NLRB v. Saunders Leasing System, Inc., 73-1605.

• Decision Date: 14 May 1974
• Docket Number: No. 73-1605.,73-1605.
• Citation: 497 F.2d 453
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SAUNDERS LEASING SYSTEM, INC., Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

497 F.2d 453 (1974)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SAUNDERS LEASING SYSTEM, INC., Respondent.

No. 73-1605.

United States Court of Appeals, Eighth Circuit.

Submitted February 12, 1974.

Decided May 14, 1974.

Corinna Metcalf, National Labor Relations Board, Washington, D. C., for petitioner.

Edward R. Young, Memphis, Tenn., for respondent.

Before MEHAFFY, Chief Judge, and GIBSON and WEBSTER, Circuit Judges.

GIBSON, Circuit Judge.

The National Labor Relations Board seeks enforcement of its order issued June 25, 1973, and reported at 204 NLRB No. 68, which directed the Respondent, Saunders Leasing System, Inc., to cease and desist from two unfair labor practices in violation of § 8(a) (1) of the National Labor Relations Act, and to post appropriate notices. The Board also ordered that a representation election held on January 21, 1972, which the United Cement, Lime & Gypsum International Union, AFL-CIO (the Union) lost by a vote of 11-9, be set aside and a new election held.¹ We enforce the Board's order concerning one unfair labor practice and deny enforcement of the other.

The Respondent has 78 branches in approximately 17 states and is engaged in leasing and renting trucks and trailers for intrastate and interstate use. The Respondent's Foreman, Arkansas, branch (Company), the site of the unfair labor practice in this case, is located across the street from Arkansas Cement Corporation, which leases 98 tractors and 99 trailers from the Company and is the Foreman branch's principal account. The production, maintenance, and office workers at Arkansas Cement Corporation are represented by the Union.

An employee of the cement company contacted Paul H. Balliet, International Representative of the Union, during the beginning of December, 1971, and informed him that certain employees of the Company wanted to organize. An organizational campaign ensued, and a December 22, 1971, Union letter to the Company requested recognition. On December 27th, the Union filed a representation petition with the Board, which scheduled a secret ballot election on January 21, 1972.

During a two-week period prior to the January 21st election, Vice-President Milton Hauser, who headed the Company's industrial and labor relations' division, met with employees on five different occasions to discuss the Union's organizational attempt. Hauser read from a prepared statement at these informal meetings and answered questions from the employees. Hauser convened one of the five meetings approximately 24 hours prior to the January 21st election, and during this meeting one of the alleged unfair labor practices occurred. Clearly, the record shows that an employee, without any prompting from Company officials, asked Hauser a question concerning the continuation of benefits during negotiations with the Union, although no witness remembered the exact wording of that question. Hauser testified:

The question had to do with benefits, from the standpoint of, if a Union should come into the Foreman operation, "Would we keep our benefits, retain everything we have and go from there?" or something to that effect.

The following exchange occurred between Earvin Wright, a mechanic with the Company, and counsel for the Company:

The Witness Wright: Mr. Hauser said that benefits would be cut out if the Union goes in.

Q. (By Mr. McCray) counsel for the Company: Who asked that question concerning benefits?

A. I\'m not sure.

Q. You stated that Mr. Shaver asked a question. What question did he ask?

A. He asked a question something about the benefits, but I\'m not for sure what he said.

Q. Do you remember the exact words of Mr. Hauser\'s response?

A. No, but he did say that the union would—the benefits would be cut out.

Darrell Shaver, a mechanic, testified that Timmy Roden asked the question regarding benefits—something to the effect, "Would we retain everything we have?". Timmy Roden testified that he did not ask the question regarding benefits during negotiations.

The administrative law judge found: "One employee asked in connection with the question as to how collective bargaining works. `Don't you start in negotiations with what we have got already and go from there?' (Testimony of employee Wright and Hauser)." Although the record is not entirely clear concerning the exact wording of the question, it is clear that an employee did ask a question regarding benefits pending collective bargaining proceedings. We think that the record does show that Hauser's response was that the employees would lose their benefits during collective bargaining and that they would have "to start from scratch."²

The administrative law judge held that Hauser's statements concerning withdrawal of benefits during collective bargaining constituted an unfair labor practice. The record presents a difficult and close question concerning the evaluation of the testimony. We think, on this issue, however, that there is substantial evidence on the record as a whole to support the factual findings and that no error of law appears.³

The Board's position concerning statements of "bargaining from scratch" is best stated in Wagner Industrial Products, 170 NLRB 1413 (1968). In Wagner, the Board stated:

As the Board and the Courts have recognized in other cases, in the course of organizational campaigns, statements are sometimes made of a kind that may or may not be coercive, depending on the context in which they are uttered. "Bargaining from scratch" is such a statement. In order to derive the true import of these remarks, it is necessary to view the context in which they are made.

Wagner Industrial Products, 170 NLRB at 1413 (footnote omitted).⁴

In Wagner, the Company sent a letter to employees which allegedly contained a threat of economic reprisal. It read in part:

Employees voting in this kind of election sometimes mistakenly assume that a union victory is bound to mean higher wages and benefits. Nothing could be further from the truth. Under the law, an employer is not required even to continue in effect its existing benefits if a union wins. Bargaining starts from scratch. What wages and conditions will prevail thereafter depends on what the employer is willing to give. Our company most certainly will not agree, merely because there is a union, to raise our costs out of line with our competition. Our aim is to make the Winneconne plant a stable operation with good, steady employment, and this goal we would not jeopardize.

The Board held that "there is no specific implication that Respondent intended to adopt a bargaining posture offering the employees less than they were receiving." The Board also noted that there were no other alleged unfair labor practices and finally held that "in this context" the statements in the letter were not threats of economic reprisal.

In N.L.R.B. v. Louisiana Manufacturing Company, 374 F.2d 696, 701-703 (8th Cir. 1967), this court was faced with the question of whether similar statements could be construed as being threats of economic reprisal.⁵ We there held that "the question to be answered is whether under the circumstances the employees could reasonably conclude that the employer was threatening them with economic reprisals." N.L.R.B. v. Louisiana Manuafacturing Company, supra at 702.

The testimony here provides a close question of analysis. No one exactly remembered the words of the question itself. Hauser's statement concerning bargaining from scratch was in response to a specific employee question, in contrast to a planned, unsolicited statement to employees. Besides one other instance of an alleged threat of job reprisal, the General Counsel does not argue on appeal that any accompanying unfair labor practices occurred. Also, Hauser's response is not a clear threat to stop benefits, but is capable of varying interpretation.

In general, express threats to bargain from scratch and withdraw benefits during negotiations can carry in themselves "their own seeds of coercive threats." Hendrix Manufacturing Company v. N.L.R.B., 321 F.2d 100, 105 (5th Cir. 1963). It would appear that an unequivocal statement fully supported by the record that benefits would be terminated during negotiations and that the employer would thereafter bargain from scratch would per se violate the Act—as that conduct, if carried to fruition, would amount to unilaterally changing existing working conditions. However, the record is far from explicitly clear in this case concerning the question by the employee and the response by Hauser. When the statement itself is ambiguous or where the record shows conflicting accounts of what was actually said, it is necessary to determine "whether under these circumstances the employees could reasonably conclude that the employer was threatening them with economic reprisals." N.L.R.B. v. Louisiana Manufacturing Company, supra at 702; accord, N.L.R.B. v. Marsh Supermarkets, Inc., 327 F.2d 109, 111 (7th Cir. 1963). Those circumstances include, but are not limited to, the nature of the words of the statement itself, whether the statement was elicited by employees, whether accompanying unfair labor practices occurred before the election, and whether the record indicates an anti-union animus in general.

In this case, the record does not indicate that the words of the statement in themselves were explicit enough to say that there was a threat of economic reprisal per se. Further, no accompanying unfair labor practices occurred; nor do we find an anti-union animus by the Company. Nevertheless, six employees did testify that they thought they would lose benefits and negotiate from scratch. We do note that the record is not unambiguously clear that employees thought that benefits would be lost during negotiations. The employees stated that benefits would be lost if the Union "came in." It is unclear to us whether this means that benefits would be lost at the time the Union "came in" to negotiate or that benefits could be lost...