NLRB v. Howard Quarries, Inc., No. 18123.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtMATTHES, MEHAFFY and GIBSON, Circuit
Citation362 F.2d 236
Decision Date22 June 1966
Docket NumberNo. 18123.
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. HOWARD QUARRIES, INC., Respondent.

362 F.2d 236 (1966)

NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
HOWARD QUARRIES, INC., Respondent.

No. 18123.

United States Court of Appeals Eighth Circuit.

June 22, 1966.


362 F.2d 237

Clarice R. Feldman, Atty., N. L. R. B., Washington, D. C., for petitioner. Arnold Ordman, Gen. Counsel, N. L. R. B., Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel and Elliott Moore, Atty., N. L. R. B., Washington, D. C., were with her on the brief.

Harry L. Browne and Clifton L. Elliott, of Spencer, Fane, Britt & Browne, Kansas City, Mo., for respondent and filed brief.

Before MATTHES, MEHAFFY and GIBSON, Circuit Judges.

362 F.2d 238

MEHAFFY, Circuit Judge.

This case is here upon a petition of the National Labor Relations Board for enforcement of an order reported at 150 N.L.R.B. # 83. This court has jurisdiction.

Howard Quarries, Inc. is a Missouri corporation located in Sedalia, Missouri with its principal business being the operation of various rock quarries and the processing of commercial stone. The quarry involved here is located at Sweet Springs, Missouri, and at the time of the alleged violations was operating two shifts with a payroll of twenty-nine employees.1

The issue in this case is whether there is substantial evidence to support the Board's findings that respondent, Howard, violated § 8(a) (1) and (3) of the National Labor Relations Act, as amended, by unlawfully interrogating and threatening employees during a union authorization campaign and by discriminatorily selecting employees for layoff.2 Accordingly, we have reviewed the entire record. We reverse both findings. 29 U.S.C.A. § 160(f); Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

§ 8(a) (1) — Interrogation

On May 11, 12, 13 and 15, 1964, Teamster Local 534 began soliciting authorization cards from Howard's employees.3 The solicitations were openly conducted on a country road near the quarry entrance but some quarter mile from the buildings and actual operations. Howard's supervisors were aware of the union activity and with the exception of the interrogations were otherwise unconcerned in view of organizational efforts sporadically conducted over the past fifteen years and the continuous picketing of Howard the preceding year.

During this four day period, supervisor J. A. McCollom, day foreman Lloyd Davis, and night foreman Vern Garrison casually observed the union's activity and informally questioned eleven employees as to whether or not they had signed union cards. It was established that nine employees were questioned once and two employees were questioned twice with the time involved being about one to two minutes per conversation. The questioning occurred on the job and usually in the parking lot during shift changes.

On May 11 Charles L. Williams, Lloyd Goodwin and Clyde Morney signed cards and as they reported for the night shift were met in the parking lot by McCollom. Each was asked if he had signed a union card to which Williams and Goodwin replied affirmatively. Morney was found to have answered that he had only signed a card about a strike and had marked it "no," to which McCollom injected "You have been with us a long time you know." This negative answer is not based upon the direct examination of Morney who did in fact tell McCollom he had signed a union card.4 Although Goodwin and Williams

362 F.2d 239
testified that they only heard McCollom say that Morney had been around for a long time, the examiner preferred to accept the testimony of James A. Mullins who overheard the Morney-McCollom conversation and believed Morney to have lied about signing.5 This reliance by the examiner is relative, we think, to his assumption that Morney was not laid off because Howard believed he had not signed a card and harbored no union sympathies

The same day Mullins told McCollom he had not signed and did not plan to. Mullins did, however, sign a card on May 12 as did day workers Raymond C. Johnson and Bernard Abbott. Mullins later told foreman Lloyd Davis that he had signed. On May 13, Johnson informed McCollom that both he and Abbott had signed cards. McCollom commented, "I am surprised at you, I did not think that of you, you being one of the oldest men here." The following day McCollom made a similar comment to Johnson and added, "if you wanted to quit, why didn't you?" Johnson replied, "I might do that if you are not satisfied with what I did." McCollom then stated, "what do you think the people will think of you sitting and talking with the union men?" McCollom added, "I did not ask you to quit, I don't want you to." On May 13, McCollom asked Abbott if he "got signed up yesterday afternoon." Abbott said he had. McCollom asked "what Abbott expected to gain," and "what the union promised him." Abbott answered "nothing," to which McCollom commented, "I can't understand you older guys signing up, the younger men I could figure it out, but not you older men."

On May 12, day workers Virgil Smith and Alvin O. Staten signed cards as they left work. The next day McCollom inquired if they had signed. Both replied that such was unnecessary as they already belonged to the union. Staten then showed McCollom his union card.

Night worker Merrill Allison signed a card on May 11. The following day night foreman Vern Garrison asked if "all the boys had signed up." Allison said he thought "the biggest part of them had." Garrison shook his head and walked off. Day foreman Lloyd Davis asked Allison the same question and got the same reply. Davis informed Allison that he did not think "it would do a nickel's worth of good."

Day worker Robert A. Martin signed a card on May 12 but after questioning by foreman Davis, Martin denied signing. Martin also told McCollom that he had not signed to which McCollom commented, "that's a good boy." Doris H. Tincher and Walter H. Day signed cards on May 15. Day was never questioned, while Tincher, in reply to McCollom's question of "what are they signing at the quarry entrance with the union men," replied, "some kind of negotiation card." McCollom remarked that unions were no good and "they will get you in trouble." Tincher "kind of agreed." James Freddy Chitwood signed May 11 and Jim Allen Halphin signed May 12. Neither was questioned.

The examiner found that these comments "reasonably show antiunion animus and warrant the inference that the interrogations were far from casual or isolated incidents but rather were deliberate and of the broad nature and extent which the Board has often found to be inherently coercive." We do not agree. It is well established that otherwise legal acts cannot be the basis for an inference of antiunion animus. N. L. R.

362 F.2d 240
B. v. Colvert Dairy Products Co., 317 F. 2d 44 (10th Cir. 1963). And, from our examination of the record, we are unable to allow this inference the burden of supporting a § 8(a) (1) violation. True, about one-third of the employees were asked if they had signed union cards with the inquirer expressing various feelings commensurate with the answers. But all were casual and brief and conducted in informal surroundings. Not only do we fail to find evidence that would support feelings of coercion and interference but also that no employee considered himself restricted or limited either in his right of self-expression or his freedom to participate in self-organization. N. L. R. B. v. I. Posner, Inc., 342 F.2d 826 (2nd Cir. 1965); S. H. Kress & Co. v. N. L. R. B., 317 F.2d 225 (9th Cir. 1963); J. S. Dillon & Sons Stores Co. v. N. L. R. B., 338 F.2d 395 (10th Cir. 1964). And, "interrogation as to who has signed cards is not anti-union pressure." N. L. R. B. v. Covington Motor Co., 344 F.2d 136, 137 (4th Cir. 1965)...

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8 practice notes
  • NLRB v. Hawthorn Company, No. 19248.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • January 3, 1969
    ...employees is not shown to have been an unfair labor practice. NLRB v. Herman Wilson Lumber Co., supra; NLRB v. Howard Quarries, Inc., 362 F.2d 236, 240 (8th Cir. 1966); Fort Smith Broadcasting Co. v. NLRB, 341 F.2d 874 (8th Cir. The Board and the trial examiner determined that the exhibitio......
  • Dierks Forests, Inc. v. NLRB, No. 18713.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 16, 1967
    ...case rested on a single or isolated statement. N.L.R.B. v. Frontier Homes Corporation, supra at 977; N.L.R.B. v. Howard Quarries, Inc., 362 F.2d 236, 239-240 (8th Cir. 1966); N.L.R.B. v. Blades Manufacturing Corporation, 344 F.2d 998, 1003-1004 (8th Cir. 1965); N.L.R.B. v. Johnnie's Poultry......
  • NLRB v. Arkansas Grain Corporation, No. 18848.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 3, 1968
    ...by a narrow or strained construction. Montgomery Ward & Co. v. N.L.R.B., 8 Cir., 385 F.2d 760; N.L. R.B. v. Howard Quarries, Inc., 362 F.2d 236, 240 (8 Cir., 1966). Section 8(c) of the Act provides that free speech is permitted "if such expression contains no threat of reprisal or force or ......
  • NLRB v. Gentithes, No. 71-1373.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • June 27, 1972
    ...were intended as threats directed toward those employees involved in the continuing campaign of the Union. Cf. N L R B v. Howard Quarries, 362 F.2d 236, 239-240 (8th Cir. 1966). Absent a coercive character the statements cannot be considered violative of § 8(a) (1) of the (c) Discharge of R......
  • Request a trial to view additional results
8 cases
  • NLRB v. Hawthorn Company, No. 19248.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • January 3, 1969
    ...employees is not shown to have been an unfair labor practice. NLRB v. Herman Wilson Lumber Co., supra; NLRB v. Howard Quarries, Inc., 362 F.2d 236, 240 (8th Cir. 1966); Fort Smith Broadcasting Co. v. NLRB, 341 F.2d 874 (8th Cir. The Board and the trial examiner determined that the exhibitio......
  • Dierks Forests, Inc. v. NLRB, No. 18713.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 16, 1967
    ...case rested on a single or isolated statement. N.L.R.B. v. Frontier Homes Corporation, supra at 977; N.L.R.B. v. Howard Quarries, Inc., 362 F.2d 236, 239-240 (8th Cir. 1966); N.L.R.B. v. Blades Manufacturing Corporation, 344 F.2d 998, 1003-1004 (8th Cir. 1965); N.L.R.B. v. Johnnie's Poultry......
  • NLRB v. Arkansas Grain Corporation, No. 18848.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 3, 1968
    ...by a narrow or strained construction. Montgomery Ward & Co. v. N.L.R.B., 8 Cir., 385 F.2d 760; N.L. R.B. v. Howard Quarries, Inc., 362 F.2d 236, 240 (8 Cir., 1966). Section 8(c) of the Act provides that free speech is permitted "if such expression contains no threat of reprisal or force or ......
  • NLRB v. Gentithes, No. 71-1373.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • June 27, 1972
    ...were intended as threats directed toward those employees involved in the continuing campaign of the Union. Cf. N L R B v. Howard Quarries, 362 F.2d 236, 239-240 (8th Cir. 1966). Absent a coercive character the statements cannot be considered violative of § 8(a) (1) of the (c) Discharge of R......
  • Request a trial to view additional results

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