N.L.R.B. v. Huntsville Mfg. Co.

• Decision Date: 13 June 1975
• Docket Number: No. 74-3263,74-3263
• Citation: 514 F.2d 723
• Parties: 89 L.R.R.M. (BNA) 2592, 77 Lab.Cas. P 10,933 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HUNTSVILLE MANUFACTURING COMPANY, a subsidiary of M. Howenstein & Son, Inc., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 723

514 F.2d 723

89 L.R.R.M. (BNA) 2592, 77 Lab.Cas. P 10,933

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HUNTSVILLE MANUFACTURING COMPANY, a subsidiary of M.

Howenstein & Son, Inc., Respondent.

No. 74-3263.

United States Court of Appeals, Fifth Circuit.

June 13, 1975.

Elliott L. Moore, Deputy Associate Gen. Counsel, Jane P. Schlaifer, Atty., N.L.R.B., Washington, D. C., Walter C. Phillips, Director, Region 10, N.L.R.B., Atlanta, Ga., for petitioner.

Mark L. Taliaferro, D. Frank Davis, Birmingham, Ala., for respondent.

Application for Enforcement of an Order of the National Labor Relations Board (Alabama Case).

Before GIBSON, ^* THORNBERRY and AINSWORTH, Circuit Judges.

GIBSON, Circuit Judge.

The National Labor Relations Board petitions for enforcement of its order reported at 211 N.L.R.B. No. 8 (1974), requiring respondent Huntsville Manufacturing Co. to cease and desist from unfair labor practices. The Board adopted the findings, conclusions, and recommended order of its Administrative Law Judge in determining that the employer had violated § 8(a)(1) of the Act ¹ by interrogation of employees concerning their union sentiments and threatening them with a loss of jobs if the union won the election.

The employer, a manufacturer of thread, employs over 1,000 employees at its plant in Huntsville, Alabama. In March, 1973, the union ² began an organizing campaign which culminated in a Board-conducted election May 25, 1973. In that election 94 percent of the 1,090 eligible voters cast ballots; the union was defeated by 283 votes. Subsequently the union filed unfair labor practice charges alleging that during the organizing campaign the employer engaged in many instances of interference, restraint and coercion. After a hearing the Administrative Law Judge found that these interrogations were violative of the Act and his findings were adopted by the Board. We conclude that the Board's order is not supported by substantial evidence on the record as a whole and deny enforcement.

Employer interrogation concerning union sympathies may or may not be coercive depending upon the surrounding circumstances. The test is whether the questioning tends to be coercive, not whether the employees are in fact coerced. N.L.R.B. v. Varo, Inc., 425 F.2d 293, 298 (5th Cir. 1970); N.L.R.B. v. American Manufacturing Co., 132 F.2d 740 (5th Cir. 1943). Factors to be considered include:

(1) The history of the employer's conduct and attitude towards its employees; (2) the nature of the information sought for example, did the interrogator appear to be seeking information on which to base action against individual employees; (3) the position or office of the interrogator in the company's hierarchy; (4) the place and method of interrogation was the employee summoned to the boss' office, or was there an atmosphere of "unnatural formality?"; and (5) truthfulness of the reply.

N.L.R.B. v. Varo, Inc., supra at 298. See also N.L.R.B. v. Camco, Inc., 340 F.2d 803, 804 (5th Cir. 1965); Bourne v. N.L.R.B., 332 F.2d 47, 48 (2d Cir. 1964). This list is, of course, not definitive and intimidation may occur even if all these factors weigh in favor of the employer. N.L.R.B. v. Camco, Inc., supra at 804.

The Administrative Law Judge determined that the employer "engaged in a widespread campaign of interrogation" and further that it made "no showing that the interrogations were not more widespread than the General Counsel had proven and there is every reason to believe that they were." This finding erroneously placed the burden of proof on the Company to disprove an issue on which the General Counsel carried the burden. The Company argues that this language creates every reason to believe that the Administrative Law Judge's credibility findings and the finding of coercion were biased by his belief in a campaign of interrogation. While the Board expressly disavowed the statement concerning the employer's failure to show that the interrogations were not more widespread, ³ in all other respects it affirmed the findings and conclusions, including the "widespread campaign of interrogation."

This finding of a "widespread campaign of interrogation" is without adequate support in the record; it rests merely upon suspicion or surmise, an inadequate basis. N.L.R.B. v. Fuchs Baking Co., 207 F.2d 737, 739 (5th Cir. 1953). Moreover, it is hard to believe that this finding did not supply much of the basis for the Administrative Law Judge's belief that the interrogations were coercive. Indeed, it may have been, as the employer argues, the basis for consistently crediting the General Counsel witnesses' accounts of the interrogations. However, it is not our function to decide the credibility of conflicting witnesses and we accept the Administrative Law Judge's credibility resolutions. N.L.R.B. v. Varo, Inc., supra at 297-98.

However, in accepting the findings as to the interrogations we are still left with the fact that at most 10 employees were questioned. The question most frequently asked was "what do you think of the union?" and generally occurred in conversations with the employee's immediate supervisor. These incidents must be placed in the context of a three-month organizing campaign of a total workforce of over 1,000 employees and in which any other incidents of an "anti-union animus" are noticeably absent. ⁴

Further militating against the Board's conclusion that the questioning was coercive is the generally innocuous nature of the questions asked and that the "interrogations" were in employee working or break areas. The questions on the whole were permissible under § 8(c), 29 U.S.C. § 158(c) (1970), ⁵ were asked by low-echelon supervisors, most of whom were in daily...