NLRB v. Automotive Controls Corporation

• Decision Date: 21 January 1969
• Docket Number: No. 9930.,9930.
• Citation: 406 F.2d 221
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AUTOMOTIVE CONTROLS CORPORATION, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

406 F.2d 221 (1969)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AUTOMOTIVE CONTROLS CORPORATION, Respondent.

No. 9930.

United States Court of Appeals Tenth Circuit.

January 21, 1969.

Jerome N. Weinstein, Atty., N. L. R. B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel and Gary Green, Atty., N. L. R. B., on the brief), Washington, D. C., for petitioner.

George K. McPherson, Jr., Atlanta, Ga. (Robert L. Beard, James A. Smith of Smith, Currie & Hancock, Atlanta, Ga., on the brief), for respondent.

Before MURRAH, Chief Judge, and HILL and SETH, Circuit Judges.

HILL, Circuit Judge.

The National Labor Relations Board petitions this court, pursuant to section 10(e) of the National Labor Relations Act as amended, 29 U.S.C. § 151 et seq., for enforcement of its order¹ finding that Automotive Controls Corporation violated sections 8(a) (1), (3) and (4) of the Act. The Board found that the company violated section 8(a) (1) by coercively interrogating employees, by creating an impression of surveillance over their union activities, and by threatening the employees with reprisals, i. e., movement of the plant, should the union² win a forthcoming representation election. The Board further concluded that the employer violated sections 8(a) (4), (3) and (1) by discharging an employee, Nedra Rose, and violated sections 8(a) (3) and (1) by refusing to raise the wages of employee Raymond Ross. The respondent, Automotive Controls Corporation, while disagreeing in principle with all of the Board's determinations, asserts that enforcement should be denied only insofar as it relates to the findings that company speeches threatened the employees and that Nedra Rose was discriminatorily discharged.

Automotive Controls Corporation operates a plant in Independence, Kansas, that manufactures automobile voltage regulators. During January, 1966, the union began an organizational campaign directed to the Company's production and maintenance workers. On January 20, 1966, the union filed a petition with the Board for a representation election which was held on March 25, 1966. Having been defeated by a vote of 80 to 206, the union filed objections to employer conduct affecting the election and also filed the charges giving rise to the alleged unfair labor practices at issue here.³

The first finding of the Board that is challenged by the respondent involves the Board's determination that a pre-election speech given to the employees by Frederick Mancheski, president of the company, contained a "not very heavily veiled threat that the respondent would move its plant if the union were to be successful in its campaign." The trial examiner concluded, and the Board agreed, that the speech, standing alone, fell within the ambit of employer free speech protected by section 8(c) of the Act.⁴ However, it was felt that when the speech was taken together with a previous speech delivered on behalf of the employer by one John Echlin and a letter issued its employees by the company, then the speech was thrust "over the narrow line from protected free speech into the area of proscribed conduct." When considered in conjunction with the other communications of the company, the Board determined that the speech became a syllogistic threat indicating that a plant that loses money must move, unionization will cause the plant to lose money, ergo if the plant is unionized it will move.

We begin with the premise that employers' statements that are not coercive are protected by section 8(c) and cannot be the basis for finding a violation of section 8(a) (1).⁵ Although on occasion the coerciveness of a statement is patently obvious, generally the test of coerciveness is one of total impact to be determined in light of the background in which the statement is made.⁶ Hence, a speech that is deemed threatening in one situation may be wholly protected in another. The issue then is one of determining whether there is substantial evidence to support the Board's finding that this particular speech, when viewed in light of the totality of employer communications, was such as to convey a threat of reprisal in the event the union campaign proved successful.

During the course of election campaigning, the question arose as to whether the company could move its plant in retaliation for the union's winning the election. The union issued several circulars emphatically stating that federal law precluded such a move. Consequently, at the conclusion of the speech⁷ given to the employees on March 21, the speaker, John Echlin, a chief figure in the employer's parent corporation, Echlin Manufacturing Company, was asked whether the rumor was true "that if the plant went union that they would move." Echlin replied: "Not as long as it continues to operate on a profit margin." Some two days later the company sent a letter to the employees in which it was stated that the most important issue in the campaign was whether the employer could afford the added costs and turmoil the union could cause and still continue its operations. The letter indicated that the plant had incurred losses totalling $500,000 and that there would be a point at which management could conclude that the plant was too unprofitable to continue. On that same day, two days before the election, Mancheski began to deliver his prepared speech to groups of assembled workers. After first indicating that the plant was still in its infancy and that the increased costs likely to be the result of unionization could fatally damage the business, Mancheski declared that the union had lied to the employees: "They say that Automotive Controls cannot move if you have a union. We can move any plant at any time it proves to be an undesirable plant location, whether there is a union present or not."

In determining whether these remarks transcend the bounds of free speech enumerated in section 8(c), it is firmly established that in the event that the speech, when viewed in context, does not contain threats, but instead contains predictions and prophecy, then it is protected and cannot be evidence of a section 8(a) (1) violation.⁸ Consequently, an employer is free to express the opinion that dire economic consequences will befall his employees if they choose a union to represent them, so long as the prediction does not amount to a threat that the adverse consequences will be deliberately inflicted by the employer in return for unionization.⁹ Therefore, "a prediction that competitive conditions will force a plant to close if a union contract is signed is protected, whereas a threat to close down in retaliation to unionization is beyond the pale."¹⁰ A fair reading of the communications at issue here undeniably leads to the conclusion that the statements were merely predictions of dire economic consequences well within the protection of section 8(c) of the Act. Even if the Board was correct in concluding that the remarks expressed the syllogism that unionization might increase losses by increasing costs which in turn could lead to the plant's being closed, this prophecy falls far short of suggesting that if the union were successful the company would of its own volition move the plant. To conclude otherwise would be to ignore the plain meaning of the employers' remarks. It is to be remembered that an employer is a rightful contestant for the loyalty of his employees. In order to insure that election debate is "uninhibited, robust, and wide-open"¹¹ it is necessary to guard against the Board adopting an overly restrictive attitude toward employer communications. We therefore conclude that the determination that the company's statements violated section 8(a) (1) is not supported by substantial evidence.

We turn now to consideration of whether employee Rose was discharged because of her participation in union activities, or whether, as asserted by the respondent, she was discharged for cause. Unless it can be said that the conclusion that union discrimination was as least a partial motive for the dismissal was clearly erroneous, the decision of the trial examiner and the Board to that effect must be sustained.

The evidence indicates that Rose was employed on December 7, 1965, to work mainly in the employer's subassembly department. In keeping with company policy, she was a probationary employee¹² during the first three months on the job and was moved frequently from one kind of machine operation to another. Most of the machines Rose operated had an established minimum production level, designated as a "standard," which employees were expected to maintain while operating the machines. Employees producing in excess of "100 percent standard" received additional incentive pay.

From the very beginning of the union organization campaign Rose was an active union supporter attending union meetings and asking questions of the speakers. One of the questions she asked concerning whether employees could be dismissed for talking about the union during working hours was posted on company premises together with the company's response thereto. Rose later approached James Thornton, the plant manager, telling him that the question was her's and that she disapproved of the company's answer. She also indicated her unwavering support for the union.

On February 8, at a representation hearing held to determine who would be eligible to vote in the forthcoming election, Rose gave testimony favorable to the union. The next day, the group leader of the subassembly department informed Arthur Tull, the department foreman, that Rose and another employee, Betty Wade, had engaged in an unauthorized job change. Tull admonished the two employees who denied having exchanged jobs. Tull then requested Rose to accompany him to another area of the plant where the two discussed her work record. Tull informed Rose that she was talking too much and spending too much time away from her work station. He...