HL Meyer Company v. NLRB, 19818.

• Decision Date: 08 June 1970
• Docket Number: No. 19818.,19818.
• Citation: 426 F.2d 1090
• Parties: H. L. MEYER COMPANY, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

426 F.2d 1090 (1970)

H. L. MEYER COMPANY, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 19818.

United States Court of Appeals, Eighth Circuit.

May 19, 1970.

As Modified June 8, 1970.

F. Lee Major and Clifton L. Elliott, of Spencer, Fane, Britt & Browne, Kansas City, Mo., for petitioner.

Donald W. Savelson, Attorney, N.L.R. B., Washington, D. C., for respondent; Arnold Ordman, Gen. Counsel, N.L.R.B., Dominick L. Manoli, Associate Gen. Counsel, N.L.R.B., Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., and Robert A. Giannasi, Attorney, N.L.R.B., were on the brief.

Before BLACKMUN, GIBSON and LAY, Circuit Judges.

LAY, Circuit Judge.

H. L. Meyer Co., Inc. seeks to set aside the National Labor Relations Board's decision as to the company's violation of §§ 8(a) (1) and 8(a) (3) and (1) of the National Labor Relations Act, 29 U.S.C. § 158. The Board by cross-application seeks to enforce its order reported at 177 N.L.R.B. No. 75.

H. L. Meyer Co., Inc. is engaged in the manufacture of optical equipment. Its Kansas City plant is the only facility involved in the present proceeding. The unfair practice charges arose after Local Union 838¹ filed a representation petition with Region 17 of the Board requesting the certification of a bargaining representative election. The Union lost the election 64 to 45, and thereafter on March 6, 1968, objections to the conduct of the election were filed by the Union.² The present charges were filed against the company thereafter.

The § 8(a) (1) charges are diverse in nature. One charge is based upon a company supervisor's prolonged argument with one of the employees replete with threats and reprisals over union membership prior to the election; a second, upon a supervisor's threatening employees with loss of benefits because of union activity; and a third, upon the company's alleged wrongful installation of a suggestion box, used to impliedly promise benefits so as to discourage union activity. The § 8(a) (3) violation is premised on the alleged wrongful discharge of an employee, Jannie Rollins. We find substantial evidence to support the § 8(a) (1) charges but deny enforcement as to the § 8(a) (3) violation.

The 8(a) (1) violations.

There is substantial evidence to support the Board's findings that the company conducted a vigorous anti-union campaign. There is also evidence of wrongful interrogation of employees during the organizational campaign. Although § 8(c) allows a company to campaign against the union, it marks definite boundaries as to when its conduct may be prohibited.³ In the instant case there exists substantial proof that the company overstepped these bounds.

This court has observed on many occasions that an employer's interrogation of its employees is not unlawful per se, unless it is conducted in a background of company hostility so as to induce a fear of reprisal in the employee for his union activity. See e.g. NLRB v. Ralph Printing & Lithographing Co., 379 F.2d 687 (8 Cir. 1967). When interrogation serves as a threat, either direct or implied, which dissuades the employee from participating in concerted activity it is unlawful. The record contains several instances of such coercive interrogation.⁴ The fact that several of these interrogations were of a single employee does not in itself remove them from the status of unfair practices under the Act. There was more than one instance of such interrogation and each incident occurred in a continuing background of overall union hostility by the company. Cf. NLRB v. Crystal Tire Co., 410 F.2d 916 (8 Cir. 1969).

The Board also found that the company wrongfully installed a suggestion box in order to answer questions, in violation of the Act. It was the Board's determination that the company used questions submitted by employees to imply promises of future benefits and to explain their present withholding of benefits because of the election. The company posted these lists of questions and answers. The Board likewise found that the company attempted to resolve employee grievances through this procedure. The company asserts that the answers were permissible under § 8(c) and did not constitute any promise of benefit or threat of reprisal. We have approved question and answer meetings before elections where the discussions avoided any attempt by the company to imply promises of benefit if the union was defeated. See Fairchild Camera & Instrument Corp. v. NLRB, 404 F.2d 581 (8 Cir. 1968). However, in the instant case we find the evidence reasonably supports the Board's finding that the purpose of the published lists was "to imply certain offers of benefits should the Union be defeated, * * *" The company in answering one question submitted, confirmed that specific benefits had recently been given to its employees at other plants but noted that because of the forthcoming election similar benefits could not be given in Kansas City. Similarly, the company acknowledged the "possibility" of wage increases if the union lost the election. The company's explanation, that it was merely providing a lawful means to air grievances, cannot stand in view of the totality of the circumstances surrounding the use of the box and the phraseology of the answers. Cf. NLRB v. Delight Bakery, Inc., 353 F.2d 344 (6 Cir. 1965); NLRB v. Larry Faul Oldsmobile Co., 316 F.2d 595 (7 Cir. 1963). The overall circumstances under which the company's statements were made are highly relevant to a judgment as to whether there were § 8(a) (1) violations. NLRB v. Gissel Packing Co., 395 U.S. 575, at 620, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). The record contains substantial proof of union animus. There can be little doubt that the use of the suggestion box in this case was intended to reflect adversely upon the union. The innocuous answers to some questions cannot salvage or redeem the calculated mischief done by others.

The discharge of Jannie Rollins.

The employee Rollins was a Negro woman who had been employed by the company for approximately one and a half years. She had been active in promotion of the union. The evidence shows the company was fully aware of her activities. She was never reprimanded for them but at one time was asked by her foreman whether she had ever belonged to a union. When she answered yes, the foreman asked her what the union had ever done for her or the other employees.

On January 30, Rollins while at work had a conversation with Gladys Hall, a Negro, who had applied for work at the H. L. Meyer Co. Hall had been told by company officials that there were no job openings available, and queried Rollins whether the company was hiring anyone at this time. According to Rollins, she replied, "Yes, quite a few white, no colored lately." According to another witness, who allegedly overheard the conversation, Gladys Hall said that Rollins told her, ...