General Electric Co., Battery Prod., Cap. Dept. v. NLRB

• Decision Date: 28 October 1968
• Docket Number: No. 24548.,24548.
• Citation: 400 F.2d 713
• Parties: GENERAL ELECTRIC COMPANY, BATTERY PRODUCTS, CAPACITOR DEPARTMENT, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

400 F.2d 713 (1968)

GENERAL ELECTRIC COMPANY, BATTERY PRODUCTS, CAPACITOR DEPARTMENT, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 24548.

United States Court of Appeals Fifth Circuit.

August 22, 1968.

Rehearing Denied October 28, 1968.

Robert C. Lanquist, Otto R. T. Bowden, Jacksonville, Fla., for petitioner.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Thomas R. Beech, Atty., N.L. R.B., Washington, D. C., for respondent.

Frank Hamilton, Jr., Tampa, Fla., amicus curiae.

Before BELL, GOLDBERG and DYER, Circuit Judges.

GOLDBERG, Circuit Judge:

In our assessment of another industrial drama, we again turn to the rise and decline of a local union: its birth and early struggles with adversity, its growth and drive to success, its frustrations in failing to maintain momentum, and its eventual exhaustion of power. As always we must search for the source of decline. Was union evanescence the result of its own fatal flaws, or was its strength sapped by management's unfair use of industrial weaponry? The Board examined the facts and numerous charges in the controversy at bar and held the company accountable. With two exceptions, involving the validity of a 1964 anti-strike campaign and a three-day delay in reinstating two employees after a strike in 1965, we enforce.

So that the current drama is not lost in a myriad of facts, we will first set out summarily the most significant dates and events. Relevant specifics of the union-company relations will then be analyzed more fully in discussions of various charges of National Labor Relations Act violations. We will consider — unfortunately, long after the fact —¹ allegations that the company transgressed union rights and thus violated Sections 8(a) (1), 8(a) (3), and 8(a) (5) of the Act.

The setting before us is the General Electric plant in Jacksonville, Florida, which began operations in the spring of 1963. By the summer of 1963 a union drive was underway. An election was conducted on July 24, 1963, which the union lost. That election was set aside because of the company's unduly rigid solicitation rule, and the union won the second election, on October 30, 1963, by a vote of 65-62. It was formally certified as a bargaining agent on January 21, 1964. Negotiations with the company began on February 13, 1964, and about nineteen meetings were held until April 16, when the meetings were broken off. Negotiations resumed on October 14, 1964, and a contract was signed on December 1, 1964, with an effective term from April 3, 1964 to April 3, 1965. In March, 1965, while the company and the union were bargaining for a second contract, a strong antiunion movement emerged among the employees in the plant. On April 5, 1965, the company initiated a plant-wide wage increase without the approval of the union. On April 23, all semblances of bargaining terminated.

The unfair labor practice proceedings originated with the filing of a charge on November 19, 1963. A second charge was filed on April 27, 1964. A third was filed on June 21, 1965. Due to initial dismissals of earlier charges by the Regional Director, no proceedings were held until November 29, 1965, at which time all charges were consolidated. Within the broad proscriptions of Sections 8(a) (1), 8(a) (3), and 8(a) (5), numerous specific complaints were alleged, and most were upheld by the Trial Examiner and the Board. We will therefore discuss them separately under the three respective statutory provisions.

A. Violations of Section 8(a) (1)

The Board found violations of Section 8(a) (1) in the following company activities: (1) interference, restraint, and coercion of employees both before and after certification of the union as bargaining agent; (2) a unilateral raise in wages of maintenance employees on January 20, 1964; (3) interjection of the company into union decisions regarding a potential strike in April, 1964; (4) suspension of employee Sherley after termination of the union's strike in June, 1965; and (5) delay in reinstating two employees after termination of the union's strike in June, 1965. In this opinion the last issue will be considered in a separate section infra, together with the accompanying finding that the delay in reinstatement violated Section 8(a) (3).

(1) Interference, Restraint, and Coercion. According to the uncontradicted testimony at the Trial Examiner's hearing, on numerous occasions from June, 1963, to April, 1964, various company representatives interrogated and threatened employees concerning their union activities. Although in no case did any company spokesman expressly place an employee's job in jeopardy, the impression of company surveillance was readily perceptible. Moreover, in some instances implied threats were advanced. For example, shortly before the second union election one company supervisor informed a group of employees, "We can't get along with a third party." Shortly after the election another supervisor admonished an employee for interfering with the work of other employees by talking with them. When asked by the employee how he knew of such conduct (including conduct on the job and in the lunchroom), the supervisor replied that he knew what was going on at all times whether he was there or not.

The company does not contest the Board's factual findings. Instead, it claims that the acts in question were "minor, unconnected, isolated occurrences which happened for the most part prior to the second election." We agree with the company that the acts in question can hardly be labeled catastrophic (nor can the remedy, a cease and desist order). The acts were, however, readily susceptible to a conclusion that the company was, both before and after each election, discouraging union membership and participation through subtle threats and surveillance. We find relevant a recent pronouncement on this point by our Court:

"The evidence presented on the § 8 (a) (1) violation need not be detailed at any great length. The infractions were minor, but the Board\'s findings that the Employer had created an impression of surveillance by letting it be known that the Union meetings were being watched, by asking two employees about the activities at the Union meetings, and by allowing a minor supervisor to state that `the man upstairs would close the doors before he would let the Teamsters come in\' are enough to sustain the § 8(a) (1) order." NLRB v. Great Dane Trailers, Inc., 396 F.2d 769 June 24, 1968.

Even more pertinent is the case NLRB v. Brown-Dunkin Co., 10 Cir. 1961, 287 F.2d 17, where the antiunion activity had been less than atrocious and indeed had failed to prevent the union's election victory and formal certification. In that opinion Chief Judge Murrah stated:

"The fact that the Company\'s efforts were unsuccessful does not necessarily lead to the conclusion that they were not restrictive or coercive. N.L.R.B. v. Hill & Hill Truck Line, 5 Cir., 266 F.2d 883. See also N.L.R.B. v. Beatrice Foods Co., 10 Cir., 183 F. 2d 726; N.L.R.B. v. Fairmont Creamery Co., 10 Cir., 169 F.2d 169. In the last analysis, the function of drawing the rather nebulous line between permissible persuasion and prohibited coercive conduct lies within the special competence of the Board which, as we know, is primarily responsible for the effectuation of the purposes of the Act. It is sufficient to say that the record evidence is susceptible of an inference of coercive interference, and we are therefore unable to say that the Board\'s conclusions in this respect are unwarranted in fact and law.

See N.L.R.B. v. Central Oklahoma Milk Producers Association, 10 Cir., 285 F.2d 495." 287 F.2d at 18.

The Brown-Dunkin opinion also disposes of the company's argument that the election victory rendered moot any prior violations. It is well established that illegal interference with union activity need not be successful to be accountable. NLRB v. Mayes Bros., Inc., 5 Cir. 1967, 383 F.2d 242, 247; NLRB v. Hill & Hill Truck Line, Inc., 5 Cir. 1959, 266 F.2d 883, 885; Elastic Stop Nut Corp. v. NLRB, 8 Cir. 1944, 142 F.2d 371, 377-378, cert. den., 323 U.S. 722, 65 S.Ct. 55, 89 L.Ed. 580; NLRB v. Brezner Tanning Co., 1 Cir. 1944, 141 F.2d 62, 64. The case at bar, like Brown-Dunkin, adds to that general proposition the corollary that union certifications do not always provide or dispense absolutions from past National Labor Relations Act sins.²

(2) Unilateral Wage Increase. The Board ruled that the company's unilateral wage increase for maintenance employees, instituted over the union's objection and only one day before the Regional Director had certified the union, was a violation of Section 8(a) (1). Two rationales were expressed by the Trial Examiner and were left unaltered by the Board: (1) the wage increase "was calculated to influence the choice of a bargaining representative in the event the Regional Director should order a new election," and (2) the increase "was calculated to bypass, undercut, and undermine the Union's status as the statutory representative of the employees in the event a certification was issued."

We find no merit to the first rationale which, unfortunately, was the only one examined in depth by the Trial Examiner, the Board, or the General Counsel on appeal. To be sure, the law is clearly established that a company may not grant a wage increase prior to a certification election in order to influence the votes of its employees. NLRB v. Exchange Parts Co., 1964, 375 U.S. 405, 84 S.Ct. 457, 11 L.Ed.2d 435. Our Circuit, however, has refused to expand the Exchange Parts doctrine to embrace the proposition that a wage increase undertaken after an election (and while objections are pending) can be assumed to be motivated by a desire to influence a potential re-election. NLRB v. Ambox, Inc., 5 Cir. 1966, 357 F.2d 138, 141.³

If we turn to the Trial Examiner's second rationale, we see that the Ambox decision is readily distinguishable. In Ambox the union had lost the election,...