N.L.R.B. v. Intertherm, Inc.

• Decision Date: 25 April 1979
• Docket Number: No. 78-1495,78-1495
• Citation: 596 F.2d 267
• Parties: 100 L.R.R.M. (BNA) 3016, 85 Lab.Cas. P 11,182 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERTHERM, INC., Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 267

596 F.2d 267

100 L.R.R.M. (BNA) 3016, 85 Lab.Cas. P 11,182

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERTHERM, INC., Respondent.

No. 78-1495.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 13, 1978.

Decided March 19, 1979.

As Amended April 25, 1979.

Barbara G. Gehring, Atty., N. L. R. B., Washington, D. C., for petitioner; John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Paul J. Spielberg, Deputy Asst. Gen. Counsel, Washington, D. C., on brief.

D. Michael Linihan, of McMahon, Berger, Breckenridge, Hanna, Linihan & Cody, St. Louis, Mo., for respondent; Ralph E. Kennedy, St. Louis, Mo., on brief.

Before BRIGHT and HENLEY, Circuit Judges, and HARPER, Senior District Judge. ^*

HENLEY, Circuit Judge.

The National Labor Relations Board petitions this court pursuant to § 10(e) of the National Labor Relations Act for enforcement of its order against Intertherm, Inc. This order enumerates ten instances where the conduct of the Company's management and supervisory personnel allegedly violated § 8(a)(1) of the NLRA by interfering with, restraining or coercing employees who were exercising their rights to gain union representation by consent election in accord with § 7 of the Act. Intertherm was directed to cease and desist from these unfair labor practices and to post notices which detailed the rights of its employees and stated that the Company would comply with the Board's order. In addition, the Board found one violation sufficiently serious to warrant setting aside the consent election in which Intertherm's employees had rejected representation by the International Union, United Automobile, Aerospace & Agricultural Implement Workers of America. We grant enforcement of the Board's order insofar as it relates to the seven instances where we affirm the Board's finding of a violation. But we refuse enforcement with regard to the remaining three alleged violations.

This controversy stems from the Union's efforts to organize employees at four Intertherm plants in St. Louis during late 1976 or early 1977. The organizing campaign was directed at the Company's production and maintenance employees and largely consisted of voter solicitation, handbilling and the distribution of union authorization cards, bumper stickers, lapel buttons and pocket protectors, many of which bore the Union logo. A group of Intertherm employees aided in implementing this publicity campaign and in monitoring the consent election, which was held on January 14, 1977. The Union lost the election by a vote of 201 to 216, with ten ballots subject to challenge.

With one exception, the unfair labor practices charged in the Board's order occurred either in the Company's 38th Street Plant or its Gustine Plant. ¹ And all relate to the various ways in which the Company, acting through its managers and supervisors, sought to prevent unionization by discouraging pro-union employee activities. For convenience and after a brief discussion of the applicable legal standards we treat these violations according to plant situs.

I

Section 7 of the NLRA guarantees employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . ." 29 U.S.C. § 157. Section 8(a)(1) protects these rights by making it an unfair labor practice for an employer "to interfere with, restrain or coerce employees in the exercise of the rights guaranteed in (Section 7) . . . ." 29 U.S.C. § 158(a)(1). In evaluating employer conduct pursuant to this latter provision, we have stated that the test is not whether an attempt at coercion has succeeded or failed, but whether "the employer engaged in conduct which reasonably tends to interfere with, restrain, or coerce employees in the free exercise of their rights under Section 7." Russell Stover Candies, Inc. v. N. L. R. B., 551 F.2d 204, 208 (8th Cir. 1977).

We are, of course, bound to accept the Board's determination of a § 8(a)(1) violation in accord with this standard provided that its findings are supported by substantial evidence on the record considered as a whole. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); R. J. Lallier Trucking v. N. L. R. B., 558 F.2d 1322, 1325 (8th Cir. 1977); N. L. R. B. v. Fremont Mfg. Co., 558 F.2d 889 (8th Cir. 1977). Such findings are entitled to respect and must not be set aside unless "the record before a Court of Appeals clearly precludes the Board's decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both." Universal Camera Corp. v. N. L. R. B., supra, 340 U.S. at 490, 71 S.Ct. at 466. And

we are required to keep in mind that it is the function of the Board, and not of this court, to pass upon questions of the credibility of witnesses and the weight to be given to their testimony, and that the Board is free to draw such reasonable inferences as may be warranted by the evidence.

R. J. Lallier Trucking v. N. L. R. B., supra, 558 F.2d at 1325. See also N. L. R. B. v. Fremont Mfg. Co., supra, 558 F.2d at 890-91; N. L. R. B. v. Melrose Processing Co., 351 F.2d 693, 698 (8th Cir. 1965). Mindful of the above standards, we proceed to an evaluation of the Board's unfair labor practice determinations.

II

38th Street Plant Violations.

The Board charged Intertherm with three § 8[a] violations for its supervisory activities at the 38th Street Plant. These violations related to two separate incidents in which plant supervisors interfered with the employees' right to wear union insignia. It has long been recognized that an employer may not restrict that right absent exigent circumstances relating to employee efficiency or plant discipline. Republic Aviation Corp. v. N. L. R. B., 324 U.S. 793, 802 n.7, 65 S.Ct. 982, 89 L.Ed. 1372 (1945); Serv-Air, Inc. v. N. L. R. B., 395 F.2d 557, 563 (10th Cir.), Cert. denied, 393 U.S. 840, 89 S.Ct. 121, 21 L.Ed.2d 112 (1968); Fabri-Tek, Inc. v. N. L. R. B., 352 F.2d 577, 584-87 (8th Cir. 1965). And we grant enforcement of the Board's order with respect to these three violations.

In the first incident, employee Eugene Smith was walking through the plant wearing a union lapel pin and pocket protector. As he passed by supervisor Alvin Frost and Frank Caleco, another rank-in-file employee, Caleco stated to Smith, "you can't wear that (the union insignia), you can get fired." Supervisor Frost made no attempt to disavow or correct this threatening statement but instead ordered Smith to remove the insignia until Frost could check with the plant personnel office. Smith complied with this order but Frost never returned to inform Smith of his right to wear such insignia.

Both the Board and the Administrative Law Judge (ALJ) who heard testimony from Smith and Frost determined Frost had ratified Caleco's threatening remark. Such remarks, if they are made by or are properly imputed to supervisors, constitute obvious violations of the Act. Here Frost not only failed to repudiate or correct Caleco's threat but, in effect, reinforced it by immediately ordering Smith to remove the insignia until Frost could determine the propriety of wearing them. He then left the threat outstanding by failing to clarify the situation as promised. The Board found a second violation in Frost's order to remove the insignia because, taken alone, it constituted an interference with Smith's right to campaign for the Union.

There is much authority for the proposition that a supervisor commits an unfair labor practice by ratifying the illicit threats of another. See, e. g., Stewart & Stephenson Services, Inc., 164 NLRB 741, 65 LRRM 1314, Enf'd, 414 F.2d 232 (5th Cir. 1969); E. B. Law & Son, 92 NLRB 826, 27 LRRM 1168 (1950), Enf'd, 192 F.2d 236 (10th Cir. 1951). Cf. N. L. R. B. v. Mike O'Connor Chevrolet, Inc., 512 F.2d 684, 688 (8th Cir. 1975) (employee's remark not imputed to supervisor who had merely failed to disavow the remark). After reviewing the record, we are convinced that there is substantial evidence supporting the Board's finding of such a ratification here. We also agree that Frost committed an additional violation by ordering Smith to remove the union insignia and then failing to ensure Smith was notified of his right to replace them.

The final violation at the 38th Street Plant occurred when supervisor Sandbothe interfered with employee Gilliam's right to wear campaign insignia by covering the union logo on Gilliam's plastic pocket protector with a small sticker bearing the Intertherm logo. Gilliam spent the remainder of the election day wearing the company sticker and explained its presence to several other employees.

The Company argues there was no unfair labor practice in this incident because Sandbothe's actions were part of a running joke between Gilliam and Sandbothe and were not coercive. Sandbothe admitted covering the union logo but stated he was only joking and that Gilliam was free to remove the sticker. Gilliam, on the other hand, admitted there was laughter in the conversation before this incident but thought he was required to keep the union logo covered. The ALJ credited Gilliam's testimony that the affair was no joking matter and found a violation. The Board agreed. With some misgiving we refuse to reject the ALJ's determination and hold that he drew a reasonable inference of coercion which was warranted by the evidence. R. J. Lallier Trucking v. N. L. R. B., supra, 558 F.2d at 1325. The mere fact that there was laughter between Sandbothe and Gilliam did not preclude the administrative finding that an act of coercion or restraint had taken place. See, e. g., N. L. R. B. v....