NLRB v. KAISER AGR. CHEM., DIV. OF KAISER A. & CO. CORP.

• Decision Date: 02 February 1973
• Docket Number: No. 72-1379.,72-1379.
• Citation: 473 F.2d 374
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. KAISER AGRICULTURAL CHEMICALS, a DIVISION OF KAISER ALUMINUM & CHEMICAL CORPORATION, Respondent.

473 F.2d 374 (1973)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. KAISER AGRICULTURAL CHEMICALS, a DIVISION OF KAISER ALUMINUM & CHEMICAL CORPORATION, Respondent.

No. 72-1379.

United States Court of Appeals, Fifth Circuit.

February 2, 1973.

COPYRIGHT MATERIAL OMITTED

Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., Washington, D. C., Walter C. Phillips, Director, Thaddeus R. Sobieski, Region 10, N. L. R. B., Atlanta, Ga., for petitioner.

John E. McFall, Andrew C. Partee, Jr., New Orleans, La., for respondent.

Before RIVES, WISDOM and RONEY, Circuit Judges.

WISDOM, Circuit Judge:

The National Labor Relations Board seeks enforcement of its order that the respondent, Kaiser Agricultural Chemicals, a division of Kaiser Aluminum & Chemical Corporation, cease and desist from violating section 8(a) (1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), and that it bargain collectively on demand with the International Brotherhood of Firemen & Oilers, AFL-CIO, as the exclusive representative of the employees in its production and maintenance unit. 187 NLRB No. 95. We grant enforcement.

I.

Kaiser Agricultural Chemicals (the "company") maintains a plant at Bainbridge, Georgia, where it is engaged in the manufacture and sale of granular fertilizer and other agricultural chemicals. During September 1969, the International Brotherhood of Firemen & Oilers, AFL-CIO, (the "union") began its campaign to organize the 70 production and maintenance employees at the plant. Two union agents arranged for a meeting of the employees to be held October 24, 1969, at the Holiday Inn in Bainbridge. At the meeting, a substantial number of the employees were in attendance, and the union obtained 27 signed authorization cards. The cards stated that the employee authorized the union "to represent me and, in my behalf, to negotiate and conclude all Agreements as to hours of labor, wages, and other labor conditions."¹

The following day, 19 more employees signed authorization cards. Having obtained cards from 46 of the 70 employees in the production and maintenance unit, the union advised the company by telegram on October 25 that a majority of the employees in the production and maintenance unit had signed cards designating the union as their collective bargaining representative. The union requested a meeting with the company for the purpose of negotiating a new labor agreement. In the next two days seven additional employees signed the cards, making a total of 53 authorizations of a possible 70.

On October 27, the union filed a representation petition with the National Labor Relations Board's regional office. The next day the company advised the union by letter that it would not grant recognition to the union; that it did not believe the union represented a majority of the employees in an appropriate unit; and that it preferred representation to be determined by a board-conducted election based on the petition filed by the union. On December 5, the board directed that an election be held among the company's production and maintenance employees on January 6 and 7, 1970.

Between October 24 and November 12, 1969, company supervisors engaged in certain conduct which later formed the basis for unfair labor practice complaints filed by the union. We present a brief outline of the relevant facts.

While the union's meeting at the Holiday Inn was still in progress on October 24, a company supervisor, Whidden, drove to the Holiday Inn parking lot to determine the number and identity of the company's employees attending the meeting. After the meeting some of the employees reported for work at midnight. A company supervisor, Johnson, approached an employee and asked him what his car was doing at the Holiday Inn that night. When the employee denied being there, Johnson replied "Oh, come on, I knew your car was out there." When the employee admitted being at the meeting and asked Johnson how he knew about it, Johnson replied that he had known about the meeting for some time. The same night, Johnson also questioned another employee about his attendance at the meeting. When the employee asked what meeting Johnson was referring to, Johnson replied "The meeting you had at the Holiday Inn," and stated that he knew for a month or two that the employees were going to have a meeting.

During the day of the October 24 meeting and the period immediately thereafter, company supervisors spoke to employees about the union on several occasions. Supervisor Whidden told employees that if the union came in and asked for an increase in wages, a strike would follow that the company was "prepared to take." Noting that the employees would be out of work, Whidden asked one employee how he would be able to make payments on his new house, and asked another how he would be able to make payments on his new automobile. Supervisor Swicord asked an employee if he had signed an authorization card and told him that the union would not do any good because the company would not increase wages and that if the union were voted in the company might have to close the granulation plant.

On another occasion, the company's production superintendent, Smith, approached an employee and stated that if the union came in, bargaining for employee benefits would start "at zero," that other existing benefits would be discontinued, and that the granulation plant would have to be shut down.

Between November 1 and 10, supervisors Johnson, Smith, and Swicord approached several employees and stated that if the union came in, the granulation plant would be shut down and run by supervisors, that the company was prepared to take a strike, that bargaining for employee benefits would begin "at zero," that the employees would lose retirement and other existing benefits, and that the practice of permitting employees to swap shifts would be discontinued. The plant manager, Montee, also told an employee that if the union demanded benefits over what was then in effect, the company would resist and take a strike. Whitaker, vice-president of the company, told an employee that the company definitely did not want a union; that the company had orders from the home office that no raises would be granted if the union were brought in; and that if a raise was requested they would close down the plant.

On November 4, the union filed with the board an unfair labor practice charge alleging that the company had violated section 8(a)(1) of the Act by interfering with the employees' rights under section 7, 29 U.S.C. § 157.² After an investigation, the board's regional director issued a complaint against the company in case no. 8026.

On January 6 and 7, 1970, the representation election was held, resulting in a vote of 12 to 25 against the union. The union made timely objections to the company's conduct affecting the election in case no. 8013. On February 3, the union filed additional charges, amended February 16, alleging that the company unlawfully refused to bargain in violation of section 8(a) (5), 29 U.S.C. § 158(a) (5). The regional director investigated and on February 20 issued a complaint based on these charges in case no. 8153.

On February 12, 1970, the board's regional director ordered the election set aside and directed a second election. On a request by the company to review the regional director's decision, the board ordered a hearing on both the unresolved objections to the election (case no. 8013) and the pending cases involving unfair labor practice charges (case no. 8026 and 8153). After examining the complaints filed by the union, the trial examiner found that the company had violated section 8(a) (1) of the Act by maintaining surveillance of the union's meeting on October 24; by giving the impression that union activities of the employees were under surveillance by the company; by coercively interrogating its employees about their union activities; by threatening to curtail or eliminate plant operations if the employees selected a union as their bargaining representative; and by threatening that if the union won the election, the company would revoke existing benefits, force the union to bargain "from zero," and would "take a strike" if the union asked for wage increases. The trial examiner found that a substantial proportion of the unfair labor practices occurred between October 27, the date the representation petition was filed, and January 6 and 7, the dates the election was held,³ and that the election was improperly interfered with and had to be set aside. In addition, the trial examiner found that the union represented the majority of employees in an appropriate unit when the request for recognition was made on October 25; that the possibility of holding a free and fair rerun election was unlikely because of the lingering effects of the unfair election practices; and that the company's refusal to bargain with the union violated section 8(a) (5) of the Act.

The board adopted the trial examiner's findings and ordered the company to cease and desist from its unfair labor practices or from interfering in any other manner with the employees' exercise of their rights under the Act. Finally, the board required the company to bargain collectively with the union on demand as the exclusive representative of its employees and to post appropriate notices.⁴

II.

The company's first contention is that the board's finding that the company violated section 8(a)(1) of the Act is not supported by substantial evidence. The record reveals, however, that the company engaged in a campaign of "classic, albeit crude, unlawful labor practices" designed to dissipate support for the union. J. P. Stevens & Co. v. NLRB, 5 Cir. 1969, 417 F.2d 533, 536.

The company maintained surveillance over the union's October 24 meeting for the purpose of determining the number and identity of the employees attending and fostered an impression that the union activities of the employees were under...