NLRB v. Ambox, Incorporated, 21989.
| Decision Date | 01 March 1966 |
| Docket Number | No. 21989.,21989. |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AMBOX, INCORPORATED, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Marcel Mallet-Prevost, Asst. Gen. Counsel, Morton Namrow, Atty., N. L. R. B., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Glen M. Bendixsen, Atty., N. L. R. B., Washington, D. C., for petitioner.
Charles R. Vickery, Jr., Huggins, Vickery & McConnell, Houston, Tex., for respondent.
Before JONES and BROWN, Circuit Judges, and DYER, District Judge.
The Board seeks enforcement of its order issued on May 12, 1964, against the respondent who is engaged in the custom fabrication of metal products.
The Board found that respondent violated Section 8(a) (1) of the Act by coercively interrogating employees and indicating that their union activities had been under surveillance, by urging that the formation of a company union would result in increased benefits, by announcing a wage increase and certain employee benefits at a time when the union's election objections were pending before the Board, and by importuning employees to furnish or exhibit statements given to Board agents.1
The Board further found that respondent violated Section 8(a) (2) and (1) of the Act by promoting and establishing a company dominated union known as the "Employees-Management Relations Council."2
The Board also found that respondent violated Section 8(a) (3) and (1) of the Act by discharging employees Sydow and Zella on December 7, 1962, and Deasy and Spears on December 14, 1962, because of their union activities.
The facts are, for the most part, not in dispute. On December 3, 1962, employees Sydow, Zella, Deasy and Spears discussed the prospects for getting union representatives at the respondent's plant. They arranged to meet with a representative of the union that night at Deasy's motel room. They signed union authorization cards and Sydow and Zella were given additional cards to distribute to employees at the plant.
By December 6, 1962, Sydow and Zella had succeeded in signing up seventeen of the company's thirty-four employees.
On December 7, 1962, Sydow, Zella and one other employee were terminated "because of lack of work."
The union wrote respondent on December 11, 1962, claiming that a majority of the employees had selected it as their bargaining representative. On December 12, 1962, the respondent's president denounced the union over the loudspeaker and expressed his disbelief in the claim that the union represented a majority.
At a company Christmas party on December 13, 1962, the president expanded his views why he thought the employees should not be represented by the union and posted his own letter next to the union's letter on the bulletin board.
The Board credited testimony concerning certain conversations on December 13 and 14 between the foreman and production manager and employee Deasy. On December 13, about quitting time, as Deasy was clocking out, foreman McCullars asked him if he had heard that the "boys (were) trying to get a union here" and asked if he would give him some information about it. Deasy avoided answering, telling McCullars,
The following day, December 14, 1962, production manager Dicks asks Deasy to disclose what he knew about "this union stuff going around the shop." Deasy spoke in favor of it, but said he understood the president was "pretty well shook up about it." Dicks replied, "You can't very well blame him," referring to increased labor costs. Later in the day Dicks discharged Deasy, Spears3 and two additional employees for "lack of work."
Shortly before the Board election in April, 1963, the president told the employees that they would be better off with a company union. The union lost the election and subsequently filed objections. The following week the president commended the employees for having defeated the union, announced a wage increase, and said that if anyone wanted a change of jobs or shifts to talk to him about it. Thereafter, an "Employees-Management Relations Council" (company dominated union) was formed, the details and operation of which are now unimportant since the 8(a) (2) violation finding is not contested by the respondent.
About a week before the start of a Board hearing on September 17, 1963 (on unfair labor practice charges filed by the union and consolidated with the objections to the Board election proceeding), respondent asked some employees to go to the office of its attorney for interviews. The attorney questioned the employees as to who the leaders were of the organizational efforts, and when he was confronted with their reluctance to make any disclosures, he stated that he knew that Zella, Sydow and Deasy were the ringleaders. During the interview, the attorney also asked the employees if they had furnished statements to the Board's agents. One who had was requested by the attorney to let him see a copy of it, and later respondent's president told him that if he would give him a copy of it, "it would put a feather in (his) cap."
The Deasy Conversations. Even in the light of the total circumstances presented here, the two isolated questions put to Deasy on December 13 and 14 did not carry a threat to retaliate against or interfere with union sympathizers, N. L. R. B. v. McGahey, 5 Cir. 1956, 233 F.2d 406, nor could proscribed coerciveness be inferred. The interrogations were not accompanied by any overt threat or promise, and were not such as would tend to influence the employees and interfere with the free exercise of their organizational rights under the Act. N. L. R. B. v. Fontainebleau Hotel Corporation, 5 Cir. 1962, 300 F.2d 662. As we recently said in N. L. R. B. v. Affiliated Food Stores, Inc., 5 Cir. 1965, 353 F.2d 287:
Respondent's grant of benefits while objections to election were pending. The trial examiner found this did not violate Section 8(a) (1) of the Act, but the Board sustained exceptions to this finding because in its view it was calculated to influence the employees' choice of a bargaining representative in the event of a second election, and encouraged membership in a company dominated union. We think the trial examiner was right. We are not persuaded by the Board's inverse analogy drawn from N. L. R. B. v. Exchange Parts Co., 375 U.S. 405, 84 S.Ct. 457, 11 L.Ed.2d 435, where there was a grant of benefits before, and not as here, after an election. It was made clear that the increases would be granted retroactively as soon as the election objections were cleared up, and the promise of benefits was not made dependent on the outcome of the election proceeding. To extend the pre-election prohibition to the post-election period, under the circumstances here existing, would unnecessarily seriously curtail the rights of employers and employees.
Interrogation of employees by respondent's counsel prior to hearing. The trial examiner found that "in the absence of evidence that the Company had knowledge of the matters inquired about in the instant case" respondent did not violate Section 8(a) (1) of the Act by its counsel's interrogation of employees approximately a week before the hearing on unfair labor practice charges. The Board overturned this finding.
There is no doubt that where an employer has a legitimate cause to inquire, he may exercise the privilege of interrogating employees on matters involving their Section 7 rights without incurring Section 8(a) (1) liability. Did the interrogation here go beyond that legitimately necessary for the preparation of respondent's defense? We think not. The inquiry did not delve into union matters beyond the limits of the issues raised by the complaint.
During counsel's interrogation of the employees (in September, 1963), he asked them whether or not Zella, Sydow and Deasy were the leaders of the organizational efforts. The Board found that this indicated to the employees that their union activities had been under surveillance in December, 1962. This cannot be sustained. Knowledge of the identity of union leaders is no substantial evidence of surveillance of their activity for it may be acquired in an infinite variety of lawful ways. Indeed, this knowledge was revealed nine months after the fact to which the Board relates it.
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