NLRB v. Hawthorn Company

• Decision Date: 03 January 1969
• Docket Number: No. 19248.,19248.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HAWTHORN COMPANY, a Division of Kellwood Company, and New Haven Manufacturing Company, Respondents.
• Court: U.S. Court of Appeals — Eighth Circuit

404 F.2d 1205 (1969)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HAWTHORN COMPANY, a Division of Kellwood Company, and New Haven Manufacturing Company, Respondents.

No. 19248.

United States Court of Appeals Eighth Circuit.

January 3, 1969.

Ronald W. Egnor, Attorney, N.L.R.B., for petitioner; Arnold Ordman, Gen. Counsel, N.L.R.B., Dominick L. Manoli, Associate Gen. Counsel, N.L.R.B., Marcel Mallet-Prevost, Assistant General Counsel, N.L.R.B., and Elliott Moore, Attorney, N.L.R.B., were on the brief with Mr. Egnor.

Frederick S. Kullman, of Kullman & Lang, New Orleans, La., for respondent, Hawthorn Company; Richard C. Keenan, New Orleans, La., was on the brief with Frederick S. Kullman, New Orleans, La.

Donald K. Althauser, of Randolph E. Puchta, Hermann, Mo., for respondent, New Haven Manufacturing Co. No brief was filed by New Haven Manufacturing Company.

Before VOGEL, LAY and BRIGHT, Circuit Judges.

BRIGHT, Circuit Judge.

The National Labor Relations Board, pursuant to 10(e) of the National Labor Relations Act, as amended, 29 U.S.C. § 160(e), petitions for enforcement of its order requiring respondents to cease and desist from certain unfair labor practices and to reinstate certain named employees who had been subject to discrimination on account of their union activities.¹ Because of the relationship between the two respondents, the cases against both employers were consolidated for hearing. The Board's opinion is reported in 166 N.L.R.B. No. 20 (1967).

On June 29, 1967, the Board determined that the respondent Hawthorn Company (Hawthorn) had engaged in and was engaging in acts violating § 8 (a) (1)² which interfered with their employees' right of self-organization guaranteed by § 7³ of the Act. The offending incidents were:

(a) Coercion and restraint of employees in union organizational activities through company surveillance of a union meeting by supervisor Victor Hoerstcamp;

(b) Inhibiting the union activity of Hawthorn employee William Cooke, a leading spokesman of the union, by having foreman Earl Hagedorn sit near him at coffee-break periods to spy on Cooke and to inhibit any pro-union advocacy among employees;

(c) Reading of statements by supervisors to Hawthorn's employees which conveyed to employees management threats that selection of the union endangered their jobs; and

(d) Interfering with employees' rights to freely choose a union by showing to assembled employee groups during working hours an anti-union piece of propaganda in the form of a motion picture entitled "And Women Must Weep".

Additionally, the Board determined that Hawthorn, in suspending Cooke for three days and discharging John Oliver, had done so for the purpose of discouraging union organizational activities in violation of § 8(a) (3) of the Act. Hawthorn denied all charges.

Both Hawthorn and New Haven Manufacturing Company (New Haven) were engaged in the manufacturing and sale of tents, tarpaulins and related products in New Haven, Missouri. New Haven, selling ninety per cent of its products to Hawthorn, is practically a captive producer for Hawthorn. Unfair labor practices found against New Haven include a § 8(a) (1) violation in unlawfully interrogating employee Walter Meyer about his union activities and threatening him with discharge if he should sign a union card and a § 8(a) (3) and (1) violation in discharging Meyer for his general pro-union activity. New Haven asserts that it had legitimate business reasons for discharging Meyer. It does not here contest the § 8(a) (1) violation.

Our standard of review is whether the Board's conclusions are supported by substantial evidence. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Fairchild Camera and Instrument Corp. v. NLRB, 404 F.2d 581 (8th Cir., Dec. 12, 1968).

The union campaign against both respondents began in December of 1965. Cooke and Oliver, both of whom are employed by Hawthorn, and Meyer of New Haven were early adherents to the union cause. Both companies were strongly opposed to unionization and Hawthorn in particular engaged in a well-organized campaign to defeat the unionization effort. Hawthorn's supervisory personnel were used by management to carry the anti-union message to the employees. The actions of Hawthorn's foreman Earl Hagedorn played a significant role in several of the unfair labor practices.

The first union organizational meeting was scheduled for January 23, 1966, at Stoney Hill Hall, which was located on a remote country road. While making a delivery at the Hawthorn plant, Walter Meyer, a New Haven employee, exhibited a notice of this meeting to a Hawthorn employee, Holliman. Foreman Hagedorn, who was in the vicinity, examined the notice and brought it to the attention of his own supervisor Rothmeyer. Coincidentally or otherwise, three Hawthorn foremen were present at Stoney Hill Hall when the meeting was held. These men did not attend the meeting but were in a public bar on the lower floor of the building. A fourth supervisor, Victor Hoerstcamp, who lived about twelve or thirteen miles from the meeting place, was observed slowly driving past the meeting place several times. Hoerstcamp did not testify. There is no evidence in the record that he had any reason, other than surveillance of the meeting, for so travelling this little-used country road. The trial examiner determined that Hoerstcamp was in the vicinity of the meeting for the purpose of intimidating employees in the exercise of their § 7 rights. The record as a whole sustains the trial examiner's conclusions and the Board's adoption thereof.

Respondent Hawthorn suggests that Hoerstcamp's presence in the area ought not be deemed a coercive act because other supervisors were present in the bar and the General Counsel admitted that their presence might have been accidental since one or more of such foremen lived in the vicinity.

The presence of three foremen at the bar, at best a suspicious circumstance, does not help respondent's position. Their possibly accidental appearance would not negate a finding that Hoerstcamp was present for an unlawful purpose. This is particularly true in light of the strong anti-union position taken by Hawthorn and transmitted to the employees prior to the date of the union meeting. See, for example, Jas. H. Matthews & Co. v. NLRB, 354 F.2d 432 (8th Cir. 1965), cert. den., 384 U.S. 1002, 86 S.Ct. 1924, 16 L.Ed.2d 1015 (1966); NLRB v. Ritchie Mfg. Co., 354 F.2d 90, 93, 98 (8th Cir. 1965).

Another illegal surveillance charge directly involved foreman Hagedorn. About December 8, 1965, Hagedorn read to the men under him a company statement setting forth a strong anti-union position. William Cooke was a member of Hagedorn's captive audience and, following the conference, remarked to Hagedorn: "Earl, you don't really believe that shit". Cooke later made his pro-union sentiments felt by distributing a signed leaflet⁴ to rebut the company's anti-union propaganda film, "And Women Must Weep", discussed infra. The leaflet also suggested that unionization is the best means of obtaining better wages and job security. Immediately thereafter, Cooke noted two changes in his relationship with Hagedorn. Hagedorn increased the number of times he was in Cooke's work area; instead of sitting with the other foremen in the cafeteria during the coffee breaks as had been his practice, Hagedorn began to sit as close to Cooke as he could get. One of Cooke's fellow employees testified that it looked like "Earl" was following Cooke around wherever he would go.

Hagedorn testified that he was not spying on Cooke and that he sat with the employees in order to hold them to an established ten-minute coffee break. The examiner felt that the evidence was not sufficient to establish any illegal surveillance of Cooke. The Board reversed the examiner on this issue stressing the testimonial admission of Hagedorn that he could have just as easily terminated the coffee break while sitting at the foreman's table only six feet away by saying, "Come on, let's go".

The difference in result between the examiner and the Board was based on the weighing of the evidence, not on a credibility determination of the examiner which would be binding upon the Board and us. The Board has the right to independently weigh the evidence even though credibility determinations are the prerogative of the trial examiner.⁵ We feel that an evaluation of the record as a whole supports the Board's finding on this issue. See, e. g., Jas. H. Matthews & Co. v. NLRB, supra; NLRB v. Ritchie Mfg. Co., supra; cf. NLRB v. Monroe Auto Equipment Co., 368 F.2d 975 (8th Cir. 1966).⁶ See also, Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

Cooke's pro-union leaflet, distributed by the union after the showing of "And Women Must Weep", did not go unnoticed or unanswered. On February 9, 1966, the company posted a "NOTICE TO ALL EMPLOYEES" on all bulletin boards including one at the small shop where Cooke, Oliver and another man worked — about one hundred feet from the main plant. The bulletin recites:

"One of our employees recently distributed a union leaflet which he signed as a member of the `Hawthorn Employees Organizing Committee.\' We have not been notified of any other employees belonging to this so called `committee\' but we do want everyone to clearly understand that no employee is going to receive any preferred or special treatment just because he joins or becomes a part of a union `organizing committee.\' A few people may be working under the mistaken belief once they join this `organizing committee,\' the company can no longer take any action against them. We do not want there to be any misunderstandings.

Persons on the `organizing committee\' will not receive preferred treatment here at Hawthorn Co. These people will be subject to the same rules, policies and regulations as everyone else, and they will continue to be subject to the same

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