N.L.R.B. v. Industrial Erectors, Inc.
| Decision Date | 13 July 1983 |
| Docket Number | No. 82-2294,82-2294 |
| Parties | 113 L.R.R.M. (BNA) 3665, 98 Lab.Cas. P 10,303 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The INDUSTRIAL ERECTORS, INC., Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
William Bernstein, Elliott Moore, N.L.R.B., Washington, D.C., for petitioner.
Herbert M. Berman, Chicago, Ill., for respondent.
Before PELL and POSNER, Circuit Judges, and JAMESON, Senior District Judge. *
In this application for enforcement of an order by the National Labor Relations Board (NLRB or the Board), respondent The Industrial Erectors, Inc. (the company) contests the Board's finding that the company violated sections 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), (3) (the Act), by various actions it took in response to a union organization effort. The company contends that the Board erred in finding that the company unlawfully threatened to withhold wages and benefits because of the union's presence at the company. The company also contends that it had a legitimate, nondiscriminatory business reason for laying off eight employees a week after the union began its drive.
The company is an Illinois corporation that manufactures, repairs, and installs material-handling equipment such as cranes and hoists. The company also sells products made by other companies. This case involves the company's machine shop, which manufactures the hoists and cranes and which had fourteen employees at the time of the first contested layoff. The equipment manufactured in the shop is marketed under the name of Industrial Crane & Equipment Co., a wholly owned subsidiary of The Industrial Erectors, Inc.
On May 7, 1980, the International Brotherhood of General Workers (the union) began an organizing drive in the machine shop. Employees Medina and Randle signed union authorization cards that day and employee Karolak signed one the following day when employee Bonafe offered him one. Cleotha Ryan, another employee, also signed one.
On May 8, the union filed a petition seeking representation of the employees. That day, the personnel manager of the company, Roger Petroff, called Medina into his office and questioned him about his union contacts. Medina denied that he had any contacts and signed a statement stating that he had nothing to do with the union. Petroff also questioned Karolak about his union contacts. Karolak denied that he had signed a union authorization card and, when requested, signed a statement that he had not heard anything about the union.
On May 9, Medina told Petroff that he had signed a union card. Petroff asked him to tell Gerald Cole, the president of the company, what he had said. When Medina told Cole that he had signed a card, Medina testified that Cole responded: "How could you do this to me after all we have done for you?" When Medina said that he wanted hospitalization and retirement plans, Cole replied: "Over my dead body." Also on May 9, plant manager Ron Roberts held an employees' meeting, at which he told them that business was slow but that no one would be laid off.
Over the weekend of May 10, the company hired a consulting firm to help it defeat the union's organization efforts. On May 12, following the advice of the firm, the company posted a notice that read:
This company cannot improve working conditions, give unscheduled raises or grant new and additional benefits now that the company has received notification (as of 5-12-80) of the intention of the International Brotherhood of General Workers to unionize the employees of The Industrial Erectors, Inc.
/s/Leonard Birch [Vice-President]
The company took down the sign after a few days because it was told by some unidentified person that it had been ill-advised to put the sign up. Also on May 12, the day that the company received the union's petition, the management called an employees' meeting. Petroff reportedly told the employees that "everything was frozen," including raises, because the union had formally notified the company of its attempt to organize.
At some time between March and May 14, Petroff prepared a list of shop employees who might be laid off. He ranked the fourteen workers in the order in which he thought they should be laid off. Between May 7 and May 14, Roberts prepared a list on which he designated employees as "union," "nonunion," or "?". The company contends that it made the decision to lay off the employees before Roberts presented the management with his list, and that it followed the Petroff list.
On May 14, the company laid off employees Cazares, Karolak, Randle, Rice, and Ryan. Of the five, Randle and Ryan were listed as "union" on Roberts's list, while Karolak and Rice were designated as "?". Cazares was not on the list. Employee Dirl, who never was laid off, testified that shortly before the 14th he overheard Roberts say to an unidentified person in the men's room "I can't believe they did that when they had already told me that we were not going to lay anyone off." After the layoffs were announced, when Ryan went to speak with Roberts and protested that he should not have been laid off because he did not have many union contacts, Roberts replied that "the crew made the bed so they have to lay in it."
Cole testified that the employees were laid off because of a business slump. As to why the particular five were dismissed, he said that Cazares was the last man hired; Karolak had minimal skills; Randle was a poor worker; Rice was trained in only one skill; and Ryan, whom he described as an excellent worker, was performing a job that others could do.
Then, on June 6, the company laid off employees Stichnoth, Bonafe, and Vander. On Roberts's list, Stichnoth and Bonafe were listed as "union," while Vander was listed as "?". Cole testified that Bonafe was laid off because, as an electrician, he had run out of work, and the other two were laid off because the machine shop was shut down.
All of the employees except Randle were recalled by August 29: Karolak on May 18, Vander on June 16, Stichnoth on June 23, Rice on July 7, Bonafe on July 8, Ryan on July 23, and Cazares on August 29. The union election was held on August 6. Two employees voted in favor of the union and eight against.
On May 16 and June 9, 1980, the union filed charges against the company with the NLRB. On June 18, 1980, the Board issued a complaint against the company alleging violations of sections 8(a)(1) and (3) of the Act. A three-day hearing was held before an Administrative Law Judge (the ALJ), who issued his decision on October 23, 1981. The judge concluded that company officials had unlawfully interrogated employees about their union sympathies, had unlawfully threatened to withhold wage increases and benefits, and had unlawfully laid off the eight employees. The ALJ rejected the company's proffered business motive for the layoffs, concluding that it was pretextual.
The Board affirmed the ruling of the ALJ on May 14, 1982. 261 N.L.R.B. No. 125, 1981-82 NLRB Dec. (CCH) p 18,989 (May 14, 1982). The Board ordered the company to cease and desist from its unlawful labor practices, to make whole the employees for lost wages and benefits for the period of their layoffs, and to rehire employee Randle, the one worker not recalled.
We deal initially with the Board's finding that the company violated section 8(a)(1) of the Act by unlawfully interrogating employees about their union sympathies. Although the company does not contest the Board's ruling on this issue, and thus the holding is entitled to summary affirmance, NLRB v. Rich's Precision Foundry, Inc., 667 F.2d 613, 624 (7th Cir.1981), the relevance of the cited activity to the issue of the lawfulness of the layoffs leads us to discuss the Board's holding at greater length.
An employer's interrogation of employees concerning their union contacts is unlawful only if the questions asked, when viewed as the employee must have understood them, could reasonably coerce or intimidate the employee with respect to union activities. NLRB v. Berger Transfer & Storage Co., 678 F.2d 679, 689 (7th Cir.1982); NLRB v. Rich's Precision Foundry, Inc., 667 F.2d 613, 624 (7th Cir.1981). The Board held that the actions of personnel manager Petroff, in calling employees Medina and Karolak into his office, asking them about their union contacts, and requesting that they sign statements denying knowledge of the union, violated the Act.
We are persuaded that there was substantial evidence to support the Board's finding. The questioning took place during working hours in the office of an important company officer. The questioning occurred a day after the union began to organize; and the company asserted no legitimate reason for the questioning or the requests to sign statements denying any knowledge of the union. All of these factors are relevant and important in determining whether there was unlawful questioning. NLRB v. Rich's Precision Foundry, Inc., 667 F.2d at 624; accord, NLRB v. Otis Hospital, 545 F.2d 252, 256 (1st Cir.1976).
On May 12, 1980, the company posted a notice directed to its employees that stated that the company would give no unscheduled raises or grant new or additional benefits because of the union's organizing drive. In addition, personnel manager Petroff told employees at a meeting that "everything was frozen," including raises, because the union had contacted the company. The ALJ held that this notice and Petroff's remark violated section 8(a)(1) of the Act because they suggested that the cause of the freeze of raises and benefits was the union. The company contends that this holding was in error because the company merely was fulfilling its legal requirements and was seeking to avoid the appearance of bribing its employees by offering new benefits in response to the union's...
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