N.L.R.B. v. Eagle Material Handling, Inc.

Citation558 F.2d 160
Decision Date22 June 1977
Docket NumberNo. 77-1186,E,No. 76-2256,Nos. 76-2256 and 77-1186,77-1186,76-2256,s. 76-2256 and 77-1186
Parties95 L.R.R.M. (BNA) 2934, 82 Lab.Cas. P 10,019 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. EAGLE MATERIAL HANDLING, INC., a subsidiary of Somerset Tire Service, Inc., and Somerset Tire Service, Inc., Respondents inagle Material Handling of New Jersey, Respondent in
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Paul J. Spielberg, Deputy Asst. Gen. Counsel, Alan Banov, Atty., John S. Irving, Jr., Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D.C., for petitioner.

William W. Lanigan, Edmond M. Konin, Lanigan, O'Connell and Hirsh, P.A., Basking Ridge, N.J., for respondents.

Before ADAMS, ROSENN and WEIS, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

The National Labor Relations Board petitions for the enforcement of two orders entered against respondent Eagle Material Handling of New Jersey ("Eagle" or "the employer"). The first order directs Eagle to cease and desist from unfair labor practices in violation of section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) (1970), to recognize and bargain with the International Union of Operating Engineers ("the Union") as the exclusive bargaining representative of Eagle's service mechanics, and to restore the status quo ante with respect to certain changes made unilaterally by the employer following a representation election. The second order requires Eagle to cease and desist from unfair labor practices in violation of sections 8(a) (3) and 8(a)(5), 29 U.S.C. § 158(a)(3), (5) (1970), to reinstate four employees discharged in violation of section 8(a)(3), and, upon request, to bargain with the Union. Although we cannot sustain the 8(a)(5) violation, we conclude that substantial evidence in the record supports the Board's findings that Eagle engaged in unfair labor practices in violation of sections 8(a)(1) and 8(a)(3) of the Act, and that the remedies imposed did not exceed the Board's discretion. We therefore grant the Board's petitions for enforcement.

I.

Eagle, a subsidiary of Somerset Tire Service, Inc. ("Somerset"), is engaged in the purchase, sale, and servicing of forklift trucks and related products. While attending a prearranged organizational meeting on January 11, 1975, five of Eagle's six service mechanics signed valid authorization cards on behalf of the Union's Local 825. Two days later, the Union filed a representation petition with the Board, a copy of which was served on the employer; on January 24 an agreement for a consent election to be held on February 6 was executed.

Prior to the election, Eagle's president, John Apgar, scheduled and conducted several meetings with the service mechanics. At the first meeting, held on January 20, Apgar asked what problems had prompted the employees to seek union representation. The mechanics related various complaints, including the insufficiency of wages and benefits and dissatisfaction with Service Manager Frank Veronsky. Apgar informed the employees at a second meeting, held a day or two later, that Veronsky was no longer with the company. In response to the president's inquiries at either the same or a subsequent session, the mechanics detailed the basic benefit package offered by the Union and discussed the comparable benefits provided by other forklift companies in the vicinity. Apgar explained that none of these benefits was "out of reach," and told the employees not to "underestimate Somerset Tire." He said that he would match or exceed the benefits provided by other companies, and that he would in time give the employees a benefit package that would be "the Cadillac of the industry." 1

Eagle held an evening meeting, attended by all six service mechanics, within three days of the election. This session also involved a discussion of wages, union benefits, the employees' reasons for wanting a union, and problems that could and would be rectified. An additional meeting was conducted shortly before the election, attended by three employees and two company officials, including Apgar. 2 The employees expressed their concern that unless they voted for and won union representation, they might be fired or might not receive any improved benefits. Apgar said that he could alleviate their uneasiness. He began drafting a letter stating that no one would be fired for any reason during the next year, enabling the employees to have another election if they were dissatisfied, and that if an employee were discharged during that period that the company would pay a financial penalty. While Apgar and the employees were discussing the penalty, a company supervisor entered and informed Apgar that a lawyer had advised him of the illegality of the letter. Apgar thereupon destroyed the letter, wrote another saying that the employees would not be discharged for union activities, and promised that he would rewrite the original letter immediately after the election.

Approximately one week prior to the February 6 election, two company supervisors, Paul Desnoyers and James Schactele, had a conversation about five feet from where a service mechanic was working. Schactele was at the time in the process of lettering Eagle trucks, which were used both to deliver new forklifts and by the mechanics in making service calls. Desnoyers told him to defer lettering the trucks, because they might be used elsewhere in the company if the Union won the election. 3 Shortly thereafter, in response to the service mechanic's inquiry, Schactele confirmed that the mechanic had heard the conversation correctly, but said that he was going to have the trucks lettered anyway.

The Union lost the election, 4 votes to 2, and filed timely objections. After the election, the company instituted the following changes in the employment conditions of the service mechanics:

(1) Paid vacation was increased from one to two weeks per year.

(2) Employees were uniformly granted three sick days per year, in place of a prior practice that left sick pay within the discretion of the manager.

(3) Employees were granted three additional paid holidays per year.

(4) As of approximately March 1, 1975, the company eliminated an existing plan whereby the service mechanics shared a three percent monthly commission on parts sales and labor bills. In its stead the company introduced another program, vaguely described by employee witnesses who did not fully understand it as a "40 percent plan," and characterized by Apgar as a superior benefit.

(5) As of April 1, 1975, Eagle began paying the full cost of the employees' hospitalization. The employer had previously paid only one-half.

(6) As of August 1, 1975, the service mechanics were no longer allowed to keep company trucks at home to use for transportation to and from the plant or an outside job. The employees had been assured of this convenience as a condition of their hire.

On the basis of the facts described, the Board found that Eagle violated section 8(a)(1) when, in the period prior to the election, it solicited employee grievances, discharged Veronsky in response to employee complaints, threatened to move service equipment and work if the Union won the election, and promised the employees additional benefits and a written guarantee of continued employment all in order to discourage employee interest in the Union. The Board further found that the company violated section 8(a)(1) by implementing changes in employee benefits and working conditions in fulfillment of its unlawful preelection promises. Finally, the Board found that the union, having secured signed authorization cards from a majority of the employees, had attained majority status. The company's unfair labor practices, beginning on January 20, 1975, and continuing through the election, said the Board, dissipated the Union's majority and precluded the holding of a fair election. 4 The Board therefore concluded that the company had an obligation to bargain with the Union as of January 20, ordered Eagle to cease and desist from its unfair labor practices, and directed the restoration of the status quo ante with respect to those changes in benefits which were detrimental to the employees.

II.

Our review of the order in this case entails a two-step inquiry. First, we must determine whether substantial evidence in the record as a whole supports the Board's findings of section 8(a)(1) violations. 29 U.S.C. § 160(e) (1970); see Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Then, if the evidence supports the Board's findings, we must determine whether the remedy ordered was within the Board's broad discretion, keeping in mind that the order should not be disturbed "unless it can be shown that (it) is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the (National Labor Relations) Act." Virginia Electric & Power Co. v. NLRB, 319 U.S. 533, 540, 63 S.Ct. 1214, 1218, 87 L.Ed. 1568 (1943). Accord, Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 215-16, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964); see 29 U.S.C. § 160(c) (1970).

A.

Eagle contends that its solicitation of employee grievances prior to the union election was simply an exercise of an employer's legitimate prerogative; the preelection discussions with the service mechanics, Eagle asserts, fell within the protection of section 8(c) of the NLRA. 5 We recognize that the mere solicitation of employee grievances prior to an election is not an unfair labor practice. Landis Tool Co. v. NLRB, 460 F.2d 23, 25 (3d Cir.), cert. denied, 409 U.S. 915, 93 S.Ct. 237, 34 L.Ed.2d 177 (1972). As Judge Friendly has observed, "(A)n organizational drive often comes as a rude shock to an employer, and a simple offer to hear any complaints the employees may have, or...

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