Graham Architectural Products Corp. v. N.L.R.B.

• Decision Date: 31 March 1983
• Docket Number: No. 82-3063,82-3063
• Citation: 697 F.2d 534
• Parties: 112 L.R.R.M. (BNA) 2470, 96 Lab.Cas. P 13,965 GRAHAM ARCHITECTURAL PRODUCTS CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

Page 534

697 F.2d 534

112 L.R.R.M. (BNA) 2470, 96 Lab.Cas. P 13,965

GRAHAM ARCHITECTURAL PRODUCTS CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 82-3063.

United States Court of Appeals Third Circuit.

Argued Sept. 15, 1982.

Decided Jan. 10, 1983.

Rehearing and Rehearing En Banc Denied March 31, 1983.

Lawrence T. Zimmerman, Alan D. Cirker (argued), Zimmerman & Obadal, Washington, D.C., for petitioner.

Paul J. Spielberg, Deputy Asst. Gen. Counsel (argued), Morton Namrow, Atty., William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., for respondent.

Before SEITZ, Chief Judge, and GARTH and ROSENN, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

The National Labor Relations Board ("the Board") found that Graham Architectural Products Corporation ("Graham" or "the Company") committed six unfair labor practices violating section 8(a)(1) of the National Labor Relations Act ("the Act") by its conduct during a union organizing campaign. The violations involved questioning of employees by company officials and, on one occasion, interfering with an employee's right to distribute union literature on company property. The Board found that these practices infected the representation election among Graham employees, which the Union ¹ lost, and ordered a rerun election. On appeal, Graham seeks review of the Board's orders and the Board has cross-petitioned for enforcement. We conclude, as did the Administrative Law Judge ("ALJ"), that the record establishes unfair labor practices involving only two employees; we will enforce that part of the Board's cease and desist order which is predicated on those findings. As to the Board's order directing a new election, it is interlocutory and we are therefore without jurisdiction to review it at this time.

I.

Graham manufactures aluminum replacement windows at a plant in York, Pennsylvania. In the spring of 1979, the Union commenced an organizing campaign among Graham's employees, and on May 7, filed an election petition seeking to represent Graham's production and maintenance employees. The Union and the Company signed, and the Board approved, a Stipulation for Certification upon Consent Election setting the election for July 20, 1979. Four days In a decision filed February 13, 1981, the ALJ found company unfair labor practices involving coercive interrogations of two employees, Reisinger and Oberdick, about their feelings toward the Union. The ALJ recommended dismissal of all remaining charges, and further, concluded that the unfair labor practices did not warrant invalidating the election results. The Board, however, found four additional unfair labor practices arising out of other instances of interrogation and one instance of interfering with the distribution of union literature and rejected the ALJ's recommendations for dismissal of charges relating to these incidents. The Board also concluded, contrary to the ALJ's recommendation, that a rerun election was necessary. See 259 N.L.R.B. No. 153.

before the election, on July 16, the Union filed unfair labor practice charges against Graham with the Board. In the election, the Union lost its bid to represent the Graham employees by a vote of 93 to 68 with 7 ballots challenged. The Union filed timely objections to the election and filed additional unfair labor practice charges on July 31. Because the unfair labor practice charges and objections to the election were based on common issues, the two cases were consolidated for hearing before an ALJ.

II.

We begin our analysis by noting the principles that define the scope of our review of the Board's order. The Board's factual findings must be affirmed if they are supported by substantial evidence on the record considered as a whole. 29 U.S.C. Sec. 160(e). See Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Yet this does not relieve us of the responsibility to scrutinize the Board's findings to ensure that national labor policies are implemented. See NLRB v. K & K Gourmet Meats, Inc., 640 F.2d 460, 463 (3d Cir.1981). Although we are not permitted to substitute our view for any reasonable conclusion by the Board, "a reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial." Universal Camera, supra, 340 U.S. at 488, 71 S.Ct. at 464. Finally, the courts bear the ultimate responsibility to decide and enforce the applicable legal standard. Cf. Allied Chemical & Alkali Workers of America v. Pittsburgh Plate Glass Co., 404 U.S. 157, 182, 92 S.Ct. 383, 399, 30 L.Ed.2d 341 (1971) (question of what is a mandatory subject of bargaining).

A.

Several cases, both within this circuit and elsewhere, have considered the circumstances under which employee questioning during a union organizational campaign will violate section 8(a)(1) of the Act. ² It is well established that it is not necessarily improper for an employer to inquire into an employee's sentiments toward the union. See, e.g., K & K Gourmet Meats, supra, 640 F.2d at 465. ³ What section 8(a)(1) of the Act proscribes is interrogation tending to restrain or coerce the employees in the exercise of their right to organize. An employer's questioning becomes coercive and runs afoul of section 8(a)(1) when it "suggests to the employees that the employer may take action against them because of their pro-Union sympathies." Frito-Lay, Inc. v. NLRB, 585 F.2d 62, 65 (3d Cir.1978). See K & K Gourmet Meats, supra, 640 F.2d at 465; Hedstrom Co. v. NLRB, 629 F.2d 305, 314 (3d Cir.1980) (in banc), cert. denied, 450 U.S. 996, 101 S.Ct. 1699, 68 L.Ed.2d 196 (1981). Although the Board need not show that the employer's interrogation actually

                had any coercive effect, the questioning must reasonably have tended to coerce under the circumstances.   See K & K Gourmet Meats, supra, 640 F.2d at 465;  Hedstrom, supra, 629 F.2d at 314;  NLRB v. Armcor Industries, Inc., 535 F.2d 239, 242 (3d Cir.1976).  Our task, then, is to determine whether substantial evidence supports the Board's finding that the various incidents of questioning of Graham employees were coercive in character
                

DAVID REISINGER

Employee Reisinger testified before the ALJ that on July 9 shortly after lunch supervisor Michael Lehr called him to Lehr's office. Reisinger met Lehr at the timeclock as he was on his way to Lehr's office. Lehr asked Reisinger several questions concerning Reisinger's activities during the preceding lunch hour, and Reisinger replied truthfully that he had been to the union hall. Lehr responded, "Yes, I know you were at the union hall." Lehr demanded to see the union literature Reisinger had obtained, but Reisinger refused to show Lehr the materials. The conversation continued for 15 to 20 minutes and covered a variety of subjects. Reisinger testified that he and Lehr were personal friends and often played basketball together at lunchtime.

Several aspects of this incident lead us to agree with the Board's finding that supervisor Lehr's questioning of employee Reisinger was unlawful. The inquiries were not part of an ordinary casual conversation; rather, Lehr specifically requested Reisinger to come to his office. Lehr indicated that he had prior knowledge of Reisinger's lunchtime visit to the union hall, implying that Reisinger's activities were under the Company's surveillance. Lehr demanded to see the materials Reisinger had picked up. Together, the circumstances created a risk from which Reisinger could reasonably conclude that if he engaged in further pro-union activities the Company might retaliate. Although Lehr's and Reisinger's friendship and the occurrence of the conversation in an open plant area tend to negate a coercive influence, considering all the evidence, including the peremptory demand for the union materials, the Board had a reasonable basis to find the interrogation coercive.

DIANA OBERDICK

Employee Oberdick testified to two conversations she had with her supervisor, Robert Reichard. Some time in early July, Reichard stopped by Oberdick's work station and asked her if she knew "how the Union got started" in the plant. She answered that she did not know, and Reichard remarked that the Union would not help. The conversation then turned to other matters and lasted approximately 15 to 20 minutes. Later, on July 10, Reichard asked Oberdick to step outside the building to talk. Once outside, Reichard asked her how she was getting along with another supervisor, and they briefly discussed some personal matters of Oberdick that they had discussed on previous occasions. Reichard then asked Oberdick for her opinion about the "union situation." Oberdick replied that she felt mistreated by the Company and she would support the Union if it won the election, although it did not really matter to her. Oberdick testified that this conversation lasted 30 minutes and ran over into her lunch period. Like Reisinger, Oberdick testified that she was quite friendly with her supervisor, Reichard, and that she talked with him almost every day. She noted that Reichard once had spoken to her at length to dissuade her from quitting her job with the Company.

The conclusion of the ALJ, affirmed by the Board, that Oberdick was coercively interrogated by her supervisor Reichard is supported by substantial evidence. On two occasions, Reichard initiated conversation in which he asked Oberdick questions about the Union. During the first conversation, he approached her at her work station and asked if she knew how the Union had gotten started in the plant. This was not a casual inquiry into a co-worker's feelings, but a request from which a reasonable inference can be drawn that it was aimed at As for the other instances of interrogation which were held to violate ...