N.L.R.B. v. Monroe Tube Co., Inc.
| Decision Date | 29 November 1976 |
| Docket Number | No. 89,D,89 |
| Citation | 545 F.2d 1320 |
| Parties | 94 L.R.R.M. (BNA) 2020, 79 Lab.Cas. P 11,754 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MONROE TUBE COMPANY, INC., Respondent. ocket 76-4104. |
| Court | U.S. Court of Appeals — Second Circuit |
Mary K. Schuette, Atty., John S. Irving, Jr., Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Robert Sewell, Atty., N.L.R.B., Washington, D.C., for petitioner.
Frederick L. Sullivan, Richard D. Hayes, Sullivan & Hayes, Springfield, Mass., for respondent.
Before WATERMAN and VAN GRAAFEILAND, Circuit Judges, and MOTLEY, District Judge. *
This is a petition by the National Labor Relations Board ("the Board") pursuant to Section 10(e) of the National Labor Relations Act, as amended, 1 ("the Act") for enforcement of an order (1) directing Respondent, Monroe Tube Company, Inc. ("the Company"), to cease and desist from engaging in certain specified activities allegedly violative of Section 8(a)(1) 2 of the Act; (2) requiring the posting of appropriate notices; and (3) setting aside a representation election, with a remand to the Regional Director to conduct a new election.
After a hearing before an Administrative Law Judge at which both the unfair labor practice charges and election objections were consolidated for trial, 3 the Board concluded that Respondent had violated Section 8(a)(1) of the Act "(b)y encouraging and assisting employees to withdraw their union authorization cards and by interrogating employees concerning their union activities and union sentiments". 4 The Board rejected, however, those objections to the election based upon allegations that Respondent's president had publicly threatened to close the Company if the Union 5 won the election. In this enforcement proceeding, we are called upon to determine whether the Board's findings that Respondent violated Section 8(a)(1) are supported by substantial evidence on the record considered as a whole. 6
Respondent employs about fifty persons in the manufacture of metal tubing at its one plant in Monroe, New York. Early in August of 1973, the Union began a drive to organize the factory. By the end of the first week, a number of employees had signed union authorization cards. On August 10, Respondent's president, Harold Grout, assembled all employees in the plant lunchroom for a brief prepared speech in which he advised the employees that signing cards would have serious legal consequences. He urged them not to sign until they had heard Respondent's views on union representation. He promised another meeting within a few days at which these views would be presented.
Some three or four days after Mr. Grout's speech, "night foreman" 7 James Verbert approached Perry Nowak, an employee on his shift, and asked him to sign a written form seeking the withdrawal of his union authorization card. Verbert "made it clear" that he wanted Nowak to sign the card, although Nowak indicated that he wished to draft his own copy. Nowak ultimately did sign but asked Verbert not to turn the card in to the office. He wanted to draft his own letter and turn it in himself. Within the next few days, plant manager John Romer returned the form to Nowak advising that Nowak had neglected to fill in Respondent's name, and that the form would not be effective unless he did so. Nowak reiterated that he wanted to draft his own letter. Despite Romer's repeated requests that he complete the form, Nowak refused to do so, whereupon Romer became "flustered" and left. Nowak never sent his own letter requesting the return of his card.
On August 15, the employees were again assembled in the lunchroom. Mr. Grout again speaking from a prepared text repeated his earlier warning about the consequences of joining a union and reminded the employees that Respondent, rather than the Union, provided wages and fringe benefits. He indicated that if the Union had refused to return authorization cards to employees who wanted them back, that fact should make them realize the sort of organization with which they were dealing. He cautioned the employees that they had the right to be free of any "pressure or harassment" to sign cards against their will. He added that any employees who had been refused the return of their cards should write directly to the Union headquarters in Yonkers for such return. He suggested that the employees keep a copy of any such letter. He offered the use of Respondent's copying equipment for that purpose.
On August 16, the Union filed a petition to represent Respondent's employees with the Board. About the same time, Mr. Romer told a group of employees that he would supply them with the Union's address in the event that they decided to send a letter requesting the return of their authorization cards. When employee James Sinsabaugh, who had voluntarily written a withdrawal letter, later asked Mr. Romer for the address, Romer handed him a number of slips of paper bearing the address and told him to give them to other employees who wanted to get their cards back.
At approximately the same time, foreman Verbert asked Charles Rosenstock, another worker on the night shift, whether he had signed a union card and whether he was serious when he did so. Rosenstock replied that he had, in fact, signed a card, but that he wasn't really sure whether he was serious in so doing. Verbert made no inquiry as to whether other employees had signed cards, but he asked whether Rosenstock wanted to write for the return of his card. He offered to provide Rosenstock with the Union's address. About a week later, Rosenstock wrote such a letter, gave it to Verbert, and received a copy of it from Respondent after it was mailed to the Union.
At the company picnic on August 18, Verbert asked Edward Willard, another employee on his shift, whether he had written to the Union to have his authorization card returned. When Willard responded that he had not, Verbert wrote a letter of withdrawal and asked him to sign it. In view of Verbert's previous inquiries some days earlier as to whether he had signed a card and whether anyone else had signed cards, Willard signed the letter and gave it back to Verbert. The letter was apparently never sent to the Union, however, perhaps in view of the fact that all the employees had been drinking to some extent at the outing. 8
The Union withdrew its representation petition on September 5 and filed a new petition the following day. Subsequently, an election was scheduled for October 12. On the evening of October 10, President Grout assembled the "night shift" 9 employees for a final speech concerning the Union. On the following day, he gave a similar speech to the day shift. In both of those extemporaneous speeches, Mr. Grout reiterated the themes of the speeches he had given in August, emphasizing the disadvantages which he perceived in belonging to a union. In addition, he told the employees that Respondent was not in a good financial condition, that it had difficulty in competing with other companies because of its location and older production equipment, and that he had considered selling the business.
The election resulted in the employees' rejection of the Union by a vote of 22 to 15, with seven ballots challenged by the Union, but undeterminative. The Union filed timely objections to the election based on alleged threats made by President Grout and production engineer Frank Hegedus to the effect that Respondent would be closed in the event of a Union victory in the election.
On October 23, after the time for filing objections to the election had expired, 10 the Union filed an unfair labor practice charge. The charge alleged the same speech threats on which the election objections had been based and, in addition, alleged that Respondent had unlawfully solicited the withdrawal of employees' union authorization cards. Complaint issued on these allegations on December 19. The objections and unfair labor practice allegations were consolidated for purposes of a hearing. At the hearing in January of 1974, the complaint was amended to include additional allegations that Respondent had engaged in unlawful interrogation of its employees concerning their union activities.
On the basis of the documentary and testimonial evidence adduced at the hearing in January of 1974, 11 the Board found Respondent in violation of Section 8(a)(1) of the Act. It ordered Respondent to cease and desist from "(e)ncouraging and assisting employees to withdraw their union authorization cards and interrogating employees concerning their union sentiments or union activities". It further ordered that Respondent cease and desist from "(i)n any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act". Respondent appeals from the Board's unfair labor practice findings, order and remedy, including the direction of another election.
Since much of the allegedly unlawful conduct on which the Board predicates its unfair labor practice findings was the activity of Verbert, we first examine the Board's finding that Verbert was a "supervisor" within the meaning of the Act, so as to make his conduct attributable to Respondent. While we agree that this is a close question, we find that the Board's affirmative finding was without sufficient support in the record.
Section 2(11) of the Act 12 defines a supervisor as "any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their...
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