Hertzka and Knowles v. N.L.R.B.
| Decision Date | 18 September 1974 |
| Docket Number | No. 73-2971,73-2971 |
| Citation | 503 F.2d 625 |
| Parties | 87 L.R.R.M. (BNA) 2503, 75 Lab.Cas. P 10,334 HERTZKA & KNOWLES, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Donald D. Connors, Jr. (argued), of Brobeck, Phleger & Harrison, San Francisco, Cal., for petitioner.
William DuRoss (argued), N.L.R.B., San Francisco, Cal., for respondent.
Before KOELSCH and CHOY, Circuit Judges, and RENFREW, * District judge.
This case arises out of a labor dispute at Hertzka & Knowles, a medium-sized architectural firm located in San Francisco. In September of 1971 its professional employees voted to have the Organization of Architectural Employees (OAE) as their bargaining agent. After months of negotiations failed to produce an agreement with management, one of the then 25 employees in the bargaining unit petitioned the National Labor Relations Board to decertify OAE. The Board set an election for December 6, 1972.
Prior to the election, management representatives spoke to the employees on several occasions. What occurred at a December 1st meeting formed the basis for OAE charges, filed with the Board after the election, that Hertzka & Knowles violated 8(a)(1) of the National Labor Relations Act 1 by allegedly making certain threats of reprisal.
OAE lost the election by a vote of 14 against continuing representation and 11 for.
Immediately after the election, a meeting attended by both the employees and the partners of the firm produced a new plan for employee bargaining. It called for five in-house committees with each to be composed of five employees and one management representative. Each was to have a particular zone of competence-- for example, employee remuneration. 2 In its charges before the Board, OAE claimed that this committee system violated 8(a)(2) of the Act which requires that an employer not 'dominate or interfere with the formation or administration of . . . or contribute financial or other support to' any labor organization. 3
The Board agreed, after a hearing before a trial examiner, that the employer had committed the unfair labor practices OAE charged. 206 N.L.R.B. No. 32 (1973). Its order requires Hertzka & Knowles to cease and desist from threatening its employees with reprisals and to withdraw recognition and support from and disestablish the employees' committees. Additionally, the Board set aside the decertification and called for a new election.
Hertzka & Knowles petitions here to set aside, and the Board cross-petitions to enforce, this order insofar as it pertains to the unfair labor practices. 4 We enforce the order as to the alleged threats of reprisal, but refuse to enforce that part based on the 8(a)(2) charges.
We first consider management's preelection speeches to the employees. Section 8(a)(1) prohibits employer interference with employee rights of self-organization. Because that prohibition could facially restrict almost any employer opposition to union organization efforts, it is qualified by 8(c) of the act 5 which, in turn, incorporates First Amendment safeguards. The subsection provides that the 'expressing of any views, argument, or opinion, or the dissemination thereof' shall not be evidence of an unfair labor practice 'if such expression contains no threat of reprisal or force or promise of benefit.' The issue for us is whether Hertzka & Knowles' pre-election statements fall within the class of unprotected threats of reprisal.
The Supreme Court in NLRB v. Gissel Packing Co., 395 U.S. 575, 616-620, 89 S.Ct. 1918, 23 L.Ed.2d 462 (1969), provided the standard for distinguishing between protected and unprotected speech. An employer, the Court said, is 'free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union' absent a threat. Id. at 618, 89 S.Ct. 1918 at 1942.
He may even make a prediction as to the precise effects he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control or to convey a management decision already arrived at to (say) close (a) plant in case of unionization . . .. If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is . . . a threat . . ., and as such without the protection of the First Amendment.
With this background we turn to the particular speeches which the Board found to contain threats. 6 First, at the December 1st meeting senior partner Knowles spoke to explain how he and Hertzka were transferring ownership of the firm to the junior partners. During the course of explaining this complex scheme, he mentioned that the motivation was the desire to keep the business going-- 'we could have closed it up, but we didn't.' Ekstein, an OAE officer, immediately rose and characterized this as an unlawful threat to shut the firm down should the union win the election. Angered, Knowles advanced on Ekstein and declared that in courting a union, the employees were 'playing with a loaded stick of dynamite.' After being restrained by Hertzka, Knowles then said in a low-voiced aside to the former: 'Come on Wayne, we don't have to put up with this; we can close down.' 7 Because of the commotion, not everyone heard the last remark, but, according to the testimony of employee Dennis Smith, at least several of those in attendance did.
We think that both the 'loaded stick' comment and the aside to Hertzka are clearly unprotected by 8(c) or the First Amendment. These were threats to take action solely within the power of the employer and obviously unbased on any economic predictions. 8 It is not necessary for all the employees to have heard the remarks; as long as some heard, there was a good chance of an impact upon employee free choice. 9 Nor does it matter that it was not intended that others should hear the comments, for it is not only the subjective intent of the speaker that is significant, 10 but also the impact on the employees.
Second, at the same meeting Tobin, another management representative, expressed the view that employment at an architectural firm was 'transitory' and that 'when people leave Hartzka & Knowles in the future and Hartzka & Knowles is a union office, (its) people will be known as union activists and will find it very difficult to secure employment.' The examiner found this to be an implied threat to blacklist those supporting the union.
Hertzka & Knowles claims only that it was a true statement of fact based on OAE's poor reputation in the San Francisco architectural community. The dispute is thus purely one over the inference that can be drawn from Tobin's statement-- whether a prediction of fact or a threat to blacklist. The general rule is that if more than one inference can be drawn from a given set of facts, the Board's will control unles it is unreasonable. 11 Though we consider the question a close one, we cannot say it is unreasonable to conclude that, in the heat of a decertification campaign, reference to 'transitory' employment and the difficulty in finding employment elsewhere are implied threats to blacklist. See Coca Cola Bottling Co., 188 N.L.R.B. 590 (1971). 12
Third, Tobin went on to remark that if the office 'turned union,' it would be more difficult to find business due to the reluctance of clients to deal with a unionized architect; this, of course, would mean fewer employees. Hertzka later said much the same thing in slightly more veiled terms. The examiner found these to be implied threats to lay off union supporters.
Again, although we are troubled by this finding, we think there is substantial evidence to support it. The statement constitutes a prediction of economic consequences, but it is not, as required by Gissel, one 'carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control.' NLRB v. Gissel Packing Co., 395 U.S. at 618, 89 S.Ct. at 1942. Hertzka & Knowles produced no evidence of a prospective business slowdown in the event the office remained unionized. In fact, the evidence was to the contrary since the firm's business apparently increased during the 14 months OAE represented the employees. We therefore follow similar cases sustaining unfair labor practices involving unsupported predictions of company slowdown. See, e.g., Amalgamated Clothing Workers v. NLRB, 424 F.2d 818 (D.C. Cir. 1970).
When the results of the decertification election became clear on December 6, Hanna, a partner in the firm, called a meeting of both partners and professional personnel for the next morning. The meeting was opened by Hanna who commented that the eleven pro-union votes indicated a degree of dissatisfaction which had to be taken into account. He then asked for suggestions from the floor on how to accomplish a management-employee dialogue.
Employee Smith suggested the committee system previously described. The source of the idea, he later testified, was a proposal put forth by OAE during their unsuccessful negotiations with Hertzka & Knowles prior to decertification. 13 The idea of adding a management representative to the committees was Smith's; he felt it would lessen what he termed the 'long, tedious process' of negotiating with management that had been experienced with OAE as the bargaining agent. Smith's motion to adopt this system was seconded by two other employees and was approved by the employees, in the examiner's words, 'overwhelmingly.' An employee then suggested that the partners vote on the proposal. The suggestion was enthusiastically embraced, and the proposal passed unanimously.
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