NLRB v. J. Weingarten, Inc.

• Decision Date: 12 January 1965
• Docket Number: No. 21273.,21273.
• Citation: 339 F.2d 498
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. J. WEINGARTEN, INC., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

339 F.2d 498 (1964)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. J. WEINGARTEN, INC., Respondent.

No. 21273.

United States Court of Appeals Fifth Circuit.

December 3, 1964.

Rehearing Denied January 12, 1965.

Lawrence Gold, Atty., N.L.R.B., Washington, D. C., Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Elliott Moore, Atty., N.L.R.B., for petitioner.

H. L. Deakins, Jr., L. G. Clinton, Jr., Houston, Tex., Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, Tex., of counsel, for respondent.

Before WISDOM and GEWIN, Circuit Judges, and HANNAY, District Judge.

GEWIN, Circuit Judge.

This enforcement petition tenders for review the question whether there is substantial evidence to support the trial examiner's conclusion that certain remarks made by one of respondent's supervisors to two of its employees had the effect of interfering with, restraining, or coercing these employees in the exercise of their right to self-organization in violation of Section 8(a) (1) of the National Labor Relations Act, 29 U.S.C.A. § 158(a) (1). The Board's order requires the respondent to cease and desist from interrogating employees as to their own union activities or the union activities of others, from threatening its employees with discharge, layoffs, and the elimination of overtime in the event the union was certified as bargaining representative and from threatening its employees with discharge for engaging in activity on behalf of the union.

The respondent company, J. Weingarten, Inc., operates a chain of retail grocery stores in Louisiana and Texas. In August 1960, the Retail Clerks International Association, AFL-CIO (the union) either instituted or reactivated an organizational campaign in 43 of respondent's stores, and on August 10, 1961, it filed a representation petition with the Board. All of the incidents which are alleged to constitute unfair labor practices took place in Store No. 3 in Galveston, Texas, during the period from August through December 1961.

None of the facts are in dispute. Both of the employees who were subjected to the alleged threats and interrogation, Mrs. Jacqueline Johnson and E. R. DaVila, worked in the Galveston store and were members of the employee organizing committee which the union had set up within that store. The evidence established that they had signed union authorization cards in the latter part of 1960, had attended numerous union meetings, and had openly assisted the union in its organizational effort in the Galveston store. Their pro-union activities were well-known to Patterson, the store manager. The evidence also indicated that the respondent had no prior history of unfair labor practices and that store manager Patterson had never attempted to prevent outside union organizers from visiting the store and discussing the union with the employees or contacting the members of the organizing committee.

The trial examiner based his finding of an 8(a) (1) violation in part upon Patterson's interrogation of Mrs. Johnson on two separate occasions regarding her union activity and the union activity of other employees. He also found one instance of unlawful interrogation of DaVila.

In August, 1961, Patterson questioned Mrs. Johnson about a union meeting that she had attended the night before, asking her "how it went" and how many employees were present. Mrs. Johnson did not respond to the questions. This conversation was held at the lunch counter where Mrs. Johnson worked, and approximately ten customers were present, although it was not established whether they could hear the conversation.

About the same time, while DaVila was completing the forms necessary to change his status from that of part-time employee to that of regular employee, Patterson interrogated him regarding his attitude toward the union. DaVila replied that he had been attending union meetings to find out about the union. Patterson replied: "That was what he wanted you to do." During the course of this conversation, Patterson also asked, "what was the use paying union dues when the union guys be driving big cars and, you know, we be working paying their salary."

In September 1961, Mrs. Johnson resigned from her job at the Galveston store in order to work for the union. She was rehired by Patterson in October 1961. Again in November or December 1961, Patterson questioned Mrs. Johnson about a union meeting she had attended the previous evening. He asked her how the meeting went and how soon the union expected to hold its election. She answered that she thought the election would take place in the near future. Patterson then asked which employees had attended the meeting, but Mrs. Johnson refused to name them. Patterson asserted that he knew DaVila was there and could find out who else was present. He also asked what percentage of the employees in the Galveston store were in favor of the union, and Mrs. Johnson replied that about ninety per cent were pro-union.

Following this incident, two events occurred which the trial examiner treated as establishing an anti-union animus on the part of Patterson which imparted a coercive coloration to the instances of interrogation described above. On an occasion when Mrs. Johnson had come in to pick up her paycheck, an employee inquired as to the health of her little boy. Patterson, who was also present, stated: "If you would stop hanging around with those buzzards from Houston, your little boy would be all right, you wouldn't be contaminated." Mrs. Johnson also testified that on several occasions Patterson had addressed her and other employees as "Mrs. Hofer" or "Mr. Hofer." Hofer was the union organizer assigned to the Galveston store.

Section 8(a) (1) of the Act only prohibits activity by an employer which in some manner tends to restrain, coerce, or interfere with employee rights; it is not a proscription of all anti-union activity. Hence, this Circuit has consistently held that interrogation of employees is not illegal per se. To fall within the ambit of § 8(a) (1), either the words themselves or the context in which they are used must suggest an element of coercion or interference. See, e. g., N.L.R.B. v. Hill & Hill Truck Line, Inc. (5 Cir. 1959), 266 F.2d 883; N.L.R.B. v. Fuchs Baking Co. (5 Cir. 1953), 207 F.2d 737.

We note in this connection that the decision in each case of this type must turn on its particular facts and circumstances. Otherwise innocuous inquiries can only assume a coercive character if the context in which they are made is coercive or threatening. In the instant case the employer had no history of anti-union activity and its store manager did not interfere in any way with the visits of union organizers to the Galveston store. At the time of the inquiries, there had been no expression of hostility toward the union other than Patterson's insinuation to DaVila that union dues went into the pockets of the union leaders. Perhaps the effect of this statement is mitigated by Patterson's assurance, during this same conversation, that the company desired that its employees attend union meetings and learn about the union. It may also be significant that between the first and second interrogations of Mrs. Johnson, she voluntarily left her job to work for the union and was rehired by Patterson. While Patterson did not refer to the union in complimentary terms, we cannot...