NLRB v. Wylie Manufacturing Company

• Decision Date: 17 October 1969
• Docket Number: No. 56-69.,56-69.
• Citation: 417 F.2d 192
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WYLIE MANUFACTURING COMPANY, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

417 F.2d 192 (1969)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WYLIE MANUFACTURING COMPANY, Respondent.

No. 56-69.

United States Court of Appeals Tenth Circuit.

October 17, 1969.

Baruch A. Fellner (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Allison W. Brown, Jr., Washington, D. C., were with him on the brief), for petitioner.

Edward B. Miller, Chicago, Ill. (Michael A. Warner, Chicago, Ill., and William F. Schoeberlen, Denver, Colo., and Pope, Ballard, Kennedy, Shepard & Fowle, Chicago, Ill., and Dawson, Nagel, Sherman & Howard, Denver, Colo., of counsel, were with him on the brief), for respondent.

Before PHILLIPS, BREITENSTEIN and HICKEY, Circuit Judges.

BREITENSTEIN, Circuit Judge.

The National Labor Relations Board found that respondent Wylie Manufacturing Company had committed unfair labor practices in violation of § 8(a) (1) and (5) of the National Labor Relations Act as amended, 29 U.S.C. § 151 et seq., and petitions for enforcement of its order. See 162 NLRB 799 and 170 NLRB No. 112.

The Company manufactures asphalt equipment in Oklahoma City, Oklahoma. During the latter part of February, 1966, Local 850, International Association of Machinists and Aerospace Workers, AFL-CIO, began an organizational campaign among the Company's employees. The Company soon became aware of the activity. Beginning on February 25 and continuing until the latter part of March the plant manager and two foremen interrogated various employees and made statements to them derogatory of the Union. On March 7 about 30 of 36 unit employees had signed cards authorizing the Union to represent them in collective bargaining and the Union made a written request for recognition and bargaining negotiations. The Company refused the request. The Union lost a consent election held on March 29 by a vote of 18 to 17 and thereafter filed with the Board a complaint charging unfair labor practices. After a hearing the Examiner found violations of § 8(a) (1) and (5). The Board affirmed the Examiner in all respects.

The Company then petitioned to reopen the proceedings on the ground that the authorization cards were obtained by coercion. The Board granted the request and another hearing was held. The Examiner found that out of 26 valid and unambiguous authorization cards one had been secured by the coercive conduct of one employee. He held that this was insufficient "to establish a pervasive pattern of threats coercion or intimidation" in the Union's campaign to secure the cards. The Board affirmed the Examiner.

No good purpose will be served by detailing the conflicting testimony. Six employees testified to a variety of statements by three supervisors which, if believed, were sufficient to establish § 8(a) (1) violations. The three supervisors denied the statements. At the hearing on the coercion issue the Company presented five witnesses and the General Counsel two. The Examiner carefully delineated the reasons for his credibility findings. Credibility findings are peculiarly within the province of the Examiner and the Board and are ordinarily entitled to affirmance on review. American Sanitary Products Co. v. National Labor Relations Board, 10 Cir., 382 F.2d 53, 55, and National Labor Relations Board v. United Nuclear Corporation, 10 Cir., 381 F.2d 972, 976. The Company attacks the application of the rule on two grounds. It points out that the Examiner discredited employee Mosley, as prone to exaggerate, when considering his testimony regarding the unfair labor practices charged to the Company but believed his testimony at the second hearing. The Examiner was aware of the situation and commented thereon. It appears to us that the Examiner's decision to credit Mosley's denial of threats was based primarily on defects in the testimony that the threats were made. We cannot say that the decision to believe Mosley on the coercion issue was wrong.

The Company also contends that the Examiner should have reevaluated his first hearing credibility findings in the light of the evidence of union coercion adduced at the second hearing. Of those employees previously found credible, Dalton was the only one whose character was impugned at the second hearing. Dalton did not testify at that hearing. The finding that Dalton coerced some employees to sign cards does not necessarily mean that he lied concerning management statements to him of threats and reprisals. We are impressed with the care used by the Examiner in making his credibility findings and we will not disturb them.

The Board found that the Company violated § 8(a) (1) by interrogation of employees, by threats of reprisals, and by promises of benefits, all with the intent of undermining employee support of the Union. The Company says that it is not responsible for its supervisors' anti-union activity because the supervisors were directed by a superior not to make any promises or threats relating to union activity. The record shows that the promises and threats were made both before and after the directions from the superior. In the situation presented supervisory status is sufficient to charge the employer with responsibility. See Furr's, Inc. v. National Labor Relations Board, 10 Cir., 381 F.2d 562, 566, cert. denied 389 U.S. 840, 88 S.Ct. 70, 19 L.Ed.2d 105. The argument that it is improbable that the supervisors would violate the order of a superior goes to the weight of the testimony. We accept the findings of the Examiner.

The Company says that predictions of what supervisors reasonably believe would be likely consequences of unionism are protected speech. See § 8(c) of the Act. In National Labor Relations Board v. Gissel Packing Co., 395 U.S. 575, 618-619, 89 S.Ct. 1918, 23 L.Ed.2d 547, the Court distinguished between statements of what an employer reasonably believes will be the likely economic consequences of unionization beyond his control and threats of reprisals to be taken on the employer's own volition. In our opinion the statements relating to plant removal, more pay without the Union, reduced hours, welder certification, and discharge of deadbeats come within the second category and are not protected.

The Company argues that the statements were not improper because none of the complaining employees discontinued union activities. We are not persuaded. Statements in violation of the Act do not become permissible because they fail...