FAIRCHILD CAMERA AND INSTRUMENT CORPORATION v. NLRB

• Citation: 404 F.2d 581
• Decision Date: 12 December 1968
• Docket Number: No. 19237.,19237.
• Parties: FAIRCHILD CAMERA AND INSTRUMENT CORPORATION, a Corporation, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

404 F.2d 581 (1968)

FAIRCHILD CAMERA AND INSTRUMENT CORPORATION, a Corporation, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 19237.

United States Court of Appeals Eighth Circuit.

December 12, 1968.

Ralph Baird, Joplin, Mo., for petitioner.

Ronald Wm. Egnor, Atty., N.L.R.B., Washington, D. C., for respondent; Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallett-Prevost, Asst. Gen. Counsel, Leonard M. Wagman, and Edward E. Wall, Attys., N.L.R.B. filed brief of respondent.

Before VOGEL, LAY and BRIGHT, Circuit Judges.

VOGEL, Circuit Judge.

Petitioner, Fairchild Camera and Instrument Corporation, is a Delaware corporation authorized to engage in business in Missouri and has a place of business in Joplin, Missouri wherein it is engaged in the manufacture, distribution and sale of goods in interstate commerce within the meaning of §§ 2(6) and 2(7) of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. On September 15, 1966, petitioner's employees held a representation election, wherein the International Brotherhood of Electrical Workers, Local No. 95, AFL-CIO, (hereinafter referred to as the union) received 117 votes, an intervening labor organization, International Association of Machinists and Aerospace Workers, received 3 votes, and 114 employees cast votes against representation. Because the results were inconclusive, a runoff election was held on October 6, 1966. In the runoff election, 103 employees voted for and 137 voted against the union. In objections to the runoff election, the union, as the charging party, alleged that during the period between the two elections (i. e., from September 15, 1966, to October 6, 1966) the company called meetings of its employees for the purpose of hearing and adjusting employee grievances and promised its employees a paid sick leave plan and other benefits, its object being to interfere with a free choice by its employees at the runoff election of October 6th, and that it thereby violated § 8(a) (1) of the Act. The Board, adopting the findings, conclusions and recommendations of its Trial Examiner, ordered that the company cease and desist from further conducting like meetings, post notices, and hold a second runoff election at such time as the Regional Director deemed appropriate. The company has petitioned this court to review and set aside the Board's order.¹ The Board has filed cross-application requesting that its order be enforced. This court's jurisdiction is based upon § 10(f) of the Act.

The only issue presented is whether the record as a whole contains substantial evidence supporting the Board's finding that

"* * * in conducting the meeting with groups of employees to have them air their grievances, in posting the seniority list of its production workers and in making veiled promises to grant them a paid sick leave plan and other benefits pursuant to the complaints which Respondent had invited its employees to air, was motivated by a desire to bring about the defeat of the Union in the runoff election and that such conduct constituted interference with the employees\' organizational rights within the meaning of Section 8(a) (1) of the Act."

We find that the record does not support the Board's finding and accordingly deny enforcement.

To resolve the question, it is necessary to review the entire record, including a transcript of the full hearing held before the Trial Examiner.

Only five witnesses were called at the hearing before the Trial Examiner. Milton B. Johnson, industrial relations manager for the employer, was called as a witness by and on behalf of the General Counsel. He testified generally that about July 1966 he first became aware that the union was conducting a campaign at the employer's plant and that the representation election was held on September 15, 1966, and the first runoff election, on October 6, 1966. Meetings with groups of from 8 to 20 employees each were conducted by the company on September 20, October 3 and October 4, 1966. Mr. Johnson stated that he held these meetings "at the employees' request" for the purpose of answering questions pertaining to "production, policy or safety". Questions were asked by employees with regard to sick leave and the problem of a gravel parking lot which continuously developed potholes. Complaints were raised about seniority and about an employee, Barbara McGarrah, who was a National Aeronautics and Space Administration (NASA) instructor paid at instructors' rates even while doing the same work as other employees. Mr. Johnson testified that after one of the meetings a seniority list was posted, but that such seniority list had always been available to the employees. He also testified that on December 19, 1966, the company announced a sick leave plan and wage increase, both effective on January 1, 1967, and that prior to the meetings at issue previous conferences had been held with employees in March 1966 and in late 1965. On cross-examination, Mr. Johnson stated that the employer had operated this plant since 1961 and that in each of the years 1961, 1962, 1963, 1964, 1965 and 1966 the company had granted the employees a general wage increase plus fringe benefits with the exception of 1963, when the company's wage and fringe benefits survey indicated that only a wage increase was justified.

With regard to the effect of the employer having granted a sick leave plan and wage increase on December 19, 1966, effective January 1, 1967, the Examiner, whose findings and conclusions were approved and adopted by the Board, held that such granting of sick leave benefits and wage increases did not amount to an unlawful interference with the employees' organizational plans.² Accordingly, no further consideration will be given to that part of the testimony referring to wage increases and fringe benefits.

Donald Ray Noe, an employee of the company for five years, testified that he attended a conference on October 3, 1966; that such conference was announced by his supervisor; that the meeting was informal, "more or less a question and answer period"; that Mr. Johnson told the employees "* * * that his was a meeting just to take up our gripes or any questions we might have concerning the company policy and he stressed the point it wasn't a meeting to try to determine whether we were going to vote for the union or not, it was strictly to take up our gripes"; that the conference was primarily attended by new employees not sure of some of the company's policies; that Mr. Johnson suggested that these employees study the company's handbook; that nothing was said inconsistent with Noe's general understanding of the employer's handbook; that a seniority list was posted following this meeting; and that there were no promises with regard to benefits or the parking lot complaint, there were no threats, and he did not feel "coerced". Mr. Johnson explained that the parking lot problem had been under consideration for some time but that the company was contemplating expansion of the plant and did not want to pave the parking lot and then have to tear it up again upon such planned expansion. On redirect examination, Mr. Noe testified that the next previous conference with employees had been held about a year before and that "it was primarily the same thing, taking up our gripes or any questions we might have". On recross-examination, Mr. Noe stated that the employer maintained "the open door policy", which meant the right of employees to see Johnson at any time.

Helen Marie Yust, an employee for three years, testified that she attended one of the conferences at the direction of her foreman's supervisor; that Johnson

"* * * opened the meeting with the statement that the company felt there was some unrest in the plant among the employees and he called the meeting and he thought perhaps he might get

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