NLRB v. SUTHERLAND LUMBER COMPANY

• Decision Date: 14 December 1971
• Docket Number: No. 18932.,18932.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SUTHERLAND LUMBER COMPANY, Inc., Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

452 F.2d 67 (1971)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SUTHERLAND LUMBER COMPANY, Inc., Respondent.

No. 18932.

United States Court of Appeals, Seventh Circuit.

November 16, 1971.

Rehearing Denied December 14, 1971.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Avrum Marcus Goldberg, Atty., N. L. R. B., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, William F. Wachter, Susan J. Sherman, Attys., N. L. R. B., for petitioner.

Robert C. Canfield, Carl E. Enggas, Allan L. Bioff, Kansas City, Mo., for respondent; Watson, Ess, Marshall & Enggas, Kansas City, Mo., of counsel.

Before KILEY and FAIRCHILD, Circuit Judges, and CAMPBELL, Senior District Judge.¹

FAIRCHILD, Circuit Judge.

This is an application by the National Labor Relations Board for enforcement of an order against Sutherland Lumber Company, Inc. The Board found that Sutherland engaged in an 8(a) (1) unfair labor practice (coercive interrogation and threats); 8(a) (3) and (1) unfair labor practices (discharges of Storkman and Miller); and an 8(a) (1) unfair labor practice by discharging Blake, Goodman, Milliken, Small, and Smith for participating in protected, concerted activities.

The Board adopted the trial examiner's decision and recommendations with one modification.²

Sutherland operates a number of lumber yards. This case involves its cash and carry retail yard at Indianapolis. A union organizing effort began in April, 1968. A representation petition was filed, and a letter sent to Sutherland on May 14, 1968. The petition was withdrawn June 7. The instances of activity found to be coercive took place in April, May, and June. Storkman was discharged around May 26, Miller June 18, and Blake and the others June 24. Paisley was yard manager, Cornwell and Iverson were found to be supervisors, and there were 35-40 employees. There is no dispute but that the company was opposed to having a union come in.

(1) Coercive interrogation and threats. The examiner found, resolving conflicts in testimony on the basis of credibility, that supervisors had a number of conversations with employees concerning the union. Some parts of these the examiner found not to have been coercive. Among those found to be coercive or threatening were the following: Iverson asked Storkman if Storkman "knew anything about this union business." Paisley asked Storkman if Storkman "knew anything about this Union activity" and "who was coming around and having people sign." Cornwell asked Goodman if Goodman had anything to do with the union and whether Goodman knew anyone who did. He asked White and King if they had signed union cards. He asked White a second time. He asked Miller who was pushing the union. He asked Milliken and Small how they felt about the union and asked Milliken to give reasons why the union would be good for the company. Cornwell told Miller it would be bad "moneywise" for both employees and the company. District Manager Gilbreath said in a speech to employees from a number of yards that "no union had ever been allowed in" and that "a yard might close down before the union was allowed in and move out to another city." Cornwell said that if there was picketing "* * * they could just go ahead and close the yard down to keep the union from coming in."

In determining whether the board could properly find that these questions and assertions were coercive, the context must be considered and we "must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear." N. L. R. B. v. Gissel Packing Co., 395 U.S. 575, 617, 89 S.Ct. 1918, 1942, 23 L.Ed.2d 547 (1969).

We conclude that the findings of the board in this respect are supported by substantial evidence in the light of the record as a whole.

(2) Discharge of Storkman and Miller. Storkman had originally been employed in 1966, although he had left for a time. He received several raises. He was interested in becoming a policeman and in February, 1968 applied for a position on the Indianapolis force. There was a conflict in testimony as to whether he had earlier told Paisley that he thought he couldn't pass the police physical or had more recently told Paisley he had not passed the physical when in fact he had. Storkman signed a union authorization card April 25, and was later questioned about his knowledge of union activity. About May 26, Paisley discharged him, giving him an extra two weeks' pay, saying, as Paisley testified: "We needed men, but if he wanted a job with the police department, that I thought he should have one." The somewhat peculiar character of the reason given tends to support a finding that it was not genuine. The board found that Storkman was fired, in part, for refusing to reveal to Paisley who was behind the union movement.

Miller had been employed in February, 1968 and received two raises. On April 25 he signed a union authorization card, and about two weeks later attended a meeting of the local. Cornwell was in the vicinity of the meeting and may well have seen Miller. On June 18, Miller was discharged and told he had missed too many days. He had not reported for work that morning, but came in the afternoon. There was a conflict in testimony whether, as he claimed, he had telephoned to explain the need for his absence. The examiner credited his testimony. His explanations for some six days of absence on earlier occasions had been accepted.

The board found that Miller was dismissed for engaging in union activity and that absenteeism was a pretext.

With respect to both Storkman...