N.L.R.B. v. Pilgrim Foods, Inc.

• Decision Date: 26 January 1979
• Docket Number: No. 78-1120,78-1120
• Citation: 591 F.2d 110
• Parties: 100 L.R.R.M. (BNA) 2494, 85 Lab.Cas. P 11,077 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PILGRIM FOODS, INC., Respondent.
• Court: U.S. Court of Appeals — First Circuit

Page 110

591 F.2d 110

100 L.R.R.M. (BNA) 2494, 85 Lab.Cas. P 11,077

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PILGRIM FOODS, INC., Respondent.

No. 78-1120.

United States Court of Appeals First Circuit.

Argued Sept. 8, 1978.

Decided Dec. 29, 1978.

As Amended Jan. 26, 1979.

William M. Bernstein, Atty., Washington, D. C., with whom John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, John D. Burgoyne, Asst. Gen. Counsel, and Joseph A. Oertel, Atty., Washington, D. C., were on brief, for petitioner.

Eugene M. Van Loan, III, Manchester, N. H., with whom Alan Hall, and Wadleigh, Starr, Peters, Dunn & Kohls, Manchester, N. H., were on brief, for respondent.

Before KUNZIG, Judge, U. S. Court of Claims, ^* CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

The National Labor Relations Board (Board or NLRB) seeks enforcement of its order: that Pilgrim Foods, Inc. (Company) cease and desist from engaging in unfair labor practices; that it offer discharged employee Sidney Basha full and immediate reinstatement; that it bargain with Local Union No. 633 of New Hampshire (Chauffeurs, Teamsters and Helpers) a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Union); and that it post appropriate notices.

The case was heard originally in October, 1976, before an administrative law judge (ALJ) who died before he was able to render an opinion. The parties consented to the issuance of a decision by another ALJ based on the record of the October hearing. That ALJ's decision was affirmed in part and reversed in part by the Board. The Board, agreeing with the ALJ, found that the Company violated section 8(a)(1) of the Labor Relations Act, 29 U.S.C. § 158(a)(1), by creating the impression that the employees' union activities were under surveillance, by soliciting and dealing with grievances, by impliedly promising benefits and threatening reprisals to dissuade employees from supporting the Union, and by withholding a promised wage increase from George Huszar because he voted in the Board conducted election. Contrary to the ALJ, the Board found the Company violated section 8(a)(3) and (1) of the Act, 29 U.S.C. § 158(a)(3) and (1), by discharging truckdriver Basha because he was active in the Union's organizational effort. The Board also reversed the ALJ and found that the Company violated section 8(a)(5) and (1) of the Act, 29 U.S.C. § 158(a)(5) and (1), by refusing to recognize the Union.

In deciding whether to enforce the Board's order, we are limited to determining whether its findings are supported by substantial evidence in the record as a whole. 29 U.S.C. § 160(e); NLRB v. Matouk Industries, Inc., 582 F.2d 125, 128 (1st Cir. 1978).

Respondent is a New Hampshire corporation located in Greenville, New Hampshire. It is in the business of packaging and distributing food products. Early in December of 1975, truckdriver Robert Martin contacted the Union's business agent, Thomas Piper, and arranged an organizational meeting, which was held on Sunday, December 7, 1975, in the Company's parking lot. Five employees, Basha, Ronald Jones, Sheldon Stokes, Roland Caron, and Leslie Jones, attended and signed union authorization cards. A second meeting was held at Basha's home on the following Sunday, at which time Piper was given the signed cards. Basha and Piper obtained an authorization card from Martin, who was hospitalized and unable to attend the meeting.

Piper telephoned plant manager Edwin West on the following day, demanding recognition of an eight man unit of truckdrivers, shippers, receivers, and mechanics. West refused. Piper also sent West a written recognition demand, dated December 15, 1975, to which the Company never responded.

On January 26, Robert Hinchee, the assistant plant manager, and Paul Santich, the president of the Company, met in Boston to discuss with the Board's regional director the Union recognition bid. Prior to the meeting, the two decided to discharge Basha, purportedly because he violated a new company rule when he failed to notify his employer by telephone that some merchandise was missing from a delivery.

Hinchee and Santich met with the Union at the Board's office and executed a Stipulation for Certification upon Consent Election setting forth the appropriate bargaining unit ¹ and stipulating that the eight named employees were the only eligible voters. Basha was excluded from the list because he was a casual part-time employee and because he was being discharged. The parties agreed that voting eligibility issues resolved were final and binding on both parties.

During a break in the conference, Hinchee telephoned his secretary with instructions to cancel Basha's trip scheduled for that afternoon and ordered Basha to report to his office on the following morning. Hinchee discharged Basha on January 27, 1976, on the grounds that he violated the call-in rule on January 16. Basha maintained that he was unaware of the rule since it was posted at a time when he was laid off.

The election was held on February 12, 1976. Four of the eight stipulated employees voted for the Union and the other four voted against it. Additionally, four other employees, including Basha and Huszar, voted, but, because they were not on the stipulated lists, their votes were not counted.

The Union filed unfair labor practice charges February 17, 1976, and objections to the election on February 19, 1976. The Regional Director decided that, since the issues raised by the objections and challenges were identical, the two cases should be consolidated for a hearing.

I. Section 8(a)(1) Violations

A. Creating the Impression of Surveillance

The Board and the ALJ were in agreement that the Company violated section 8(a)(1) of the Act by creating the impression that the Union activities of the employees were under surveillance. This finding was based on the conduct of Hinchee. Hinchee contacted Jones and told him that he knew he was the "spokesman for the men," and suggested that Jones compile a list of employee grievances. The ALJ concluded that, through Hinchee, "Respondent revealed for the first time it was enough aware of union activity among its employees to know who was their leader, thus giving reason for employees to believe Respondent was keeping an eye on what they were up to." The Company contends that this statement did not create the impression of surveillance, for the conversation lasted but five minutes and the atmosphere at the Company had always been informal and open. It points out that, even before the inception of the Union recognition bid, Jones was purportedly the leader of the employees who frequently dealt with management concerning employee complaints. Thus, the Company argues that Hinchee's recognition of Jones as "spokesman," when placed in the context of the established employment situation, was not violative of the Act. Even if looked at in isolation, the Company contends that the statement was ambiguous at best.

In NLRB v. Rich's of Plymouth, Inc., 578 F.2d 880, 885 (1st Cir. 1978), we said, "The Act does not prevent an employer from acknowledging an employee's union activity, without more, See NLRB v. Mueller Brass Co., 509 F.2d 704, 709 (5th Cir. 1975)." The "more" that is required to constitute creating an impression of surveillance has been, for example, continuous monitoring of employee telephone conversations, as in Stone & Webster Engineering Corp. v. NLRB, 536 F.2d 461, 468 (1st Cir. 1976), and threatening confrontations as in P.S.C. Resources, Inc. v. NLRB, 576 F.2d 380, 383 (1st Cir. 1978); NLRB v. Prince Macaroni Manufacturing Co., 329 F.2d 803, 805 (1st Cir. 1964).

We found a violation of section 8(a)(1) in Rich's of Plymouth, Inc., supra, 578 F.2d 880, based on a single remark made to an employee who was known to the management as a union supporter, even though the episode was short-lived and the comment only obliquely referred to the employee's union activity. ² There was, however, an intimidating quality to the remark. Here, on the other hand, a majority of the court believes that Hinchee's remark that Jones was a spokesman for the men could not under the circumstances be found to go beyond the mere recognition of union activity and into territory violative of the Act. For an activity to be an unfair labor practice it must "interfere with, restrain, or coerce employees in the exercise" of their lawful rights. 29 U.S.C. § 158(a)(1). We conclude that the finding of a violation of section 8(a)(1) based on the alleged surveillance is not supported by substantial evidence in the record as a whole. ³

B. Soliciting and Promising to Satisfy Grievances

Shortly after the Company initially received the Union recognition bid, Jones mentioned to Hinchee that the employees wanted an increase in pay and work hours. Early the next month, Jones told Hinchee that the organizing drive could have been avoided if Hinchee had increased the hourly wage. Hinchee instructed Jones to compile a list of company demands by the following Monday, January 12, so that the Company and the employees could see if they could negotiate themselves without the Union. Hinchee also contacted employee Stokes, suggesting that the employees compile a list and offered to help. Hinchee told Stokes that he could not guarantee anything, but that he would send the list to the home office in New York.

As directed, Jones, Stokes, Basha, and Caron presented their list to Hinchee. With Jones' aid, Hinchee expanded the list, including a provision that the agreed-to benefits be embodied in a binding contract by January 20, 1976, six days prior to the scheduled representation hearing. Hinchee duplicated the list and provided Jones with a copy for each employee. He told Jones that he would have to consult with Santich before getting back to him because Santich made the...