NLRB v. Southwire Company

• Decision Date: 01 November 1965
• Docket Number: No. 21784.,21784.
• Citation: 352 F.2d 346
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SOUTHWIRE COMPANY, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

352 F.2d 346 (1965)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SOUTHWIRE COMPANY, Respondent.

No. 21784.

United States Court of Appeals Fifth Circuit.

November 1, 1965.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Solomon I. Hirsh, Atty., N. L. R. B., Washington, D. C., Arnold Ordman, Gen. Counsel, Theodore J. Martineau, Attorney, N. L. R. B., for petitioner.

Frank M. Swift and Smith, Swift, Currie, McGhee & Hancock, Atlanta, Ga., for respondent.

Before TUTTLE, Chief Judge, and BELL and COLEMAN, Circuit Judges.

TUTTLE, Chief Judge.

By this petition the Labor Board seeks enforcement of its order, which found that the respondent violated Section 8(a) (1), N.L.R.A. by promulgating an illegally broad rule barring solicitation and by publishing a coercive threat in its handbook for employees, and that the Company violated Section 8(a) (3) and (1), by discharging five employees because of union activities, and further, that the Company violated Section 8(a) (1) by unlawfully interrogating two employees.

As background, it is relevant to note that the Board had previously held that this respondent had violated Section 8(a) (3) and (1) of the Act by discriminatorily discharging five employees and had violated Section 8(a) (1) by engaging in instances of unlawful interrogation. This prior finding was affirmed by this Court which ordered enforcement in N. L. R. B. v. Southwire Company, 5 Cir., 313 F.2d 638. Subsequently, the Board also found a violation of Section 8(a) (3) and (1) of the Act in the discharge of another employee because of union activities. The events that brought about the present unfair labor practice charges occurred in 1962 during an organization campaign conducted by the International Union of Electrical Radio and Machine Workers, AFL-CIO.

A booklet distributed by the Company among its employees contained, among other things, a list of rules designed to bar activity involving solicitation and distribution in the plant. Under the heading, "No Solicitations," this rule provides as follows:

"No employee or any other person shall be permitted to solicit or promote subscriptions, pledges, memberships, or other types of support or co-operation for any drives, campaigns, causes, churches, corporations, individuals, or organizations, or to collect money for work purposes on company property. The distribution or circulation of leaflets, pamphlets, circulars or other literature are considered promotions within the meaning of this section and are not permitted.

"This is not intended to prevent or prohibit personal discussion among employees on any subject during non-working time."

Elsewhere, on a different page in the booklet, is the following language under a heading called, "Statement on Unionism":

"No person will be allowed to solicit or carry on union or organizing activities on the job. Anybody who does so and who thereby neglects his own work or interferes with his or the work of others will be subject to discharge."

At a different place, under the policy declaration, "Statement on Unionism," is the following language:

"We are convinced that wherever there are unions there is trouble, strife and discord and that a union would not work to our employees\' benefit but to their serious harm. In view of this, it is our positive intention to oppose unionism by every proper means."

Upon the hearing before the trial examiner, a showing was made to the effect that a part of the language in the Statement on Unionism had been changed in later editions of the company's booklet. The language now in use is as follows:

"We are convinced that wherever there are unions there is trouble, strife and discord and that a union would not work to our employees\' benefit. In view of this it is our positive intention to oppose unionism by every proper and legal means."

Dealing first with the charge that the No Solicitation rule of the company violated Section 8(a) (1) of the Act, we conclude that the Board's findings in this respect are correct. It seems clear that a fair reading of this rule would cause an employee to believe that it was a violation of the company's policy for him to do any of the forbidden things at any time at any place on the company's property, for this is exactly what the first sentence says. The fact that this is modified by another paragraph that says, "This is not intended to prevent or prohibit personal discussion among employees on any subject during non-working time," does not have the effect of enlarging the privilege of soliciting or promoting subscriptions during non-working time on the company's property. So construed, this rule is too broad and is violative of Section 8(a) (1) of the Act. Republic Aviation Corporation v. N. L. R. B., 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 557; N. L. R. B. v. Walton Manufacturing Co., 5 Cir., 289 F.2d 177, 180; N. L. R. B. v. Linda Joe Shoe Co., 5 Cir., 307 F.2d 355, 357. The respondent made no attempt to prove special circumstances which would warrant such a broad No Solicitation rule. Cf. N. L. R. B. v. Babcock & Wilcox Co., 351 U.S. 105, 112, 113, 76 S.Ct. 679, 100 L.Ed. 975.

Turning next to the Board's criticism that the Company's statement that it is convinced that "wherever there are unions there is trouble, strife and discord," and that a union would work to their employees' serious harm, amounts to a coercive threat, we conclude that the Board reads too much into this language. This respondent seeks to leave no one in doubt of its opposition to unionization of its plant. This it has a right to do, so long as it does so in a fair presentation of its views. We need not decide whether the language used is in the nature of a "prediction," cf. N. L. R. B. v. Transport Clearings, Inc., 5 Cir., 311 F.2d 519, 524, or a threat of conduct by the company that it would itself be responsible for causing the employees "serious harm," if they should choose the union. Respondent has, wisely we think, eliminated this critical language. U...