Salinas Valley Broadcasting Corporation v. NLRB

• Decision Date: 08 July 1964
• Docket Number: No. 18852.,18852.
• Citation: 334 F.2d 604
• Parties: SALINAS VALLEY BROADCASTING CORPORATION and/or Central California Communications Corporation, d/b/a KSBW-TV, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

334 F.2d 604 (1964)

SALINAS VALLEY BROADCASTING CORPORATION and/or Central California Communications Corporation, d/b/a KSBW-TV, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 18852.

United States Court of Appeals Ninth Circuit.

July 8, 1964.

Jacob Abramson, Salinas, Cal., for petitioner.

Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, James C. Paras and Glen M. Bendixsen, Attys., N.L.R.B., Washington, D. C., for respondent.

Before BARNES, HAMLIN and JERTBERG, Circuit Judges.

BARNES, Circuit Judge.

Salinas Valley Broadcasting Corporation (hereinafter referred to as "Salinas" or petitioner) brought this proceeding to review and modify a decision of the National Labor Relations Board, reported at 140 N.L.R.B. 852 (Case No. 20-C.A.-2228), finding that Salinas had been guilty of unfair labor practices by violation of §§ 8(a) (1) and 8(a) (3) of the National Labor Relations Act,¹ in coercing and influencing employees in the exercise of certain rights, and in terminating the employment of Mark St. John, Cletus (Clete) Toone and Robert Erickson, so as to discourage membership in a labor organization.

Originally, petitioner had been charged with unlawfully terminating the employment of three additional employees — Pearlman, Chambers and Tidey. The charges as to their alleged unlawful termination were recommended to be dismissed by the trial examiner. The Board, by its decision and order dated January 25, 1963, affirmed both rulings of the trial examiner, with one minor exception not here relevant.

The basis of the alleged unlawful discharge was that Toone, St. John and Erickson were discharged because of their union activities.

The alleged errors are, as we slightly capsule them:

(1) There exists no substantial evidence to support the Board's Findings, Decision and Order.

(2) The findings that Salinas, by "interrogation" or "implied threat" influenced or coerced its employees is not supported by substantial evidence, and are contrary to law.

(3) Dismissing of charges as to Tidey, Chambers and Pearlman is inconsistent with refusal to dismiss charges as to Toone, St. John and Erickson.

The alleged improper discharges took place in Salinas, California. Petitioner is clearly engaged in commerce within the meaning of the Act. This court has jurisdiction under Section 10(e) and (f) of the Act. 29 U.S.C. § 160(e) and (f).

We first note that Mr. Cohan was president of petitioner and chief executive; and Mr. Logan was supervisor of radio announcers and engineers.

The chronology of this case is of importance. Of the six employees named, five were discharged on the following dates: Pearlman, January 22, 1962; Chambers, January 26, 1962; St. John, Toone and Erickson, February 7, 1962. All but Erickson, a photographer, were radio announcers-engineers.

It is undisputed that just prior to February 1, 1962 there had been discussion between employees with respect to the organization of a union by the six non-organizational announcers, St. John, Turney, Pearlman, Tidey, Davies and Toone.

Tidey, Turney and Davies were never discharged. Davies and Turney left of their own volition. Pearlman was discharged on January 22nd, and in the judgment of the trial examiner and the Board, his discharge was for cause. St. John and Toone were discharged on February 7th, 1962.

Chambers, who had attended the second meeting December 30, 1961, did not attend the third on January 17, 1962, and never signed an authorization card either for NABET or AFTRA.² He was discharged January 26, 1962, and in the judgment of the trial examiner and of the Board, his discharge was for cause.

The fundamental question before us is whether there was substantial evidence, when viewing the record as a whole, to support the trial examiner's findings (there being no other or further findings made by the Board),³ that St. John, Toone and Erickson (the three discharged February 7, 1962) were improperly discharged.

We conclude the necessary substantial evidence does not exist in the record, and therefore that the decision is contrary to law, and must be set aside, and the amended complaint dismissed.

We could simply announce such a conclusion and dispense with the balance of this opinion. We think the parties, the trial examiner and the employees are entitled to know our reasoning.

Counsel for the Board assert that "the facts set forth in the statement amply demonstrate the propriety of the Board's findings that petitioner attempted to frustrate its employees' designation of AFTRA as their bargaining agent by ridding itself of AFTRA adherents, and to that end petitioner discharged employees St. John, Toone and Erickson."

This planned course was "revealed", says the respondent, in petitioner's attempt to identify the participants, and through "repeated interrogations" and "threats of economic reprisals."

The mere act of questioning employees concerning union membership is not unlawful in itself. S. H. Kress & Co. v. N.L.R.B., 9 Cir. 1963, 317 F.2d 225. We know of no statute or rule of law that prevents an employer from properly "ascertaining" whom among its employees are seeking to unionize the business.⁴ The test is whether what is done by the interrogation interferes with the employee's protected rights. It is the method used; the circumstances existing at the time; and what the employer thereafter does, that is material to proof of illegal action. Management is not interdicted from "ascertaining" which employees want a union. The charges management must answer are whether: (1) it interfered with, restrained or coerced employees (§ 8(a) (1)); (2) it discriminated in regard to tenure of employment (§ 8(a) (3)).

Respondent would have us equate "repeated interrogations and threats of economic reprisals" (Brief,^4a p. 16) with the language of the statute — "interfere," "restrain," "coerce" and "discrimination."

Before we determine if such equation goes beyond reasonableness, we examine the factual support for the conclusionary statements in the Board's brief that there were "repeated interrogations" and "threats of economic reprisals." In the record, we find extremely slim reeds upon which the Board must rely.

In seeking facts to support the conclusion there were "repeated interrogations" we find:

(a) Cohan, the president of petitioner, questioned Coleman (Brief, p. 17), a management official. On three attempts Cohan elicited no information from him. This was no interrogation of any "employee."

(b) Cohan's questioning of Turney; Turney told Cohan the announcers felt "insecure" because the Christmas bonus was not as large as they desired. (Tr. p. 324.)

(c) Cohan complained through Logan to Pearlman (after the latter was discharged, and on January 31, 1962) that there were trouble makers in the organization, and referred to St. John, Toone and Williams as "stabbing him in the back." This was no interrogation.

Thus but one interrogation of an employee (Turney) took place.

As facts to support the conclusion there was "threat of economic reprisals," we find three facts:

(1) Cohan wanted Coleman to understand if the employees chose a union, they would be responsible for a "greater level of efficiency." (Brief, p. 17.)

(2) Cohan told Turney "if he Cohan had a union that we would lose out on some of the benefits." (Tr. p. 325.)

(3) Eleven days after Pearlman was fired, Logan told him Mr. Cohan had heard Pearlman "was a troublemaker," and was "trying to stab him in the back," and if this was not true, Pearlman should tell Cohan, "because Mr. Cohan has a lot of influence and could help me find a job." (Pearlman told Cohan nothing, went to Cohan for help in getting a job after his firing, and was aided in obtaining a job by Cohan.)

The first alleged threat of economic reprisal was made from management to management; if it was a threat at all, it threatened more efficient work and nothing more. The second can be characterized under case law as a threat of economic reprisal against an employee. Cf. National Labor Relations Board v. Elias Brothers Big Boy, Inc., 6 Cir. 1963, 325 F.2d 360, 365. However, we must remember the employer's right of free speech is still protected under the Act. 29 U.S.C. § 158(c). National Labor Relations Board v. Cosco Products, 5 Cir. 1960, 280 F.2d 905, 908. The third was advice, and it proved to be neither economic reprisal, nor threat of it, in fact, just the opposite — economic aid to an employee by management was established.

But counsel for the Board urge us to find that (a) the alleged "repeated interrogations," (b) plus the single "threat of economic reprisal," when added to (c) "anti-union conduct"⁵ proves (1) an "avowed hostility to union representations, (2) resort to threats of reprisals against employees supporting the union, (3) persistent efforts to identify every union adherent, and (4) `abrupt termination' of hitherto praised employees who represented the last vestige of employee support for the union."

We cannot agree that this is an accurate or a fair summation of the evidence before the trial examiner. And thus far we have considered only those evidential facts favoring the examiner's rulings.

Nor can we say the facts are here comparable with those detailed in the principal cases relied on to support the Board's conclusion that union activity precipitated the discharges.

(a) In Angwell Curtain Co. v. N.L. R.B., 7 Cir. 1951, 192 F.2d 899, 901-903, employee Thomas was seen soliciting signatures on union cards in the parking lot; was discharged the next day, that her discharge was final "according to the outcome of this thing that has started" ("this thing" meaning the organization of the union), and four or five days later, when she asked why she had been discharged, she was told "Now, Stella, you know why." She was told there were no complaints about her work, and when she asked if her firing was permanent, was told: ...