NLRB v. Louisiana Manufacturing Company

Citation374 F.2d 696
Decision Date29 March 1967
Docket NumberNo. 18471.,18471.
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOUISIANA MANUFACTURING COMPANY, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

COPYRIGHT MATERIAL OMITTED

Clarico R. Feldman, Atty., N.L.R.B., Washington, D. C., for petitioner. Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel and Warren M. Davison, Atty., N.L.R.B., Washington, D. C., were with her on the brief.

Paul S. Kuelthau, of Moller, Talent & Kuelthau, St. Louis, Mo., for respondent.

Before VAN OOSTERHOUT, GIBSON and HEANEY, Circuit Judges.

FLOYD R. GIBSON, Circuit Judge.

The National Labor Relations Board seeks enforcement of its order, issued June 8, 1965 and reported at 152 NLRB 1301.1 Respondent, Louisiana Manufacturing Company, is a corporation located in Louisiana, Missouri, and is engaged in the manufacture and distribution of aluminum and plastic castings. There is no question of jurisdiction.

Beginning about the 1st of January, 1964, the United Mine Workers of America (Union) began an organizational drive of respondent's approximately 60 employees. On February 5, 1964, the Union filed a petition for election. After the filing of the election petition but prior to the election, the Union filed unfair labor practice charges against respondent, which charges were eventually dismissed by the Board. The representation election was held on April 21, 1964, and the Union lost. Thereafter, the charges2 which are the subject matter of this litigation were filed with the Board and eventually submitted to hearing before a Trial Examiner.

Generally, the charges alleged that the Company interrogated, threatened, and made promises to employees; and that the Company refused to reinstate employee Hardy Wilson and discharged employee Richard Owens because of their union activities, all in violation of § 8(a) (1) and (3) of the National Labor Relations Act (29 U.S.C. § 158(a) (1) and (3)).3

The Trial Examiner found that respondent had unlawfully interrogated employees concerning their union activity and the union activity of fellow employees and had unlawfully promised benefits for refraining from union activity. The Trial Examiner did not believe, however, that respondent's speeches to the employees amounted to coercive threats. Rather, the Trial Examiner concluded that the statements "amounted to no more than statements of opinion or predictions, and fell within the protection of free speech under 8(c) of the Act."4 The Trial Examiner found that employee Wilson was refused reinstatement because of his union activities, but that employee Owens was discharged because of insubordination to his supervisor, Charles Broz.

Both parties filed exceptions with the Board. The Board adopted the findings of the Trial Examiner with the exception that it found that the statements made to the employees were coercive in content and thus not protected by § 8 (c) and that employee Owens was a victim of harassment because of his union adherence, which harassment ultimately provoked Owens into an insubordinate act, thus giving respondent an ostensible reason for discharging him.

Consequently, the Board ordered respondent to cease and desist from tactics of interference, restraint and coercion, ordered employees Wilson and Owens reinstated and made whole, and ordered a second certification election.

INTERROGATION, PROMISES AND THREATS

Dealing first with the interrogation of respondent's employees, it is well established that the mere act of questioning employees concerning union membership is not unlawful in itself. Blue Flash Express, Inc., 109 NLRB 591 (1954); N.L.R.B. v. Trumbull Asphalt Company of Delaware, 327 F.2d 841 (8 Cir. 1964). However, when under all of the circumstances the interrogation coerces or interferes with employees in the exercise of their protected rights of self-organization, it is a violation of § 8(a) (1) of the Act. N.L.R.B. v. Ritchie Manufacturing Company, 354 F.2d 90 (8 Cir. 1965); N.L.R.B. v. Morrison Cafeteria Company of Little Rock, Inc., 311 F.2d 534 (8 Cir. 1963); N.L.R.B. v. Tennessee Coach Co., 191 F.2d 546 (6 Cir. 1951).

We believe the circumstances of this case fully warrant the Board's finding that the interrogation of respondent's employees violated § 8(a) (1) of the Act.

We note at the outset that this interrogation does not appear to serve any legitimate purpose. N.L.R.B. v. Winn-Dixie Stores, Inc., 341 F.2d 750 (6 Cir. 1965), cert. denied 382 U.S. 830, 86 S. Ct. 69, 15 L.Ed.2d 74; Martin Sprocket & Gear Company, Inc. v. N.L.R.B., 329 F.2d 417 (5 Cir. 1964). Nor was the questioning an isolated example as in N.L.R.B. v. Johnnie's Poultry Co., 344 F.2d 617 (8 Cir. 1965). Superintendent of the Permanent Mold Division of the respondent Company, Charles Broz, is one of the primary actors in this drama. The record is replete with instances of his open hostility toward the Union, and the questioning of employees under his supervision was widespread, both as to incidents and individuals.

Employee Roy Wilson testified that Broz, on twelve or more occasions throughout the organizational drive, asked him if he knew which employees were supporting the Union. Employee Hardy Wilson testified that Broz asked his opinion of the Union and asked if Wilson knew the identity of the "ring-leaders". Broz also asked if Wilson knew which employees were taking and signing union cards and which employees were speaking favorably of the Union. Broz then asked Wilson to find out who these employees were. On a later occasion, Broz asked Wilson if he had received a letter from the Union. Upon receiving an affirmative answer, the two men went to Wilson's home to allow Broz to read the letter. Broz then asked Wilson to bring him the letters he received from the Union and inform him of the employees who were supporting the Union. Finally, Broz asked Wilson on numerous occasions to write the Union, requesting a withdrawal card. When Wilson finally refused, Broz expressed his disgust with Wilson.

Employee James Lindsey was twice asked by Broz how he was going to vote and on the second occasion asked if he knew of anyone intending to vote for the Union. After the election, Broz asked Lindsey if he had voted for the Union and if he knew of any employees who had done so. Employees Charles Harrison and Roy Watson were both asked how they voted. Employee Richard Owens testified that Broz questioned him about his associations away from work. After some "hinting" and a few abusive suggestions, Owens admitted that he had been with some union organizers.

In the totality of these circumstances, we believe it was clearly demonstrated that Broz conducted a widespread, coercive, unjustified interrogation of employees regarding their union activities, the union activities of others, their voting records, their private correspondence, and their spare-time activities. This interrogation was undoubtedly calculated to, and no doubt did, have a significant intimidative effect on the organizational rights of the employees.

When a supervisor with expressed anti-union sentiments asks an employee about his union affiliation and the union sympathies of his fellow workers, there is going to be a most natural coercive effect on the questioned employee. N.L.R.B. v. Elias Brothers Big Boy, Inc., 327 F.2d 421 (6 Cir. 1964); Martin Sprocket & Gear Company, Inc. v. N.L. R.B., 329 F.2d 417 (5 Cir. 1964). Of course, any coercive effect can be occasionally neutralized by assurances that the questioning is not intended to interfere with the men's right to organize. See, Edward Fields, Inc. v. N.L.R.B., 325 F.2d 754 (2 Cir. 1963). But no such assurances can be found in Broz's questioning.

This coercive effect is significantly reinforced when the employee is asked to single out fellow employees whom he discovers to be supporting the Union, and to report these activities to his employer. This employee may naturally assume that for an employer to go to such lengths, some punishment must be in store for union supporters. In addition, he probably assumes that other employees were approached as he was. Consequently, he will hesitate to make his union sentiments known to other employees, even in confidence, nor will he freely enter organizations of other employees for fear that one or more fellow employees will be following the wishes of their employer by spying upon and reporting his union activity. Thus, the questioning of employees about union activity of themselves and others and asking them to report union supporters, is very suspect and usually coercive in effect. Colson Corporation v. N.L.R.B., 347 F.2d 128, 142 (8 Cir. 1965), cert. denied 382 U.S. 904, 86 S.Ct. 240, 15 L.Ed.2d 157. In this situation the employer has, in effect, initiated a small-scale reign of terror in which the impression of an ubiquitous survillance must leave its mark on the freedom of action of the individual employees. Hendrix Manufacturing Company v. N.L.R.B., 321 F.2d 100 (5 Cir. 1963).

Equally offensive is the questioning of employees as to how they and their fellow employees voted in a certification election. The ballot is supposedly secret and the employer normally has no right to privately interrogate each employee as to how he or his fellow workers plan to vote or voted in a certification election. See, N.L.R.B. v. Pennwoven, Inc., 194 F.2d 521 (n. 1), (3 Cir. 1952); Wagner-Wood Company, 148 NLRB 963, 1964 CCH NLRB § 13412. The usual connotation of a probing for this information is that those who "voted wrong" will be singled out for special treatment. This does not accord employees their statutory rights to freely organize without fear of reprisals or intimidation.

Furthermore, it appears that employee Hardy Wilson was promised rewards for his refusal to support the Union. Shortly after he secured the Union letter from Wilson, Broz stated that as long as Wilson would "help him"...

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