McGraw-Edison Company v. NLRB, No. 19429.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBLACKMUN, Circuit
Citation419 F.2d 67
Docket NumberNo. 19429.
Decision Date04 December 1969
PartiesMcGRAW-EDISON COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Local 257, International Brotherhood of Electrical Workers, AFL-CIO, Intervenor.

419 F.2d 67 (1969)

McGRAW-EDISON COMPANY, Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent,
Local 257, International Brotherhood of Electrical Workers, AFL-CIO, Intervenor.

No. 19429.

United States Court of Appeals Eighth Circuit.

December 4, 1969.


419 F.2d 68

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.

419 F.2d 69

Before BLACKMUN, GIBSON and BRIGHT, Circuit Judges.

BLACKMUN, Circuit Judge.

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.

A. Restraint and coercion, in violation of 8(a) (1).

1. Threats. Section 8(c) of the Act, 29 U.S.C. § 158(c) provides,

"The expressing of any views, argument, or opinion * * * shall not constitute or be evidence of an unfair labor practice * * * if such expression
419 F.2d 70
contains no threat of reprisal or force or promise of benefit."

The Supreme Court has observed that the enactment of this provision "manifests a congressional intent to encourage free debate on issues dividing labor and management." Linn v. United Plant Guard Workers, 383 U.S. 53, 62, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966). And McGraw reminds us that the Ninth Circuit has said,

"The mere fact that campaign propaganda may induce fear — and be intended to produce fear — does not deprive it of the protection of section 8(c). That is often the nature of campaign propaganda." NLRB v. TRW-Semiconductors, Inc., 385 F.2d 753, 760 (9 Cir. 1967).

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 (Supervisor Burris to punch operator Taylor: "People don't know enough to leave well enough alone" and, if sufficient cards went in, "we will all be out of work, including me." Assembly foreman Johnson to three employees: "Think twice about wearing * * * union pins because * * * things might be a lot different * * *." Supervisor Spicer to welder Branham: If the union got in, Branham might not have a job and the company might even move out. Supervisor Spotts to riveter Mary Jane Buckler: "What will you be doing a year from now if the union doesn't get in?" Buckler replied that she would probably be drawing unemployment. The response was that she could not draw unemployment for more than six months. Repairman Preston Buckler and physically handicapped employee Swanson were told by plant foreman McKee that a union victory could result in the loss of jobs because of age or health. Supervisor Vasper to employee Attebury: "Juanita, be careful how you vote * * *. Look, at our age it would be hard for us to get a job." Supervisor Wybert to welder Hunt: If the union won, "they would either just close us up or run" or "would keep cutting production until they finally had to close up." Supervisor Roberts to employee Winkler: "They could starve us out and start up with all new faces." Plant manager Ferguson to Moberly Chamber of Commerce manager Sanderson in the presence of employee Robb: "I am being told what to do"; if the union came in, "the plant would have to shut down.") and similar statements at other McGraw facilities in Missouri (Supervisor Roods to diecaster Boeckman at Jefferson City: "We are slowing Moberly down practically to nothing." Supervisor Chrisman to employee Linda Schilb at Boonville: If the union got in at Moberly, the plant would close and "we would lose our hospitalization insurance and our profit sharing." Supervisor Bates to employee Joe Schilb at Boonville: It is just a matter of time until Moberly moves out and closes down. Plant superintendent Yount to employees Selby and Rithcie at Macon: There was a possibility of Macon closing down if they went union; it would not cost the company to move; and the layoff at Moberly could happen at Macon).

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

419 F.2d 71
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...

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33 practice notes
  • Packing House and Indus. Services, Inc. v. N.L.R.B., P-38
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 21 d4 Dezembro d4 1978
    ...Furthermore, agency principles are to be liberally construed in this context. See 29 U.S.C. § 152(13); McGraw-Edison Co. v. NLRB, 419 F.2d 67, 72 (8th Cir. 1 I assume the Board will require the cooperation of the employees in determining the amount of back wages to be offset by interim earn......
  • Healthcare Ass'n of New York State, Inc. v. Pataki, Docket No. 05-2570-cv.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 5 d2 Dezembro d2 2006
    ...sides of the question in order that they may exercise the informed and reasoned choice that is their right."); McGraw-Edison Co. v. NLRB, 419 F.2d 67, 70 (8th Cir. 1969) (Blackmun, J.) ("recognizing that labor and management, particularly during organizational campaigns, ordinarily `are all......
  • NLRB v. Ayer Lar Sanitarium, No. 25462.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 10 d4 Dezembro d4 1970
    ...665, 670 (2d Cir. 1970); N. L. R. B. v. Princeton Inn Company, 424 F.2d 264, 265 (3d Cir. 1970); McGraw-Edison Company v. N. L. R. B., 419 F.2d 67, 76 (8th Cir. 1969); Hanes Hosiery, supra, 413 F.2d at 458. The test is whether the business reason or the protected union activity is the movin......
  • S. Bakeries, LLC v. Nat'l Labor Relations Bd., No. 16-3328
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 27 d3 Setembro d3 2017
    ...of the claim and the parties had litigated it, and we therefore decline to find a due process violation. See McGraw-Edison Co. v. NLRB, 419 F.2d 67, 77 (8th Cir. 1969).8. Threats of discipline, job loss, and other reprisalsSouthern disputes the ALJ's determinations that the company threaten......
  • Request a trial to view additional results
33 cases
  • Packing House and Indus. Services, Inc. v. N.L.R.B., P-38
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 21 d4 Dezembro d4 1978
    ...Furthermore, agency principles are to be liberally construed in this context. See 29 U.S.C. § 152(13); McGraw-Edison Co. v. NLRB, 419 F.2d 67, 72 (8th Cir. 1 I assume the Board will require the cooperation of the employees in determining the amount of back wages to be offset by interim earn......
  • Healthcare Ass'n of New York State, Inc. v. Pataki, Docket No. 05-2570-cv.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 5 d2 Dezembro d2 2006
    ...sides of the question in order that they may exercise the informed and reasoned choice that is their right."); McGraw-Edison Co. v. NLRB, 419 F.2d 67, 70 (8th Cir. 1969) (Blackmun, J.) ("recognizing that labor and management, particularly during organizational campaigns, ordinarily `are all......
  • NLRB v. Ayer Lar Sanitarium, No. 25462.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 10 d4 Dezembro d4 1970
    ...665, 670 (2d Cir. 1970); N. L. R. B. v. Princeton Inn Company, 424 F.2d 264, 265 (3d Cir. 1970); McGraw-Edison Company v. N. L. R. B., 419 F.2d 67, 76 (8th Cir. 1969); Hanes Hosiery, supra, 413 F.2d at 458. The test is whether the business reason or the protected union activity is the movin......
  • S. Bakeries, LLC v. Nat'l Labor Relations Bd., No. 16-3328
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 27 d3 Setembro d3 2017
    ...of the claim and the parties had litigated it, and we therefore decline to find a due process violation. See McGraw-Edison Co. v. NLRB, 419 F.2d 67, 77 (8th Cir. 1969).8. Threats of discipline, job loss, and other reprisalsSouthern disputes the ALJ's determinations that the company threaten......
  • Request a trial to view additional results

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