N.L.R.B. v. Dover Corp., Norris Div.
| Decision Date | 14 May 1976 |
| Docket Number | No. 74-1577,74-1577 |
| Parties | 93 L.R.R.M. (BNA) 2707, 79 Lab.Cas. P 11,577 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DOVER CORPORATION, NORRIS DIVISION, Respondent. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Elinor Hadley Stillman, Atty., N. L. R. B., Washington, D. C. (William Watcher, Atty., N. L. R. B., and Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., on the brief), for petitioner.
Mary T. Matthies, Tulsa, Okl. (Richard L. Barnes, of Kothe & Nichols, Inc., Tulsa, Okl., on the brief), for respondent.
Before HILL, HOLLOWAY and BARRETT, Circuit Judges.
The National Labor Relations Board applies for enforcement of that part of its order entered in Dover Corporation, Norris Division, 211 NLRB No. 98, finding that the Dover Corporation violated § 8(a)(1) of the National Labor Relations Act, 29 U.S.C.A. § 158(a)(1), and entering an order to cease and desist and to post a notice, inter alia. 1
The Board found that Dover violated § 8(a)(1) by virtue of the threatening statements of a supervisor, Rike, during an organizational campaign and issued a remedial order. In opposing enforcement of the order Dover essentially argues that (1) there is insufficient evidence to establish that coercive statements were made; (2) there is insufficient evidence to establish that the employees considered the statements to be authorized by top management or capable of being carried out by the supervisor, Rike, who allegedly made the statements; (3) there is no evidence to support a finding that employees were restrained in the exercise of protected activities by the alleged statements; (4) the Board has failed to establish an ascertainable standard by which an employer can remedy unauthorized misconduct; and (5) the order of the Board is not appropriate for present enforcement. We will first outline the facts in our record pertaining to the § 8(a)(1) charge and then address the principal arguments made.
In May, 1973 2 the United Steelworkers of America began an organizing campaign at Dover's Rockford Street plant, in Tulsa, Oklahoma. At that time Rike was foreman of inspection supervising three inspectors at the plant. 3 On July 13, Rike approached employee Thompson and engaged him in a discussion, comparing the employee benefits Shortly after this incident Mr. Bechtold, a Vice-President of Dover, learned that several employees felt they had been threatened with reprisals for union activity. He directed Dover's attorney to contact the employees and to investigate the matter. On July 20, the Assistant Plant Superintendent and the company attorney spoke with several employees, including Thompson, and assured them that any threats were not the doing of the company; that the company would take action on this matter if it were true; and they assured the employees that they had a right to organize and could not be interfered with for trying to organize, nor could they be fired from the company. Apparently neither Rike nor the prior incident were specifically mentioned during this conversation. On the same day, July 20, the company posted a notice in the plant, which read (A. 55-56):
of the Rockford Street plant with the benefits of the Norris plant, another Dover Facility which was previously unionized. Rike, holding a document purporting to be a Norris contract book, said to Thompson that he didn't see "why you guys want a union in here, because you have better benefits and wages than the Norris plant does." Apparently the contract book which Rike showed Thompson was an old contract which had expired. Later that day Thompson told Rike that he and other employees objected to Rike's using the old contract. Rike was said to have replied, "If you guys are going to play this way, I have enough on the five of you to get you discharged for union activities." Rike denies having this second conversation with Thompson, but the Judge credited Thompson's version (A. 17, 19).
There seems to have been some question recently as to who is a supervisor in the plant and who is an employee. As many of you who have been here during past union campaigns will remember, persons who are supervisors are somewhat limited in what they can say about unions.
Supervisors are forbidden by the law to make any promises as to future rewards in order to get an employee to decide to join or not to join a union. They are also forbidden to threaten or harass any employee who campaigns either for or against a union.
Our supervisors in the plant, who are named below, have been informed that they are not to interfere with the rights of our employees to campaign either for or against unions. This does not mean that these supervisors cannot enforce our rules that all campaigning should be done on non-working time.
Our plant supervisors are: W. A. Rike
G. T. Boyce
F. R. Hawkins
B. L. Uto
W. H. Mitchell
G. W. Sullivan
Leadmen are not considered by this company to be supervisors. While they are among our most valuable employees because of their experience in the way we work here at O'Bannon, they are not foremen.
Leadmen do not have the authority to hire any employees, or to transfer, suspend, lay off or recall any of their fellow workers. Leadmen cannot discharge, reward or discipline employees, nor may they make independent decisions as to work assignments of any other employees.
Therefore, any statements made by any leadmen either for or against unions are their own opinions. The only people who can make statements on behalf of the company are the supervisors named above.
I hope this notice will make these matters clear. If you have any questions, please come to your supervisor or to me.
Thompson testified that assurances had been given him by Dover's attorney, with the assistant plant superintendent, Uto, present. Thompson agreed he was told they "were there to assure (him) that there would be no reprisals against (him) for engaging in union activity . . ." Thompson continued his union activity and was still working at the plant at the time of the hearing (A. 93-94).
Employee Curry testified that Rike approached him on August 8 at Curry's work station and told him "that the people who were pushing the union, working for the union, would probably be fired if the union failed to get in." Rike admitted having a conversation with Curry sometime in early August, but expressly denied that he ever told Curry that the people working for the Union would be fired. The Administrative Law Judge credited Curry's testimony (A. 6, 19). Curry testified that he had read the posted notice and, when asked if he believed it, he replied that he ". . . had no reason to disbelieve it . . ." (A. 80).
Essentially the Judge found that Rike did tell three union supporters they would be discharged; 4 that while he was talking in a friendly manner and on the basis of his long union background and relationship with them, he was found to have made the remarks, which violated § 8(a)(1) (A. 19). He also found that Dover's attorney had met with approximately five employees and gave assurances that threats were no "doing of the company" and that "they had a right to organize and could not be interfered with for trying to organize, could not be fired from the company for this." (A. 14). He nevertheless found an 8(a)(1) violation and recommended a remedial order.
The Board, with Chairman Miller dissenting, agreed with the finding that the conversations between Rike, and Curry and Thompson were violative of § 8(a) (1). The Board rejected as unsupported the finding of an additional similar incident with employee Waid. Chairman Miller pointed to the notices and assurances and said he could not infer that the employees would assume Rike was speaking for the company or in a position to carry out the threats he made, and would not hold the company responsible for the minor supervisor's remarks, outside his apparent authority (A. 40).
The Board majority found, however, that Rike's authority was such that it was not difficult to understand why employees might well be apprehensive about arousing his enmity and that the supposed attempt to counteract Rike's statements were "little more than some general bromides by the Company's counsel about the Company's good aims and intentions." (A. 41). The majority found a violation of § 8(a)(1) and a remedial order was entered.
If made as the Judge found, we agree that the statements by Supervisor Rike are coercive and threatening and sufficient under the decisions in Serv-Air, Inc. v. NLRB, 395 F.2d 557, 565 (10th Cir.), cert. denied, 393 U.S. 840, 89 S.Ct. 121, 21 L.Ed.2d 112 and Betts Baking Co. v. NLRB, 380 F.2d 199, 201-02 (10th Cir.) to sustain a finding of § 8(a)(1) violation. For several reasons Dover argues that substantial evidence does not support the Board's findings.
First, Dover says that the credibility findings made by the Judge and sustained by the Board should be overturned, pointing to several circumstances undermining the findings. We are not persuaded. Credibility findings are peculiarly within the province of the hearing officer and the Board and are ordinarily entitled to acceptance on review. N. L. R. B. v. Wylie Mfg. Co., 417 F.2d 192, 194 (10th Cir.), cert. denied, 397 U.S. 913, 90 S.Ct. 915, 25 L.Ed.2d 94. Dover argues for an exception to this rule, emphasizing that the Administrative Law Judge should not have credited Thompson and Curry as to occurrence of the threatening incidents since the Judge did not credit their testimony as it pertained to the unfair practices charged against the union (see n. 1, supra). We disagree. The Judge could credit some testimony of a...
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