NLRB v. MALLORY'S PLASTICS COMPANY

• Citation: 355 F.2d 509
• Decision Date: 11 January 1966
• Docket Number: No. 15174.,15174.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MALLORY PLASTICS COMPANY, a Division of P. R. Mallory & Co., Inc., Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

355 F.2d 509 (1966)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MALLORY PLASTICS COMPANY, a Division of P. R. Mallory & Co., Inc., Respondent.

No. 15174.

United States Court of Appeals Seventh Circuit.

January 11, 1966.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Solomon I. Hirsch, Atty., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcus W. Sisk, Atty., N. L. R. B., Washington, D. C., for petitioner.

Frederic D. Anderson, James F. Hillis, Indianapolis, Ind., for respondent; Barnes, Hickam, Pantzer & Boyd, Indianapolis, Ind., of counsel.

Before HASTINGS, Chief Judge, CASTLE and MAJOR, Circuit Judges.

MAJOR, Circuit Judge.

This case is here upon petition of the National Labor Relations Board, pursuant to Section 10(e) of the National Labor Relations Act, as amended (Title 29 U.S.C.A. § 151 et seq.) for enforcement of its order issued against respondent December 11, 1964. The Board's decision and order are reported at 149 NLRB No. 138.

Respondent, Mallory Plastics Company, is a division of P. R. Mallory & Co., Inc., an Indiana corporation with its office and principal place of business at Indianapolis, Indiana. Mallory Plastics Company operates the Chicago plant involved herein, where it manufactures plastic dishware and other plastic ware.

The Board's complaint charged respondent with unfair labor practices in three respects: (a) the discharge of Charles W. Coleman for union activity in violation of § 8(a) (3) of the Act (Title 29 U.S.C.A. § 158(a) (3)); (b) enforcement during an election campaign of a discriminatory solicitation-distribution rule in violation of § 8 (a) (1); and (c) coercive conversations between supervisors John Zajac, Leo Paszquiet and Edwin Clark and seven employees, concerning the latters' union activities in violation of § 8 (a) (1).

The Trial Examiner found that the discharge of Coleman was not discriminatory. Pursuant to this finding, the Board dismissed this charge. The Board found, contrary to the Examiner, that respondent's solicitation-distribution rule was not discriminatory and this charge was dismissed.

The Board's order and its petition for enforcement are based solely on its finding that conversations between supervisors and employees were in violation of § 8(a) (1), which provides:

"It shall be an unfair labor practice for an employer — (1) to interfere with, restrain or coerce employees in the exercise of the rights guaranteed in section 157 of this title * * * ."

In evaluating the proof relied upon to support a violation of the section just quoted, § 8(c) must be taken into consideration. It provides:

"The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit."

It is pertinent to note that during the summer of 1963, the union (Textile Workers of America, AFL-CIO) began a campaign to organize the employees at respondent's Chicago plant. Union meetings were held and membership cards were distributed to employees outside the plant's parking lot.

There were conversations, allegedly coercive, between three of respondent's supervisors and seven of its employees. (Respondent had 18 supervisors and some 200 employees.) Three of such conversations were between supervisor Paszquiet and Coleman. Respondent attacks the credibility of Coleman on the basis that much of his testimony on cross-examination was contradictory of that given on direct examination and that the Examiner found that he was discharged for theft rather than discriminatorily. We need not pursue this contention, as we accept the Board's summary of his lengthy testimony. The Board's abbreviated version follows: "Maintenance Foreman Leo Paszquiet had three conversations with Janitor Charles Coleman about the Union. The first conversation was around the middle of August, after Coleman had signed a union card. Paszquiet told Coleman that he had noticed Union representatives outside the plant and asked Coleman what he thought about the Union. Coleman replied that he had not given much thought to the Union. The foreman also remarked that the Union people `don't mean you any good'. On a second occasion in September, Paszquiet asked Coleman again what he thought of the Union, and Coleman again replied that he had not given it much thought. On November 7, when Coleman reminded Paszquiet that he would be leaving work early that day to attend a conference at the Board's office regarding the forthcoming election, Paszquiet asked Coleman a third time what he thought about the Union. Coleman again gave an evasive answer."

A conversation between supervisor Clark and employee Calvin is summarized in a footnote to the Board's brief as follows: "Shortly after the joint conference on November 7, Assistant Foreman Edwin Clark asked employee Frank Calvin, who was wearing a union button, what he thought of the Union and whether the Union would `make it or not.' When Calvin replied, `maybe yes or maybe no,' Clark added that, `They are not going to do anything for you, maybe a nickel raise.'"

All other conversations were had with supervisor Zajac. Employee Harris testified that Zajac asked him why he was wearing a union button, to which Harris responded that he was for the union. Zajac told Harris that he should know better from experience, as Harris had previously worked at a place where the union was "no good"; that the union, if it got in, would cause the employees' bonus and incentive rates to be taken away; that he was speaking "man to man," and that he was not telling Harris how to vote but that Harris should vote the way he thought best for himself.

Employee Patton testified that Zajac "asked me what I was organizing," said "the union is no good" and "Will you pull the button off?". Patton continued with his work and also continued to wear the button. Patton also testified to a similar conversation which he heard between Zajac and employee Wimms.

Employee Lunsford testified that Zajac after noticing his union button asked him what he thought of the union, to which Lunsford replied that he really did not know because it was his "first dealings with the union." Zajac then related his own experience with unions and expressed the opinion that they were no good. Zajac suggested that if Lunsford did not believe him, he should talk to Harris about unions. Zajac stated, "Well, John, I am talking to you as a friend, not as a foreman. Will you please do me a favor and remove your button before the morning shift comes in so the company won't know who you are for?" Lunsford stated that he could not remove his button because he was "one of the originals that attended the meeting down here at the Labor Relations Board." Zajac then suggested that he would be willing to arrange an appointment for Lunsford with the company president, because he was "very understanding." Lunsford replied that he did not know if he wanted an appointment...