their own indicia of motive. NLRB v. Triumph Curing Center, 571 F.2d 462, 474 (9th Cir. 1978). Moreover, the determination of motive is particularly within the purview of the Board. NLRB v. Fort Vancouver Plywood Co., 604 F.2d 596, 600 (9th Cir. 1979). In determining motive, the Board may rely on circumstantial as well as direct evidence, and its inferences and findings must prevail where they are reasonable and supported by substantial evidence. Folkins v. NLRB, 500 F.2d 52, 53 (9th Cir. 1974).
Despite Clear Pine's contention that the meeting at Hensley's office merely provided an opportunity for the...
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