N.L.R.B. v. Gogin

Decision Date11 April 1978
Docket NumberNo. 77-1718,77-1718
Citation575 F.2d 596
Parties98 L.R.R.M. (BNA) 2250, 83 Lab.Cas. P 10,549 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Gerald G. GOGIN, d/b/a Gogin Trucking, Respondent.
CourtU.S. Court of Appeals — Seventh Circuit

Elliott Moore, Deputy Assoc. Gen. Counsel, David A. Fleischer, William R. Stewart, Attys., N. L. R. B., Washington, D. C., for petitioner.

Russ R. Mueller, Milwaukee, Wis., for respondent.

Before CASTLE, Senior Circuit Judge, and SWYGERT and WOOD, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

The National Labor Relations Board seeks, pursuant to Section 10(e) of the National Labor Relations Act, 29 U.S.C. §§ 151, et seq., enforcement of its order issued May 10, 1977 against Gerald Gogin, d/b/a Gogin Trucking (hereinafter the Company). 1

The Board 2 found that the Company violated: (1) Section 8(a)(1) of the Act by coercively interrogating two employees; (2) Sections 8(a)(3) and (1) of the Act by discriminatorily discharging one employee and by laying off and failing to recall another employee; and (3) Sections 8(a)(5) and (1) of the Act by refusing to bargain with, and withdrawing recognition from, the Union 3 as the bargaining representative of its employees.

I. Section 8(a)(1) Violations

In response to a loss of business from two of the Company's customers in January of 1976 because of its non-union status, the Company called a meeting on January 20. At this meeting, at which all of the city drivers were present, but none of the over-the-road drivers, 4 Mr. Gogin advised the employees of the loss of the customers and asked whether they had any suggestions for dealing with the problem. The employees were told they could sign a petition asking the union to talk to them, and after hearing from the union they could decide on whether to join. Gogin told them that whatever they decided was all right with him. A majority of the employees present decided to contact the union and drew up a petition for this purpose. They asked a fellow employee, Laise, to act as their representative in this regard. Laise went to the union business agent, Fularczyk, and received authorization cards. These cards were to be signed by the employees if they wanted the union to represent them in negotiating with the Company. Laise was told by the union to solicit both the city drivers and the over-the-road drivers. When Mr. Gogin heard that the over-the-road drivers were also being solicited by the union through Laise, he protested and told Laise that that group had nothing to say about the union, for the union was only for the city drivers.

On January 23, Scutchfield, an over-the-road driver, was presented with an authorization card, which he signed and returned. Later that same day Gogin asked him if he had been approached about joining the union, and added that the over-the-road drivers would not be allowed to unionize. Gogin told Scutchfield that he would sell the trucks before he would allow that to happen, and told Scutchfield he would be transferred to city driving if it did happen.

Gogin phoned another over-the-road driver, Hawver, and told him that the Company regarded the two groups of drivers as separate and there was "no way" the over-the-road operation would be allowed to "go union." Hawver was told by Gogin that before that happened the Company would fire the drivers, sell the trucks, and hire brokers to pull the freight. Hawver at this point told Gogin that he would not vote for the Union because of a past favor and asked what would happen to him if the over-the-road operations were eliminated. Hawver was told that he would be absorbed into the city driving operations. Hawver later changed his mind, and voted for the union. After that, on January 29, he was again questioned by Gogin as to whether he had signed an authorization card.

The Board found, based on these facts, that Gogin "coercively interrogated Scutchfield on January 23 and Hawver on January 23 (when Gogin told the men the Company) would close down its over-the-road operations before letting them go union. . . ."

An interrogation need not be explicitly threatening to be coercive within the meaning of Section 8(a)(1). Satra Belarus, Inc. v. NLRB, 568 F.2d 545 (7th Cir. 1978). "In order to determine accurately whether the interrogation would reasonably have been coercive, it must be viewed and interpreted as the employee must have understood the questioning and its ramifications. Interrogation, in order to offend the Act, must interfere with, restrain or coerce the employees . . . (or) tends to interfere with the free exercise of employee rights under the Act." Hughes & Hatcher, Inc. v. N. L. R. B., 393 F.2d 557, 563 (6th Cir. 1968).

We believe the record demonstrates the presence of factors which justify the finding of coercive interrogation by the Company of these two employees. 5 First, noting the background of the company-union relations, the facts demonstrate that while the Company was not opposed to the unionization of the city drivers, it was adamantly opposed to the organization of the over-the-road drivers. Secondly, the employees here were stopped and questioned by the highest Company official. Also we note that in both instances the employee was in essence told not to engage in union activity or join the union. Further the information sought was whether an authorization card had been signed, which is the type of information "most useful for purposes of discrimination." NLRB v. Milco, Inc., 388 F.2d 133, 137 (2d Cir. 1969). The Satra Belarus, Inc. court, supra at 548, has held that the Board may consider the nature of the information sought in relation to subsequent events. Here not only did the interrogation appear to be seeking information on which to base later action, but such action was in fact taken in connection with Hawver, only four days after the Company learned of his union activity.

The Company argues that its remarks to the men were nothing more than the legitimate prediction of a management decision, within the freedom of speech rights of an employer. NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). We note in response to this argument that the Court there also stated that such a "prediction must be carefully phrased on the basis of objective facts to convey . . . demonstrably probable consequences or . . . a management decision already arrived at. . . . If there is any implication that an employer may . . . take action solely on his own initiative for reasons unrelated to economic necessity . . . , the statement is . . . but a threat of retaliation . . . ." Id. at 618, 89 S.Ct. at 1942. The Company has not made any effort to show that it had any objective basis for believing that unionization would have the economic consequence of requiring the termination of the over-the-road operation. The purpose and motivation of the statements by Gogin appear to be exactly that which is forbidden by the Act, for the purpose of chilling the unionization efforts of a portion of its employees.

Similarly, we also reject the Company's argument that the statement could not have been considered coercive by either Scutchfield or Hawver, since both were told they would still have jobs as city drivers. 6 However, the record does not show that the Company promised to save the jobs of all the over-the-road drivers, neither did it offer to continue the over-the-road wages to these employees, nor did it assure them that there would not be some other form of reprisal if they did join the union.

Under the circumstances of this case, the Board was warranted in finding that the statements made to employees Scutchfield and Hawver were coercive, and thus violative of Section 8(a)(1).

II. Section 8(a)(3) Violations

The controlling principle behind the finding of a Section 8(a)(3) violation here is that the Company's action in discharging and laying off two employees was discriminatorily motivated. Electri-Flex Co. v. NLRB, 570 F.2d 1327 (7th Cir. 1978). Motivation is a question of fact to be determined by the Board from consideration of all the evidence and in making this determination the Board is free to rely on circumstantial, as well as direct evidence. NLRB v. Murray Ohio Manufacturing Co., 358 F.2d 948, 950 (6th Cir. 1966). Further, while there must be substantial evidence on the record to support the decision of the Board, the decision is entitled to affirmance "even though this court would justifiably have made a different choice had the matter been before it de novo." Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed.2d 456 (1957); Electri-Flex Co. v. NLRB,supra, at 1331. Applying the principles cited above to the facts of this case, we feel there is substantial evidence to support the findings of the Board that the discharge and the layoff were discriminatorily motivated.

Hawver had been employed by the Company since February, 1972, and was the most senior of the over-the-road drivers. 7 The Company had never expressed any dissatisfaction with Hawver's job performance, and the record reveals that he had received no disciplinary warnings during his term of employment. When Gogin first contacted Hawver regarding the unionization of the over-the-road drivers, and received assurances from Hawver that he would not support the union, Gogin told him that if it were necessary to eliminate over-the-road operations, Hawver would be transferred to the city operations. On January 29, Hawver was again questioned by his employer as to his union activities and at this time his employer found that he had changed his views and had signed a union authorization. Hawver was terminated four days later on February 2. In spite of his good employment record the Company contends that its sole reason, and a lawful motive, for discharging Hawver was the result of learning for the first time on January 30 that Hawver's conduct...

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