Federal-Mogul Corp. v. N.L.R.B.

• Decision Date: 02 February 1978
• Docket Number: No. 76-2698,FEDERAL-MOGUL,76-2698
• Parties: 97 L.R.R.M. (BNA) 2770, 83 Lab.Cas. P 10,355 CORPORATION, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1245

566 F.2d 1245

97 L.R.R.M. (BNA) 2770, 83 Lab.Cas. P 10,355

FEDERAL-MOGUL CORPORATION, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.

No. 76-2698.

United States Court of Appeals, Fifth Circuit.

Feb. 2, 1978.

A. H. Gaede, Jr., Wm. M. Warren, Jr., Alan K. Zeigler, Birmingham, Ala., for petitioner-cross respondent.

Elliott Moore, Deputy Associate Gen. Counsel, John S. Irving, Gen. Counsel, N. L. R. B., Washington, D. C., for N. L. R. B John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, W. Christian Schumann, Atty., N. L. R. B., Washington, D. C., for other interested parties.

Petition for Review of an Order and Cross Application for Enforcement of the National Labor Relations Board.

Before THORNBERRY, Circuit Judge, SKELTON, Senior Judge, ^* and HILL, Circuit Judge.

SKELTON, Senior Judge.

This case is before the Court on the petition of Federal-Mogul Corporation (the Company) to review and set aside an adverse order of the National Labor Relations Board (the Board). The Board cross-petitions for enforcement in full of its order.

Federal-Mogul is a national company with plants in a number of areas of the country. Its facility in Hamilton, Alabama, which is the site of the present controversy, manufactures 4 to 8 inch taper roller bearings. The plant employs approximately 590 employees, most of whom are skilled or semi-skilled. Plant operations began in late 1972. Throughout 1973 and 1974 the plant was in what the Company termed a "start-up" operation with employees being trained and gaining experience.

Between the early winter of 1973 and May 30, 1975, there were three separate union elections held at the Hamilton plant. The first election was held on March 6, 1974, and the employees rejected representation by the International Aerospace Workers and Machinists (I.A.M.), Aluminum Workers, Steelworkers, and the U.A.W. ¹ The second election, held March 7, 1975, resulted in a U.A.W. victory but was set aside on the grounds of U.A.W. misconduct in electioneering. The third election was held on May 30, 1975. The Union lost this election and timely filed objections in case No. 10-RC-10230. On September 3, 1975, a complaint was issued in case No. 10-CA-11342 alleging certain violations of Section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 151, et seq., by Company supervisors and a violation of Section 8(a) (3) because of the discharge of employee Edsel Emerson for excessive and unexcused absenteeism. On September 24, 1975, a complaint was issued in case No. 10-CA-11388 charging that a three-day disciplinary suspension of employee Gary Roberts violated Section 8(a)(3) of the Act. These complaints were then consolidated with the Union's election objections and set for hearing before Administrative Law Judge Walter H. Maloney, Jr. The Board adopted the findings and conclusions of Judge Maloney en toto and entered a Decision and Order to that effect, from which petitioner seeks relief from this Court.

A lengthy trial was held in which the General Counsel of the Board, the U.A.W. (the Union), and the Company participated. The transcript of the testimony contains over 1000 typewritten pages. The Administrative Law Judge (A.L.J.) rendered his decision on January 2, 1976, in which he found and concluded that the Company had violated Section 8(a)(1) of the Act by:

(1) Coercively interrogating employees concerning their Union sympathies and activities;

(2) Engaging in surveillance of Union activities and by creating in the minds of employees the impression that it was engaging in surveillance of Union activities;

(3) Destroying Union literature which was the private property and in the private possession of an employee;

(4) Threatening to close the plant and to lay off employees if they selected the Union as their bargaining agent;

(5) Promising better wages if the Union lost the election;

(6) Threatening to discontinue existing benefits if the Union won the election.

The Administrative Law Judge also found and concluded that the Company had violated Section 8(a)(3) of the Act by discharging Edsel D. Emerson and by suspending Gary Roberts (for 3 days) from employment in order to discourage membership in and support of the Union. He held that Emerson should be reinstated to his former or substantially equivalent employment and that he and Roberts should be made whole for any loss of pay which they had suffered by reason of the discrimination practiced against them, with interest thereon at 6 percent per annum, and that all critical notes, reports, and evaluations be removed from Roberts' personnel file.

The Administrative Law Judge further held that by the unfair labor practices listed above and the discharge of Emerson, the Company interfered with the freedom of choice of its employees in their selection of a bargaining representative at the election held on May 30, 1975, and by reason thereof he recommended that the results of the election of May 30, 1975 (which showed that the Union lost the election) be set aside and that case No. 10-RC-10230 be severed from the complaint cases and remanded to the Director of the Tenth Region with instructions to conduct a third (sic fourth) election.

The Administrative Law Judge also recommended in his decision that a so-called broad 8(a)(1) form order be issued ordering the Company to cease and desist from unfair labor practices, and that the Company be required to post a notice informing its employees of their rights and the results of this case. He prescribed the form and contents of the notice, which required the Company to admit that it had violated the provisions of the Act in all of the particulars enumerated by the Administrative Law Judge as listed above. The notice exacted a promise from the Company not to violate the Act the same way again and to restore Emerson to his job and make him and Roberts whole for any loss of pay with interest thereon, and required the Company to agree to another union election.

After the trial in this case was concluded and the Administrative Law Judge had rendered his decision setting aside the election of May 30, 1975, and ordering a new election, ² a subsequent election was held on July 28, 1976, which was won by the Union. Consequently, the Union is presently the bargaining representative of the employees.

I. Interrogation of Employees.

The Administrative Law Judge found and concluded that the following interrogations of 12 different employees, out of the total work force of more than 500 workmen, were coercive and constituted a violation of Section 8(a)(1) and were objectionable conduct effecting the result of the election:

1. What has the Company done to turn the employees against it?

2. What could the Union do for the employees?

3. Why are the employees supporting the Union?

4. Whether an employee's heart was in the right place?

5. What do you think about the Union?

6. Have you changed your mind as to how you will vote?

7. Is there anything that could be done to change your mind as to how you will vote?

8. Why are you mad at the Company?

9. Why are you wearing Union buttons?

10. Why aren't you wearing the Company "I care" buttons?

11. What does the "Vote yes" pencil clip on your pocket mean?

In determining whether these questions are coercive or tend to be coercive, we must consider all of the circumstances surrounding the questioning. Many of the factors to be considered are set forth in Bourne v. N L. R. B., 332 F.2d 47, 48 (2 Cir. 1964) as follows:

"(1) The background, i. e. is there a history of employer hostility and discrimination?

(2) The nature of the information sought, e. g. did the interrogator appear to be seeking information on which to base taking action against individual employees?

(3) The identify of the questioner, i. e. how high was he in the company hierarchy?

(4) Place and method of interrogation, e. g. was employee called from work to the boss's office? Was there an atmosphere of 'unnatural formality'?

(5) Truthfulness of the reply."

For convenience, we will refer to these factors as the Bourne Rule, which has been adopted and followed by this Court. See N. L. R. B. v. Varo, Inc., 425 F.2d 293 (5 Cir. 1970); N. L. R. B. v. Camco, Inc., 340 F.2d 803 (5 Cir. 1965); N. L. R. B. v. Huntsville Manufacturing Co., 514 F.2d 723 (5 Cir. 1975); and Mueller Brass Co. v. N. L. R. B., 544 F.2d 815 (5 Cir. 1977); and Florida Steel Corp. v. N. L. R. B., 529 F.2d 1225 (5 Cir. 1976).

The facts in this case show that Hamilton, Alabama, was a small town located in an agricultural area. The employees, along with most of the foremen and supervisors, were recruited from the rural areas and trained in the Company plant. Most of them were friends of longstanding and knew each other on a "first name" basis. The employees frequently took their "coffee breaks" and ate their lunches with various supervisors and foremen. The Company and the employees had experienced three different union elections between the winter of 1973 and May 30, 1975, two of which were won by the Company and one by the Union. During this period of time there was actually one continuous union campaign to become the bargaining agent of the employees. Of course, the Company was against the Union and waged a campaign of its own. It is obvious that during this campaign the atmosphere between the Union and the Company was tense, tempers were short, and both sides were seeking every possible employee vote. It was against this background and during this long period of controversy that the above questions were asked by low-echelon supervisors and foremen of the 12 different employees, separately, and from time to time at their work stations, respectively, in the plant, and during work breaks. All of these circumstances must be taken into consideration in analyzing the interrogations involved here.

Applying the Bourne Rule, we conclude, as the Court did in that...