NLRB v. Camco, Incorporated

• Citation: 340 F.2d 803
• Decision Date: 11 January 1965
• Docket Number: No. 21301.,21301.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CAMCO, INCORPORATED, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

340 F.2d 803 (1965)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CAMCO, INCORPORATED, Respondent.

No. 21301.

United States Court of Appeals Fifth Circuit.

January 11, 1965.

Leonard M. Wagman, Atty., Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Arnold Ordman, Gen. Counsel, Warren M. Davison, Atty., N.L.R.B., Washington, D. C., for petitioner.

L. G. Clinton, Jr., H. L. Deakins, Jr., Houston, Tex., Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, Tex., of counsel, for respondent.

Before WISDOM and GEWIN, Circuit Judges, and HANNAY, District Judge.

WISDOM, Circuit Judge:

In this unfair labor practice case Camco, Inc., a Texas corporation manufacturing oil field equipment, contends that it made a good faith reduction in force because of a decline in business brought about by Hurricane Carla. The charging union, District Lodge No. 37, International Association of Machinists, AFL-CIO, contends that the decline in business was a pretext for discharging eleven employees because of their union activities. Camco insists that the eleven men were selected for termination of employment before it knew of their union activities. The Trial Examiner accepted the Company's explanation, found that Camco had engaged in certain "technical" violations of the National Labor Relations Act but had not engaged in the other alleged unfair labor practices, and concluded that a cease and desist order would not "effectuate the purpose of the Act." The National Labor Relations Board disagreed with the Examiner's conclusions. The Board found that the Company violated Section 8(a) (1) of the Act by engaging in an "extensive campaign of interrogation coupled with promises of benefits and implied threats" and that this "coercive conduct warrants the issuance of a remedial order."¹ The Board found that Camco violated Section 8(a) (3) and (1) of the Act by discriminatorily discharging the eleven employees. The Board seeks enforcement of an order based on its findings. We grant enforcement of the order, except as to the reinstatement of two of the discharged employees.

I.

Coercion by interrogation is one of the "subtler" forms of management's interference with labor's protected rights.² As the differences here between the Examiner and the Board illustrate, the "act of interrogation is not coercive or intimidating on its face, nor is it easy to demonstrate just how often, and under what circumstances, a threat of reprisal will be inferred by the employees."³ Bourne v. N. L. R. B., 2 Cir.1964, 332 F.2d 47, 48 modifying 144 NLRB No. 75 (Sept. 26, 1963), is helpful in determining the limits of proper interrogation. In that case the court lists five factors to be considered in weighing the lawfulness of company interrogation of employees:

"(1) The background, i. e. is there a history of employer hostility and discrimination?

"(2) The nature of the information sought, e. g. did the interrogator appear to be seeking information on which to base taking action against individual employees?

"(3) The identity of the questioner, i. e. how high was he in the company hierarchy?

"(4) Place and method of interrogation, e. g. was employee called from work to the boss\'s office. Was there an atmosphere of `unnatural formality\'?

"(5) Truthfulness of the reply."

This list is not intended to be definitive and, as Professor Bok has pointed out, intimidation may occur even if all of these factors cut in favor of the employer. He warns that "employers must beware of interrogation unless (1) they have a valid purpose for obtaining information concerning the union's strength; (2) they communicate this purpose to the employees; and (3) they assure the employees that no reprisals will be taken."⁴ Taking the Bourne approach, but bearing in mind Bok's formulation of the Board's warning to employers, we enter a Blue Flash⁵ thicket.⁶

There is no doubt about Camco's anti-union animus, although there is contradictory testimony in regard to a speech by the Company's president in which the anti-union policy was plainly stated. Several employees testified that in October 1961 President Harold E. McGowen, Jr. made a speech to the employees in which he threatened to close the plant if it were unionized. McGowen testified that he made no such threats. His speech was in fact a written statement of over-all plans read at a meeting of stockholders as well as at a meeting of employees. The Examiner discredited the testimony of the employees. The following anti-union statement does appear in the written speech:

"Union — as you know, some 3½ years ago, we had a union election in this plant. This was defeated and since then, we have had absolutely no trouble in this respect. This Company is of the very firm opinion that we will not have a union here. We are against the union in all respects and will do our best to see that it does not come to this plant. If any man feels otherwise, we invite him to leave and go to another plant. This is the American way of life."

In December 1961, President McGowen decided to reduce production personnel because sales and profits were down. Camco terminated four employees on January 4, 1962, six on January 5, and eight more later in the month. February 2, Hughes, head of the production department, instructed Shop Superintendent Theek to submit a list of ten men to be laid off. Theek passed the instructions along to his foremen, Cook and O'Pry. February 7 or 8, the foremen submitted to Theek ten names. All were union supporters and all were terminated February 16.

Efforts to organize the plant did not begin until the middle of January when McCall, a production employee asked the help of the Union. February 9, Locke, another production employee, arranged an organization meeting at the Union Hall the next day.

Numbers are important in this case. Of the 95 employees in the production department, 16 attended the meeting and signed authorization cards. Of the 16, Camco fired 11; one on February 13, three days after the meeting, and 10 on February 16. These 11 men were the only production employees discharged during February 1962. No non-union man was discharged.

Between the time of the meeting and the time of the terminations, three Camco officials (Shop Superintendent Theek and Foremen O'Pry and Cook) interrogated 11 employees about their union activities; 10 were union adherents. The Company admittedly interrogated nine of the eleven union employees discharged; the tenth was a union leader discharged summarily; there is no evidence one way or the other as to the eleventh.

The discharged employees testified that the interrogators, Theek, O'Pry, and Cook attempted to learn the identity of the men who had been at the meeting and repeatedly said that the men who had attended the union meeting would be fired. Cook testified that the Company knew the identity of the men.

The testimony of the discharged employees was corroborated by the testimony of a union sympathizer, Baggett, who was still working for Camco at the time of the hearing. He testified that when he was questioned he did not admit his union activity; his foreman testified that he did. According to his testimony, one Camco foreman stated that he would not be fired because he had not attended the union meeting. Another foreman stated, before the union meeting, that he was going to the union hall to take names. A foreman said shortly after the discharge of the ten men that they had been fired because they were "troublemakers and union agitators".

Superintendent Theek admitted that he interrogated one employee. Foreman Cook admitted interrogating four employees, including the one Theek questioned. Foreman O'Pry admitted interrogating seven employees. These interrogations took place in a short period — between February 13 and February 15. February 15, Theek asked employee Locke if he had attended the union meeting and mentioned the benefits that the Respondent had given the employees. February 13, Cook asked Locke whether he had heard rumors "going around" about a union. He told Locke "to keep his feet on the ground" and that it would be to Locke's benefit if he "stayed out of it". During this same period, O'Pry, on separate occasions, asked employees McCall, Clepper, Cox, Yeager, and Williams whether they had attended the union meeting.

According to the testimony of Camco supervisory employees, at least 6 of the 10 union adherents questioned denied that they knew anything about the union activity or that they had attended the union meeting. A seventh testified that he denied it; his foreman testified that he admitted it. In N. L. R. B. v. Syracuse Press, 2 Cir.1954, 209 F.2d 596, 597, cert. denied, 1954, 347 U.S. 966, 74 S. Ct. 777, 98 L.Ed. 1108, discussed in N. L. R. B. v. Harbison-Fischer Mfg. Co., 5 Cir.1962, 304 F.2d 738, 744, the Second Circuit emphasized the fact that one of the employees when questioned concealed his union activity. Here, since most of the Camco employees questioned, at least at first, concealed their union activities, the Board could reasonably infer that they were answering under pressure.

Camco argues that the interrogation was only by low-ranking officials and was done informally in the shop while the men were at work. Theek supervised the machine shop. Cook and O'Pry were foremen under Theek. The place of interrogation and the rank of the interrogators bear on the issue of coercion but, assuming the authority of the interrogators to speak for the Company, the crucial question is not their rank but whether to the employees the interrogators represent the Company. See Hendrix Mfg. Co. v. N. L. R. B., 5 Cir. 1963, 321 F.2d 100. Here the record shows that in the minds of the production employees the foremen and supervisor did indeed represent Camco management. Because of the nature of the interrogation and the obvious correlation between the interrogation and the discharges, the Board could reasonably conclude...