NLRB v. Lexington Chair Company

• Decision Date: 06 May 1966
• Docket Number: No. 10000.,10000.
• Citation: 361 F.2d 283
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LEXINGTON CHAIR COMPANY, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

361 F.2d 283 (1966)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LEXINGTON CHAIR COMPANY, Respondent.

No. 10000.

United States Court of Appeals Fourth Circuit.

Argued November 4, 1965.

Decided May 6, 1966.

Allen M. Hutter, Atty., N. L. R. B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Glen M. Bendixsen, Atty., N. L. R. B., on brief), for petitioner.

R. D. Douglas, Jr., Greensboro, N. C. (Douglas, Ravenel, Josey & Hardy, Greensboro, N. C., on brief), for respondent.

Before SOBELOFF and BRYAN, Circuit Judges, and MICHIE, District Judge.

MICHIE, District Judge.

This case comes before us upon the petition of the National Labor Relations Board pursuant to Section 10(e) of the National Labor Relations Act (hereinafter referred to as the Act)¹ for enforcement of its order against the Respondent, Lexington Chair Company of Lexington, North Carolina (hereinafter called the Company). The Board's decision and order, issued January 28, 1965, and reported at 150 N.L.R.B. No. 126, arose out of charges that the Company had engaged in unfair labor practices within the meaning of Sections 8(a) (1) and (3) of the Act. The Company is engaged in the business of manufacturing bedroom and dining room furniture and employs over 200 nonsupervisory production and maintenance workers at its Lexington plant.

The Board, which adopted the findings, conclusions and recommendations of the Trial Examiner and made only a minor addition to the Trial Examiner's proposed order, found that the Company had violated the provisions of Section 8(a) (1) of the Act by interfering with, restraining and coercing its employees in their exercise of protected activity by posting and enforcing a broad no-solicitation rule; by posting a rule restraining the employees' freedom of expression; by inducing employees to abandon the Union (United Furniture Workers of America, AFL-CIO); and by interrogating them with respect to their union activities. The Board also found that the Company had discharged five employees to discourage union membership and activity in violation of Sections 8(a) (1) and (3) of the Act. We find that substantial evidence on the whole record supports the Board's findings. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

The facts involved in the case cover the period of time from the announcement of a Union organizational campaign among the Company's employees in April, 1963, until the discharge of the last of the five employees referred to above on March 24, 1964.

In April the Union apprised the Company that an organizational attempt would be made among the Company's employees. The evidence shows that the Company decided to resist unionization. Thereafter, about the middle of May, John E. Adams, general manager of the Company's plant, convened groups of 15 to 25 employees in the main office of the plant. The employees were shown literature and a picture of the "Sun Glow plant" at Logan, Ohio, a customer of the Company and itself a manufacturer of articles of furniture. Sun Glow had ceased manufacturing operations the month before but had contracted to buy still more furniture from the Company. At the time of the closing of Sun Glow the Union had announced in Ohio that it intended to organize the Lexington plant. In the meetings with the Company's employees Adams and another Company official told the employees that they could expect calls from Union organizers and reminded them of what had happened at Sun Glow. They also stated that the Company had plenty of business and hoped that it would continue and that there was no necessity for a union at Lexington.

The Union began its organizational campaign among the Company's employees in June. Mail and home contacts by a Union representative were followed by personal solicitation by fellow employees, the distribution of literature and periodic meetings attended by 10-15 employees.

The Company meanwhile was at work attempting to discourage unionization. The first of a series of letters deprecating the Union and extolling the virtues of the Company was sent to all employees on October 15. Additional letters were sent out on October 28 and on November 12.

During this same October-November time period an employee antiunion campaign was launched.² Its originator was Kenneth Kepley, an inspector in the Company's finishing department, and he and Jack Fritts, a stock clerk in the warehouse, were the most active of the Company's employees in the movement. These two individuals and other employees, sometimes calling themselves "the antiunion committee," engaged in three basic types of activity: procuring signatures of employees to "antiunion petitions" or "pledges" to avoid union entanglements; soliciting voluntary donations to cover the costs of antiunion literature; and distributing antiunion material to employees, usually keyed in time and content to Union leaflet distributions.

Several threats to, and interrogations of, their fellow employees who backed the Union are attributed to members of the antiunion committee. However, the Trial Examiner found that neither Kepley and Fritts nor other members of the committee possessed the necessary badges of authority to be classified as supervisors within the meaning of Section 2(11) of the Act and that these committee members were not agents of the Company in carrying on their fight against unionization. Accordingly, the Company is not responsible for their activities.

The Union campaign progressed through the summer of 1963 and into the fall. On or about November 6 or 7 Maston Turner, a former employee of the Company (Turner's prior dismissal is considered below), presented the Company's personnel manager, Lloyd Carlton, with a list of 14 names of individuals who comprised the Union's organizing committee.³

Thereafter, from the Trial Examiner's findings, the Union campaign continued down through at least March, 1964. Numerous allegations of unfair labor practices by the Company in the time period between September, 1963, and March of 1964 were considered by the Trial Examiner. Most of the allegations were rejected by him. We consider each of the acts which the Trial Examiner found constituted unfair labor practices. The Company actions break down into three categories: (1) the unlawful rules, (2) coercion and interrogation of employees and (3) the discharges of five pro-Union workers.

I

Shortly after the "Sun Glow talks" which general manager Adams had delivered in May of 1963 he revived a set of rules and regulations originally posted in the plant around December of 1962. One of these rules prohibited "distributing or posting literature of any kind in the plant." In addition, a new rule was added which prohibited employees from "criticizing Company rules and policies so as to cause confusion or resentment between employees and management." Violation of these rules could subject the offender to disciplinary action, including discharge.

The Board found that the posting of these rules constituted violations of Section 8(a) (1) of the Act, and the Company now admits that the posting of the no-distribution rule was "technically incorrect" under the Act. This rule has now been revised by the Company to apply only to solicitation or distribution on Company time.

The posting of these rules constituted clear violations of the Act. The no-solicitation rule applied, on its face, to nonworking hours as well as to working time and it was cited to an employee (Raymond Jarvis, whose subsequent dismissal is considered below) by Company officials in early November, 1963, when the employee was circulating Union literature in the Company's parking lot during his lunch break. The Board found that, due to the Company's hostility towards the Union and the timing of the posting and invocation of the rule, the Company's purpose was to interfere with its employees' right to organize. However, even without this anti-Union animus, the posting of the no-solicitation rule was unlawful. The Board has adopted the presumption that a rule prohibiting union solicitation by an employee outside working hours although on company property is an unreasonable impediment to self-organization in the absence of special circumstances evidencing the necessity of such a rule in order to maintain production and discipline. E. g., Peyton Packing Co., 49 N.L.R.B. 828, 843 (1943). The presumption has been approved by the Supreme Court. Republic Aviation Corp. v. NLRB, 324 U.S. 793, 804, 65 S.Ct. 982, 89 L.Ed. 1372 (1945). No justification for the unlawfully broad scope of the rule in the present case was offered by the Company and we conclude that the Board was correct in declaring the rule unlawful.

The no-criticism rule, the Company asserts, was not intended to prohibit legitimate union activity which might result in advocating higher pay, more fringe benefits or other such changes in working conditions, but rather it was intended to prohibit "carping" and "backbiting", personality attacks on supervisors, untrue statements which might cause confusion, and "similar violation of normal good manners between employees and employer." The record supports the Company's contention that it never enforced the rule along the former lines. Indeed, the Company apparently never enforced the rule at all. Nevertheless, we find that the Board was justified in concluding that the rule constituted an infringement of rights guaranteed employees under Section 8(a) (1) of the Act. The rule was promulgated against a background of expressed hostility to the Union and no rational explanation for its adoption is apparent other than that the Company was attempting to control criticism by pro-Union employees during the organizational struggle which the Company knew would ensue. It is difficult to envision organizational activity by pro-union employees which would not involve criticism of management...