NLRB v. Clapper's Manufacturing, Inc.

• Decision Date: 08 March 1972
• Docket Number: No. 71-1422.,71-1422.
• Citation: 458 F.2d 414
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CLAPPER'S MANUFACTURING, INC., Respondent.
• Court: U.S. Court of Appeals — Third Circuit

458 F.2d 414 (1972)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CLAPPER'S MANUFACTURING, INC., Respondent.

No. 71-1422.

United States Court of Appeals, Third Circuit.

Argued December 14, 1971.

Decided March 8, 1972.

COPYRIGHT MATERIAL OMITTED

Steven Semler, N.L.R.B., Washington, D. C., for petitioner.

William R. Tait, Jr., McNerny, Page, Vanderlin & Hall, Williamsport, Pa., for respondent.

Before VAN DUSEN and HUNTER, Circuit Judges, and LAYTON, Senior District Judge.

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge.

The National Labor Relations Board ("Board") determined that the respondent-employer, Clapper's Manufacturing, Inc., ("Clapper's") had committed unfair labor practices within the meaning of Sections 8(a) (1) and 8(a) (2) of the National Labor Relations Act, ("Act") 29 U.S.C. § 158(a) (1) and (2). The Board now seeks the customary enforcement order.

Clapper's is engaged in the manufacturing of plastic laminated furniture tops in Meyersdale, Pennsylvania. In the early spring of 1968, the United Brotherhood of Carpenters and Joiners ("Union") began what became a heated and protracted campaign to organize the company's employees. Clapper's vigorously sought to counteract this effort. The Union petitioned the Board for an election which was subsequently held on November 22, 1968. The Union was defeated by a vote of 86-57. Objections to the election as well as additional charges of unfair labor practices were filed by the Union and pursuant to the parties' stipulation, the Regional Director of the Board set aside the results and ordered that another election be held on June 20, 1969. Upon losing this second election the Union filed objections and on July 8, 1969, filed charges of additional unfair labor practices. These latter objections were consolidated for hearing with the unfair labor practice cases initiated by the November 1968 and July 1969 charges.

In opposing the instant application for enforcement, Clapper's contends that (1) statements made by company president, Dale Clapper, and his supervisory personnel were not violative of Section 8(a) (1); (2) there was no interference with any "labor organization" as defined by Section 2(5) of the Act; and (3) the case should be remanded for further hearing since the procedure followed by the Trial Examiner in excising portions of certain pretrial affidavits of Board witnesses deprived the company of due process. We find no merit to these contentions.

I

Section 8(a) (1), 29 U.S.C. § 158 prohibits an employer from interfering with, restraining or coercing his employees in the exercise of those rights guaranteed by Section 7 of this Act.¹ After reviewing the Trial Examiner's evaluation of the relevant events and often conflicting testimony of the parties,² the Board concluded that Clapper's through the actions of Dale Clapper and various supervisory personnel, violated Section 8(a) (1) on the following occasions:

1. Coercive Interrogations

On June 29, 1969—the evening before the second election—Dale Clapper questioned employee Alfred Murray as to "how he thought the election is going to go" and how several of his fellow employees planned to vote in the upcoming election. On another occasion—in October of 1968—Clapper entered into a discussion with employee Herman Sines and asked him what he thought "about the union business."

2. Threats of Economic Reprisals

In October of 1968, Dale Clapper told employees Herman and Thelma Sines that if the "Union got in, they would be the first ones out because Plant #2 would be closed down." On a second occasion that month, supervisor Milton Sines (Thelma's brother-in-law) stated to Mrs. Sines that, if the "Union came in she would be out of work altogether because building two would be closed down . . . and that anybody else pushing for the Union would be the first to go when building #2 closed down."

3. Company Surveillance

On the day of the second election a company supervisor, Walter Lenhart, engaged employee Patricia Ross in a brief conversation which was concluded by his question as to whether "there was anyone else in the plant that Mrs. Ross thought he should talk to" and "how Mrs. Ross thought the election is going to go." That afternoon Lenhart approached employee Roger Wahl and indicated that he Lenhart intended to question other employees in the various plants as to their feelings about the Union.

4. Coercive Speeches

During a question and answer period following a speech to employees in November of 1968, Clapper wished his workers a Merry Christmas and Happy New Year and added that "if the Union got in we would be on strike over the holiday." On a similar occasion in June of 1969, Clapper was quoted as saying that "if the Union came in we would be on strike over Christmas and that would be a good time for his inventory."³

Clapper's contends however, that even though these incidents might constitute technical illegalities, they are "isolated," "innocuous," and de minimis and that, considering the heat of the election campaign, they should not be the basis for anything as serious as a Section 8(a) (1) violation. The company asks this Court to exercise its limited power of review, 29 U.S.C. § 160, Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), and hold that as a matter of law these statements do not support a cease and desist order.

Our inquiry must be whether or not there was a substantial basis for the Board's findings. An affirmative answer will require enforcement of the order. Initially, although the cited incidents of "coercive interrogation" may have occurred during the course of otherwise harmless conversations we nevertheless uphold the Board's finding that these remarks were coercive. The purpose of Dale Clapper's questioning was certainly to elicit information about employees' attitudes toward the Union and given the closeness of the scheduled elections, was beyond the bounds of permissible interrogation. See N. L. R. B. v. S. E. Nichols-Dover, Inc., 414 F.2d 561, 563 (3rd Cir. 1969); N. L. R. B. v. Frank C. Varney Co., Inc., 359 F.2d 774, 775 (3rd Cir. 1966); N. L. R. B. v. S. S. Logan Packing Company, 386 F.2d 562, 564 (4th Cir. 1967).

Further, Dale Clapper's remarks to Herman and Thelma Sines were unlawful as constituting implied threats of economic reprisals for union activity, see N. L. R. B. v. Barney's Supercenter, Inc., 296 F.2d 91, 94-95 (3rd Cir. 1961); N. L. R. B. v. Marsh Supermarkets, Inc., 327 F.2d 109, 111 (7th Cir. 1963), cert. denied, 377 U.S. 944, 84 S.Ct. 1351, 12 L.Ed.2d 307 (1964), as were the cited statements conveying the impression of company surveillance of Union activity. See N. L. R. B. v. S. E. Nichols-Dover, Inc., supra., 414 F.2d at 563; N. L. R. B. v. Texas Electric Cooperatives, Inc., Treating Division, 398 F.2d 722, 725 (5th Cir. 1968); N. L. R. B. v. S. S. Logan Packing Company, supra., 386 F.2d at 564; General Electric Company, Battery Products, Capacitator Department v. N. L. R. B., 400 F.2d 713, 716 (5th Cir. 1968), cert. denied, 394 U.S. 904, 89 S.Ct. 1012, 22 L.Ed.2d 216 (1968). Finally, the Board reasonably concluded that Dale Clapper's predictions of plant closure were not "carefully phrased on the basis of objective fact," N. L. R. B. v. Gissel Packing Co., 395 U.S. 575, 618, 89 S.Ct. 1918, 1942, 23 L.Ed.2d 547 (1969), but rather were statements carrying implications that he would "take action solely on his own initiative for reasons unrelated to economic necessities and known only to him." Gissel, supra, 395 U.S. at 618, 89 S.Ct. at 1942. See also Mon River Towing, Inc. v. N. L. R. B., 421 F.2d 1, 11 (3rd Cir. 1969); N. L. R. B. v. Winn-Dixie Stores, Inc., 341 F.2d 750, 752 (6th Cir. 1965), cert. denied, 382 U.S. 830, 86 S.Ct. 69, 15 L.Ed.2d 74 (1965).

We conclude that the evidence taken as a whole provides a substantial basis for the Board's finding of a Section 8(a) (1) violation. Universal Camera Corp. v. N. L. R. B., supra., 340 U.S. at 487-488, 71 S.Ct. 456.

II

We likewise decline to disturb the Board's finding that Clapper's violated Section 8(a) (2)⁴ through the domination and control of its company "Employees' Committee" ("Committee"). The Examiner recommended and the Board ordered that Clapper's withdraw recognition and completely disestablish the Committee as a representative employee organization. We agree.

The Committee was inaugurated by Dale Clapper prior to the second election to serve, ostensibly, as an "oral suggestion box" concerning employee problems and grievances. Although his intentions may have been exemplary, the ensuing relationship between the Committee and Clapper's constituted a violation of § 8(a) (2). The record indicates that the Committee had neither semblance of formal structure nor any meaningful independence of the company. In brief, Clapper's completely dominated the Committee's organization and activities. Meetings were held at the company's convenience, on its premises, and never in the absence of management. No dues were ever assessed and Clapper's controlled the composition of the Committee by either promoting, discharging or transferring errant "representatives."⁵ Meetings were held on company time and the minutes of those meetings prepared and distributed by the company.

Clapper's, however, claims that the Committee was not in fact, a "labor organization" within the meaning of § 2 (5) of the Act. We reject this contention. Section 2(5), 29 U.S.C. § 152(5), states that:

"The term `labor organization\' means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work."

In N. L. R. B. v. Cabot Carbon Co., 360 U.S. 203, 79 S.Ct. 1015, 3 L.Ed.2d 1175 (1959), the Supreme Court held that an "employee...