NLRB v. McCormick Concrete Company of SC, Inc.

• Decision Date: 10 January 1967
• Docket Number: No. 10576.,10576.
• Citation: 371 F.2d 149
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. McCORMICK CONCRETE COMPANY OF S. C., INC., Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

371 F.2d 149 (1967)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. McCORMICK CONCRETE COMPANY OF S. C., INC., Respondent.

No. 10576.

United States Court of Appeals Fourth Circuit.

Argued November 1, 1966.

Decided January 10, 1967.

Charles N. Steele, Atty., N. L. R. B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and George B. Driesen, Atty., N. L. R. B., on brief), for petitioner.

Wm. H. Smith, Jr., Columbia, S. C. (Ellison D. Smith, Jr., Columbia, S. C., on brief), for respondent.

Before BOREMAN, J. SPENCER BELL and CRAVEN, Circuit Judges.

BOREMAN, Circuit Judge.

National Labor Relations Board (hereafter Board) petitions for enforcement of its order directing McCormick Concrete Co. (hereafter company) to cease and desist from unfair labor practices in violation of sections 8(a) (1) and 8(a) (3) of the National Labor Relations Act and to reinstate two discharged employees to their former positions with back pay. We conclude that there was substantial evidence on the whole record to support the Board's findings and that the order should be enforced.

The company, located at Conway, South Carolina, is engaged in the manufacture of concrete blocks and ready-mix cement for sale to construction companies. At the time of the alleged violations there were fifteen production employees, a superintendent, Thomas, and the president and owner, Conway.

The International Union of Operating Engineers, Local 497, AFL-CIO, began an organizational drive among the company's employees in late May or early June 1964. It was in relation to these activities that the Examiner and the Board held that the company violated section 8(a) (1) of the Act by interrogating employees about the union, soliciting employees to help the company stop the union, making disparaging remarks about the union, and threatening economic reprisals for those employees who joined the union. The company was also found to have violated section 8(a) (3) of the Act by discharging employees Lambert and Richardson for their participation in the union organizational campaign.¹

The company's assertions that it did not engage in any activities in violation of section 8(a) (1) consist, in the main, of blanket denials of such activities. The company attempted to explain that the discharge of employees Lambert and Richardson was due to their disinterest and incompetence as workers rather than because of their participation in the union activities. The company also argues that Lambert exercised supervisory powers and was, therefore, not an employee within the meaning of section 2(11) of the Act.

Aside from the legal question of Lambert's employee status we are presented here with conclusions of the Board which rest entirely on the resolution of issues of credibility. Our power of review in such instances is limited by section 10(e) and (f) to determining whether or not there is substantial evidence on the whole record to sustain the Board's decision. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L. Ed. 456 (1951).

The section 8(a) (1) violations fall into several categories.

Interrogation

It was found that Thomas, the superintendent, had interrogated the employees Lambert, Richardson and Rice as to what they knew of the union and that Rice was also questioned by Conway as to whether or not his signature on an authorization card was authentic.

Each of these employees testified that he had been interrogated by Thomas as to whether a union was organizing the employees and as to his participation. Thomas admitted asking Lambert if he knew about the union but denied asking Lambert any other questions. He denied speaking to either Rice or Richardson about the union. The Examiner who had an opportunity to observe the demeanor of Thomas found that his attitude was "belligerent and not such as to inspire confidence." In view of positive testimony that these interrogations took place and the fact that there was a finding of belligerent demeanor on the part of Thomas, there is substantial evidence to support the Board's conclusion that the employee interrogations did take place.

Rice testified that he was also interrogated by Conway who showed him (Rice) a copy of a union card and asked if the signature thereon was his (Rice's). When Rice replied that it was his signature, Conway stated that he was checking the authenticity of the signatures. Conway admitted that he questioned Rice about his signature but argues that such interrogation — unaccompanied by any threats or hostility — is permitted by the Board's decision in Blue Flash Express, 109 NLRB 591. This case merely holds that interrogation per se, unaccompanied by any threats, is not a violation of section 8(a) (1) but may become such depending on the manner in which it is done and the surrounding circumstances. See Daniel Constr. Co. v. NLRB, 341 F.2d 805 (4 Cir. 1965); NLRB v. Zimmox Coal Co., 336 F.2d 516 (6 Cir. 1964). The Board's finding that this interrogation was a violation of section 8(a) (1), considered in the context of previous interrogations of Rice and the other employees, threats, company attempts to secure employee assistance to stop the union campaign, and the fact that no assurance was made that there would be no reprisals is supported by substantial evidence.

Soliciting Employees to Help Stop the Union

Employees Lambert and Richardson testified that Thomas sought their assistance in the company's effort to stop the employees from joining the union and that Thomas wanted them (Lambert and Richardson) to supply the names of the employees in the union. Thomas denied any conversation with these employees on this subject. But there was ample evidence to support the Board's conclusion that such solicitations were made and they are clear violations of the Act. See NLRB v. Associated Naval Architects, 355 F.2d 788, 791 (4 Cir. 1966). Here again the Examiner stated that because of Thomas' belligerent demeanor if there were a conflict between his testimony and that of the employees the Examiner would credit the latter.

Threats and Coercion and Derogatory Remarks

It was found that Thomas made the following threats of economic reprisal: (1) Thomas told Lambert that he (Lambert) and others would lose their jobs because of the union; (2) Thomas told Richardson that the union would not do him any good; (3) Wilson was informed by Thomas that if the latter continued to "mess" with the union he would not be permitted to learn how to operate the crane, and subsequently Wilson was told by Thomas that it would be better for him if he tore off his union button and "straightened up"; (4) Thomas made statements to Cuttino, an employee, that he (Cuttino) should not participate in the union, that the union would do him no good and in the event the union became their bargaining agent the truck drivers would not be given yard work when they were not driving; (5) Thomas told Rice that the union would do him no good. Lambert and Richardson also stated that Thomas told them that the union was "communist" and "no good." All of the employees involved testified that Thomas made the above-listed threats and warnings all of which Thomas categorically denied. The Examiner chose to believe the employees and stated that Thomas' belligerent demeanor did not render his testimony credible.

The company also argues that even if Thomas made such statements they were no more than mere expressions of opinion as to what would follow upon union recognition. The fact that these statements considered alone and out of the context in...