National Labor Rel. Board v. American Tube Bend. Co.

• Decision Date: 05 April 1943
• Docket Number: No. 196.,196.
• Citation: 134 F.2d 993
• Parties: NATIONAL LABOR RELATIONS BOARD v. AMERICAN TUBE BENDING CO.
• Court: U.S. Court of Appeals — Second Circuit

134 F.2d 993 (1943)

NATIONAL LABOR RELATIONS BOARD v. AMERICAN TUBE BENDING CO.

No. 196.

Circuit Court of Appeals, Second Circuit.

April 5, 1943.

Howard Lichtenstein, Asst. Gen. Counsel, Robert B. Watts, General Counsel, Ernest A. Gross, Associate General Counsel, and Joseph B. Robison, and Irene R. Shriber, Attorneys, National Labor Relations Board, all of Washington, D. C., for petitioner.

Arthur L. Corbin, Jr., of New Haven, Conn., for respondent.

Before L. HAND, AUGUSTUS N. HAND, and FRANK, Circuit Judges.

L. HAND, Circuit Judge.

This case comes before us on motion by the Labor Board for an order to enforce one of its orders, passed on September 18, 1942. The respondent raises only one question: whether a letter sent to all its employees on its stationery and signed by its president on November 28, 1941, and an address delivered by the president to all the employees on December 1, 1941, constituted unfair labor practices and justified the Board's order directing it not to interfere with or coerce its employees in their right of collective bargaining. We have annexed at the end of this opinion copies of the letter and of the speech, but it is necessary also to give the setting in which they were uttered. On October 13, 1941 a local of the American Federation of Labor, filed a petition with the Regional Director for the Second Region, asking an investigation and certification of the proper bargaining representative of the respondent. On November 18, 1941, the Board directed an election by secret ballot to determine whether the employees should be represented either by the A. F. of L. local, or by an unaffiliated union of the employees, or by no union at all. On December 2, 1941, the election took place under the direction of the regional director, and on the 4th she reported that the majority of employees had voted against both labor organizations: 413 votes were cast out of a possible 417, of which the employees' union received 28, the A. F. of L. local 105, and 280 were cast against any union. The speech which we have mentioned was read by the president from a written manuscript on the eve of the election to three shifts of employees assembled in the factory: the first and second shifts of 420 employees he addressed at 3 p. m., and the third shift of 60, at 11:00 p. m.

The foregoing constitutes the whole record. The question may be divided into two parts: first, whether the statements in the letter and the speech uttered at that time and under those circumstances could be regarded as coercive at all; second, if so, whether they were privileged under the First Amendment. Had it not been for the decision of the Supreme Court in National Labor Relations Board v. Virginia Electric & Power Company, 314 U.S. 469, 62 S.Ct. 344, 86 L.Ed. 348, we might have considered some of that court's earlier decisions as requiring us to grant an enforcement order in the case at bar. Those decisions might be interpreted as holding that any address or other communication from an employer made directly to his employees may have, and ordinarily will have, a double aspect: on the one hand, it is an expression of his own beliefs and an attempt to persuade his employees to accept them; on the other, it is an indication of his feelings which his hearers may believe will take a form inimical to those of them whom he does not succeed in convincing. Insofar as it is the first, the Constitution protects him; insofar as it is the second, it does not. The Board, being composed of those especially versed in the subject matter, must decide how far the second aspect predominates, and if they conclude that it will seriously coerce the employees' freedom of choice, they may forbid it.

The Virginia Electric & Power Company had had a history of anti-union activity of which the bulletin and the speech which were the subject of the decision were parts. The occasion of their utterance was an effort by the A. F. of L. to organize the company shortly after the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., had been declared constitutional, and while an unaffiliated union was in process of formation in the plant. The bulletin recognized the right of the employees to join any union, but said that none of them need do so. It declared that campaigns of national labor organizations had often resulted in strikes and unrest and that the company, for the fifteen years during which there had been no union, had had happy relations of mutual confidence and understanding with its employees. It was always willing to discuss its affairs singly or collectively with any of them, and would continue to do so; the interests of both would best be promoted by confidence and cooperation. There can be no question, we think, that the Board was justified in considering this as an argument, scarcely a concealed argument, against unions, at least against national unions. In the speech the employer said that some of the employees had asked for collective bargaining, but that in dealing with wages and labor conditions it must have an eye to the interests of all the employees. In conformity with the spirit of the act all interested groups should be represented. The company was willing to bargain as the majority might decide, and would not retaliate against any because of their affiliations. Nevertheless some petitions which it had received had disclosed that those who presented them wished to do their own bargaining and the company was content so to proceed. If the employees would set up an unaffiliated union, that would make it easier to bargain in that way. From this the Board might also have concluded that the employer was advocating the formation of an unaffiliated union.

The court reversed a finding that the employer had used coercion in uttering these two statements. It assumed, though it did not expressly so decide, that, taken as parts of the whole "complex" of circumstance — past and present — they might have supported a finding of coercion; but it was doubtful whether the Board had not based its action upon them alone, without taking them as a part of all the company's dealings with its employees. So isolated, the court found "it difficult to sustain a finding of coercion" founded upon them, page 479 of 314 U.S., page 349 of 62 S.Ct., 86 L.Ed. 348. What the employer had said "set forth the right of the employees to do as they please without fear of retaliation," and that protected his utterances except as they might be altered by "imponderable subtleties at work." As it appeared that the Board had "rested heavily" on the bulletin and speech, "the adequacy of which we regard as doubtful," it must reconsider the case as a whole.

In spite of a little ambiguity thrown upon the reasoning by the words last quoted, the conclusion seems inevitable that the court did not believe that the bulletin and the speech would alone support a finding of coercion. Possibly it so concluded because they could not have in fact coerced the employees; but we do not so understand it: the employer had raised his privilege and we read the decision as sustaining it. But it makes no difference which view we take: whether there was not enough evidence of coercion, or whether, though there was, the utterances were privileged: in either event, without more they did not support the finding. The only question here is therefore whether the respondent's letter and speech were different enough to count. We shall not go over them in detail; they appear to us to be substantially the same in their general tenor and purport. The respondent professed itself willing to abide loyally by the results of the election, but did not conceal, though perhaps it made some effort to disguise, its preference for no union whatever. But there was no intimation of reprisal against those who thought otherwise; quite the opposite. The most that can be gathered from them was an argument, temperate in form, that a union would be against the employees' interests as well as the employer's, and that the continued prosperity of the company depended on going on as they had been. It seems to us extremely undesirable, particularly in so highly charged a subject matter, to draw fine-spun distinctions between two situations so closely alike; any we could...