NLRB v. JW MORTELL COMPANY

• Decision Date: 10 February 1971
• Docket Number: No. 18035.,18035.
• Citation: 440 F.2d 455
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. J. W. MORTELL COMPANY, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

440 F.2d 455 (1971)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. J. W. MORTELL COMPANY, Respondent.

No. 18035.

United States Court of Appeals, Seventh Circuit.

February 10, 1971.

Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Leonard M. Wagman, Morton Namrow, Attys., N.L.R.B., Washington, D. C., for petitioner.

John T. Weise, Charles J. Griffin, Jr., George J. Matkov, Jr., Chicago, Ill., for respondent; Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., of counsel.

Before SWYGERT, Chief Judge, KNOCH, Senior Circuit Judge, and PELL, Circuit Judge.

KNOCH, Senior Circuit Judge.

The National Labor Relations Board seeks enforcement of its Order issued November 28, 1967, against J. W. Mortell Company.¹

The Board found violations of § 8(a) (1) of the National Labor Relations Act, as amended, Title 29 U.S.C. § 151 et seq., § 158, through coercive interrogation of employees regarding union activities, threatened denial of wage increases on the basis of union support, grant of benefits during a union organizing campaign, discriminatory enforcement of a no-solicitation rule, surveillance (actual and implied) and interference with Board processes by discouraging witnesses from conferring with the Board's attorney.

The Board also found violations of § 8(a) (3) and (1) of the Act by deprivation of a promotion for one employee, suspension of another, transfer and subsequent constructive discharge of a third, all because of union activity.

The United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO, began its campaign to organize Mortell employees by distribution of leaflets in front of the plant in November 1964. The first organizational meeting was held February 11, 1965, and the next day a foreman interrogated one of the employees respecting numbers of employees who had attended and their break-down by department and sex. A week later he warned the same employee that he could be fired for carrying union authorization cards and a supervisor accused him of passing these cards on company time, a charge the employee denied, warning him that he would be fired if he did not stop.

On February 22, 1965, when the Union wrote Mortell that it was conducting a union campaign, it asked for prompt steps to prevent further interference with the rights of the employees.

Mortell held a series of meetings early in March 1965 promising half-holidays before Christmas and New Year, longer vacations for employees with 15 years' service and paid wash-up time before lunch, which last Mortell witnesses said merely formalized what had become a practice. Mortell also issued a letter urging employees not to sign union cards, referring to improved working conditions and specifically citing (inter alia) some of the new benefits noted above, as well as promising monthly meetings for airing of grievances.

The Union furnished Mortell a list of employees who had agreed to serve on an organizing committee. Among these were Marian Sheets and Robert Clipper.

An election was scheduled for August 3, 1965. Meantime there were a number of incidents of interrogation, and comment of a threatening nature by supervisory personnel. We need not recount these in detail. There were sharp conflicts in the testimony of the employees and Mortell's witnesses concerning the conduct of the various supervisory personnel. Mortell considers all these incidents of minor character not sufficient to afford a proper basis for inferring an anti-union animus.

The issue of credibility of the witnesses is a matter for the Board's resolution. N.L.R.B. v. National Food Stores, Inc., 7 Cir., 1964, 332 F.2d 249, 251; N.L.R.B. v. Quick Shop Markets, Inc., 7 Cir., 1969, 416 F.2d 601, 604-605.

It is well settled that coercive interrogation impairs an employee's freedom to select a collective bargaining representative. N.L.R.B. v. Henry Colder Co., 7 Cir., 1969, 416 F.2d 750, 753, and cases there cited.

Similarly promises of increased benefits undertaken for the purpose of impinging on the employees' freedom of choice violate the Act. Lincoln Manufacturing Co. v. N.L.R.B., 7 Cir., 1967, 382 F.2d 411, 414, cert. den. 389 U.S. 972, 88 S.Ct. 470, 19 L.Ed.2d 463.

Mortell contends that the promised benefits were motivated by its narrow victory in previous elections and based on a comparison study begun prior to November 1964. The plant manager testified he presented recommendations to Mortell's executive committee in November 1964 and that the committee approved them late in December 1964. If that was the case, the timing of their announcement and subsequent emphasis of the new benefits in the anti-union letter, were most unfortunate. The Board cannot be held to have reached an untenable conclusion in deciding that the new benefits were motivated by an intent to induce rejection of the Union.

The Board also found, and there is evidence to support the finding, that while distribution of literature and solicitation by anti-union employees (as distinguished from supervisory personnel) during working time was frequently condoned, Mortell's no-solicitation rule was enforced against employees who were union adherents. This constituted a violation of § 8(a) (1) of the Act. Revere Camera Co. v. N.L.R.B., 7 Cir., 1962, 304 F.2d 162, 165.

While it is possible to infer from the wording of the notices posted by Mortell an intent to discourage employees from appearing for interviews with a Board attorney, and the Board did construe the notices as conveying the impression that its own trial preparation was somehow subservient to the interest of the Union, we believe, in the light of all the circumstances as outlined in Judge Pell's concurring opinion, that this interpretation is an unduly strained one.

Mortell offered evidence that it demoted James Emling because of his unsatisfactory attitude toward supervisors. On one occasion he had allegedly called a supervisor a "damned fool." There was a conflict in the evidence on this incident presenting an issue of credibility for the Board. Here again the timing rendered the motive suspect. On April 15, 1965, after the Union filed its election petition, James Emling, who had been an early supporter of the Union, was assigned on a 90-day trial basis to new duties with a 15¢ hourly wage increase. He promptly ceased his union activities for a period of six weeks during which there was no criticism of his performance, but when he resumed union activity, he received warnings that such activity would get him into "hot water." His probation period was extended thirty days. Two weeks after the election he was told there would be no more overtime for him, and the new duties with their increased pay were taken away from him. No reason was given him at the time. At the hearing Mortell adduced evidence with reference to several incidents during the first ninety-day probation period, but the Trial Examiner apparently did not credit the testimony that these incidents had been discussed with Mr. Emling during that period. The Board was warranted in concluding that Mortell was engaging in an act of reprisal. Trumbull Asphalt Co. of Delaware v. N.L.R.B., 7 Cir., 1963, 314 F.2d 382, cert. den. 374 U.S. 808, 83 S.Ct. 1697, 10 L.Ed.2d 1032.

Similarly it was not unreasonable for the Board to conclude that Mortell's suspension of Marian Sheets, a prominent and active proponent of the Union, was not truly based on an alleged report that she had threatened another employee but on a desire to punish her for union activity.

For the conclusion that Robert Clipper was constructively discharged, we find no such substantial support in the record. Although Robert Clipper was an active supporter of the Union, his activities in its behalf ceased with the holding of the election. He had been employed as part of the unloading crew in Department 17. Early in July 1965, after he suffered a back injury, he returned to work with Doctor's instructions not to perform heavy lifting. He continued in Department 17, but under Mortell's order to perform only light work while there.

On August 2, 1965, he was transferred to light work in Department 10. When that ran out, he went back to Department 17, still restricted to light work.

August 30, 1965, light work was found for him in Department 8, sweeping and washing trucks. This involved no heavy lifting. He quit his job about November 18, 1965.

The Board, on the ground that there was no continuing need to keep him on light work after August 13, 1965, the date of the final medical report, concluded that he was deliberately given less pleasant work, washing trucks outside, in the hope that he would quit. But Frank Donner, who was no longer employed by Mortell, but who had been personnel manager at the time, made a contemporaneous note in his own handwriting during a telephone conversation with the Doctor who cautioned him against recurrence of the back trouble if Mr. Clipper did not refrain from heavy lifting for "quite some time". He testified about this conversation.

The Board placed great reliance on the fact that one of the group leaders (who were specifically held not to be "supervisors") had assigned some heavy work to Mr. Clipper in August. However, there is no evidence that this improper assignment was known to management. Mr. Clipper never reported it. Nor is there any evidence that Mr. Clipper's distaste for washing trucks, communicated to another group leader, ever reached management.

The Trial Examiner took judicial notice of the fact that truck washing out of doors in cold weather was unpleasant work, but other employees had been doing it. Mr. Clipper suffered no rate reduction from these changes in assignment and the new work involved no heavy lifting.

Mortell was surely not obligated to risk further injury in reliance on Mr. Clipper's own feeling that he was able to do heavy lifting, as indicated by his requests for a...