NLRB v. Henriksen, Inc.

• Decision Date: 10 July 1973
• Docket Number: No. 72-1271.,72-1271.
• Citation: 481 F.2d 1156
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HENRIKSEN, INC., d/b/a Gibson Discount Center, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

481 F.2d 1156 (1973)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HENRIKSEN, INC., d/b/a Gibson Discount Center, Respondent.

No. 72-1271.

United States Court of Appeals, Fifth Circuit.

July 10, 1973.

Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Joseph A. Oertel, Atty., N.L.R.B., Washington, D.C., Clifford Potter, Director, Region 23, NLRB, Houston, Tex., for petitioner.

Carl S. Downing, William F. Banta, Samuel Lang, Kullman, Lang, Keenan, Inman & Bee, New Orleans, La., Carl A. Parker, Port Arthur, Tex., Michael S. Fawer, New Orleans, La., for respondent.

Before DYER, SIMPSON and MORGAN, Circuit Judges.

SIMPSON, Circuit Judge:

National Labor Relations Board (Board) pursuant to Section 10(e) of the National Labor Relations Act, Title 29, U.S.C. Sec. 151 et seq., applies to us for enforcement of its order of June 28, 1971, finding that Henriksen, Inc., d/b/a Gibson Discount Center (Company), in violation of Section 8(a)(1) and Section 8(a)(3) and (1) of the Act, committed unfair labor practices at its Port Arthur, Texas, franchised retail merchandise store.¹ We enforce the Board's decision and order as to the Section 8(a)(1) violations, and enforce in part and refuse enforcement in part as to the claimed Sections 8(a)(3) and (1) violations, for the reasons stated below.

The Board found that in the first half of 1969 the Retail, Wholesale and Department Store Union, AFL-CIO, (Union) began to organize the approximately one hundred employees at the Company's Port Arthur store. The Company actively responded to these efforts mainly in the form of four separate speeches to various groups of employees by Company president, chief operating officer and part-owner Mrs. Clarice Henriksen in November and early December when the Union had gained sufficient support to petition the Board for a representation election. Two of these speeches are set out in substance in the margin Notes 3 and 4, infra. They were found by the Board to have had such an effect on the Company's employees as to tend to interfere with and coerce them in the exercise of their Section 7 rights under the Act, thus constituting a Section 8(a)(1) unfair labor violation.² The Board also found the Company had violated Section 8(a)(1) of the Act because three different departmental managers, one of whom was Mrs. Henriksen's son, placed individual employees, either directly or by inference, in fear of economic reprisal, retaliatory action, loss of employment tenure and curtailment of advancement opportunities as a result of their specific involvement in the union's organizing drive or in the event of the union becoming successful in its organizing efforts. Finally, the Board found that the Company further violated Secs. 8(a)(3) and (1) of the Act by making a special investigative check on employee Violet Smith and then discharging her all because she spearheaded the Union's organizational efforts, and further by imposing more onerous working conditions upon employee Maggie McDaniel.

"Now Congress has left no room for doubt as to the kind of scrutiny which a court of appeals must give the record before the Board to satisfy itself that the Board's order rests on adequate proof." Universal Camera Corp. v. National Labor Relations Board, 1951, 340 U.S. 474, 487, 71 S.Ct. 456, 464, 95 L.Ed. 456, 467. The whole record must be considered, including contradictory evidence or evidence from which conflicting inferences could be drawn, and the Board's finding is not to be set aside if, on the basis of that consideration, substantial evidence exists to support the Board's conclusions. The Board's findings will be set aside only "when the record before a Court of Appeals clearly precludes the Board's decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both." 340 U.S. at 490, 71 S.Ct. at 466, 95 L.Ed. at 469.

We turn to the record before us.

I The Speeches

All employees were required to attend the first speech which the Board found to have been violative of the Act.³

Mrs. Henriksen began her prepared text by impressing upon the employees the serious nature of the Union activity around the store and by stating that she felt that "it would be very unfortunate if some one made a serious mistake." She explicitly stated her adamant opposition to "any Union outsiders" in her store and then announced her determination to do "everything" possible to "protect you and to protect our good jobs here." She extolled what she considered to be the apparently warm and friendly atmosphere and relationship of her store and its employees and contrasted this to the atmosphere in another store in the same town which had become unionized by the same Union seeking to gain a foothold at the Company's store. She proceeded to criticize the Union and to attribute sinister motives to it. Having thus laid out to the employees what she deemed to be the "facts", Mrs. Henriksen's key subsequent comments were:

"I am not going to criticize anybody for making the mistake of signing a union card. As I said before, I have made mistakes—we all do, and I don\'t hold a grudge against anyone for an honest mistake. But now you know the facts. It is no sin to make an honest mistake, but it is mighty unfortunate if a person makes a mistake does not take some action to correct that mistake when they find out what the true facts are."

It was primarily from this passage that the Trial Examiner concluded, and the Board agreed, that Mrs. Henriksen had implied that she would hold a grudge against employees who failed to take action to cancel the Union cards they had signed. This threat was found to coerce and restrain the employees in the exercise of their Section 7 rights not to cancel their Union cards and to engage in Union activity. The remaining portion of that speech was found to have been the explication of the various forms which Mrs. Henriksen's grudges might take should they be visited upon her employees. Work schedules would no longer be adjusted to conform to family duties nor would jobs be held open during an illness. Moreover, the specter of closing the store outright was raised when Mrs. Henriksen reminded the employees that she really "didn't have to work here. . . ."

In sum, as to this speech, it was the finding of the Trial Examiner, adopted by the Board that:

". . . Respondent threatened to bear a grudge against employees who did not renounce the Union, to withhold from such employees assistance with respect to working conditions and tenure of employment which it would normally give, to close the store, thereby causing the employees to lose their jobs, and to visit other reprisals upon employees, if they persisted in adhering to or assisting the Union or if they voted the Union in." It is found that Respondent thereby violated Sec. 8(a)(1) of the Act.

The second speech which the Board found to have violated the Act was about December 4 delivered to invited employees deemed not to be of pro-union sentiment.⁴ The Board found that Mrs. Henriksen's representation of the nature of the collective bargaining process was a distortion. The speech tended to undermine the employer's obligation to bargain in good faith. Mrs. Henriksen indulged in an objectionable analogy when she compared the Union to the ordinary supplier of the store. The analogy was false in that there was no legal duty on Mrs. Henriksen's part to bargain with a supplier whereas there would be a legal duty to bargain if the Union succeeded in becoming the employees' bargaining representative. See United Steelworkers of America v. Warrior and Gulf Navigation Co., 1960, 363 U.S. 574, 580, 80 S.Ct. 1347, 1351-1352, 4 L.Ed.2d 1409, 1416.

The evidence adduced by the Board here need not be overwhelming. But difficulty is necessarily encountered in investigating and proving by inference threats of retaliatory action in labor-management relations. For that reason we are required to give great deference to the Board's expertise in this highly sensitive area. National Labor Relations Board v. Gissel Packing Co., 1969, 395 U.S. 575, 620, 89 S.Ct. 1918, 1943, 23 L.Ed.2d 547, 581-582; National Labor Relations Board v. Central Power & Light Co., 5 Cir. 1970, 425 F.2d 1318, 1324. Conceding this special insight to the Board, it was not unreasonable that from the evidence before it the Board determined that the first speech was a threat to visit economic reprisals upon those employees who would not conform to Mrs. Henriksen's desire that "union outsiders" be kept from establishing a foothold in her Company. National Labor Relations Board v. Clapper's Manufacturing, Inc., 3 Cir. 1972, 458 F.2d 414, 417-418; Mon River Towing, Inc. v. National Labor Relations Board, 3 Cir. 1969, 421 F.2d 1, 9-11. Nor can we find substantial error in the Board's conclusion that the faulty analogy employed by Mrs. Henriksen in the second speech was calculated to convey to the listening employees a distorted view of the Company's obligation to bargain in good faith with the Union if it was selected as the bargaining agent. The effect of such distortion upon the employees' minds would reasonably be the conclusion that their bargaining as a Union would be futile, National Labor Relations Board v. A. W. Thompson, Inc., 5 Cir. 1971, 449 F.2d 1333, 1335, cert. denied, 1972, 405 U.S. 1065, 92 S. Ct. 1497, 31 L.Ed.2d 795; Tex Tan Welhausen Co. v. National Labor Relations Board, 5 Cir. 1969, 419 F.2d 1265, 1268-1269, remanded, 1970, 397 U.S. 819, 90 S.Ct. 1516, 25 L.Ed.2d 805, modified on other grounds, 5 Cir. 1970, 434 F.2d 405.

By this decision, no First Amendment rights of the Company have been infringed upon. In Gissel Packing Co., supra, the Supreme Court noted that the balancing of the conflicting rights of the employer to free speech and that of the employees to engage in protected activities:

"must take into account the economic dependence of

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