NLRB v. TRW-Semiconductors, Inc.

• Decision Date: 24 November 1967
• Docket Number: No. 21549.,21549.
• Citation: 385 F.2d 753
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TRW-SEMICONDUCTORS, INC., Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

385 F.2d 753 (1967)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TRW-SEMICONDUCTORS, INC., Respondent.

No. 21549.

United States Court of Appeals Ninth Circuit.

November 24, 1967.

Gregory L. Hellrung, Atty., N. L. R. B., Washington, D. C. (argued) for petitioner.

Stanley Tobin (argued), Hill, Farrer & Burrill, Los Angeles, Cal., for respondent.

Before BARNES and DUNIWAY, Circuit Judges, and HAUK, District Judge.

DUNIWAY, Circuit Judge.

Petition to enforce an order of the National Labor Relations Board. The trial examiner found, and the Board adopted his findings, that respondent employer interfered with, restrained and coerced its employees with respect to rights guaranteed to them by section 7 of the National Labor Relations Act as amended (29 U.S.C. § 157), thus violating section 8(a) (1) of the Act (29 U.S.C. § 158(a) (1)). The board's decision is reported at 159 NLRB No. 43. The charges are based upon certain anti-union propaganda used by the employer in an attempt to persuade its employees to vote against a union in a representation election being held by the Board under section 9 of the Act (29 U.S.C. § 159).¹

The employer contends that its propaganda was protected by section 8 (c) (29 U.S.C. § 158(c)), which was added to the Act by the Labor Management Relations Act, 1947, Act of June 23, 1947, 61 Stat. ch. 120, p. 136 ff. Section 8(c) provides:

"(c). The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit."

It was adopted as part of a comprehensive revision of the National Labor Relations Act, some of the purposes of which were to redress what was believed to be an imbalance against employers and in favor of unions in the operation of that Act, to grant certain protections to employees vis-a-vis unions, and to recognize and define the rights of both employers and unions to free speech as guaranteed by the First Amendment. See generally Cox, Some Aspects of the Labor Management Relations Act, 1947, 61 Harv.L.Rev. 1 (1947).

The record, as it relates to the question before us, is almost entirely documentary. The employer, a wholly owned subsidiary of TRW Corporation, employs approximately 700 employees at its plant in Lawndale, California. Most of these employees are women. On March 16, 1964, the employer received notice that the International Association of Machinists and Aerospace Workers (IAM) had filed a representation petition with the National Labor Relations Board. An election was ordered for July 9, 1964. From the time of receipt of the notice until the election, the employer engaged in an intensive campaign designed to persuade its employees to vote against the union. During this period, it distributed or posted some 47 pieces of campaign literature and made one major speech. The union apparently responded in kind.

In addition to general anti-union propaganda, emphasis on the importance of voting, and requests for a "no" vote, the employer developed several themes in its pre-election campaign, particularly: 1.) that unionization would disrupt the existing harmonious employee-employer relationship and probably produce strikes, with resultant wage loss and possible violence; 2.) that labor trouble would aggravate the already serious financial troubles of the company; 3.) that present and future wage levels and employee benefits would be subject to collective bargaining should the union win the election; and 4.) that unionization could subject employee job security to the whims of union leaders.

The first theme was developed in several items of campaign literature and in a speech delivered to all employees on the eve of the election. In a letter distributed to all employees on July 1, the employer first emphasized the harmonious employee-employer relationship existing and then contrasted this relationship with that sought to be established by the union.

"Unions mean strikes. This union was involved in 11 major strikes in the Los Angeles area alone during the past 2 years. Unions are fighting organizations * * * We would regret seeing any of you tramping picket lines out at the street, with payless paydays." (Emphasis in original) In another letter to 60 to 80 employees on leave of absence, the employer challenged the employees to "try and name one place in Los Angeles with an outside union where there hasn't been a strike. Union leaders have a talent for stirring up trouble, creating dissension and bitterness." (Emphasis in original.) Accompanying this letter was a letter prepared by some of the employees and distributed by them to all active employees. This letter outlined the existing benefits at TRW and asked: "How many of you girls have worked in a Union plant? Was it all a bed of roses? * * * Or were there lay-offs, strikes, reprimands, firing, gripes, complaints, and dissatisfaction also? * * * And if you go on strike, * * * how long will you have to work to make up for that loss of pay." The employer continued this theme in the July 3 issue of the company newspaper, "Forward Currents." The employer's wage and benefit record was praised and the issue at stake was characterized as follows: "Do you want to continue the TRWS way of harmony, friendship and person-to-person dealings — or do you want to bring into this plant an outside union which everywhere has brought strikes, bickering, hard feelings, and trouble — with hard earned cash taken out of your paycheck?" This was followed by a page headed "The Tragedy of Union Violence" and subheaded "IAM's Bitter Strike Record." The heading was followed by this paragraph:

"These pictures show the tragedy of power unionism. They show what happens to decent, honest people when they\'re caught up in the web of bitterness, suspicion, strikes and violence that unions too frequently create * * *. Unions are fighting organizations. The camera caught them here in full fury."

The photographs referred to follow the paragraph and take up the entire left side of the page. On the other side and beneath the subhead is a story of some of IAM's past strikes and an estimate of how much similar strikes would cost TRWS employees. The photographs are not of IAM strikes and were not taken in the Los Angeles area, both facts being readily apparent from the dress of the strikers and the signs displayed. Nevertheless, the position of the photographs and the headings is designed to associate the graphic accounts of violence with IAM strikes.

All of the above arguments were repeated in substantially similar form in a speech to all employees on the eve of the election. In addition, a schedule was posted indicating the length of time that would be necessary to make up the wages lost in strikes of various duration.

Finally, relying on a hearsay report from one of its employees of rumors of threatened violence, the employer posted the following notice on the morning of the election:

"THREATENED VIOLENCE WILL NOT BE TOLERATED

No doubt you have heard the ugly rumors going around that people who don\'t vote the way some people tell them to will find their tires slashed, will get roughed up or beaten up.

* * * * * *

The few of you who may be considering such action are cautioned THAT THIS TYPE OF BEHAVIOR WILL NOT BE TOLERATED.

ANY PERSON CAUGHT IN AN ACT OF VIOLENCE OR THREATENING A TRWS EMPLOYEE WITH VIOLENCE WILL BE DISCHARGED IMMEDIATELY.

VIOLATION OF STATE LAW

There followed a statement that these threats violated state law, that the proper authorities had been notified, and that no one would know how an employee voted due to the secret ballot.

BEST WAY TO STOP IT

* * * * * *

There\'s one best way to stop and keep out all of this threatened violence. That way is to vote * * * and by your vote let these unlawful people know how you feel about their actions." (Emphasis in original.)

These rumors were not authenticated before posting the notice. The trial examiner, however, accepted the testimony of the employer's director of industrial relations that he asked his informant to try to find out who was involved, and that the time available was so short that he put out the bulletin without awaiting the result.

The second theme was that actual or threatened labor trouble would aggravate the company's serious financial problems. In the letter of July 1 to the employees on leave of absence, the employer said:

"TRWS is the sole source of supply for many of our customers * * *. They\'d worry too about the strikes. They\'d say, `* * * we\'d better split * * * our business with at least one other company\'."

The accompanying letter prepared by the employees also emphasized the precarious financial position of respondent.

In the other letter of July 1 to all employees, the company repeated its concern over the effect of unionization on the business.

"Which outcome in the election will best help jobs and the business? * * * Our losses have been substantial. We have been fighting — successfully — a real battle for survival." (Emphasis in original.)

The danger of losing business was reiterated, as was its effect: "You can see the sudden effect that this loss may have on jobs and work in the plant." The union's disinterest in this problem was cited:

"What\'s good for the company and its employees takes second place to what\'s good for the union and its business agents."

Finally, the employer said:

"Regardless of the outcome of the election, we are going to do our best to make Semiconductors a strong and stable company * * *. We do not intend to become a statistic * * *. But Semiconductors has earned money in only two of the ten years of its existence." (Emphasis in original)

The same theme was repeated in substantially the same manner in the July 3 issue of "Forward Currents."

In the pre-election speech,...