Florida Steel Corp. v. N.L.R.B.
| Decision Date | 12 April 1976 |
| Docket Number | Nos. 74--3983,74--4201,AFL-CI,P,s. 74--3983 |
| Citation | 529 F.2d 1225 |
| Parties | 92 L.R.R.M. (BNA) 2040, 78 Lab.Cas. P 11,384 FLORIDA STEEL CORPORATION, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner. UNITED STEELWORKERS OF AMERICA,etitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner. |
| Court | U.S. Court of Appeals — Fifth Circuit |
David A. Lang, New Orleans, La., Charles F. Henley, Jr., Jacksonville, Fla., for Florida Steel Corp.
Elliott Moore, Deputy Associate Gen. Counsel, John H. Ferguson, Douglas S. McDowell, Attys., N.L.R.B., Washington, D.C., Harold A. Boire, Regional Director, Region 12, N.L.R.B., Tampa, Fla., Peter G. Nash, N.L.R.B., Washington, D.C., for N.L.R.B.
Dennis D. Clark, Washington, D.C., for United Steelworkers, etc.
Petitions for Review and Cross Applications for Enforcement of an Order of the National Labor Relations Board. (Florida Cases).
Before GEWIN, GOLDBERG and DYER, Circuit Judges.
The National Labor Relations Board determined that Florida Steel Corporation (the Company) had violated the National Labor Relations Act, as amended, 29 U.S.C. § 151 et seq. in several respects. It found that during an organizational campaign the Company violated § 8(a)(1) of the Act 1 by maintaining and enforcing an invalid no-solicitation rule; interrogating employees with regard to their union 2 membership and activities; and harassing known union supporters through extensive surveillance. Concluding that the Company's stated reasons for the discharges of employees Martin, Purscell, and Blessing were pretextual and that the real reason for the discharges of these men was their union activity, the Board found that these discharges constituted violations of § 8(a)(3) 3 and (1) of the Act. On the other hand, the Board concluded that the discharge of employee Sullivan was supported by good cause and not violative of the Act. The remedial order, in addition to cease and desist provisions, called affirmatively for rescission of the invalid no-solicitation rule and for reinstatement of the three illegally discharged employees to their former positions with reimbursement for any earnings lost because of the discrimination against them.
Whese two cases 4 present the familiar question whether the Board's findings of fact, on which the various aspects of its order are predicated, are supported by substantial evidence when the record is considered as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Our examination of the record convinces us that with one exception the requisite evidentiary basis for the Board's order was present; that exception concerns Blessing's discharge, which we find to have been supported by good cause. Insofar as the Board's order requires reinstatement and back pay for Blessing, enforcement is denied; in all other respects enforcement is granted.
The facts involved in these cases cover the period of time from commencement of a union organizational campaign among the Company's employees in mid-April 1973 until the discharge of the last of the four employees referred to above on July 24, 1973. The facts will be stated in conjunction with the specific alleged violations.
I. Section 8(a)(1) violations
A. Coercive Interrogation
On April 17, 1973 several Company employees attended a union meeting at a Holiday Inn. At this meeting the employees signed membership cards and agreed to act as voluntary organizers for the union. Gerald Cone, Richard Purscell, and James Sullivan were among the employees attending this meeting. The very next day Cone was approached by his foreman, who asked Cone whether he 'knew anything about this union coming in.' Although Cone had signed a union card at the meeting, he chose to evade the question and responded that he was too preoccupied with personal problems to worry about the union.
On April 19 employee Sullivan was similarly approached by supervisor Stuart Shook. Shook asked Sullivan whether he was for the 'union bit,' and the employee replied that he favored the union. Shook responded that if that was what Sullivan wanted, he should 'go get it'; then he walked away.
Employee Purscell informed loading foreman Walter Hunziker on May 16 that he was a voluntary organizer for the union. 5 For the next two days Purscell and two other union organizers were subjected to unprecedented observation by high ranking Company officials. On May 18 Hunziker suspended Purscell for one day; the employee was given a warning letter that stated that he had been observed improperly driving a forklift three days earlier on May 15. Significantly, no one had said anything whatsoever to Purscell about the infraction at the time of its occurrence; it was only after he disclosed his union activity that any mention was made of the incident.
Several days later Hunziker told Purscell that rebar plant superintendent William Allen wanted to see him in his office. Allen told Purscell that he wanted to find out whether Purscell was really a voluntary organizer or whether someone else had induced him to work for the union. When Purscell replied that he was a volunteer, Allen indicated that he was 'shocked' that Purscell had 'turned against the Company' after having received two or three raises and a recent promotion. He added that he suspected other employees of being union adherents, but not Purscell.
The Administrative Law Judge found that none of these instances of interrogation constituted a § 8(a)(1) violation. He reasoned that the interrogation of Purscell could not have had a coercive effect because Purscell had previously voluntarily revealed his union affiliation to a company foreman. With respect to Cone and Sullivan, the Administrative Law Judge concluded that 'such isolated interrogation in a campaign marked by an apparent general willingness of employees to identify themselves openly for the Union cannot suffice . . . to support a Section 8(a)(1) finding.' Disagreeing with the conclusions of the Administrative Law Judge, the Board found that these instances of interrogation were violative of § 8(a)(1). The Board concluded that the purpose and effect of the interrogation of Purscell was to intimidate him in his pursuit of protected union activity. As to Cone and Sullivan, the Board found that the sole purpose for questioning these men was to find out the extent of union support among employees following the first employee union meeting of April 17 and that this interrogation was coercive in nature.
In determining whether the Company's interrogation of these men was unlawfully coercive, several factors should be considered: (1) the history of the Company's attitude toward its employees; (2) the type of information sought; (3) the rank of the interrogator in the Company hierarchy; (4) the place and manner of the interrogation; and (5) the truthfulness of the employee's responses. NLRB v. Varo, Inc., 425 F.2d 293, 298 (5th Cir. 1970); NLRB v. Camco, Inc., 340 F.2d 803, 804 (5th Cir. 1965); cert. denied, 382 U.S. 926, 86 S.Ct. 313, 15 L.Ed.2d 339 (1965); Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964). In addition, we may consider such factors as: (1) whether the Company had a valid purpose in obtaining information concerning the union's strength; (2) whether the Company communicated this purpose to the employees; and (3) whether the Company assured the employees that no reprisals would be taken. NLRB v. Varo, supra; NLRB v. Camco, Inc., supra.
Sullivan and Cone were questioned almost immediately following the first organizational meeting. The purpose of the interrogations was never explained; nor were the employees given any assurances against retaliation. Cone was obviously discomfited by his supervisor's questions; he purposely avoided disclosing the fact that he had already signed a union card and feigned disinterest in the organizational campaign.
The questioning of Purscell was conducted by, and in the office of, the plant superintendent. The purpose of Allen's interrogation was never explained to Purscell; nor was he assured that reprisals would not be taken. To the contrary, as the interrogation followed close on the heels of a somewhat suspect one-day suspension and unprecedented observation of known union adherents by high Company officials, Purscell might well have felt coerced. Moreover, Purscell's own testimony indicates that he did in fact feel intimidated by the Allen interview. Purscell testified that when Allen insisted that there were no problems in the plant, that the employees were all satisfied, and that there was no need for the union, 'I told him that maybe I should talk to more people.' We hold that fair inferences and substantial evidence compel affirmance of the Board's finding that the Company's interrogation of these three employees violated Section 8(a)(1) of the Act.
B. The No-Solicitation Rule
Since 1968 the Company had maintained the following no-solicitation rule:
No person will be allowed to carry on union organizing activities on the job. Anyone who does so and thereby neglects his own work or interferes with the work of others will be subject to discharge. Solicitation for membership, pledges, subscriptions, or the unauthorized collection of money, or circulation of petitions or conducting any outside business on the Company's time without permission of the Manager is prohibited.
On May 21 employee James Sullivan, a crane operator, was in the melt shop waiting for his crane to be repaired. Two transportation mechanics, waiting to repair Sullivan's crane, but unable to begin work until completion of some preliminary work by maintenance employees, were also present. During this hiatus, Sullivan asked the two men how they felt about the union. The men replied that they would join the union if the organizational campaign succeeded. This was the entire extent of the conversation. Later that...
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