Madison Brass Works, Inc. v. NLRB
| Decision Date | 14 July 1967 |
| Docket Number | No. 15979.,15979. |
| Parties | MADISON BRASS WORKS, INC., and Surf, Inc., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
John P. McCrory, Joseph A. Melli, Melli, Smith, Shiels & McCrory, Madison, Wis., for petitioners.
Marcel Mallet-Prevost, Asst. Gen. Counsel, Edward E. Wall, Atty., National Labor Relations Board, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Allison W. Brown, Jr., Atty., National Labor Relations Board, Washington, D. C., for respondent.
Before SCHNACKENBERG, KILEY and FAIRCHILD, Circuit Judges.
Petitioners seek to set aside an order of the Board finding them guilty of violating sections 8(a) (1) and (5) of the National Labor Relations Act. The Board cross-petitions for enforcement. We deny the petition and enforce the order.
Madison Brass Works, Inc., is a "jobbing foundry" which makes metal castings for industrial use. Using material obtained elsewhere, Surf, Inc., assembles, packages and ships marine hardware and ornamental candle lights. The two are affiliated1 and are located in Madison, Wisconsin.
On October 27 and 28, 1965, employee Burkeland solicited employees of petitioners to sign cards for membership in the Union.2 The Union wrote petitioners on October 29 claiming a majority and requesting bargaining. After receiving the letter on October 30, petitioners wrote their employees on November 2 concerning "our reasons for being against the Union." On November 4 Harry Vogts, an officer of petitioners,3 called a meeting of employees for the same general purpose as stated by the letter. At the conclusion of his talk, a poll of the employees was taken and the poll indicated the employees were not in favor of the Union. On November 5 petitioners' attorney wrote the Union expressing doubt of the Union majority and advising the Union of the result of the poll and willingness of petitioners to cooperate in arranging a representative election.
On November 12, 1965, the Union filed for the election. The petitioners consented to an election to be held November 30. On November 20 the Union filed unfair labor practice charges and served a copy of the charges on petitioners. On November 22 petitioners' attorney interviewed employees. Subsequently the Board's General Counsel filed a complaint charging 8(a) (1) violations through threats and interrogation, conducting an open poll of employees, and unilaterally awarding wage increases;4 and an 8(a) (5) violation for refusal to bargain with the Union.
Petitioners attack the credibility findings of the Examiner, and contend that they were denied due process because of variances between the complaint and Board findings and that there is no substantial evidence to support the Board's findings.
The Board found an 8(a) (1) violation in President Vogts' remarks at the November 4 meeting because they conveyed threats of "economic reprisal if the Union came in," and in the poll taken immediately thereafter because it was "coercive." It found against the General Counsel's charges that Vogts expressed a threat to employee Erickson on October 30, that Vogts threatened all employees in the November 2 letter, and that petitioners' attorney's interviews of employees on November 22, after the Union had filed charges, were violative of the Act.
We disagree with petitioners that the finding of an 8(a) (1) violation in Vogts' talk at the November 4 meeting has no substantial basis in the record as a whole. The written substance of Vogts' speech appears in an exhibit which states, among other things, that in the past employees were kept on when they could have been laid off; that Vogts and his father knew how much the weekly pay check means; that business had been bad the past few years and last year $11,000 was lost and the Vogts took no salary; that the coming of the Union could lead to strikes, strikes lose customers, lose money and stability for the company, and lost wages can never be regained; and that Vogts kept the business operating only in the interest of his father and the employees.
There is no material difference in the testimony of Vogts and employees Burkeland, Erickson and Anderson as to what was said at the meeting. The Examiner's characterization of Burkeland's testimony of Vogts' remarks at the meeting as "confused" does not render it incredible. Burkeland stated his inference, from what Vogts said, that Vogts made an express threat. The Examiner discredited the testimony of the inference, as well as testimony of Erickson, that an express threat was made to close down the business. On rebuttal Vogts denied any express threats.5
We have read the testimony of the witnesses as to what Vogts said and see no basis for a claim that the Board ignored evidence or should have called more witnesses. The record as a whole supports the finding that the speech was an unfair labor practice. The questions of credibility were for the Examiner and a finding that Vogts was merely expressing opinions is not compelled by the record. It was the Board's function to decide whether the November 4 talk conveyed threats of economic reprisals if the Union came in. NLRB v. Stanton Enterprises, Inc., 351 F.2d 261, 264 (4th Cir. 1965). The finding here is justified.
At the close of Vogts' remarks employee McLean suggested a vote be taken. Vogts conducted the poll by asking all in favor of the Union to stand and raise their hands. All but one voted against the Union. The Examiner and Board found that the poll was "plainly inspired" by Vogts' talk and that it called upon employees to reveal their Union sentiment to their employer who had just given an anti-Union talk. The Board's conclusion is that the poll was coercive notwithstanding Vogts' assurance at the meeting that the voting could be done without fear of reprisal.
In our view there is a substantial basis on the record as a whole for the Board's inference that the poll was coercive under the circumstances. The Board could within its power infer that the poll was not taken in a background free from hostility toward the Union. NLRB v. Mid-West Towel & Linen Serv., Inc., 339 F.2d 958, 961 (7th Cir. 1964). The Board could also infer that, under the circumstances, the presence of Vogts and Foreman Schwenn was coercive.6
We see no merit in the contention that there is no substantial evidence...
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