NLRB v. Frontier Homes Corporation
| Decision Date | 02 March 1967 |
| Docket Number | No. 18459.,18459. |
| Citation | 371 F.2d 974 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FRONTIER HOMES CORPORATION, Respondent. |
| Court | U.S. Court of Appeals — Eighth Circuit |
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Hans J. Lehmann, Atty., N. L. R. B., Washington, D. C., for petitioner, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and George B. Driesen, Atty., N. L. R. B., Washington, D. C., were with him on the brief.
Frederick S. Cassman, Omaha, Neb., for respondent, Abrahams, Kaslow & Cassman, Omaha, Neb., were with him on the brief.
Before VAN OOSTERHOUT, GIBSON and HEANEY, Circuit Judges.
The petitioner, National Labor Relations Board, seeks, pursuant to § 10(e) of the National Labor Relations Act, as amended, (29 U.S.C. § 151 et seq.) enforcement of its decision and order against respondent, dated July 1, 1965 and reported at 153 NLRB No. 39. Respondent, Frontier Homes Corporation, (Frontier) is engaged in the manufacture of house trailers at Falls City, Nebraska. The decision and order of the Board found that Frontier had violated the Act by making threats of reprisal for Union support, by refusing to furnish the Union with its selling price lists on trailers, and by unilaterally changing its layoff practices.
Frontier was organized in 1952, and in January, 1957 opened its plant at Falls City, Nebraska. In November of that same year, the United Steelworkers of America (Union) was certified as the exclusive representative of the Company's approximately 150 production and maintenance employees.
The collective bargaining agreement with which we are concerned expired on December 31, 1963. Prior to the expiration date, both parties gave the required notice of intention to amend the terms of the contract. Negotiating sessions were started in December, 1963, nine sessions being held that month, and ran through April, 1964. Certain activities of the Company during these negotiating sessions prompted the unfair labor practice complaints of the Union. In partially affirming the Trial Examiner, a majority of the Board1 found Frontier guilty of three distinct unfair labor practices.
At the bargaining session held December 26, 1963, Plant Manager Davidson related a story about his former employer, the Ohio Match Company, and that Company's Lumber Division. Davidson testified about this matter, as follows:
At the bargaining session held January 11, 1964, Davidson was heard to remark, "Gosh, if we had this thing settled the first of the year, we wouldn't have this trouble now."
The Board majority concluded from this testimony that the story and the remark carried the "aroma of coercion" and interfered with the employees' rights under the National Labor Relations Act in violation of § 8(a) (1). They argue here that there is substantial evidence to support this conclusion. We cannot agree.
Section 8(a) (1) of the Act (29 U.S.C. § 158) provides:
To determine if a statement by a company representative coerces employees in violation of their rights to assist labor organizations and bargain collectively through representatives of their own choosing as guaranteed by this section, the remark must be viewed in the context in which it was delivered. To begin, we agree with the dissent of Board Chairman McCulloch that the finding of a "veiled threat" in Davidson's story required a strained interpretation of the remarks. Even so, had these remarks been directed at a group of employees during a unionization campaign, perhaps a fact finding body might have justifiably found them to be coercive. The cases cited by the Board dealt with the organizational phase of the collective process and are not considered in point on the give and take of collective bargaining sessions. These remarks were not made to the unsophisticated employee, but during negotiation sessions in the presence of professional negotiators from the United Steelworkers Union. It is highly unlikely that these seasoned men would be impressed, much less coerced by Davidson's bland recital. The Board should have recognized that which might coerce the average worker may have little, if any effect on the Union's team of experienced negotiators during the process of hammering out a collective bargaining agreement.
Another factor in the total context of this picture is the history of the past relations between the parties. When the parties have had a history of good relations, an ambiguous statement by the employer will not have the impact that the same statement would have on employees who have been the victims of past coercion and unfair conduct. In the case before us, the Union and the employer have been dealing amicably with one another for a number of years. With such a history of good relations, a single ambiguous story during contract negotiations is not enough to have any significant coercive effect on the representatives of the employees.
Furthermore, there were a total of twenty-four bargaining sessions. Fifteen of these sessions followed the allegedly coercive story. With this many hours of meeting and negotiation, there are bound to be some ambiguous or borderline statements. We believe it is a mistake for the Board to pounce upon a single statement, give it microscopic examination in total isolation from the surrounding circumstances, stretch it to the most coercive connotation possible, inflate its relative importance to the negotiations well beyond any impact it could have had upon the parties, and conclude that it, standing alone, was violative of the employees' rights. Statements made during negotiation sessions must be viewed, not only with a certain liberality, but with an eye to their total impact upon the negotiations. From the innocuous nature of the statement, the parties involved, the number of meetings, and the history of the past relations, we do not believe this story and statement had a coercive effect upon the employee representatives. Indeed, we believe the "aroma of coercion" to be so faint that it cannot alone support the Board's finding of a § 8(a) (1) violation. Enforcement of this section of the Board's decision and order is denied.
Since 1960, the Company had in effect a Productivity Sharing Plan. The plan is a part of the overall wage structure that provides a bonus for employee efficiency. The basic mechanics of the plan are simple. A labor cost allowance is set by the Company on each type of mobile home manufactured. At the end of the week, the allowances for all the completed mobile homes are totaled. The total weekly payroll is then subtracted from the total of allowances. The difference between the Company's allowance and the actual labor cost is an allowable bonus that is divided equally among the employees on a per hour basis. When asked by a Union representative how the basic allowance was determined, the Company Vice President responded that the labor allowance rates were set at approximately 10% to 10½% of the selling price of the units to the dealers.
At the first bargaining session, held December 2, 1963, the Union requested a breakdown, showing how the bonus was determined. The request was repeated on December 27, 1963. During the February 10, 1964, negotiation session, the Union was told there would be no wage increases and that any increase in earnings would have to come from the operation of the bonus plan. At the April 6, 1964 meeting, the Union specifically asked for the selling price lists so that the Union Negotiation Committee could compute the bonus. The Company responded that the lists were not for the public and would not be supplied. An unfair labor practice charge resulted from the refusal. The Trial Examiner found that the failure to furnish information was a refusal to bargain in good faith as required by § 8(a) (5) of the Act. This finding was affirmed by the Board. Section 8(a) (5) of the Act, (29 U.S.C.A. § 158(a) (5)) provides:
It has been repeatedly held that employee representatives are entitled to wage information and related data in order to effectively negotiate over the rate of compensation. Timken Roller Bearing Company v. NLRB, 325 F.2d 746, 750, 2 A.L.R.3d 868 (6 Cir. 1963); NLRB v. Yawman & Erbe Mfg. Co., 187 F.2d 947 (2 Cir. 1951); NLRB v. Fitzgerald Mills Corporation, 313 F.2d 260, 265 (2 Cir. 1963), cert. denied 375 U.S. 834, 84 S.Ct. 47, 11 L.Ed.2d 64.
This bonus plan was a topic of discussion from the earliest negotiation sessions. Later in the sessions,...
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