Frito-Lay, Inc. v. N.L.R.B.

• Decision Date: 26 September 1978
• Docket Number: No. 77-2350,FRITO-LA,INC,77-2350
• Citation: 585 F.2d 62
• Parties: 99 L.R.R.M. (BNA) 2658, 84 Lab.Cas. P 10,840 , Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

Page 62

585 F.2d 62

99 L.R.R.M. (BNA) 2658, 84 Lab.Cas. P 10,840

FRITO-LAY, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 77-2350.

United States Court of Appeals, Third Circuit.

Argued Aug. 7, 1978.

Decided Sept. 26, 1978.

Duane C. Aldrich, Atlanta, Ga., Richard R. Boisseau, R. Slaton Tuggle, III, Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Atlanta, Ga., Jacob P. Hart, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for petitioner.

Janet C. McCaa, Joseph P. Norelli, John S. Irving, John E. Higgins, Jr., Carl L. Taylor, Elliott Moore, N.L.R.B., Washington, D. C., for respondent.

Before ALDISERT, VAN DUSEN and HUNTER, Circuit Judges.

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

Frito-Lay, Inc. petitions for review, and the National Labor Relations Board (Board) cross petitions for enforcement, of the Board's decision holding that Frito-Lay committed unfair labor practices arising out of a union representation election. The Board found that Frito-Lay violated sections

                8(a) (1), (3), and (5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), (3), and (5) (1976).  1  Since this court finds substantial evidence in the record as a whole to support the sections 8(a)(1) and (5) violations, the cease and desist and bargaining orders will be enforced.  However, the section 8(a) (3) violation is not supported by substantial evidence and this court will not enforce the Board's order requiring the reopening of one of Frito-Lay's plants and the reinstatement and award of back pay to the discharged employees
                

FACTS

The dispute involves a manufacturing plant located near Sharon, Pennsylvania, where Frito-Lay produced potato pellets, an intermediate product from which Munchos Brand Potato Crisps are made. Frito-Lay is a corporation employing some 15,000 employees with 37 manufacturing plants of which 18 are union organized.

In June, 1974 Frito-Lay began a process of hiring production and maintenance employees for the Sharon facility. Since the plant was to use an "Open Management" system of employee organization, ² the job applicants were screened for their ability to adapt to this structure. After the Sharon plant had been prepared for opening but before the commencement of production, Frito-Lay noted a decrease in demand for the Munchos product. Nevertheless, it decided to open the Sharon facility in September, 1974.

Demand for Munchos continued to decrease. In December, 1974 Frito-Lay began studies concerning the shutdown of the Sharon plant. In January, 1975 a study by engineering personnel and management officials recommended that Sharon be closed. However, no final decision was made at that time.

The union organizing campaign began during the first week of February, 1975. By February 6, 1975 the Union had obtained authorization cards from 21 of the 41 employees. The next day, Union Representative Frank Scalish advised the Sharon plant manager of the Union's majority status and requested recognition. The request was refused. On February 18, 1975 Frito-Lay Vice President for Labor Relations, Leonard Clegg, indicated his desire to resolve the issue by a representation election. By February 20, 1975 the Union had obtained authorization cards from seven additional employees raising its total to twenty-eight. In late February, 1975 the company agreed to a consent election which was later scheduled for March 18 and 19, 1975.

During February and March, 1975 the company conducted a series of meetings and discussions with employees out of which many of the alleged section 8(a)(1) violations arose. Also in late February, 1975, Frito-Lay announced a twenty-five cents per hour across the board raise in pay which first appeared in the employees' paychecks on March 14, 1975.

The Union lost the representation election by a vote of 22 to 17. Shortly thereafter, the Union filed objections to the election and unfair labor practice charges against Frito-Lay. In April, 1975 Frito-Lay decided to close the Sharon plant. The decision was announced to the employees on May 14, 1975 and production ceased in early June, 1975. The company continued to manufacture The Administrative Law Judge (ALJ) found that Frito-Lay had committed acts which violate sections 8(a)(1), (3), and (5) of the Act. He issued an order to Frito-Lay to cease and desist from certain unlawful practices, to pay limited back pay to former employees of the plant, to establish a preferential hiring list for former Sharon employees at other Frito-Lay facilities, and if Frito-Lay reopened the Sharon facility, to reinstate the former employees and to bargain with the Union.

the potato pellets at a plant (Brookhollow II) in Dallas, Texas where they had also been manufactured before and during the operation of the Sharon facility.

The Board, in addition to the violations found by the ALJ, ruled that the decision to close the plant was itself a section 8(a)(3) violation. It ordered that the plant be reopened, that back pay be awarded to former employees for the entire time that the plant had been closed, and that Frito-Lay bargain with the Union immediately. Frito-Lay petitions for review of the order.

SECTION 8(a)(1) VIOLATIONS

The Board accepted the findings of the Administrative Law Judge that Frito-Lay violated section 8(a)(1) of the Act. Specifically, it found that petitioner engaged in unlawful interrogations, threats of discharge or other types of reprisal, creation of the impression of surveillance, implementation of a wage increase, and threats to close the plant.

The ALJ pointed to several specific instances of unlawful interrogations. For example, on February 4, 1975 employee Collenette was approached by team leaders Riley and Kettlehut and, according to his testimony, was questioned about his knowledge of the Union. When he replied that he was aware of the Union's efforts, he was told that he "had better take a look at the benefits that (he) had under the (Open Management) System and think it over twice." During February, 1975 employee Fall was twice interrogated about the Union at his work station by team leader Riley. At the second meeting, Riley related a story about a plant in Texas which the employer stated he would shut down if the plant became union organized. In March, Riley conducted a meeting of his production team where he, according to the testimony of employee Sandor, asked the employees why they wanted a union and stated that he felt unions were unnecessary. This court has held that it is a violation of section 8(a)(1) to interrogate employees about their union sympathies when doing so suggests to the employees that the employer may take action against them because of their pro-Union sympathies. NLRB v. Clapper's Manufacturing, Inc., 458 F.2d 414, 417-18 (3d Cir. 1972). The test is whether the questioning tends to be coercive, not whether the employee is actually coerced. NLRB v. Camco, Inc., 340 F.2d 803, 804-05 n.6 (5th Cir.), Cert. denied, 382 U.S. 926, 86 S.Ct. 313, 15 L.Ed.2d 339 (1965); International Union of Operating Engineers v. NLRB, 328 F.2d 850, 852-53 (3d Cir.), Cert. denied, 379 U.S. 826, 85 S.Ct. 52, 13 L.Ed.2d 35 (1964).

The Board's findings of threats of discharge or other types of reprisal are also adequately supported in the record. Employee Collenette testified that team leaders Riley and Kettlehut showed him newspaper articles about strikes and warned that if the Union and Frito-Lay could not reach agreement "there would be a long strike" which would result in "some peoples' children starving." Employee Hunter, a principal force in the union organizing campaign whose testimony was specifically credited by the ALJ, stated that on February 12, 1975, he was called into the office of Plant Manager McInvale. Though Hunter at that time denied passing out union cards, McInvale said that if Hunter was going to start trouble, there would be trouble for him. In early March, according to Hunter, McInvale told him that he would have Hunter's job if he heard any more rumors about Hunter starting a union. Later, team leader Kettlehut told Hunter to "shut your mouth about trying to get a union down here because they're out to get you." Threats of discharge are coercive and constitute Plant Manager McInvale was found by the ALJ to have created the impression of surveillance by telling Hunter that he "understood" from "an individual" and that he had "heard . . . rumors" that Hunter was starting a union. Creating the impression of surveillance of employees' efforts to form a union has been held to violate section 8(a)(1). Hedstrom Co. v. NLRB, 558 F.2d 1137, 1144 (3d Cir. 1977); NLRB v. Armcor Industries, Inc., 535 F.2d 239, 242 (3d Cir. 1976).

violations of section 8(a)(1). NLRB v. Triangle Publications, Inc., 500 F.2d 597 (3d Cir. 1974); NLRB v. Erie Marine, Inc., 465 F.2d 104, 106 (3d Cir. 1972).

The ALJ also found that Frito-Lay violated section 8(a)(1) by implementing a wage increase to influence employee votes in the representation election. Under the doctrine of NLRB v. Exchange Parts Co., 375 U.S. 405, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964), conferring benefits on employees to influence their votes is a violation of the Act. Accord, Carlisle Paper Box Co. v. NLRB, 398 F.2d 1, 4 (3d Cir. 1968). The record shows that the wage increase was announced on February 21, 1975 and was reflected in the paychecks of the employees on March 14, 1975, four days before the election. While the company argues that the wage increase was contemplated as early as June, 1974 (even prior to the opening of the plant) and that a wage survey was completed in January, 1975, the record supports the finding by the Board that the timing of the wage increase was manipulated to influence the election. The proof of the intent to manipulate is buttressed by the letter distributed with the pay increase which reminded employees that "Frito-Lay pays the wages, gives the holidays, vacations, group...