McGraw-Edison Company v. NLRB
Decision Date | 04 December 1969 |
Docket Number | No. 19429.,19429. |
Parties | McGRAW-EDISON COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Local 257, International Brotherhood of Electrical Workers, AFL-CIO, Intervenor. |
Court | U.S. Court of Appeals — Eighth Circuit |
Paul S. Kuelthau, of Moller, Talent & Kuelthau, St. Louis, for petitioner and filed brief and reply brief.
John D. Burgoyne, Atty., 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. General Counsel, N.L.R.B., and Robertamarie Kiley, Atty., N.L.R.B., were on the brief with Mr. Burgoyne.
Charles A. Werner, St. Louis, Mo., for intervenor; Gibson Langsdale, Kansas City, Mo., was on the brief with Mr. Werner.
Before BLACKMUN, GIBSON and BRIGHT, Circuit Judges.
This case has its genesis in two complaints filed by the general counsel in 1966 against McGraw-Edison Company (Bersted Manufacturing Division). One complaint was based on charges by Local 257, International Brotherhood of Electrical Workers, AFL-CIO. The other rested on charges by Teamsters Local 833, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America.
McGraw seeks review of the resulting order of the National Labor Relations Board issued August 19, 1968, and reported as 172 NLRB No. 178. The Board, by cross-application, seeks enforcement of its order. The Board, in agreement with its trial examiner except for minor modifications not significant here, found that McGraw violated § 8(a) (1) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1), by numerous threats to employees for union activity, by threats to close down and move its Moberly, Missouri, plant if an organizational campaign succeeded, by interrogation of employees, and by granting wage increases and hospitalization benefits to discourage union activity. The Board also found that McGraw violated § 8(a) (3) and (1) by laying off 120 employees at its Moberly plant and delaying their recall, and by discharging two employees at its warehouse at Columbia, Missouri. Finally, the Board found that McGraw violated § 8(a) (5) and (1) by unilateral changes in incentive wage rates and by refusing IBEW permission to make time studies in the Moberly plant. The trial examiner had decided some issues in McGraw's favor.
The Board's order directs McGraw to cease and desist from the unfair labor practices so found; to permit IBEW, upon request and under reasonable terms and conditions, to perform its own time studies on incentive rated jobs; to offer the two Columbia employees reinstatement with full seniority rights; to make those two and the 120 Moberly employees whole for any loss suffered by them; to make available to the Board records necessary for an analysis of backpay due and rights to reinstatement; and to post appropriate notices.
Jurisdiction is established under § 10(e) and (f) of the Act, 29 U.S.C. § 160(e) and (f). This court granted IBEW permission to intervene on the side of the Board.
McGraw, through its Bersted Division, is engaged in the manufacture of electrical appliances at plants in Moberly, Boonville, Kirksville, Jefferson City, Macon, and Clarence, Missouri. It also maintains a warehouse at Columbia. In March 1966 IBEW initiated a campaign to organize the company's Missouri plants. On May 17 the union filed a representation petition with the Board. An election was scheduled and conducted at the Moberly plant on July 8. Prior to the election 120 second shift Moberly employees were laid off. IBEW won the election and on July 18 was certified as the bargaining representative of the Moberly production and maintenance workers. The record does not disclose that IBEW filed representation petitions at any other of the company's plants. Representatives of the company and of the union bargained between August 3 and November 4, 1966, but then recessed, without reaching agreement, pending the outcome of the unfair labor practice proceeding.
The Teamsters in their turn instituted an organizational campaign at the Columbia warehouse in September 1966. On October 3 it filed a representation petition. The Board conducted an election on November 7. The Teamsters lost by a vote of 7 to 2.
The Sixth Circuit quoted this language with approval in Automation & Measurement Division v. NLRB, 400 F.2d 141, 145 (6 Cir. 1968). See also NLRB v. Herman Wilson Lumber Co., 355 F.2d 426 (8 Cir. 1966).
Accepting these statements and recognizing that labor and management, particularly during organizational campaigns, ordinarily "are allowed great latitude in freedom of expression, even to the extent of making predictions", NLRB v. Vinylex Corp., 404 F.2d 1200, 1201 (6 Cir. 1968), we nevertheless conclude that, on the entire record before us, the Board reasonably could find coercion by threats on the part of management. The trial examiner not inappropriately noted and credited numerous comments by supervisory and higher personnel at Moberly and similar statements at other McGraw facilities in Missouri .
McGraw would explain these remarks on the ground that they were made while the IBEW campaign was in full swing; that the employees felt no constraint at revealing their feelings about the union; that it was only natural for supervisors to speak out when approached by employees; that the expressions for the most part were opinion; that the company had had a long strike at Fostoria, Ohio, with violence, and some of the statements are to be considered in the light of that fact; that many of the comments are those of only minor supervisory employees; and that the remarks were isolated.
This is good argument, but at this stage of the case it is not persuasive upon us. The multiplicity of the statements, the fact that some are attributable to officials of high rank, and the nature of their content lead us to conclude that the general counsel sustained the burden of proving the interference test outlined in NLRB v. Link-Belt Co., 311 U.S. 584, 599, 61 S.Ct. 358, 85 L.Ed. 368 (1941), and in NLRB v. General Indus. Electronics Co., 401 F.2d 297, 300 (8 Cir.1968), namely, whether the statements taken in their setting are reasonably likely to restrain, and whether it may fairly be said that the employer is responsible for them. We regard them clearly as threats of reprisal which lie beyond the protection of § 8(c). NLRB v. Louisiana Mfg. Co., 374 F.2d 696, 702-703 (8 Cir.1967); NLRB v. Byrds Mfg. Corp., 324 F.2d 329, 332 (8 Cir.1963).
2. The Chamber of Commerce letter and two newspaper advertisements. The trial examiner and the Board found that McGraw had an obligation to disavow coercive aspects of a letter dated June 13, 1966, sent to Moberly employees of the company by Chamber of Commerce manager Sanderson1 and advertisements placed in a Moberly newspaper on July 5 and July...
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