NLRB v. Crystal Tire Company
| Citation | 410 F.2d 916 |
| Decision Date | 07 August 1969 |
| Docket Number | No. 19324.,19324. |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CRYSTAL TIRE COMPANY, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Abigail C. Baskir, Atty., N. L. R. B., for petitioner, and Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Elliott Moore and Herbert Fishgold, Attys. for N. L. R. B., on the brief.
Thomas M. Hanna, St. Louis, Mo., of McMahon & Berger, Clayton, Mo., for respondent.
Before VAN OOSTERHOUT, Chief Judge, and MATTHES and BRIGHT, Circuit Judges.
Rehearing En Banc Denied August 7, 1969.
On June 19, 1967, the National Labor Relations Board found that Crystal Tire Company had violated § 8(a) (1) of the National Labor Relations Act by unlawfully interfering with the union organizational activities of its employees and § 8(a) (3) and (1) of the Act by discharging its employee Leroy White for his union organizational activities.1 The Board, pursuant to § 10(e) of the Act, petitions this Court for enforcement of its order, which:
(1) directs Crystal Tire to cease and desist from interfering with its employees' organizational rights guaranteed by § 7 of the Act;
(2) directs Crystal Tire to reinstate Leroy White with back pay;
(3) directs Crystal Tire to recognize and bargain with the Automotive, Petroleum, and Allied Industries Employees Union, Local 618, which is an affiliate of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.
On March 6, 1966, Lemuel Massa, Elmer Massa and Leroy White, employees in the Crystal Tire service department, began a union organizational campaign. By the evening of March 17, seven of the fourteen employees of Crystal had signed cards authorizing Local 618 to serve as their collective bargaining agent. The news of this organizational activity was quickly communicated to Russell Bauman, the president and an owner of Crystal Tire Company. On the morning of March 18th, Bauman summoned Elmer Massa to his office and asked him whether he and White were responsible for the union activity. Massa evaded the question. Bauman further stated that he was "going to let Leroy White go that day".
Later the same day, employee Halbrook informed Bauman that "the boys in the back are talking about going union" and "they tell me I have to go union". Bauman thereupon called both Elmer and Lemuel Massa into his office and stated that, if they wanted a union, they should work for another company and, if there should be a union, he would not be able to retain all of the employees and would probably have to shut down. Lemuel Massa complained that he had to work fifty hours a week for a hundred dollars and Bauman replied, "What would it take, a hundred dollars for about 40 hours?" Bauman also informed them that White "was through" and that they could "take that for what it's worth". Later this same day, Bauman told Elmer Massa that he would be willing to bargain with the "Glass Workers Union" but he could not afford Teamsters wage rates and would have to "cut everybody to 40 hours" if he had to pay those rates.
On March 19, Bauman was informed by the union local affiliated with the Teamsters that it had been designated as collective bargaining representative by a majority of Bauman's employees. He thereupon called the Glass Workers Union and asked for help. On March 21, Crystal foreman Paul Courtaway informed a group of employees that he had arranged a meeting for them that evening with representatives of the Glass Workers Union. Lemuel Massa complained that he did not want to go and Courtaway retorted, "Well, you have to go".
The Board affirmed the ruling of the Trial Examiner that Bauman's questioning of Elmer Massa was coercive and in violation of § 8(a) (1) of the Act. The Trial Examiner also concluded that the company had violated § 8(a) (1) of the Act by Bauman's suggesting that he would be willing to change Lemuel Massa's hours of employment and rate of pay; by his telling Elmer Massa that he would be willing to sign a contract with the Glass Workers Union; and by Courtaway's arranging of a meeting with the Glass Workers representative and insisting that the employees attend.
Contrary to the Trial Examiner's findings, the Board found an 8(a) (1) violation in:
"President Bauman\'s statement to employees Lemuel and Elmer Massa that, if unionized, Respondent would have to stop work on its new recap shop, that Respondent could not keep all of its employees if it had to pay union scale, that Respondent would have to shutdown, that Lemuel and Elmer Massa should join their brother at the Chrysler plant if they wanted a union, that they would be hurt by the Teamsters\' contract, that Respondent could not pay overtime at Teamster rates, and that Respondent would have to `cut everybody to 40 hours\' if it had to pay Teamsters\' rates."
Bauman's statements were made in the heat of emotional turmoil. He was obviously perturbed in contemplating dealing with the union. Nevertheless, the language was coercive in nature and went beyond the perimeter of the protected area of employer free speech recognized in NLRB v. Hawthorn Co., 404 F.2d 1205, 1212 (8th Cir. 1969); NLRB v. Herman Wilson Lumber Co., 355 F.2d 426, 432 (8th Cir. 1966). The effect of the employer statements must be judged in the light of circumstances in which words innocent in and of themselves may be understood as threats. See, for example, NLRB v. Hawthorn Co., supra; NLRB v. Louisiana Mfg. Co., 374 F.2d 696, 703 (8th Cir. 1967). Words though coercive in meaning may neither be so intended nor have that effect. Such issue is generally one of fact for the Board's initial consideration. We find no fault in the Board's conclusion on these § 8(a) (1) issues.
We also affirm the Board's finding of an 8(a) (3) violation in Bauman's firing of employee White. The company points to after-the-fact reasons for the firing of White alleging that he often was late for work, that he complained to customers of his low pay and that he otherwise was not rendering satisfactory service. The company contends that a decision had been made to discharge White prior to the incidents of mid-March and that this is evidenced by the hiring of a replacement who was scheduled to report for work on March 21. The company further contends that Bauman told Elmer Massa on the morning of March 18 that he was going to fire White and that this conversation occurred prior to Halbrook's notifying Bauman of the union activity. However, it appears that Bauman realized that an effort was being made to unionize the plant, as demonstrated by his pointed question to Massa as to whether White had started the union drive. It is properly the province of the Board to weigh the evidence and we feel that its determination on this matter is supported by substantial evidence.
We now...
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