N.L.R.B. v. Rexall Corp., 83-1320

• Decision Date: 10 January 1984
• Docket Number: No. 83-1320,83-1320
• Citation: 725 F.2d 74
• Parties: 115 L.R.R.M. (BNA) 2384, 99 Lab.Cas. P 10,689 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. REXALL CORPORATION, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 74

725 F.2d 74

115 L.R.R.M. (BNA) 2384, 99 Lab.Cas. P 10,689

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. REXALL CORPORATION, Respondent.

No. 83-1320.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 12, 1983.

Decided Jan. 10, 1984.

William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Andrew F. Tranovich, Sue Gunter, Attys., N.L.R.B., Washington, D.C., for N.L.R.B.

D. Michael Linihan, James N. Foster, Jr., Ralph E. Kennedy, St. Louis, Mo., for respondent; McMahon, Berger, Breckenridge, Hanna, Linihan & Cody, St. Louis, Mo., of counsel.

Before LAY, Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge, and BRIGHT, Circuit Judge.

BRIGHT, Circuit Judge.

The National Labor Relations Board petitions for enforcement of its order (265 N.L.R.B. No. 15, October 18, 1982) that Rexall Corporation cease and desist from "threatening employees with possible discharge * * * [and] loss of existing benefits if they elect to be represented by Office & Professional Employees International Union, Local 13." Rexall contends that the Board's findings that Rexall violated section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(1), lack the support of substantial evidence on the record as a whole. We reverse one of the Board's two findings of violation, and affirm the other.

I.

At a representation election held on December 19, 1980, the clerical and office employees at Rexall's St. Louis facility voted 53 to 35 not to be represented by the Office & Professional Employees' Local 13 (the Union). The Union filed timely objections with the Board, charging Rexall with thirteen violations of section 8(a)(1). A Board administrative law judge (ALJ) heard evidence in the case, and determined that Rexall had committed a number of unfair labor practices in the course of the election campaign. On review, the Board sustained the ALJ on only two of the findings of violation. Rexall now challenges and we review those two findings.

A. The Swain Incident.

On December 3, 1980, Swain, Rexall's data processing manager, met with eleven office employees to discuss the union representation campaign. Swain told the employees of the terms and conditions under which Rexall's production and maintenance employees, who were unionized, worked. Specifically, he pointed out that the unionized workers' contract prohibited sympathy strikes, required employees to punch in and out on timeclocks, and subjected them to an "attendance control program" under which absences and tardinesses were grounds for disciplinary action by Rexall against individual employees. Swain made it clear to the employees that he was only describing the terms of the unionized workers' contract, not threatening them with its terms or implying that such terms would automatically or inevitably apply to the office workers if they voted for union representation.

The Board held, contrary to the ALJ, that Swain's remarks to the eleven employees did not constitute an unfair labor practice. "Swaine's [sic] statements were expository in nature," the Board wrote, "and, as such, fell squarely within the ambit of speech protected by section 8(c) of the Act." 265 N.L.R.B. at p. 15.

Immediately after his meeting with the eleven employees, Swain was approached by one of the eleven, Sherry Gillham, who had questions about the attendance control provisions of the production and maintenance workers' contract. Swain and Gillham examined the provisions together, and Gillham came to the conclusion that, had the provisions been in effect among the office workers, Gillham's record of absenteeism would justify her discharge under the contract. Swain specifically denied Gillham's allegations that he remarked that the attendance control program was of special concern to her because of her record of absences, and that he told her she would be discharged for absenteeism if the Union won the election. Even though the ALJ discredited Gillham's testimony generally, and credited Swain's, he held that Swain had impliedly threatened that Gillham would be discharged under the attendance control program if the office workers elected union representation. The Board affirmed without discussion the ALJ's finding of an unfair labor practice.

We reverse. At the group meeting immediately prior to the conversation with Gillham, Swain made it clear to those present, Gillham among them, that his description of the production and maintenance workers' contract terms was...