Colson Corporation v. NLRB

• Decision Date: 09 July 1965
• Docket Number: No. 17820.,17820.
• Parties: The COLSON CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

347 F.2d 128 (1965)

The COLSON CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 17820.

United States Court of Appeals Eighth Circuit.

June 14, 1965.

Rehearing Denied July 9, 1965.

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COPYRIGHT MATERIAL OMITTED

James E. Reeves, Caruthersville, Mo., for petitioner.

Gary Green, Atty., N.L.R.B., Washington, D. C., made argument for respondent and filed brief with Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B. and Paul M. Thompson, Atty., N.L.R.B., Washington, D. C.

Before VOGEL and BLACKMUN, Circuit Judges, and REGISTER, District Judge.

VOGEL, Circuit Judge.

This case is here on the petition of The Colson Corporation, Caruthersville, Missouri, (hereinafter called petitioner) to review and set aside a final order of the National Labor Relations Board dated September 4, 1964, as amended September 15, 1964, issued pursuant to § 10(c) of the National Labor Relations Act as amended (61 Stat. 136, 73 Stat. 519, 29 U.S.C.A. § 151 et seq.) finding petitioner guilty of unfair labor practices in violation of §§ 8(a) (1) and 8(a) (5) of said Act (29 U.S.C.A. §§ 158(a) (1) and 158 (a) (5)). In its answer to the petition the Board requested that its order be enforced. The Board's decision and order are reported at 148 N.L.R.B. No. 89.

The Board found that petitioner violated § 8(a) (1) of the Act by coercively interrogating employees, by threatening them with reprisal if they supported the Union, and by enlisting them to report on the union activities of other employees. The Board also found that petitioner violated § 8(a) (5) and § 8(a) (1) of the Act by refusing to recognize and bargain with the Union on and after January 8, 1963, and, additionally, by unilaterally granting wage increases on March 27 and December 16, 1963. The Board further found that petitioner violated § 8(a) (1) of the Act by refusing to reemploy employees White, Davidson, Harwell and Pruitt because they had engaged in protected concerted activities.

Petition is an Ohio corporation with manufacturing facilities in Missouri, Arkansas and Massachusetts. The only plant involved in the present dispute is at Caruthersville, Missouri. The products manufactured involve materials handling and hospital equipment. There is no dispute about the fact that petitioner is engaged in commerce within the meaning of the Act. The labor organization which is the charging party in these proceedings is the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO (hereinafter called the Union). It is also undisputed that this labor organization comes within the terms of the Act.

The Board found: The citizens of Caruthersville, Missouri, had become aware of the economic benefits attendant upon industry being brought to their city and as a consequence they formed an organization called the Caruthersville Industrial Development Corporation (herein CIDC) to further their efforts. The president of CIDC was a Mr. Gordon Wright. Horace Dunagan, president of the local bank, served as vice president, and other CIDC stockholders were members of the local business community. The CIDC entered into negotiations with The Colson Corporation and, pursuant to these negotiations, another corporation was formed in 1962, called the R & R Corporation.

The R & R Corporation was initially incorporated for the minimum allowable capital under Missouri law of $500, such sum being furnished by CIDC. The president of R & R was also Gordon Wright and the vice president Horace Dunagan. It was stipulated that the purpose of the R & R Corporation was twofold: First, to keep the name of Colson out of the picture with regard to negotiations with the City of Caruthersville; and, second, The Colson Corporation had under advisement a plan to close a plant in Ohio and wished no publicity as to their move.

The City of Caruthersville erected the plant facilities in 1962 and presently owns them. Through a complex arrangement, for the reasons above stated, R & R, on behalf of The Colson Corporation, negotiated a lease with the City. Construction of the plant in Caruthersville began in June 1962. A few employees started to work in July, but the plant was not fully open for business until September 17th, when it went into production. Throughout the construction and early production period, George A. Jones, Colson's vice president in charge of manufacturing, was present at the site, along with several other key personnel for Colson. Payroll checks and other administrative expenses for the plant were paid for by R & R until mid-September. During this period, new employees were informed that they were working for R & R and, upon being hired, were given a book of work rules which referred to their employer as R & R Fabricators, Inc. R & R Corporation was reimbursed by petitioner for these expenditures. The management during this interim period of time and at all times at the plant were considered Colson personnel. It was stipulated that none of the officers or directors of the R & R Corporation had any management functions and all served without pay. On November 30, 1962, all the officers and directors of R & R Corporation resigned and the shares which they held were transferred to some of the officers of Colson. There was no public announcement, however, of this change. CIDC was reimbursed by Colson for its initial investment of $500 in R & R Corporation. Colson directed that the R & R Corporation be liquidated, and this was being carried out at the time of the hearing. Also, the lease between R & R Corporation and the City was cancelled and a new lease entered into between petitioner and the City of Caruthersville.

In late December of 1962 and early January 1963, the Union engaged in an intensive organizational campaign among petitioner's employees. William Sheffield, petitioner's plant manager, was informed by telegram, sent on January 3rd and received January 4th, of this unionization effort and was also informed by the same means that employees Odell Thornton, Harlin Crayne, Herman Goodwin, Ralph Elkins and Herman Miller were acting as members of the organizational committee. By January 8, 1963, the Union had obtained 30 authorization cards in a unit conceded by petitioner to be appropriate. It was stipulated that there were 57 persons within this appropriate bargaining unit. On January 8th Union representatives went to petitioner's plant and talked to Mr. Sheffield. While there they handed him a letter signed by a Union representative which stated that the Union represented a majority of petitioner's employees, requested recognition and offered to submit the authorization cards to a neutral third party for checking. The request was orally denied by Mr. Sheffield on the 8th, and was formally denied by letter dated January 14, 1963.

On January 4, 1963, the date petitioner received the telegram informing it of a union campaign, a meeting called by the Mayor was held at City Hall in Caruthersville, attended by approximately 25 businessmen of the city. At this meeting it was agreed that the businessmen would contact the employees to persuade them not to vote for the Union.

On January 10, 1963, the Union filed a representation petition accompanied by 32 authorization cards. On January 28, 1963, the Union filed an unfair labor practice charge against the company, alleging that the conduct of the businessmen in Caruthersville in contacting the employees of petitioner was a violation of § 8(a) (1) of the Act. A similar charge was made against some of Colson's supervisory personnel. On February 27, 1963, the Union withdrew the unfair labor practice charge. On March 13, 1963, petitioner and the Union entered into a stipulation for certification upon consent election. Pursuant to this stipulation, a Board election was held on March 22, 1963, which the Union lost by a vote of 32 to 20. Timely objections to the election were filed by the Union on May 8th and on that date the Regional Director issued his report on the objections and recommended that the election be set aside and that the Board direct a new election.

The initiation of the present case took place on May 28th, when the Union filed a charge which alleged that since January 8, 1963, and in violation of §§ 8(a) (1) and 8(a) (5) of the Act, petitioner had failed to bargain with the Union. On June 27th the Union filed an amended charge in which it included the foregoing allegation and also alleged that by discriminatory conduct as to certain employees petitioner had violated § 8(a) (1).

On June 24, 1963, Hebert Davidson, Gene Harwell, Leonard Pruitt and Henry White, four welders in petitioner's welding shop, walked off the job to protest petitioner's promotion of one Jackie Norris as a leadman. On June 26th, when reporting back to work, they were told that they would be re-employed only upon presentation of doctors' certificates to establish that they had been off due to illness. When the four employees declined to present doctors' certificates, they were not allowed to return to work and shortly thereafter were terminated.

This matter was heard before a Trial Examiner on December 17 and 18, 1963, in Caruthersville, Missouri. On April 20, 1964, the Trial Examiner issued his decision finding petitioner guilty of a violation of § 8(a) (1) because it had, through its supervisors Dinnell and Potts, questioned employee Harwell as to the Union sympathies of his fellow employees and suggested to him that he supply information about them. The Examiner further found that it was a violation of the same section for Foreman Gantz to express the threat that employee Dean would be discharged by the plant manager if he kept on "talking union".

The Trial Examiner found a violation of § 8(a) (1) of the Act in holding that the businessmen of Caruthersville were petitioner's agents in contacting...