NLRB v. Lindsay Newspapers, Inc.
| Decision Date | 04 April 1963 |
| Docket Number | No. 19487.,19487. |
| Citation | 315 F.2d 709 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LINDSAY NEWSPAPERS, INC., Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Stuart Rothman, General Counsel, Allison W. Brown, Jr., Attorney, National Labor Relations Board.
Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Dominick L. Manoli, Assoc. Gen. Counsel, N.L.R.B., Glen M. Bendixsen, Atty., N.L.R.B., Washington, D. C., for petitioner.
Cody Fowler, Granville M. Alley, Jr., Tampa, Fla., Glenn L. Greene, Jr., and Raymond J. Malloy, Tampa, Fla., Fowler, White, Gillen, Humkey & Trenam, Tampa, Fla., of counsel, for respondent.
Before TUTTLE, Chief Judge, and POPE* and JONES, Circuit Judges.
This is a proceeding by the National Labor Relations Board seeking enforcement of its order issued against the respondent, which is a newspaper publisher in Sarasota, Florida.
The Board found that respondent violated Section 8(a) (1) of the Act by unlawfully interrogating its employees regarding their union activity, and that it violated Section 8(a) (3) and (1) by discharging employees, John A. Gulsby, Jack E. Cartlidge, and Myra Frisbie, because of their union activities. The Board further found that respondent's discharge of Gulsby was motivated, inter alia, by the employee's testimony in a Board proceeding, and that respondent thereby also violated Section 8(a) (4) of the Act.
There are four questions presented on the appeal. The first three are well stated by the Board in its brief:
The fourth question is raised by respondent's contention that even though the Board's findings of fact and conclusions are fully supported, nevertheless the order promulgated by the Board and whose enforcement is here sought, is too broad in that the Board has ordered the respondent to cease and desist from discouraging membership not only in activities on behalf of the present union, but also "or in any other labor organization of its employees," and because it includes the language "or in any other manner discriminating in regard to hire or tenure of employment, or any other term or condition of employment." We, therefore, have the question whether the order, if justified at all, is too broad.
The first question deals with the primary charge of interference, restraint and coercion prohibited under Section 8 (a) (1) of the Act, predicated on the statements made to the employees by the President of respondent, and interrogation of the employees by counsel for respondent. These occurrences took place at a time when a petition for an election was pending. One of the questions to be determined by the Board was the propriety of the bargaining unit. We think the record supports the findings of the Board that Lindsay, the company president, told the employees that he had no intention of having a union, that he "would fight it in any court in the country," adding that no employee was indispensable, and that anybody could "leave." Whether or not this expressed attitude by the president of the company would be sufficient, cf. Harbison-Fisher Mfg. Co., 5th Cir., 304 F.2d 738, without more to sustain an 8(a) (1) violation need not be decided because we find that the conduct of counsel for the respondent taken in conjunction with Lindsay's statements, clearly supports the findings as to the 8(a) (1) violations.
On several occasions two different lawyers for the company called in employees and had a court reporter present; the court reporter swore the employees to tell the truth in the same manner as if they were testifying in court. The employees were then questioned at great length about many matters dealing with their own relations with the union and with their knowledge as to the relations of others with the union. All of this testimony was taken down by the court reporter. The respondent urges that dire consequences would result if the court were to hold that the interrogations by counsel for respondent, at a time when there was a legitimate interest on the part of respondent to ascertain what testimony might be available on matters to be passed on by the Board, could be construed as coercive or otherwise illegal under Section 8(a) (1). We find no such likelihood of misunderstanding of the extent to which counsel may legitimately inquire of prospective witnesses if we determine here, as we do, that the conduct of counsel in these proceedings was clearly beyond the pale. We call attention particularly to the circumstance that employees were called into a formal proceeding where they were sworn by a court reporter, which the Board could certainly find would create the strong impression on the mind of a layman that there would be legal sanctions against the making of an incorrect or false statement, which sanctions in fact do not exist under any known Florida statute for the violation of an oath in such a proceeding as was being conducted. Thus, it is obvious that an impression of awe and inviolability surrounding the proceedings was sought to be created, which would clearly have a coercive effect. Upon oral argument counsel assured the court that this method of perpetuating testimony is customarily used by counsel in the state of Florida. The reason given was that it does impress the prospective witness with the sanctity of his oath and the necessity for adhering strictly to the truth. If this is so, then it creates a false impression, since there is no more sanctity to a statement made by a prospective witness under an unauthorized oath of this kind than there is if he makes a statement without first being sworn. Thus, a false impression of solemnity and inviolability is sought to be created which in a sense is nothing more than an effort to "scare" a witness into telling the truth.1 This procedure certainly falls within the condemnation of Section 8(a) (1), because it is a "method of interrogation which imbues the interview with an unnatural formality which tends to intimidate the employee." N. L. R. B. v. Fire Door Corp., of America, 2nd Cir., 291 F.2d 328, 331. It is clear, therefore, on this record, that the conclusion of the Board that there was an 8(a) (1) violation must be sustained.
We turn next to the question whether there was substantial evidence on the record as a whole to support the Board's determination that Gulsby was not a supervisory employee. Respondent does not dispute that it discharged Gulsby because of his union activity; it contends, however, that Gulsby was a supervisor and was, therefore, not entitled to the protection of the Act. The parties are not in substantial disagreement as to the legal definition of what constitutes a supervisor. In fact the term "supervisor" is defined by Section 2(11) of the Act as: "Any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment."
As this Court has pointed out in Poultry Enterprises v. National Labor Relations Board, 5th Cir., 216 F.2d 798, 802:
"Although the statute states various sorts of supervisory authority coupled by the disjunctive (or), it states the requirement of independence of judgment in the conjunctive (i. e., in connection) with what goes before."
We, therefore, look to see whether the Board's finding of fact can be supported by substantial evidence that Gulsby did not exercise any of these supervisory functions in a manner that "required the use of independent judgment." In making such determination we should bear in mind that sporadic exercise of some supervisory authority does not of itself turn an employee into a supervisor. In our opinion in Poultry Enterprises, Inc. v. N. L. R. B., supra, we quoted from the previous decision in N. L. R. B. v. Stewart, 5th Cir., 207 F.2d 8, where on page 10 we said: "Such occasional performance of supervisory duties does not make an employee a supervisor within the meaning of the Act." We consider the facts which the Examiner could properly find from the evidence touching on Gulsby's activities in order to determine whether these facts could support the conclusion that Gulsby...
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