NLRB v. Rollins Telecasting, Inc., 332

• Decision Date: 25 February 1974
• Docket Number: No. 332,Docket 73-1888.,332
• Citation: 494 F.2d 80
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ROLLINS TELECASTING, INC., Respondent.
• Court: U.S. Court of Appeals — Second Circuit

494 F.2d 80 (1974)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ROLLINS TELECASTING, INC., Respondent.

No. 332, Docket 73-1888.

United States Court of Appeals, Second Circuit.

Argued January 14, 1974.

Decided February 25, 1974.

Rehearing Denied April 16, 1974.

Warren C. Ogden, N. L. R. B. (Peter G. Nash, Gen. Counsel, N. L. R. B., John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Asst. Gen. Counsel, Charles N. Steele, N. L. R. B., of counsel), for petitioner.

James M. Walters, Atlanta, Ga. (Fisher & Phillips, John Bacheller, Jr., and James B. Rhoads, Atlanta, Ga., of counsel), for respondent.

Before MOORE, FRIENDLY and ANDERSON, Circuit Judges.

FRIENDLY, Circuit Judge:

This petition to enforce an order of the National Labor Relations Board, 199 N.L.R.B. No. 92, involves the recurring pattern of a union organizational drive, concomitant discharges of employees known to be active in it, and efforts of a company executive to persuade employees not to support the union. Unlike many such cases, this controversy went to a Board-conducted election. In light of the Board's rulings with respect to challenges, Teamsters Local Union No. 648 may have won the election; the company does not deny that it must recognize the union in that event. However, the Board confirmed the ruling of Administrative Law Judge Blackburn that even if the union should turn out to have lost the election, it had achieved an authorization card majority. In consequence, the Board authorized a bargaining order under § 8(a)(5) because of the discriminatory discharges of two leaders in the union's campaign. NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). We have no quarrel with this conclusion, the findings of discriminatory discharges, and the relief accorded for them. On these points we see nothing that can usefully be added to the thorough discussion by the Administrative Law Judge, who rejected many of the General Counsel's claims, and the Board's decision, which rejected another. Our concern is rather with the finding that the respondent violated § 8(a)(1) by making coercive statements in the midst of a union organizational campaign. In considering that finding, we face the familiar tension between § 8(a)(1) and the protection accorded an employer by § 8(c) of the Act. See NLRB v. Gissel Packing Co., supra, 395 U.S. at 616-620, 89 S.Ct. 1918, 23 L.Ed.2d 547. Two incidents are involved, a speech by a high company official and an informal remark by a middle-level supervisor.

The more important of the two incidents was the talk and question-and-answer session conducted by James Roddey, vice-president of Rollins, Inc., respondent's parent corporation. As the head of Rollins' media division, Roddey was in charge of the company's various media outlets, including WPTZ, the Plattsburgh, N. Y., television station with which we are here concerned. The Board found that the speech "was understood by the employees to mean in its totality that it would be futile for them to vote for the union." This rested on three subordinate findings:

(1) That Roddey had in effect threatened plant closure by saying that Rollins had previously closed a business enterprise rather than deal with the Teamsters;

(2) That he warned the employees that if the Teamsters called a strike, they would lose their jobs "temporarily or permanently," through replacements; and

(3) That he suggested the employees organize a committee to deal with Rollins and indicated they would benefit by such a procedure.

Chairman Miller did not agree that the first two statements violated § 8(a)(1). He concluded that the third statement was unlawful, however, because it "contained a veiled promise of benefit for foregoing unionization and dealing directly with Respondent."

There is no dispute that Roddey made statements on each of the three topics on which the Board focused, but his version of his remarks differed substantially from the Board's characterization. On the first point, he testified that in an endeavor to counter reports circulated by the union that the Teamsters were very tough and could put pressure on Rollins through other contracts with it and other companies, he had said only that he also was a hard bargainer and that the only connection Rollins had ever had with the Teamsters concerned an office in Florida they had organized. Subsequently, he said, "it had been the Company's decision that rather than submit to the demands that we felt were unreasonable, we would prefer to close that office." On the other hand, four employees who attended the meeting gave a significantly different version of Roddey's remarks. As one of them put it, "He told us . . . that the union did have at least one unionized shop in Florida and rather than bargain with the union, they Rollins closed the plant." The other three recalled Roddey's remark in similar terms.

If Roddey's testimony stood alone, we would have difficulty in finding a violation of § 8(a)(1). See NLRB v. River Togs, Inc., 382 F.2d 198, 201-202 (2 Cir. 1967), quoted with approval in NLRB v. Gissel Packing Co., supra, 395 U.S. at 619, 89 S.Ct. 1918, 23 L.Ed.2d 547; Snyder Tank Corp., 177 N.L.R.B. 724, 730-31 (1969), enforced, 428 F.2d 1348 (2 Cir. 1970); Federal Prescription Service, Inc., 203 N.L.R.B. No. 145 (1973); Sanders Leasing System, Inc., 204 N.L.R.B. No. 68 (1973). But here there is the testimony of what four employees understood Roddey to have said. The Administrative Law Judge, not attempting to resolve the conflict between the two versions of the speech, apparently went on the ground that it sufficed if employees reasonably understood, or more accurately misunderstood, Roddey to have threatened closure in the event of a union victory. The Board's statement is so cryptic that we cannot tell whether it resolved the conflict against Roddey, as it permissibly could have, or, as seems more likely, followed the reasoning of the Administrative Law Judge. Assuming that it took the latter course, we cannot fault the decision. An employer who goes so close to the brink takes the risk that employees may honestly misunderstand him; Roddey could easily have avoided the likelihood of being misunderstood by adding that Rollins would not close simply because of a Teamster victory but only if the union's demands made continuation impracticable. Gissell, supra, 395 U.S. at 620, 89 S.Ct. 1918, 23 L.Ed.2d 547.

On the second point, Roddey testified that he had "told the people that if they did strike under certain circumstances, that they could be replaced temporarily or in other circumstances they could be replaced permanently." Three of the employees who attended the meeting confirmed that account. Both the Administrative Law Judge and the Board, however, characterized his comment as a threat that the company would replace any strikers. We see no basis for the Board's interpretation, and conclude that Roddey's statement that economic strikers could lose their jobs "temporarily or permanently" was within the protection of § 8(c).¹ NLRB v. Herman Wilson Lumber Co., 355 F.2d 426 (8 Cir. 1966). If the Board meant to suggest that an employer resisting organization must deliver a lecture on the reinstatement rights of economic strikers under Laidlaw Corp., 171 N.L.R.B. 1366 (1968), enforced, 414 F.2d 99 (7 Cir. 1969), cert. denied, 397 U.S. 920, 90 S. Ct. 928, 25 L.Ed.2d 100 (1970), that goes too far, as the Board recently held, Mississippi Extended Care Center, 202 N.L. R.B. No. 139 (1973).

Finally, with respect to the third point, Roddey testified that, in answer to complaints that the cost of living in Plattsburgh was high and the pay at WPTZ was low, he said that if the employees "would like to get something together, either individually or as a group or committee" and talk to him, he would be willing to listen; he added that at another station where a union attempting organization had lost an election, "the Company had formed a committee of employees, and this was working very successfully." Once again, if his testimony had stood alone, we would be unable to agree with the Administrative Law Judge and the Board that he had crossed the forbidden line between merely soliciting complaints and promising benefits if the union organizational drive was defeated. As in the case of the threat to close the plant, however, the employees' version of the speech differed sharply from Roddey's. One of them testified:

He said that the Company had overlooked the employees of WPTZ; that he realized that we were underpaid; that he didn\'t feel we had to bring a Union in; that he didn\'t feel we needed a third party to negotiate on the salaries. He said that if we did bring a union in, that he was the man they had to bargain with, and he was tough to bargain with.

Another testified that Roddey had said that "these were some of the things that the Company could do for the employees without the Union, and one would be to look at comparable markets to find out the salary rates and the different positions, and also to set up a grievance committee; that if an employee had a grievance he could take it to the committee, and they would throw it around and make a decision." A third commented, "He did express that he didn't know things were this bad at Station WPTZ. . . . He said that he thought things could be worked out better."

The Administrative Law Judge found that the employees understood these remarks as a veiled promise of benefits if they rejected the union. In addition, he found that Roddey had attempted to persuade the employees that organizing a committee to deal with him "would be better for them than going union by assuring them he would act if their claim that they were grossly underpaid proved accurate by area standards." The Board agreed, concluding that Roddey had "suggested that the employees organize a committee to deal with Respondent and indicated that they would...