NLRB v. Harbison-Fischer Manufacturing Co.

• Decision Date: 20 June 1962
• Docket Number: No. 19105.,19105.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HARBISON-FISCHER MANUFACTURING CO., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

304 F.2d 738 (1962)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HARBISON-FISCHER MANUFACTURING CO., Respondent.

No. 19105.

United States Court of Appeals Fifth Circuit.

June 20, 1962.

Melvin Pollack, Atty., N. L. R. B., Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, N. L. R. B., Washington, D. C., Stuart Rothman, Gen. Counsel, for petitioner.

Karl Mueller, Fort Worth, Tex., Harold E. Mueller, Mueller & Mueller, Fort Worth, Tex., for respondent.

Before HUTCHESON, WISDOM, and BELL, Circuit Judges.

GRIFFIN B. BELL, Circuit Judge.

The National Labor Relations Board here seeks enforcement of its order against Harbison-Fischer based on its finding that two of the respondent's supervisors interrogated employees concerning their union activities in such a manner as to constitute interference, restraint, and coercion within the meaning of § 8(a) (1) of the National Labor Relations Act, 29 U.S.C.A. § 158(a) (1). The complaint against the employer charged that an employee named Maddux had been discriminatorily discharged in violation of § 8(a) (1) and 8(a) (3). The complaint also charged that Nelson and Burns, two supervisory employees, violated § 8(a) (1) in conversations with certain employees. The Trial Examiner recommended dismissal of the complaint as to Maddux's discharge. He found that Supervisor Nelson violated the Act in conversations with employees Holmes, Slimp, and Maddux, and that Superintendent Burns violated the Act in a conversation with employee Bailey. The Board adopted the Examiner's findings and recommendations.

It is our view that the employer violated § 8(a) (1) of the Act by activity of such nature as might reasonably be said to interfere with the free exercise of employee rights under the Act. While it is true that there was no evidence that the employer had any history whatever of labor trouble or unfair labor practices, it nevertheless exceeded legal bounds here. First, a supervisor called on an employee at his home on Sunday seeking to have the employee verify the names of those who were pushing the union. This conduct was not neutralized by having the supervisor inform the employee simultaneously that it was his right to sign a union card. This event was such that the employee gained the impression that the supervisor was worried about him signing a union card. Next, this same supervisor stated to another employee that the union would not be too bad in his opinion but that the company president could not see it, thus indicating presidential opposition. He also inquired of another employee if he had anything to do with the union and upon receiving an affirmative answer inquired as to how many union cards were signed. The supervisor responded upon receiving the answer of forty that he had heard there were forty one, thus indicating close surveillance. Later, another supervisor asked the employee heading the union movement to name the fifty people that he was representing for the union.

The examiner, who had the opportunity of hearing the witnesses and judging their demeanor, and whose findings were approved by the Board, found that such expressions of concern and the opposition of the president tended to cause employees to fear the consequences of union activity and membership and were violative of the Act under the circumstances involved.

Proscribed coerciveness could be inferred from this activity when considered in totality. The visit to the home of the employee in an effort to obtain the identity of those pushing the union viewed in the context of the other stated conduct took the matter beyond innocuous inquiry and into the realm of unlawful interference.

The facts here are somewhat more compelling toward enforcement than those in our case of N. L. R. B. v. Armour & Co., 5 Cir., 1954, 213 F.2d 625, and are more nearly comparable to those in N. L. R. B. v. Mid Western Instruments, Inc., 10 Cir., 1959, 264 F.2d 829, where enforcement was granted and where it was said:

"The evidence with respect to violation of § 8(a) (1) of the Act is rather meager. There is, however, no conflict in this part of the record. It stands admitted that Superintendent Piester questioned employee Cart as to the identity of the union leaders and that Foreman Lowe questioned Navarro as to whether Neuman had tried to persuade her to join the Union. Such conduct could well intend to influence the employees and interfere with the free exercise of their organizational rights under the Act."

This conduct of the employer was not rendered permissible as free speech under § 8(c) of the Act as it was neither the expression of a view, argument or opinion as there contemplated.

Interference, restraint and coercion within the meaning of the Act depend upon the facts and circumstances of each individual case and our inquiry must be directed to the evidentiary basis for the order of the Board. Sufficient basis existing for the order, it should be and is

Enforced.

WISDOM, Circuit Judge (dissenting).

I have serious misgivings about the majority decision. In my view, the evidence of employer wrongdoing is so sparse and insubstantial that it cannot support a finding of "interference, restraint or coercion" as is required to establish a violation under Section 8(a) (1) of the Act.

I recognize of course that the sanctions invoked here involve little more than wrist slapping. The company is ordered to cease and desist from interrogating employees or in any like manner to interfere with, restrain, or coerce its employees in the exercise of rights guaranteed in Section 7 of the Act. The only affirmative action required is the posting of a notice that the company will not interrogate its employees or in any like manner interfere with their union activities. But respondent has the right not to have its wrists slapped unless it has committed an unfair labor practice. This case is therefore significant, as a determination of the limits placed upon employer conduct during a union organizational campaign.

The parties have no serious dispute and I have none with my colleagues on the facts of the case. The respondent manufactures oil well equipment at Fort Worth, Texas. Local 1591, International Association of Machinists, AFL-CIO, began a campaign to organize Harbison-Fischer's plant in August 1960. On four occasions during the two-week period at the end of August and first of September Harbison-Fischer officials questioned employees about the union. On Sunday, August 28 Supervisor Buster Nelson called on David Holmes at his home and asked him to come out to his car to talk. Holmes testified:

"He asked me what about this union and I told him I knew it was going around but I didn\'t know much about it. He asked me would I verify the names if he was to call the ones who was pushing the union, and I told him I didn\'t know who was pushing it or nothing. He called Bailey\'s and Maddux and — he called a couple of other names. I didn\'t know one of the names and I can\'t think of the other boy he called. Buster Nelson told me, he told me it was my right to sign a union card if I wanted to, that wasn\'t none of his business what I did, but he was worried about it, you know." (Emphasis supplied).

At the plant Nelson asked Bobby Slimp "how the union was coming along." Slimp answered that he did not know anything about it. Nelson then said that he did not think that "the union would be too awful bad, but that Mr. Harbison the company's president didn't see that." Nelson also asked Michael Maddux if he had anything to do with the union. Maddux answered yes. Nelson then inquired how many union cards were signed. Maddux said that around forty had been, to which Nelson responded that he had heard it was forty-one.

Hendly Bailey testified that he had complained to Mr. Harbison about certain matters concerning employment and said that the men had decided to organize. Mr. Harbison answered that he would straighten things out and that they did not need a union. About a week later plant superintendent Burns approached Bailey and remarked, "I hear you have troubles." Burns then said, "Who's the fifty people that you are representing for the Union * * * you have been down to Harbison's office and talked to him and told him a few things that I don't like * * * you have got some explaining to do to me."

Significantly, the company has no history of labor trouble or unfair labor practices. There is no evidence of any anti-union animus or activity. The respondent did not engage in any of the many invidious activities that some employers have undertaken in opposing a union campaign. Company officials and supervisors made no threats against any of the union organizers. They made no statements that working conditions at the company would be made less attractive if employees voted for the union or that conditions would be improved if the employees rejected the union. The record discloses no evidence that the respondent expressed opposition to the union, as it is entitled to do under Section 8(c). Thus there is no external evidence to inject a coercive coloration into the particular instances of interrogation, if those instances do not in themselves constitute improper conduct.

Interrogation of employees concerning their union activities may be suspect, but it is not per se unlawful. It becomes unlawful when the circumstances of the interrogation place the company in a threatening position toward union organizers and sympathizers. "Interrogation becomes unlawful when it is a part of the means by which the employer's hostility carries with it the purpose to retaliate against Union sympathizers and, by threat of job or other reprisals, coerce them into a vote of action which does not express their free will". N. L. R. B. v. McGahey, 5 Cir., 1957, 233 F.2d 406, 410. However, "infrequent, isolated and innocuous statements and inquiries, standing alone do not constitute interference, restraint or coercion within...