Dierks Forests, Inc. v. NLRB

• Decision Date: 16 November 1967
• Docket Number: No. 18713.,18713.
• Citation: 385 F.2d 48
• Parties: DIERKS FORESTS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

385 F.2d 48 (1967)

DIERKS FORESTS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 18713.

United States Court of Appeals Eighth Circuit.

November 16, 1967.

Landon H. Rowland, of Watson, Ess, Marshall & Enggas, Kansas City, Mo., for petitioner; Carl E. Enggas and Charles K. Thompson, Kansas City, Mo., and Elbert Cook, DeQueen, Ark., were with Landon H. Rowland, Kansas City, Mo., on the brief.

William J. Avrutis, Atty., N.L.R.B., for respondent; Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Elliott Moore, Atty., N.L.R.B., were with William J. Avrutis, Washington, D. C., on the brief.

Before VAN OOSTERHOUT and MATTHES, Circuit Judges, and HARPER, District Judge.

MATTHES, Circuit Judge.

This case is before the Court on the petition of Dierks Forests, Inc. to review and set aside, and on the cross petition of the National Labor Relations Board to enforce, an order issued against Petitioner on July 20, 1966, pursuant to Section 10(c) of the National Labor Relations Act. The Board's decision and order are reported at 160 N.L.R.B. No. 18. No jurisdictional problems are presented. We grant Dierks' petition to set aside the order of the Board and deny the Board's cross petition for enforcement.

The unfair labor practice charge in the present case had its genesis in the organizational efforts of the United Paper Makers and Paper Workers, AFL-CIO (Union) to secure representation of Petitioner's employees at its fiberboard plant located at Craig, Oklahoma, sometimes referred to as the Broken Bow Plant.¹

Pursuant to a stipulation for certification upon a consent election to be held under Board supervision, an election was conducted among Petitioner's production and maintenance employees on November 3, 1965. Out of approximately 167 eligible voters, sixty-five voted in favor of the Union while ninety-one voted against the Union.

On November 8, 1965 the Union filed timely objections to pre-election conduct on the part of the Petitioner allegedly affecting the results of the election. After investigation the regional director recommended in his report filed on January 27, 1966 that all but two of Petitioner's objections be overruled and that a hearing be directed with respect to these two objections in consolidation with proceedings emanating from an unfair labor practice charge filed against Petitioner on November 17, 1965.²

The unfair labor practice charge alleged that Petitioner (a) had discharged one of its employees because of his membership and activities in behalf of the Union, in violation of Section 8(a) (3) of the Act; (b) had interfered with, restrained and coerced its employees in the exercise of their rights guaranteed under Section 7 of the Act, in violation of Section 8(a) (1). The Board declined to entertain the Section 8(a) (3) charge, but issued a complaint on January 27, 1966 alleging that Petitioner had violated Section 8(a) (1) by coercively interrogating and threatening its employees on various occasions between September 21, 1965 and October 29, 1965. Following the hearing on the consolidated proceedings the Board adopted the report and recommendations of the Trial Examiner, and found that Petitioner had violated Section 8(a) (1) through coercive interrogations of its employees, and that such conduct interfered with their exercise of a free and untrammeled choice in the election. The Board issued a cease and desist order, set aside the election held on November 3, 1965 and ordered another election to be conducted under the supervision of the regional director.

This labor case is typical of many others in that the unfair labor practice charge and related objections to the election emanate from an organizational campaign sponsored by the Union to gain the support of the employees. During the campaign most of Petitioner's employees discussed the respective advantages and disadvantages of Union representation. Petitioner, through its operating personnel, attempted within permissive limits to counter Union propaganda. In opposition to the campaign staged by the Union adherents, thirty-four employees had signed and sent to Petitioner's other employees a letter setting forth in detail their reasons for opposing representation by the Union. The inference is clear that the organizational campaign permeated the entire plant. Viewing the record as a whole, however, we find no substantial evidence of impropriety or unlawful conduct on the part of the Petitioner. Indeed the regional director's dismissal of the majority of the post-election objections filed by the Union would seem to refute the allegation of high-pressure campaign tactics on the part of the Petitioner.

The evidence offered by the general counsel consisted of the testimony of six employees, one of whom was thoroughly discredited. The testimony of two other employees was so irrelevant and innocuous that the Trial Examiner gave it no consideration.

The Trial Examiner predicated his decision on the testimony of three employees, Jimmy O'Donnell, Edward Leonard and James Mills. On the basis of their testimony the Examiner concluded that there was sufficient evidence to warrant a finding that Petitioner, through its Superintendent of Production, Tom Coulter, had engaged in coercive interrogation and had made threats of reprisal in violation of Section 8(a) (1).

We disagree. In our view Petitioner's allegedly coercive statements, when viewed on the record as a whole, are of too isolated and casual a nature to constitute an unlawful course of action in violation of Section 8(a) (1). James P. Mills, a former employee of Petitioner, testified that he had two conversations with Coulter. During the first, according to Mills' version, Coulter asked him if a Union man had been to see him. Mills answered yes, and then Coulter asked, "James, what have they promised you this year?" Mills' response was noncommittal. During the next interview Coulter stated to Mills that he had heard from two or three employees that Mills was for the Union. Mills' response was "no sir, I was not." We do not believe it is necessary to engage in any extended discussion in order to demonstrate that the dialogue between Coulter and Mills is of insufficient gravity to support an inference that Mills was threatened or coerced in the exercise of his rights under Section 7 of the Act.

Coulter's confrontation with Leonard is equally harmless. According to Leonard Coulter stated "that he had heard that * * * Leonard had gone bad on him," and that "* * * Leonard was for the Union." Leonard's response was that he could concentrate all the dealings that he had with the Union on the point of his knife, and that he would make his own independent determination on whether to vote for or against the Union. During the ensuing conversation Coulter commented that employees Phil Jones and George Whitten were "on this in-plant organization committee and would probably run the thing." He stated that "Phil would probably present him with the contract," and if he did, Coulter "would tell him to kiss his * * *."

Coulter denied that he inquired how Leonard felt about the Union, but admitted that he jokingly uttered the above vulgarity concerning Phil Jones. Even if Coulter's remarks were made in a serious vein and were not the "common sort of banter encountered in any plant," as suggested by Petitioner, it would indeed require a vivid imagination to interpret his remarks as containing an implied threat or attempt to coerce Leonard from exercising a free and uninhibited choice in the election.

The only evidence lending any semblance of support to the Board's order is found in the testimony of employee, Jimmy O'Donnell. During a conversation with O'Donnell on October 25th, Coulter stated that he had checked some old records in the office, and had ascertained that O'Donnell had been for the Union. O'Donnell categorically denied any affiliation or allegiance to the Union. Coulter then stated that "they would shut the Craig Plant down if we voted the Union in, because all of the owners had a million dollars or more in their pockets." O'Donnell further testified that Coulter confirmed that "Dierks had plans to expand the Craig Plant, but they wouldn't if...