NLRB v. Herman Wilson Lumber Company

• Decision Date: 31 January 1966
• Docket Number: No. 18022.,18022.
• Citation: 355 F.2d 426
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HERMAN WILSON LUMBER COMPANY, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

355 F.2d 426 (1966)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HERMAN WILSON LUMBER COMPANY, Respondent.

No. 18022.

United States Court of Appeals Eighth Circuit.

January 31, 1966.

Melvin Pollack, Atty., N.L.R.B., Washington, D. C., made argument for petitioner; Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, and Julius Rosenbaum, Atty., N.L.R.B., Washington, D. C., were with him on the brief.

Joseph Alton Jenkins, Dallas, Tex., made argument for respondent; Joseph Alton Jenkins & Associates, Dallas, Tex., and Gaines N. Houston, Little Rock, Ark., were with him on the brief.

Before MATTHES and GIBSON, Circuit Judges, and LARSON, District Judge.

MATTHES, Circuit Judge.

National Labor Relations Board (Board) has petitoned us, pursuant to § 10(e) of the National Labor Relations Act (Act), as amended, for enforcement of its order issued on November 13, 1964, based upon the finding that Herman Wilson Lumber Company (respondent) had violated § 8(a) (1) of the Act (29 U.S. C.A. § 158(a) (1)).¹ The Board's decision and order are reported at 149 N.L. R.B. No. 70.

Respondent, an Arkansas corporation, with its place of business at Monticello, Arkansas, is engaged in the manufacture and sale of lumber and related products. No jurisdictional issue is presented.

The International Woodworkers of America, AFL-CIO (Union), began an organizational campaign at respondent's plant during the summer of 1963. A representation petition was filed on August 12, 1963, and a Board election was scheduled to be held on October 24, 1963.

In the ensuing campaign, respondent attempted to counter Union's drive for representation by distributing handbills to all of its employees. Respondent's president, Herman Wilson, Jr., also delivered three speeches, read from a prepared text, to the employees. The election was held, as scheduled, on October 24, 1963, and the Union lost by a vote of 72 to 31.

Unfair labor charges were filed on November 13 and December 16, 1963. After a hearing, on February 11, 1964, the trial examiner filed his decision, finding, in relevant part, that respondent had violated § 8(a) (1) "by threatening employees with adverse consequences, including job loss, in the event they selected the Union as their collective bargaining agent, and by creating an atmosphere of futility to discourage support for the Union among employees, and by other acts".²

After exceptions had been filed by both general counsel and respondent, the Board delegated its powers to a three-member panel. The designated panel, member Leedom dissenting in part, adopted the findings, conclusions and recommendations of the trial examiner.³

Basically, the issue is whether the Board properly found that respondent's pre-election statements, contained in the handbills and in Wilson's speeches, were violative of § 8(a) (1) of the Act. Or, as suggested by respondent, "Did Respondent's handbills and speeches contain a threat of reprisal within the meaning of Section 8(c) of the Act"? (29 U.S. C.A. § 158(c)).⁴

Neither the facts giving rise to this issue, nor the applicable legal principles, are in dispute. The sole bases for the charge that respondent engaged in unfair labor practices are the contents of printed handbills and of written speeches given to respondent's employees by Mr. Wilson, anticipatory to the October 24, 1963, election. These handbills and speeches were offered in evidence at the hearing before the trial examiner. Therefore, resolution of the question before the Board and, now, before this court, turns strictly upon an interpretation of the effect of the written documents, i. e., whether or not they can be said to have threatened respondent's employees with reprisal or force if the Union had won the election, or, conversely, whether the campaign material is within the protection afforded by § 8(c).

The trial examiner's interpretation, adopted by a majority of the Board, was:

"* * * that in its campaign to defeat the Union, the Respondent on several occasions, as aforestated, stressed and emphasized the fact that if the Union won the election, the Union\'s only course of action would be to strike, and in which event the Company could permanently replace the strikers. While the Respondent did not state specifically that it would not bargain with the Union should the Union win the election, an analysis of Respondent\'s entire antiunion campaign reveals an implicit warning that in dealing with the Union the Respondent would so conduct the negotiations that a strike would result. Thus, there was but one theme: the inevitability of a strike if the employees selected the Union as their bargaining representative, and the dire consequences of such a strike, namely, the loss of jobs by the strikers."

On the other hand, member Leedom, in his dissent, concluded that respondent's campaign material

"when considered in context, did not exceed the protection afforded by the Act. So far as pertinent, the Respondent stated in its campaign material that it would `fight the Union in every legal way possible\'; that it was `not compelled to agree to a union proposal or to make a concession to the Union\'; that it would engage in `hard bargaining\'; that `the only way a union can force your Company to do anything it is unwilling to do would be to pull you out on strike\'; and that `if the Union calls an economic strike * * * you can be permanently replaced.\' Thus, the Respondent did no more, in substance, than tell the employees that Union demands would be resisted by `hard bargaining\'; and that, if the Union resorted to an economic strike to enforce its demands, the Respondent could exercise its lawful right to replace the strikers, and then the strikers would lose their jobs. `Hard bargaining\' is not unlawful conduct under the Act; and the Supreme Court has admonished that the Board may not, `either directly or indirectly, compel concessions or otherwise sit in judgment upon the substantive terms of collective-bargaining agreements.\'" (Emphasis supplied by member Leedom).

The language claimed to be offensive and unprotected, in pertinent part, consisted of the following:

"Herman Wilson president does not want a Union in this plant * * and I will fight the Union in every legal way possible. * * * If a Union wins all it wins is the right to bargain — nothing more * * *

"Do you realize that the only way a union can try to force your Company to do anything that it is unwilling to do would be to pull you out on strike. If the Union calls an economic strike you place your job on the line. You can be permanently replaced. You can lose your job.

"An economic strike could cause us to lose business. This might cause us to have to shut down the plant. If so, you would be without a job.

"This Union is going to find me to be the most disagreeable person it ever ran up against. I told you last week I was going to fight this Union in every legal way possible, and I mean it. * * *

"In dealing with the Union I\'ll deal hard with it — I\'ll deal cold with it — I\'ll deal at arm\'s length with it.

"You know, or if you don\'t, you should know before you vote that I am not obligated by law to agree to any proposals the Union makes on wages, hours, working conditions, or what have you. If the Union wins the election we will be obliged to negotiate with it, but we are not obligated to agree to any proposals or request that it makes. We are not required to make any concession to it."

We agree with the Board that its determination should properly be based upon a consideration of the entire import of the speeches. Daniel Construction Co. v. N. L. R. B., 341 F.2d 805, 811 (4 Cir. 1965), cert. denied, 382 U.S. 831, 86 S.Ct. 70, 15 L.Ed.2d 75 (Oct. 11, 1965), (quoting from N. L. R. B. v. Federbush Co., 121 F.2d 954, 957 (2 Cir. 1941)). "Whether an employer has employed language which is coercive in its effect is a question essentially for the specialized experience of the NLRB" Ibid., 341 F.2d at p. 811; N. L. R. B. v. Brown-Dunkin Co., 287 F.2d 17, 18 (10 Cir. 1961). However, we are also mindful of the teachings of the Supreme Court in the landmark case of Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 490-491, 71 S.Ct. 456, 466, 95 L.Ed. 456 (1951), that:

"Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function. Congress has imposed on them responsibility for assuring that the Board keeps within reasonable grounds. * * * The Board\'s findings are entitled to respect; but they must nonetheless be set aside 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.

* * * * * *

"* * * Whether on the record as a whole there is substantial evidence to support agency findings is a question which Congress has placed in the keeping of the Courts of Appeals."

In light of the foregoing principles, we have carefully considered the antiunion campaign material, in context, focusing upon the above quoted portions. Beyond peradventure, Wilson, president of the company, demonstrated an aversion to the recognition of any union by respondent's employees. The record leaves us with the distinct impression that the campaign was typified by a sharp conflict of interest, as is often true when a union seeks recognition. As aptly stated in N. L. R. B. v. Colvert Dairy Products Co., 317 F.2d 44, 46 (10 Cir. 1963): "Each management and union is accorded the right of persuasion and denied the use of coercion. But it would be unrealistic indeed to expect management to use words of conviction in an effort to persuade an employee to vote against unionization without the presence of `antiunion animus.' In the matter of the election the management is, of course, antiunion. The union is equally anticompany. It is necessarily so. And...