N.L.R.B. v. Tamper, Inc.
| Decision Date | 24 July 1975 |
| Docket Number | No. 74-1331,74-1331 |
| Citation | 522 F.2d 781 |
| Parties | 89 L.R.R.M. (BNA) 3034, 77 Lab.Cas. P 11,022 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TAMPER, INC., Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
John G. Elligers, Atty., N. L. R. B. (Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Allison W. Brown, Jr., Atty., N. L. R. B., on brief) for petitioner.
J. Frank Ogletree, Jr., Atlanta, Ga. (Thompson, Ogletree & Deakins, Atlanta, Ga., on brief) for respondent.
Before BOREMAN, Senior Circuit Judge, and BUTZNER and FIELD, Circuit Judges.
This proceeding was brought by the National Labor Relations Board (herein Board) pursuant to Section 10(e) of the National Labor Relations Act, 1 seeking enforcement of its order based upon findings of numerous violations of the Act by respondent, Tamper, Incorporated (herein Tamper or Company). The Board's decision and order, Chairman Miller dissenting in part, which adopted the decision of the Administrative Law Judge, are reported at 207 N.L.R.B. 907 (Dec. 14, 1973).
The Board found Tamper guilty of the following violations: (1) coercively interrogating employees concerning organizational activities; (2) conveying an impression to employees of surveillance by the Company of organizational activities; (3) threatening to withhold general wage adjustments in order to influence a Board ordered election; (4) threatening to bargain "from scratch" if the Union prevailed in the election; (5) interrogating employees subpoenaed by the Board about charges filed by the General Counsel with the Board; (6) reprimanding an employee on May 8, and on June 6, 1972, for organizational activities; (7) transferring an employee because of organizational activities; and (8) discharging an employee on July 5, 1972, for organizational activities. Because of the complexity of the evidence and the importance of several of the issues raised we find it necessary to set forth our conclusions in detail.
In early 1972, Local 509 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein Union) began an organizational campaign at Tamper's Columbia, South Carolina, plant. The Board scheduled a representation election for July 12, 1972, but, as a result of several unfair labor practice charges filed against Tamper, the election was postponed until October 10, 1972. A hearing on the unfair labor practice charges was scheduled for October 11, the day after the election. The Union lost the election and additional unfair labor practice charges were filed. The Administrative Law Judge who heard the matter found Tamper guilty of the numerous violations previously set forth herein and a new election was ordered. The Board summarily adopted the Administrative Law Judge's decision and order and now petitions this court for enforcement.
The General Counsel alleged and the Board found that the Company violated Section 8(a)(1) of the Act 2 by coercively interrogating employees about protected organizational activities. The credited evidence shows that on June 19, 1972, Clarence Adkins, a supervisor, approached Jimmy Patterson, an employee, and asked him what he thought about the Union and how he was going to vote. Upon receiving an evasive answer, Adkins advised Patterson that if he were smart he would not vote for the Union. About a week later Adkins again approached Patterson, who had just been talking with Clarence Berry, a Union organizer and advised him not to talk with Berry since Berry might try to influence his decision about voting on unionization. Although the other alleged incidents of coercive interrogation of employees by supervisors 3 are less dramatic, they cannot be viewed in isolation. In view of all the evidence, we are of the opinion that there is substantial evidentiary support for the Board's finding that the Company had engaged in coercive interrogation of those employees and conclude that its order should be enforced in that respect. See Corrie Corporation v. N.L.R.B., 375 F.2d 149 (4 Cir. 1967).
On May 1, 1972, Clarence Adkins, a supervisor, approached Robert F. Bone, an employee, to discuss some personal matters. During this conversation Bone mentioned that he was going to a Union meeting the next day. Adkins then told Bone that he knew "what was going on" and that he (Adkins) "knew how many people were attending those meetings and what was being done." Adkins admitted at the hearing that he was opposed to the Union and that he tried to influence others not to support the Union. We believe the statements of Adkins were intended to convey an impression that organizational activities were under surveillance by the Company. The obvious purpose of such a statement was to persuade employees that participation in organizational activities could jeopardize their employment. The evidence fully supports the Board's conclusion that the Company tried to convey an impression of surveillance and the Board's order will be enforced in that respect. See Filler Products, Inc. v. N.L.R.B., 376 F.2d 369, 373-375 (4 Cir. 1967).
We also find substantial evidentiary support for the Board's conclusion that the Company threatened to withhold the biannual wage adjustments with intent to influence those voting in the election. Although the Company did not actually alter its wage adjustment policy during the campaign and granted pay increases to 136 of its 140 employees, Gordon L. Beatty, Tamper's local manufacturing manager, stated at an employee meeting that the biannual wage adjustment program was being considered but added "we can't do anything right now until this mess is over with but just as soon as it (is) over with, (we) can issue the new classifications." Although Beatty's remark considered alone might not be sufficient to constitute a threat to withhold benefits in order to influence the election the statement when considered in the light of the other coercive measures properly attributed to the Company takes on an ominous character. We are satisfied that the Board's finding that this was a violation of the Act is supported by substantial evidence. See N.L.R.B. v. Lexington Chair Co., 361 F.2d 283, 290 (4 Cir. 1966).
We next turn to the Board's finding that the Company threatened to bargain "from scratch" if the Union prevailed in the election. The alleged threat consisted of a poster which quoted a portion of the Board's opinion in Midwestern Instruments, Inc., 133 N.L.R.B. 1132, 1138. That poster read as follows:
REGARDLESS OF WHAT THE UNION SAYS THIS IS THE LAW . . . "There Is, Of Course, No Obligation On The Part Of An Employer to Contract To Continue All Existing Benefits, Nor Is It An Unfair Labor Practice To Offer Reduced Benefits . . ."
(Midwestern Instruments, Inc., 133 N.L.R.B. 1132)
Chairman Miller dissented from the Board's finding that display of this poster constituted an unfair labor practice. We note, as did Chairman Miller in dissent, that the poster was treated as a per se violation since no reference was made to any other incident or statement which might have given the language of the poster some meaning other than that which its words would ordinarily convey.
To constitute a violation, a statement of intent to bargain from scratch must evidence an intent to deal more harshly in negotiating with a union than was done with individual employees so as to create the impression that a union victory would cause a reduction of existing benefits. Textron, Inc., 199 N.L.R.B. 131 (1972); see also Automation and Measurement Division, The Bendix Corp. v. N.L.R.B., 400 F.2d 141 (6 Cir. 1968). The poster alone does not convey that message and its display was not a Per se violation. See N.L.R.B. v. Aerovox Corp., 435 F.2d 1208 (4 Cir. 1970); Wellington Mill Division, West Point Manufacturing Co. v. N.L.R.B., 330 F.2d 579 (4 Cir. 1963). Since there is no finding that surrounding circumstances gave a different character to the language of the poster which would support the Section 8(a)(1) citation, we decline to grant enforcement. See N.L.R.B. v. Holly Farms Poultry Industries, Inc., 470 F.2d 983 (4 Cir. 1972). There is absolutely no evidence in the record that the Company threatened to bargain more harshly with the Union than it had with individual employees; enforcement of the Board's order as it relates to that charge is denied.
On October 9 and 10, 1972, an attorney for Tamper conducted interviews with employees in preparation for the unfair labor practice hearing which was scheduled for October 11. The seven persons who had been subpoenaed by the Board were asked by the attorney whether they had given a statement to the Board and were then questioned about any information which they had relating to the charges set forth in the complaint then pending before the Board. The Administrative Law Judge ruled, and the Board agreed, Chairman Miller dissenting, that there is "no meaningful distinction between interrogation concerning the contents of a statement submitted to the Board and interrogation concerning employee knowledge of complaint allegations, coupled with an inquiry as to whether a statement was submitted." Hence, the Board held that the interrogations constituted a Section 8(a)(1) violation. We disagree.
Assuming that interrogation concerning the contents of a statement made to the Board would, under these circumstances, be a violation of the Act, 4 we do not believe the conduct and procedures pursued by the Company's attorney can be equated with such an interrogation. Further, we believe that the Company was warranted under those circumstances in seeking the voluntary cooperation of employees in preparing a defense to the complaint filed with the Board. First, we note that the employees who were interviewed were those who had been subpoenaed to appear...
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