NLRB v. Electric Steam Radiator Corporation

• Decision Date: 28 August 1963
• Docket Number: No. 15062.,15062.
• Citation: 321 F.2d 733
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ELECTRIC STEAM RADIATOR CORPORATION, a Subsidiary of Landers, Frary and Clark, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

321 F.2d 733 (1963)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ELECTRIC STEAM RADIATOR CORPORATION, a Subsidiary of Landers, Frary and Clark, Respondent.

No. 15062.

United States Court of Appeals Sixth Circuit.

August 28, 1963.

Allison W. Brown, Jr., N.L.R.B., Washington, D. C., for petitioner.

Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Elliott Moore, Atty., N.L.R.B., Washington, D. C., on the brief.

James S. Wilson, Jr., Paris, Ky., for respondent.

Before CECIL, Chief Judge, MILLER, Circuit Judge, and BOYD, District Judge.

SHACKELFORD MILLER, Jr., Circuit Judge.

The National Labor Relations Board seeks enforcement of its order of April 9, 1962, in which it found that the respondent, Electric Steam Radiator Corporation, violated Sections 8(a) (1) and 8(a) (3) of the National Labor Relations Act by reason of the way it handled the customary Christmas bonus in December 1959. The Board ordered the respondent to cease and desist from discouraging membership in International Union, Allied Industrial Workers of America, AFL-CIO, hereinafter referred to as the Union, by refusing to pay the regular annual bonus customarily paid to its nonsupervisory production and maintenance employees at its plant in Paris, Kentucky. The order affirmatively directed respondent to pay to such employees the bonus for Christmas 1959, to be computed in the same manner as the bonus for Christmas 1958, and to send to each of such employees a copy of a notice to that effect.

Respondent is a Kentucky corporation engaged in the manufacture and sale of electrical and related products. Its office and principal place of business was at Paris, Kentucky. About May 1955 it became a wholly owned subsidiary of Landers, Frary and Clark, hereinafter referred to as Landers. Landers has its main office in New Britain, Connecticut, and owns four American and two foreign operating subsidiaries in addition to respondent. At the time herein involved, Landers' representative, Mr. Edward C. Schmid, was in control of respondent's operations as General Manager.

Employees at respondent's operation were grouped into four classes: production and maintenance, production supervisory, office and clerical, and semi and senior executives. The total number of employees was about 126 in December 1956. The number had grown to about 235 by the end of 1959 but thereafter declined to about 50 or 55 about April 1960.

Respondent's principal product was a portable room-sized steam radiator operated by plugging into an ordinary wall electrical socket. In addition, it manufactured a vaporizer, a bottle warmer, two types of fry pans and certain plastic items. The company had a very good year in 1956. Its dreams for 1957 did not materialize, although it had a good year. It had a very good year in 1958 with bright prospects for 1959. In December 1959 the respondent experienced for the first time a heavy return of radiators. Also, about the same time Rexall Drug Company, a purchaser of vaporizers, advised that it would no longer purchase vaporizers from the company because it did not have the type the Drug Company wanted to handle. Sears, Roebuck, the company's largest customer for aluminum fry pans, cancelled substantial orders. The bottle warmer was an accommodation item, or loss leader, with the company losing money on every one it manufactured. Notwithstanding the relatively bleak economic outlook in December 1959, the respondent was financially capable of meeting normal demands upon it. The company discontinued manufacturing operations shortly after January 1, 1961.

The Union was successful in a Board-conducted election held December 9, 1959, and was certified as a representative of the production and maintenance group on December 17, 1959. Bargaining meetings commenced January 20, 1960.

For a period of at least ten years prior to the Christmas of 1959 it had been the respondent's custom to give its employees a Christmas bonus. In most cases the bonus was based on length of service and ranged from a minimum of $5.00 to $20.00 or $25.00. In some cases it was as high as $100.00. In December 1959 the respondent did not advise either the employees or the Union that it would not pay the Christmas bonus that year. On December 24, 1959, the bonus was paid to office and supervisory employees but not to the production and maintenance employees. The bonus payment totaled about $340.00.

An employee, Ward Tomlin, a maintenance electrician, inquired of Schmid about 11 A.M. on December 24, 1959, after he had quit work and had been paid, but had not received a Christmas bonus, whether or not the customary bonus would be paid. Schmid answered that the bonus would not be paid because the Union had organized the plant, that those who supported the company's position would have to suffer for the act that the Union was elected as the bargaining agent, and that that was what the employees got "for voting for the damn Union."

Following its certification on December 17, 1959, the Union requested the company to set a date for bargaining. Negotiations began in January 1960. At the first meeting the Union raised the question of the 1959 bonus, but the company stated that it was part of the economic issues and it would discuss it at a time when those issues came up in the contract. A number of meetings followed, in each of which the bonus issue was brought up by the Union, but the company continued in the position that it was an economic issue and would be discussed with those issues later. On April 11, 1960, the Union filed a charge with the Board alleging the withdrawal of the bonus to be an unfair labor practice. A Board hearing on the charge was scheduled for July 11. A few days prior thereto the company proposed to the Union that it would pay the 1959 bonus provided that there would be no obligation on the part of the company to pay any bonus in the future, that the Union would withdraw its unfair labor practice charge against the company, that the Union would agree to the company's proposals on all of the remaining unresolved issues in the contract, and that the proposal be accepted prior to July 11, which was the date set for the Board hearing on the Union charges. The Union considered the proposition and advised the company that it would not accept it. Accordingly, the offer was withdrawn. A collective bargaining agreement was signed on September 3, 1960. It contained no reference to the 1959 Christmas bonus or any other bonus.

Section 8(a) (1) of the Act, Section 158(a) (1), Title 29 United States Code, makes it an unfair labor practice for an employer to interfere with or coerce employees in the exercise of their right to join a labor organization and to bargain collectively through representatives of their own choosing. The Trial Examiner found that the remarks of Mr. Schmid in answer to the question why the Christmas bonus was not being paid to the production and maintenance employees were not coercive and did not constitute a violation of Section 8(a) (1) of the Act. However, it was the finding of the Board that the remarks were coercive in nature and constituted a violation of that section of the Act. We agree with the Board on this issue in the case.

Statements by a supervisory employer in the nature of a threat to prevent unionization of employees constitutes a violation of Section 8(a) (1) of the Act. This is so even though the statements may not be directly coercive, if they could be reasonably so construed by the employee. N. L. R. B. v. Peterson, 157 F.2d 514, 515, C.A.6th, cert. denied, 330 U.S. 838, 67 S.Ct. 979, 91 L.Ed. 1285; United Fireworks Mfg. Co. v. N. L. R. B., 252 F.2d 428, 430, C.A.6th; N. L. R. B. v. Flemingsburg Mfg. Co., 300 F.2d 182, 183, C.A.6th; N. L. R. B. v. Bendix Corporation (Research Laboratories Division), 299 F.2d 308, C.A.6th, cert. denied, 371 U.S. 827, 83 S.Ct. 47, 9 L.Ed. 2d 65.

This principle is applicable to statements in the nature of a threat to withhold bonus benefits if the employees embrace unions unpalatable to management. N. L. R. B. v. Roure-Dupont Mfg., Inc., 199 F.2d 631, 634, C.A.2nd; N. L. R. B. v. Bird Mach. Co., 161 F.2d 589, 591, C.A.1st; N. L. R. B. v. Winona Knitting Mills, 163 F.2d 156, 160-161, C.A.8th; R. R. Donnelley & Sons Co. v. N. L. R. B., 156 F.2d 416, 418, C.A.7th, cert. denied, 329 U.S. 810, 67 S.Ct. 624, 91 L.Ed. 692.

We recognize that the remarks of Mr. Schmid were with reference to past events and made no mention of future action of a coercive nature by the company. But it was reasonably subject to the inference that action of a similar nature would be taken in the future if the employees continued with union activities. As we stated in N. L. R. B. v. Ford, 170 F.2d 735, 738, C.A.6th, it is unnecessary to show that any employee was in fact intimidated or coerced by the statements made; that it is impossible to estimate the effect of such antiunion activities on employees generally; and the reasonable inference is that it does have an adverse effect on self-organization and collective bargaining. Reasonable inferences to be drawn from the statements of an employer are for the Board to determine, rather than by the Court. N. L. R. B. v. Mt. Clemens Pottery Co., 147 F.2d 262, 266, C.A.6th; N. L. R. B. v. Bendix Corporation, etc., supra, 299 F.2d 308, 310, C.A.6th; N. L. R. B. v. Flemingsburg Manufacturing Co., supra, 300 F.2d 182, 184, C.A.6th.

Section 8(a) (3) of the Act, Section 158(a) (3), Title 29 United States Code, makes it an unfair labor practice for an employer...