Jervis Corporation, Bolivar Division v. NLRB
| Decision Date | 13 December 1967 |
| Docket Number | No. 17340.,17340. |
| Citation | 387 F.2d 107 |
| Parties | JERVIS CORPORATION, BOLIVAR DIVISION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
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Clarence Clifton, and W. Kerby Bowling, Memphis, Tenn., for petitioner, Richard A. Brackhaln, Newell N. Fowler, Memphis, Tenn., on brief.
Warren M. Davison, Atty., N. L. R. B., Washington, D. C., for respondent, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Linda Sher, Atty., N. L. R. B., Washington, D. C., on brief.
Before WEICK, Chief Judge, EDWARDS, Circuit Judge, and CECIL, Senior Circuit Judge.
The Board found that Jervis Corporation, Bolivar Division, hereinafter referred to as Jervis, committed unfair labor practices in violation of Section 8(a) (1) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1), by threatening and interrogating its employees concerning their union activities during the course of a union election campaign, by creating the impression that their activities were under surveillance, and by promising benefits for abstention from further union activities. Jervis was ordered to cease and desist from such conduct and to post appropriate notices. 159 NLRB No. 8.
Jervis is a manufacturer of automobile accessories, and has a new plant in Bolivar, Tennessee, where it commenced operations in July, 1963. The union began organizational activity almost immediately and held its first organizational meeting in April, 1964. The union started to handbill the employees in May, 1964, and on January 15, 1965, it filed a petition for a representation election. The election, held on March 17 and 18, resulted in rejection of the union. Of 742 eligible voters, 128 cast ballots in favor of the union, and 501 voted against it. It was during this election campaign that all of the alleged unfair labor practices occurred.1
Interrogation of employees extended over a period of time from December, 1964, through March, 1965, and generally concerned three subjects. The employee was asked how he felt about the union, how his fellow employees felt about the union, and how many authorization cards had been signed. Shortly after one employee had been questioned concerning his union sympathies, and had indicated that he might favor the union, he was warned by the same supervisor not to "talk union on company time". No testimony of an implicated supervisor was offered before the Trial Examiner concerning any instances allegedly involving interrogation, and the testimony of the employees was uncontradicted. None of these incidents were of much consequence, however.
The Board found that contemporaneously with its interrogation Jervis was engaged in other violations of 8(a), (1), i. e. threatening the employees with certain consequences if the union won the election. These threats allegedly had been made by supervisors, as well as by a higher company official. Without enumerating the details of the alleged threats, their substance may be summarized as follows: That Jervis would not bargain with the union, even if it won the election; that Jervis had moved its plant from Memphis, Tennessee, because the union had gained entrance there; that Jervis would leave Bolivar if the employees selected the union to represent them; that some of the threats were accompanied by a statement that Jervis owned land and a building in Mississippi, and that the residents of the county there would be willing to pay the company's moving expenses if it should decide to leave Bolivar.
Not all of the alleged threats involved every element mentioned above, but they were typified by the remarks of Supervisor Charlie Jackson as he addressed a group of employees, of which William Cooper was a member. Cooper testified at the hearing that Supervisor Jackson said:
In addition, the Board found that the following portions of a recorded speech by Jervis' president which was distributed to its employees and was later played over its public address system and over a local radio station, constituted a threat to employees of loss of jobs if the union won the election. In the pertinent portion of the speech the president said:
The Board found that although the quoted passage was capable of an interpretation compatible with the Act, it was delivered at a time when there had been prior threats and rumors of plant closing, and within this frame of reference the quoted passage conveyed a meaning to the employee that if he chose to have the union represent him he was faced with plant closure, or at least fewer jobs.
The Board found the company guilty of creating the impression of surveillance. The conduct which gave rise to this alleged unfair labor practice stemmed from a single, isolated conversation between a company supervisor and an employee, out of the hearing of other company personnel.
The Board further found that certain conduct on the part of the company constituted unlawful promises of benefits made with the purpose of dissuading employees from selecting the union as their bargaining agent. Employee Norman Littlejohn was one of the company's most active union adherents. Some time in the middle of January, 1965, Supervisor Derryberry allegedly promised Littlejohn that if he would leave the union alone, within a year he would be a foreman. In March, 1965, shortly before the election, as Littlejohn stood at the plant entrance passing out handbills, he was approached proached by Supervisor Sledge. Little-john testified:
On February 15, 1965, Walter B. Kissinger, vice-president of the company, delivered a speech to assembled employees. The speech was opened with a recitation of some problems that had been faced and certain accomplishments of the company since its establishment in Bolivar. During this introductory phase the following comment was made:
"We have plans to build a modern cafeteria for you."
The bulk of the remainder of the speech dealt with the job evaluation and merit rating program which the company planned to implement on March 1, 1965. Finally, the speech closed with an observation by the speaker that the date set for the representation election was approaching and that the company hoped that the employees would see fit to maintain the present relationship. The Board found that the new cafeteria and the job evaluation program constituted benefits to the employees, and that the company had made the announcement with the intent of persuading its employees to vote against union representation.
It is axiomatic that the function of the reviewing court in a proceeding of this nature is limited to a review of the record to ascertain whether the findings of the Board are supported by substantial evidence, considering the record as a whole. Sections 10(e) and (f) of the Act, 29 U.S.C. § 160(e) and (f). Universal Camera Corp. v. NLRB, 340 U.S. 474, 491, 71 S.Ct. 456, 95 L.Ed. 456 (1951).
In our consideration of the Board's findings with respect to interrogation of employees, we start with the premise that not all interrogation is illegal under the Act. NLRB v. Dale Industries, Inc., 355 F.2d 851, 852 (6th Cir. 1966); NLRB v. Flemingsburg Mfg. Co., 300 F.2d 182, 184 (6th Cir. 1962); NLRB v. Tennessee Coach Co., 191 F.2d 546, 555 (6th Cir. 1951). Indeed, all subjects concerning which the employees in the instant case were queried, in a different context have been held permissible.2
In determining whether interrogation in a specific instance constitutes a prohibited restraint on the employees' protected right of freedom of organization, the frame of reference must include all incidents concerning the organizational effort. The interrogation must be viewed as the employee would have interpreted it, having in mind the total conduct of the employer3. What may ordinarily be a harmless inquiry is capable of becoming an unfair labor practice because of attendant circumstances. NLRB v. Zimnox Coal Co., 336 F.2d 516, 517 (6th Cir. 1964); United Fireworks Mfg. Co. v. NLRB, 252 F.2d 428, 430 (6th Cir. 1958); NLRB v. Armco Drainage & Metal Products, Inc., 220 F.2d 573, 583 (6th Cir. 1955). In our opinion, the Board's finding that interrogation under the circumstances present in the instant case violated Section 8(a) (1) of the Act, is supported by substantial evidence.
The record contains the testimony of several witnesses who testified that they were informed by company supervisors that the plant would move if the union won the election. Credibility of the witnesses is of course a matter for determination by the Board. United Fireworks Mfg. Co. v. NLRB, 252 F.2d 428, 430 (6th Cir. 1958). None of the accused supervisors was called to testify, and thus the damaging testimony stands uncontradicted in the record. In addition, the Board concluded that a part of a speech delivered by the company president could be construed as a threat to the employees of plant closure or a decrease in number of jobs.
The Board's finding that these actions on the part of the...
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