National Labor Relations Bd. v. Essex Wire Corp.
| Decision Date | 28 February 1957 |
| Docket Number | No. 15077.,15077. |
| Citation | 245 F.2d 589 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ESSEX WIRE CORPORATION, a corporation, doing business as Essex Wire Corporation of California, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Theophil C. Kammholz, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Norton J. Come, Samuel M. Singer, Myron S. Waks, Attys., NLRB, Washington, D. C., for petitioner.
Holt, Macomber & Graham, Franklin B. Orfield, San Diego, Cal., for respondent.
Before CHAMBERS and HAMLEY, Circuit Judges, and WESTOVER, District Judge.
The National Labor Relations Board here seeks enforcement of an order requiring Essex Wire Corporation to cease and desist certain labor practices, and to post notices that it will not engage in such practices.
Respondent company is engaged in the manufacture and sale of wire products in several states, including California. The labor practices here in question occurred at the company's manufacturing plant in San Diego. The employees of that plant were represented in collective bargaining by Silvergate District Lodge No. 50, in behalf of Automotive Electric Lodge No. 1930 of the International Association of Machinists (I.A.M.). Several employees of the plant, however, became interested in United Mine Workers of America, District 50, unaffiliated (U.M. W.), as a possible bargaining agent. They began a membership campaign at the plant in behalf of that union.
When this activity came to the attention of the production manager, he sought the advice of the company's main office, in Detroit. He was advised to follow a "middle course" and to avoid any display of partisanship in the "factional" dispute, but to insist that no organizational activity be conducted during working hours. A company notice was then posted forbidding union campaigning "during working hours." The labor practices here in question, three in number, occurred shortly after the posting of this notice.
One of these practices had to do with the efforts of one of the employees, James A. Juhl, in obtaining executed U.M.W. membership application or authorization cards from other employees in the plant. On the day after he initiated this activity, Juhl was accosted by his foreman, Clyde Casey, who inquired whether Juhl was passing out membership cards. Juhl answered that he was, and, in answer to a further question, stated that he had obtained signatures on some of them.
Casey then remarked, "What are you trying to do, make a fool out of me?" Juhl replied, "No." Learning that Juhl then had the cards on his person, Casey said, "Don't you like your job here?" Juhl replied, "Yes." Casey then said, "Well, I want the cards in my office in five minutes." When this conversation had ended, Juhl returned the cards to the employees who had signed them. He advised the foreman of this action. The foreman then told Juhl that, in order for Juhl to campaign for another union, he would first have to notify "the front office," and must wait until the I.A.M. contract had expired.
The second labor practice in question involved conversations between the production manager and two employees, Juhl and James C. Hamilton. The production manager told each of these employees that rest periods were company time because employees were paid for that time, and that there must be no campaigning during rest periods.
The third criticized labor practice concerned Hamilton's wife, Mrs. Elizabeth Ann Hamilton. On two different occasions, she was approached at the plant by supervisory personnel and ordered to remove a U.M.W. button which she was wearing. This direction was given on the ground that the display of the button constituted union campaigning on company time. The I.A.M. adherents were then openly wearing buttons indicative of their loyalty to that organization. The company made no effort to require removal of the I.A.M. buttons.
The facts, as summarized above, constitute a fair resume of the examiner's findings of fact, which were adhered to by the board. Respondent's exceptions to the examiner's intermediate report and recommended order, while somewhat ambiguous, do not appear to question these findings, but only the conclusions of law drawn therefrom. The board so construed the exceptions in its consideration of the matter. In its brief before this court, however, respondent discusses the credibility of the witnesses, and argues that the board "relies upon a thin thread of vengeful accusations by disgruntled employees * * *."
If, as we are inclined to think, respondent's exceptions to the examiner's report and recommended order failed to challenge the findings of fact, those findings are not subject to question here.1 In any event, it is our view that such findings are supported by substantial evidence on the record, considered as a whole. The findings are therefore conclusive as to the controlling facts, and will be so regarded.2
The board concluded that the act of the company foreman in demanding that Juhl surrender the executed membership cards he had in his possession was an unfair labor practice within the meaning of § 8(a) (1) of the act.3
Countering this conclusion, respondent contends that the order to surrender these cards was a reasonable method of assuring that employees would not campaign for a union during company hours. It is urged that if Juhl actually acquired these cards during authorized rest periods, it was incumbent upon him to so advise the foreman, but that he did not do so. Respondent also argues that nothing appears in the record to indicate that the foreman had anything else in mind but to return the cards at the end of Juhl's shift.
Assuming that the cards were demanded in an effort to enforce the rule against union campaigning on company time,4 and that the foreman intended to return the cards at the end of the day, we are nevertheless of the view that the demand was coercive with respect to the rights specified in § 7 of the act.
Possession of such cards, even for a temporary period, would enable management to inform itself as to the progress being made in campaigning for a then-unrepresented union. It would also make it possible for management to exercise surveillance over the union affiliations and activities of individual employees. Whether the company would be disposed to make such use of the cards is beside the point. As long as the opportunity is present, employees may have a real fear that this would be done. Such fear could well influence their inclination to execute such cards.
No case involving a similar labor practice has been called to our attention. However, the coercive tendency of remarks and questions concerning union campaigning, directed to employees by supervisory personnel, has been previously pointed out by this court.5 In our view, a demand for surrender of membership cards in a union not then established in the plant is at least as coercive as such remarks and questioning.
We are therefore of the view that the demand that the union cards be delivered to the foreman was an unfair labor practice within the meaning of § 8(a) (1).
The board also concluded that the direction given Juhl not to carry on union campaigning during employee rest periods was an unfair labor practice within the meaning of § 8(a) (1) of the act.
In its brief, respondent questions the finding of fact to the effect that Juhl was given such an instruction. This contention has already been disposed of. Respondent does not question the legal conclusion that it is an unfair labor practice to forbid union campaigning during employee rest periods.
Absent special considerations relating to production or plant discipline, an employer may not issue a broad rule prohibiting union solicitation by its employees on company property. Republic Aviation Corporation v. National Labor Relations Board, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372. But working time is for work, and an employer is therefore entitled to prohibit union solicitation...
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