NLRB v. Hobart Brothers Company

• Decision Date: 07 February 1967
• Docket Number: No. 16643.,16643.
• Citation: 372 F.2d 203
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HOBART BROTHERS COMPANY, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

372 F.2d 203 (1967)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HOBART BROTHERS COMPANY, Respondent.

No. 16643.

United States Court of Appeals Sixth Circuit.

February 7, 1967.

Nancy Sherman, Atty., National Labor Relations Board, Washington, D. C., for petitioner, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Walter Meyer, Atty., National Labor Relations Board, Washington, D. C., on the brief.

Arthur R. Donovan, Evansville, Ind., for respondent, Harry P. Dees, Joseph A. Yocum, Evansville, Ind., on the brief, Kahn, Dees, Donovan & Kahn, Evansville, Ind., of counsel.

Before WEICK, Chief Judge, and EDWARDS and PECK, Circuit Judges.

WEICK, Chief Judge.

The National Labor Relations Board has petitioned to enforce its order holding that Hobart Brothers Company had violated Sec. 8(a) (1) of the National Labor Relations Act, 61 Stat. 140 (1947), as amended, 29 U.S.C. § 158(a) (1) (1964), by sending to its employees a letter which the Board found had threatened them with reprisals for union activity.

During a union¹ organizational campaign at the Hobart plant at Troy, Ohio, the union sent a letter to a substantial number of employees at their homes enclosing an authorization card and saying in part:

"You can rest assured that these cards will be handled with the strictest confidence, and your employer or foreman will have no knowledge of it."

After this letter was received by the employees, the employer replied thereto in a letter mailed to all of its employees at their homes, saying in part:

"Don\'t be fooled into signing misleading cards that are mailed in secrecy. It is said that when you sign such a card, no one other than a Union Representative or a respresentative of the National Labor Relations Board will ever see this card. This is not the truth. In many instances the signed card is disclosed to the Company by the Union, the NLRB, or both of them. Be careful about what you sign — don\'t sign ANYTHING unless you KNOW what you are signing and what it might mean to you, your family, or your fellow employees."

After hearing an unfair labor practice complaint, the Trial Examiner found that the quoted paragraph from the company letter implied a threat of reprisals for joining the union or signing a union authorization card. The NLRB adopted the Trial Examiner's findings and proposed order.

Such a threat of reprisals, if made, is a violation of law. It is a serious charge. It ought not to be inferred lightly either by an administrative agency or by a court.

In this case, the Trial Examiner, in construing the employer's letter, found:

"* * * It was reasonably calculated to convey to the employees that their signing of union cards would not be kept secret or confidential, that the Respondent probably would acquire knowledge of their signing cards and that Respondent would engage in reprisals against them if they signed union cards."

The Trial Examiner was correct only in finding that the letter was calculated to convey to the employees that their signing of the union cards would not be kept secret and that the company would probably learn about their signing the cards. He was incorrect in finding that the respondent would engage in reprisals against them if they signed the union cards. The letter contained no such statement, expressed or implied.

The finding as to threats was based entirely upon the Trial Examiner's construction of the language of the letter. There was no oral testimony of any threats of reprisals. The Trial Examiner did not state what reprisals, if any, were threatened. This is understandable because none is contained in the letter. The Board adopted the Trial Examiner's findings without opinion.

The dissenting opinion of Judge Edwards does not find that any "explicit" threat was contained in the letter. Indeed, he states that in general, he might tend to view the letter as containing "noncoercive, sound advice to anyone." But he further says that it should not be viewed without the critical surrounding circumstances. We agree, but the only surrounding circumstances which he points out were that a union organizing campaign was in progress; that the company's letter was signed by its president; that "it was a communication from an employer in a plant without a labor-management contract, where the employer had the immediate power to discharge and great control over his future with the company"; and that the letter was sent to the same places where the union's letters were sent, namely, to the employees' homes. It is submitted that these circumstances, singly or in their totality do not convert a non-threatening letter into a threatening one.

The dissent even questions the right of the employer to write to its employees to dispute the union's pledge of secrecy of its employees' signatures on the authorization card. The employer's letter, we submit, was the exercise of the right of freedom of speech, protected not only by the First Amendment to the Constitution but also by Section 8(c) of the Act. The employer surely had the right to reply to the union's letter and to tell its employees that contrary to the union's statements, the authorization cards are not in fact handled with the "strictest confidence", and that in many instances the signed card "is disclosed to the company by the union, the NLRB, or both of them." For example, see N.L.R.B. v. Winn-Dixie Stores, Inc., 341 F.2d 750 (6th Cir. 1965) cert. denied, 382 U.S. 830, 86 S.Ct. 69, 15 L.Ed.2d 74.

The union in its letter told the employees:

"Many of your fellow workmen have already signed."

The company had a copy of the union's letter, which had probably been furnished to it by one of its employees. The union authorization card was in the form of a postal card that could be mailed by the employee to the union. This certainly did not entail very much secrecy.

The dissent asks what "legitimate company purpose" could be served in warning the workers that the authorization cards might not be kept secret and states that the only conceivable end served by such a warning was to imply a threat of economic reprisal. This is pure speculation since there was no evidence other than the letter. In our view, it was the union which first opened the subject of secrecy in the representation campaign it was conducting by mentioning the subject in its initial letter. The company obviously felt that the union would not adhere to its pledge of secrecy. We know of no reason why it should be prevented from communicating its views to its employees. Certainly once the union had broached the topic, the employer had the right to comment on it by way of reply.

The company's reply letter was an attempt to influence the decision of each employee by countering the union's original arguments. The early paragraphs of the company's letter emphasized its positive record during its forty-five years of existence, for work stability, job security, bonus plans, vacation benefits, and recreation facilities, all of which its employees had obtained without a union. The last paragraph, the one in dispute here, points out the other side of the company's persuasion coin. The company would have a right to advise its employees to be careful before signing the authorization cards, believing as it apparently did that union membership may well entail obligations, responsibilities, and drawbacks, which its employees should consider along with potential benefits. These could include the possibility of strikes, the requirement of paying union dues, and the possibility of involvement in union political squabbles, all of which could affect the well-being of the worker and his family.

We cannot say from the record in this case that the company had no legitimate purpose in urging its employees to be careful before signing a card. Like the union's promises of increased economic benefits, its promise of secrecy in signing cards could also be disputed by the company. After initiating this issue in its original message, the union cannot complain if the company seeks to reply thereto.

In Surprenant Mfg. Co. v. N. L. R. B., 341 F.2d 756 (6th Cir. 1965) this Court approved as non-threatening, language of the employer which was much stronger than that used in the present case. The Court in an opinion written by the late Judge Miller held that a notice to employees, posted on the company's bulletin board, containing a statement,

"Our sincere belief is that if a union were to represent you in our plant, it would not work to your benefit but to your serious harm,"

and a further statement,

"We, therefore, propose to use every proper means to prevent a union from becoming established here,"

did not constitute veiled threats as the Board contended, but were expressions of the right of free speech.

In the present case, unlike Surprenant, the letter did not tell the employees that serious harm would result to them if the union were to represent them, nor did the company state that it would use every proper means to prevent the union from getting established. In the total absence of any proof, it cannot be assumed here that the company would engage in unnamed reprisals against its employees if they signed union cards.

In Surprenant, the Court also upheld a Board finding that threats were contained in speeches made to employees by the employer's director of public relations, in which speeches he "referred to the probability that if the company did not choose to meet excessive demands of the union and a strike resulted, the company might decide to move the operation elsewhere or shut it down." This language was rather specific and, as the Court held, supported the inference or conclusion drawn by the Board that it constituted a threat. No such threat was made in the case at bar. No threats of reprisal were pointed out by the Trial Examiner. He relied on an inference which he drew solely from the language of the letter. It...