Laborers' Dist. Council of Georgia and South Carolina v. N.L.R.B.

• Decision Date: 19 July 1974
• Docket Number: AFL-CI,No. 73-1341,P,73-1341
• Parties: 86 L.R.R.M. (BNA) 2993, 163 U.S.App.D.C. 308, 74 Lab.Cas. P 10,193 LABORERS' DISTRICT COUNCIL OF GEORGIA AND SOUTH CAROLINA, affiliated with Laborers' International Union of North America,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Southern Frozen Foods, Inc., Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 868

501 F.2d 868

86 L.R.R.M. (BNA) 2993, 163 U.S.App.D.C. 308,

74 Lab.Cas. P 10,193

LABORERS' DISTRICT COUNCIL OF GEORGIA AND SOUTH CAROLINA,

affiliated with Laborers' International Union of

North America, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Southern Frozen

Foods, Inc., Intervenor.

No. 73-1341.

United States Court of Appeals, District of Columbia Circuit.

Argued March 5, 1974.

Decided July 19, 1974.

Jules Bernstein, Washington, D.C., with whom Robert J. Connerton and Arthur M. Schiller, Washington, D.C., were on the brief, for petitioner.

Vivian A. Miller, Atty., N.L.R.B., of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court with whom John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliot Moore, Asst. Gen. Counsel, and Robert A. Giannasi, Atty., N.L.R.B., were on the brief, for respondent.

Walter O. Lambeth, Jr., Atlanta, Ga., for intervenor. Warner S. Currie, Atlanta, Ga., also entered an appearance for intervenor.

Before TAMM, LEVENTHAL and ROBINSON, Circuit Judges.

TAMM, Circuit Judge:

This is an action under 10(f) of the National Labor Relations Act ¹ (hereafter 'the Act') to review a Decision and Order of the National Labor Relations Board ('the Board'). The Board's Order of March 28, 1973 ² held that the conduct of Intervenor Southern Frozen Foods, Inc. ('the Company') during an organization campaign conducted by Petitioner Laborers' District Council of Georgia and South Carolina, Affiliated With Laborers' International Union of North America, AFL-CIO ('the Union') did not violate 8(a)(1) of the Act. ³ For the reasons stated below we affirm the decision of the Board and deny the Petition to Review.

The Company operates two frozen food vegetable processing plants in Montezuma, Georgia, which average 650 employees. In October, 1971, the Union filed a petition with the Board seeking to represent the Company's production and maintenance employees. An election, held in December, 1971, resulted in 310 votes for the Union, 20 votes for an intervening union, and 304 votes for 'no union.' No one choice on the ballot having received a majority, the Board directed that a runoff election be conducted.

Prior to the runoff election the Union filed an unfair labor practice charge with the Board, alleging that the Company had violated 8(a)(1). In the runoff election, held January 22, 1973, the Union again failed to gain a majority of votes cast. ⁴ The Union filed objections to the election, however, the representation case was severed and remanded to the Board's Regional Director before the instant unfair labor practice case was sent to the Board for decision ⁵ and there are no representation issues before us for review. ⁶

A hearing was held May 3-4, 1972, and the Administrative Law Judge found, inter alia, that the Company had violated 8(a)(1) by distributing certain campaign literature to its employees between November 3, 1971 and January 27, 1972. The A.L.J. also found that a certain speech from the management supervisor to several employees violated the Act. Lastly, he found that one employee was threatened with discharge because of her union activities. ⁷

The Board on review, found: 1) that with one exception ⁸ the Company's literature was a permissable exercise of free speech and not violative of the Act; 2) that the supervisor's remarks did not violate the Act; and 3) that the employee was not unlawfully threatened. ⁹

The Union now petitions for review asserting that the Board committed error in finding that the Company had not violated 8(a)(1) of the Act in the various ways enumerated above. We will treat each alleged violation separately.

A. Campaign Literature

The organization campaign was characterized by the Board as 'a heated campaign typified by sharp conflicts of interests.' 202 NLRB No. 92 at 9. Both sides actively campaigned, distributing much printed material in the form of leaflets, letters, posters, and crudely drawn pictorial appeals which for want of a better name may be called 'cartoons.' Of all the material circulated by the Company, four items are of particular importance: a letter from the Company president to all employees dated January 5, 1972; ¹⁰ a similar letter dated January 14, 1972; ¹¹ a third letter dated January 24, 1972; ¹² and a cartoon distributed January 21, 1972. ¹³ The Administrative Law Judge found specifically that these individual items

. . . were not predictions 'carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control.' Rather they directly conveyed that Respondent would 'take action solely on (its) own initiative for reasons unrelated to economic necessities and known only to (it)' to resist demands for changes that Respondent might make in the absence of a union and leave the Union with a strike as its only alternative carrying with it the probable result of loss of jobs or a plant shutdown. The conclusion follows that Respondent intended 'to threaten to throw employees out of work regardless of the economic realities,' if the Union won the election. I find that Respondent's written communications to its employees during the pre-election period violated Section 8(a)(1) of the Act as alleged in the complaint.

J.A. I. at 28. As to the bulk of other items distributed by the Company, the Administrative Law Judge found that 'the express content of (the above enumerated letters) was not repeated in (the Company's) other literature, but the campaign literature otherwise served only to reinforce them.' Id. at 27.

The Board, in its review of the whole campaign, focused on the aforementioned four communications upon which the A.L.J. had relied to find specific unlawful Company threats of reprisal. The Board stated:

In our view, a reading of the entire record does not support the Administrative Law Judge's conclusion that the above-mentioned pieces of literature distributed on January 14, 21, and 24, along with others, constituted a threat that Respondent would throw its employees out of work regardless of the economic realities if the Union won the election. Respondent's communications at most represent one side of a heated campaign typified by sharp conflicts of interests. We note that from time to time the Union replied in an equally vigorous, partisan, and aggressive manner. Accordingly, we find on the basis of the totality of the campaign that with the exception of the January 5, 1972 letter Respondent's literature did not contain unlawful threats of retaliation if the Union were selected to represent the employees but rather were recitals of Respondent's beliefs regarding demonstrable economic consequences which could possibly flow from unionization. As such, the statements are protected by Section 8(c) of the Act. Accordingly, we shall dismiss the complaint except as it relates to the January 5 letter.

202 NLRB No. 92 at 9-10. Section 8(c), the provision relied upon by the Board reads as follows:

(c) The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit.

The Union here argues simply that the A.L.J.'s findings were correct and that the 'Board erred grievously in reversing (the A.L.J.'s) conclusions . . ..' ¹⁴ The Union states that in its communications, the Company 'repeatedly stressed the likelihood of the plant closing in the event of unionization, although it did absolutely nothing to demonstrate any objective basis for this prediction.' ¹⁵ The Union does not, however, direct us to any specific language from company letters, leaflets, or cartoons by which to illustrate threats or coercion on the part of the Company. We therefore take it that the Union here reasserts the views of the A.L.J. as to which specific company communications were unlawful, and shall review the findings of the Board as to those specific items. ¹⁶ It is well established that an employer has a right to express his opinions and to predict unfavorable consequences which he believes may result from union representation. Such predictions or opinions will not violate the Act if they have some reasonable basis in fact and are in fact predictions or opinions and not veiled threats of employer retaliation. In NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969) the Court enumerated the standards to be used in evaluating an employer's pre-election statements.

But we do note that an employer's free speech right to communicate his views to his employees is firmly established and cannot be infringed by a union or the Board. Thus, 8(c) (29 U.S.C. 158(c)) merely implements the First Amendment by requiring that the expression of 'any views, argument, or opinion' shall not be 'evidence of an unfair labor practice,' so long as such expression contains 'no threat of reprisal or force or promise of benefit' in violation of 8(a)(1).

. . . .he

Thus, an employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a 'threat of reprisal or force or promise of benefit.' 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 close the 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...