National Labor Relations Board v. Bird Mach. Co., 4219.

• Citation: 161 F.2d 589
• Decision Date: 20 May 1947
• Docket Number: No. 4219.,4219.
• Parties: NATIONAL LABOR RELATIONS BOARD v. BIRD MACH. CO.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

161 F.2d 589 (1947)

NATIONAL LABOR RELATIONS BOARD v. BIRD MACH. CO.

No. 4219.

Circuit Court of Appeals, First Circuit.

May 20, 1947.

Owsley Vose, N.L.R.B., of Washington, D. C. (Gerhard P. Van Arkel, Gen. Counsel, Morris P. Glushein, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, and Frances Lopinsky, all of Washington, D. C., of counsel), for petitioner.

Richard J. Walsh, of Boston, Mass. (Richard J. Cotter, Daniel F. Sullivan, Allan Sesarman, and Warner, Stackpole, Stetson & Bradlee, all of Boston, Mass., of counsel), for respondent.

Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.

MAHONEY, Circuit Judge.

The National Labor Relations Board, pursuant to Section 10(e) of the National Labor Relations Act of 1935, 49 Stat. 449, 29 U.S.C.A. § 160(e), has petitioned this court for enforcement of its order of January 9, 1946 directed against Bird Machine Company, a Massachusetts corporation. The respondent admits that its business is such as to make it subject to the Act and hence no question of jurisdiction arises. The Board found that respondent had violated §§ 8(1) and 8(3) of the Act by engaging in certain unfair labor practices and by reason of the discriminatory discharge of one Gilbert I. Favor. The order of the Board requires respondent to cease and desist from its unfair labor practices and to offer reinstatement with back pay to Favor. The sole question for our consideration is whether the Board's order is supported by substantial evidence.

On April 20, 1944 respondent announced to its employees a job evaluation plan which would govern wage increases thereafter. Some dissatisfaction resulted from the inauguration of this plan since in many cases expected wage increases did not materialize. Shortly thereafter union activity commenced which culminated in a demand for collective bargaining negotiations by the United Steelworkers of America (C.I.O.) which claimed that it had been designated by the majority of an alleged appropriate unit of the employees. Respondent questioned the majority representation of the Union and on May 4, 1944 a representation proceeding was commenced by the Union with the Board. The Union lost the Board election which was conducted on August 25, 1944. On September 8, the Union withdrew a protest on the election and filed charges of unfair labor practices. The Board subsequently on January 13, 1945 issued its complaint against respondent; a hearing was had in the same month before a Trial Examiner who filed an Intermediate Report setting forth his findings of fact and conclusions of law which the Board upon review adopted with certain modifications.

In support of its finding of unfair labor practices on the part of respondent the Board found that the respondent's supervisory employees indulged in a course of conduct consisting of disparaging statements concerning the Union and its proponents in the plant and of threats that various rights and privileges now enjoyed by the employees would be curtailed or eliminated if the Union should be successful in organizing the plant. The respondent claims that testimony concerning the disparaging and vulgar remarks was offset by the denials of its witnesses but where conflicting evidence exists it is for the Board and not the court to weigh the evidence and adjudge the credibility of the witnesses. See N.L.R.B. v. Link-Belt Co., 1941, 311 U.S. 584, 597, 61 S.Ct. 358, 85 L.Ed. 368; N.L.R.B. v. Franks Bros. Co., 1 Cir., 1943, 137 F.2d 989, 991, affirmed 1944, 321 U.S. 702, 64 S.Ct. 817, 88 L.Ed. 435. And the Board may credit its own witnesses to the exclusion of others. See N.L.R.B. v. Auburn Foundry, Inc., 7 Cir., 1941, 119 F.2d 331, 333. Whether the disparaging and bawdy remarks alone, particularly in view of the alleged bantering atmosphere said to exist in the plant, would be sufficient to support a finding of coercion is a question that fortunately we need not decide. Cf. N.L.R.B. v. J. L. Brandeis & Sons, 8 Cir., 1944, 145 F.2d 556, 565, certiorari denied, 1944, 323 U.S. 751, 65 S.Ct. 85, 89 L.Ed. 601; N.L.R.B. v. Whittier Mills Co., 5 Cir., 1940, 111 F.2d 474, 479. Where, however, as here, disparaging remarks by supervisory employees are joined with threats of economic reprisal and loss of privileges, they may be used to indicate a course of conduct coercive in nature. See N.L.R.B. v. American Laundry Machinery Co., 2 Cir., 1945, 152 F.2d 400. Certainly the foremen threats concerning loss of privileges including rest periods, vacations and bonuses are a violation of § 8(1) of the Act. See H. J. Heinz Co. v. N.L.R.B., 1941, 311 U.S. 514, 61 S.Ct. 320, 85 L.Ed. 309. But the respondent contends that it is not chargeable with responsibility for these foremen activities since respondent's president at the commencement of the Union campaign had called a meeting of supervisory personnel and explicitly instructed them not to interfere with the union activity of the employees. The purport of these instructions was not conveyed generally to the employees although there was testimony that some few knew of the position that the president had taken. But the Heinz case has held that where the employer may gain advantage from such unauthorized foremen anti-union activities it is within the Board's province to prevent repetition thereof by its order. H. J. Heinz Co. v. N.L.R.B., supra, 311 U.S. at page 520, 521, 61 S.Ct. 320, 85 L.Ed. 309. See also N.L.R.B. v. Brezner Tanning Co., 1 Cir., 1944, 141 F.2d 62; N.L.R.B. v. Franks Bros. Co., supra; Birmingham Post Co. v. N.L.R.B., 5 Cir., 1944, 140 F.2d 638. Had the employer posted notices to the effect of the instructions given the foremen, or otherwise communicated this information to the employees, the remarks of the foremen might then have been shorn of their coercive effect. See North Carolina Finishing Co. v. N.L.R.B., 4 Cir., 1943, 133 F.2d 714, 716, certiorari denied 1943, 320 U.S. 738, 64 S.Ct. 39, 88 L.Ed. 437.

The Board further supports its findings by referring to a letter of the respondent's president mailed to all employees shortly before the election and to a marked specimen ballot displayed on the company's bulletin board. Although this letter standing by itself does not literally threaten reprisals and may even be privileged under the First Amendment, the Board need not disregard such a letter which it finds is enmeshed with a course of conduct, in determining whether a course of conduct amounts to restraint or coercion. See N.L. R.B. v. Virginia Electric & Power Co., 1941, 314 U.S. 469, 477, 62 S.Ct. 344, 86 L.Ed. 348; Thomas v. Collins, 1945, 323 U.S. 516, 537, 538, 65 S.Ct. 315, 89 L.Ed. 430; N.L.R.B. v. American Tube Bending Co., 2 Cir., 1943, 134 F.2d 993, 146 A.L.R. 1017, certiorari denied 1943, 320 U.S. 768, 64 S.Ct. 84, 88 L.Ed. 459. And the Board may permissibly find that the employees might reasonably consider the letter as confirmation of the foremen's previous remarks which were definitely coercive. See N.L. R.B. v. American Laundry Machine Co., supra. Consequently the present holding of the Board cannot be considered as conflicting with a later case involving the same company where a similar letter was held not to be coercive in the absence of any other unlawful conduct. Bird Machine Co., 72 N.L.R.B. #81; 19 L.R.R.M. 1191 (1947).

The Board...