N.L.R.B. v. Lucy Ellen Candy Div. of F & F Laboratories, Inc.

• Decision Date: 10 June 1975
• Docket Number: No. 73-2029,73-2029
• Citation: 517 F.2d 551
• Parties: 89 L.R.R.M. (BNA) 2549, 77 Lab.Cas. P 10,912 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LUCY ELLEN CANDY DIVISION OF F & F LABORATORIES, INC., Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 551

517 F.2d 551

89 L.R.R.M. (BNA) 2549, 77 Lab.Cas. P 10,912

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LUCY ELLEN CANDY DIVISION OF F & F LABORATORIES, INC., Respondent.

No. 73-2029.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 1, 1974.

Decided June 10, 1975.

Elliott Moore, Deputy Associate Gen. Counsel, David A. Fleischer and John S. Irving, N. L. R. B., Washington, D. C., for petitioner.

William L. Sharp, Chicago, Ill., for respondent.

Harold A. Katz, Chicago, Ill., for intervenor.

Before PELL, SPRECHER and LAY, ^* Circuit Judges.

PELL, Circuit Judge.

The National Labor Relations Board (Board) seeks enforcement, pursuant to § 10(e) ¹ of the National Labor Relations Act, of its order issued against Lucy Ellen Candy Division of F & F Laboratories, Inc. (Company). The Board, in agreement with the administrative law judge, found that the Company violated § 8(a)(1) ² of the Act by interrogation of an employee and prospective employees; by threats, if employees organized, of plant closure or more onerous working conditions; and by conditioning a particular pay raise on the outcome of the election. The Board's order requires the Company to cease and desist from the unfair labor practices found and from interfering with, restraining, or coercing its employees, in any like or related manner, in the exercise of their Section 7 rights and to post appropriate notices. ³

The principal issues before this court are: (1) whether there is substantial evidence to support the Board's finding; and (2) if so, whether a penalty should be assessed against the Company for instituting an allegedly frivolous challenge to the Board's order.

I

In May 1972, organizational activity on behalf of International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (Union) began at the Company plant in Sullivan, Illinois. A petition for an election was filed on July 21, and an election was scheduled for August 23. All of the violations found by the Board occurred shortly before or immediately after the representation election. Every violation of the Act involved the Company's personnel manager, Jean Colclasure.

Interrogation

Colclasure's questioning of the applicants clearly constituted coercive interrogation in violation of § 8(a)(1). See United Gas Pipe Line Co. v. NLRB, 471 F.2d 395 (5th Cir. 1973); NLRB v. Tesoro Petroleum Corp., 431 F.2d 95, 96 (9th Cir. 1970). Colclasure, who was in charge of hiring, specifically warned two applicants that they could not be hired if they favored the Union. See Time-O-Matic, Inc. v. NLRB, 264 F.2d 96, 99 (7th Cir. 1959); NLRB v. Waukesha Lime & Stone Co., Inc., 343 F.2d 504, 508-09 (7th Cir. 1965). As the administrative law judge noted, "Colclasure's interrogation of these individuals, including her interrogation of (the employee), was an integral part of the hiring process. In that context the interrogation promised the employees questioned, as well as others who might hear it, that those opposing the Union had a better chance of being rewarded with jobs, and threatened that those favoring the Union would not be hired or, if already working, would be in danger of losing their jobs." It is immaterial, moreover, that some of the applicants questioned were not, and never became, employees of the Company. Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 182, 61 S.Ct. 845, 85 L.Ed. 1271 (1941); Time-O-Matic, supra at 99.

The Company contends that the three applicants were not credible witnesses and that Colclasure's testimony should be credited rather than that of the applicants. ⁴ The administrative law judge, however, specifically stated: "I do not credit Colclasure and I find that the reason she interrogated the applicants and (the employee) was that she wanted to avoid hiring applicants favorable to the Union." With regard to this credibility resolution, the record as a whole does not present such exceptional circumstances as to "make inapplicable the rule that the Board's action in crediting and discrediting witnesses will not ordinarily be disturbed on review." Sarkes Tarzian, Inc. v. NLRB, 374 F.2d 734, 736 (7th Cir. 1967), cert. denied, 389 U.S. 839, 88 S.Ct. 64, 19 L.Ed.2d 102.

Threats

The evidence indicated that in late June or early July, in the presence of other employees, Colclasure told her son-in-law, also an employee, that he would have to look for another job. When he asked why, she said that if the Union came in, the plant would be closed down and he would be out of a job.

An employee further testified that about a week after the election, Colclasure stated, in the presence of several employees, that Steve Land, an employee and Union proponent, would "get his." When someone asked what this meant, Colclasure purportedly replied that the Company had a few "choice jobs" for Land if he did not stop "causing trouble about the Union." Although Land was not present when this threat was made, he was later informed of it.

We conclude that the evidence is more than sufficient to justify the Board's finding that these statements constituted § 8(a)(1) violations. The Board has the primary responsibility for determining whether statements are to be construed as threats or mere expressions of opinion and the Board's decision will not be disturbed on appeal unless the record as a whole does not reveal substantial evidence in support of the finding. NLRB v. Acker Industries, Inc., 460 F.2d 649, 653 (10th Cir. 1972). Here, the Board could reasonably conclude that Colclasure's statements to her son-in-law were intended and understood not as merely a permissible prediction of action which would be necessitated by economic considerations resulting from unionization but, rather, as a threat that if the employees chose to organize, the company would close the plant and discharge them. NLRB v. Gissel Packing Co., Inc., 395 U.S. 575, 619, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969); Wausau Steel Corp. v. NLRB, 377 F.2d 369, 372 (7th Cir. 1967). Similarly, Colclasure's statement that, if Land persisted in his union activity, the Company had some "choice jobs" for him implied to the employees who heard it, as well as to Land, that employees would receive less desirable or more onerous work if they engaged in union activity thereafter. Such a threat clearly violates § 8(a)(1). See NLRB v. Brown Specialty Co., 436 F.2d 372 (7th Cir. 1971).

The Company contends, however, that Colclasure was a "low-level" supervisor who did not have the power either to close the plant or to discharge employees. The record does not support this contention. Colclasure was the personnel manager and in charge of hiring. At the hearing, Colclasure admitted that although she did not actually discharge employees, her opinion was taken into account in these matters. We note, moreover, that at the hearing the attorney for the Company argued strenuously, in relation to another issue, that Colclasure was a "supervisory" employee and a "managing agent" of the plant. In its brief filed in this court, the Company refers to her as one of five "managerial supervisors in the plant."

The Company also argues, here again, that Colclasure's testimony should be credited rather than that of the employees. In each instance, however, the administrative law judge obviously discredited Colclasure's testimony and credited that of the employees. ⁵ We decline to disturb these credibility determinations.

Wage Increase

It is well established that the withholding of a wage increase, which the employee would otherwise have received, because of the pendency of the election, is unlawful. "The cases make it crystal clear that the vice involved in both the unlawful increase situation and the unlawful refusal to increase situation is that the employer has changed the existing conditions of employment. It is this change which is prohibited and which forms the basis of the unfair labor practice charge." NLRB v. Dothan Eagle, Inc., 434 F.2d 93, 98 (5th Cir. 1970). See Great Atlantic & Pacific Tea Co., 166 NLRB 27, 29 n.1 (1967).

In the present case, when an employee asked about a raise which the Company ordinarily automatically granted after three months employment, Colclasure informed the employee that the Company could not tell her anything definite until the election was over, but that if it "went the way they figured it would," she would get the increase and it would be made retroactive to the day she completed three months' service. As the administrative law judge noted, "in view of (the Company's) known opposition to the Union . . . the natural meaning of Colclasure's statement was that...