Singer Company v. NLRB

• Decision Date: 30 June 1970
• Docket Number: No. 19837.,19837.
• Citation: 429 F.2d 172
• Parties: The SINGER COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

429 F.2d 172 (1970)

The SINGER COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 19837.

United States Court of Appeals, Eighth Circuit.

June 30, 1970.

Douglas L. Leslie, Atty., N. L. R. B., for respondent, Arnold Ordman, Gen. Counsel, N. L. R. B., Domonick L. Manoli, Assoc. Gen. Counsel, N. L. R. B., Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., and John I. Taylor, Atty. for N. L. R. B., were on the brief.

W. Kerby Bowling of Bowling & Sykes, Memphis, Tenn., for petitioner, Charles E. Sykes, Memphis, Tenn., on the brief.

Before VAN OOSTERHOUT, Chief Judge, and MATTHES and GIBSON, Circuit Judges.

GIBSON, Circuit Judge.

The Singer Company seeks to review and set aside an Order of the National Labor Relations Board issued against the Company on June 25, 1969, and reported at 176 NLRB No. 149. In its cross-application the Board has requested that the Order be enforced in full. We have jurisdiction of the proceedings under § 10(e) and (f) of the National Labor Relations Act as amended, 29 U. S.C. § 160(e) and (f), as the alleged unfair labor practices occurred in Truman, Arkansas.

The Board found that the Company violated § 8(a) (1) of the Act by coercively interrogating its employees about their union activities and by threatening employees with reprisals for their union support. The Board also found that the Company violated §§ 8(a) (3) and (1) of the Act by discharging Odis Jones and Corine Sullivan because of their union activities.

The Board ordered the Company to cease and desist from the unfair labor practices found, reinstate and make whole Jones and Sullivan, and further ordered that a representation election held February 1, 1968, be set aside and a second election be conducted under the supervision of the NLRB Regional Director.¹

The Company is a New Jersey corporation with an office and plant at Truman, Arkansas, where it employs about 1600 people in the manufacture of sewing machine cabinets and other wood products. Union organizational drives were conducted at the plant in 1963, 1964, 1965, and 1966 by the Cabinet Makers Union,² but not without incident. In two previous cases the Company has been found by the Board to have engaged in unfair labor practices against the Union's organizational efforts.³

The instant case arose out of another union campaign which commenced in August 1967. On January 22, 1968, prior to the election, the Union began filing unfair labor practice charges. An election was conducted by the Regional Director on February 1, 1968, pursuant to a Stipulation for Certification Upon Consent Election, and the Union lost by a vote of 554 for and 909 against. After the election the Union filed objections to the conduct of the Company affecting the election. A Complaint was issued by the General Counsel and the objections were consolidated with the unfair labor practice allegations for trial.

A chronological summary of the incidents which gave rise to the Board's findings of unfair labor practices follows:

1. Shortly after the unionization campaign began in August 1967, Foreman Bill McMaster asked stockboy Jesse Crume whether he had signed a union card, to which Crume replied that he had not but intended to do so. Crume testified that McMasters then stated that the Company didn't want a union.

2. In October or November 1967, Foreman Earl Holley, in a conversation with employee Lloyd Pollard, a friend of his, referred to rumors about the union campaign and asked Pollard if he would help the Company. Pollard's answer was noncommittal. About a week later Holley removed some protruding union authorization cards from Pollard's hip pocket and questioned Pollard as to what they were. Holley testified that he thought the cards were religious literature as Pollard had previously brought such literature in the past and talked to Holley about going to church. When Pollard explained the cards were union cards, Holley asked what he was going to do with them. Pollard replied he was "going to get them signed, every one of them if I can." Holley replied that he didn't think Pollard was that bad off.

3. Although the testimony was controverted, the Trial Examiner credited the testimony of employee James Hancock that two or three weeks prior to the election he (Hancock) discussed the possible employment of his son with Company Supervisor Guster Davis. Davis purportedly told Hancock that he could get Hancock's son a job if Hancock, his wife and his son would agree to vote against the Union. Sometime later Davis commented to Hancock that the Union wouldn't do the employees a bit of good because, if it were elected as bargaining agent, the Company would screen new employees and ease out present employees in such a manner that the Union would be non-existent in one or two years.

4. Approximately two weeks prior to the election, Supervisors Billy Young and Dennis Hendrix approached employee L. B. Jones separately. Young, referring to union cards and pencils prominently displayed by Jones, asked Jones if he still believed in "that stuff" and added that the Company wouldn't have to give the Union a contract. Hendrix referred to Jones' longstanding support of the Union and asked him why he and so many other employees were dissatisfied with the Company.

5. Employee Odis Jones was chairman of the Union organizing committee and had served as the Union's observer in the 1966 election. Tom Rose, the Company's personnel manager, testified he was aware of Jones' active support for and activity on behalf of the Union. Prior to work on January 19, 1968, Jones thumbtacked prounion handbills on two "Election News" bulletin boards inside the plant. The Company maintains 25 permanent bulletin boards that are covered with glass and kept under lock and key and are used for dissemination of Company news items to employees. Two days before Jones posted the handbills, on January 17, the Company erected seven additional bulletin boards, which did not have glass fronts or locks. These boards were labeled "Election News" and were placed on stands or affixed to walls in the proximity of the permanent bulletin boards. Nowhere on these seven new boards was there any indication that their use was limited to Company propaganda.

Jones was called into Tom Rose's office after lunch on the 19th. Jones testified that Rose immediately told him he was fired for violating Company Rule No. 6 which prohibits the unauthorized posting of notices. Jones admitted placing the handbills on the Election News boards but claimed he was unaware of Rule 6, that he had never been given a copy of the Company's 26 rules, and, although he had seen a folder pertaining to these rules on a bulletin board "last year," he read only part of it. After curtly explaining Rule 6 and showing Jones a printed company of the Company's 26 rules, Rose again stated that Jones was fired and ordered him to leave his office.

Employee James Hancock testified that he tacked prounion handbills to six or seven Election News bulletin boards on the same day Odis Jones was fired and that he was observed while doing so by three foremen and by a personnel department employee. Hancock however was not disciplined.

6. On January 23, 1968, a week or so prior to the election, Foreman Junior Chaffin noticed employee Lettie Braxton's name on a union handbill and thereupon called her into his private office and asked her what had caused her to turn against the Company and for the Union. When Braxton replied that her wages were too low, Chaffin warned her that after the Union came in there would be a lot of strikes and she would be out of a job. After further commenting that the Company wouldn't bargain with the Union, Chaffin asked Braxton whether she would rather have a job or be walking the picket line. The following day Chaffin asked Braxton if she had thought over their conversation, and when she replied she had not changed her mind, he added that if the Union came in it would cause a lot of people to suffer.

7. According to the testimony of employee Lehman Throgmartin, whom the Trial Examiner credits, shortly before the election he and his foreman, Harold Panky, discussed the firing of employee Odis Jones and the merits of unionization. Panky then stated: "Well, union or no union, if I get orders from higher up, I will have to fire you, and guys like you and Odis Jones would have to go." In a conversation the day following the election Panky again stated to Throgmartin, "Union or no union, if I get orders from higher up, I am going to have to get rid of you."

8. Two weeks after the election on February 16, 1968, a fight occurred between employees Corine Sullivan and Edna Edwards, and subsequently involved Sullivan's son Robert Thompson. All three employees were suspended by the Company pending investigation of the altercation. After interviewing employees in the area of the fight, Personnel Manager Rose determined that only employee Imogene Dickerson had witnessed the entire incident. Dickerson testified that Sullivan and Thompson were the aggressors.

The Company's initial investigation disclosed that Sullivan initiated the fracas and Thompson had continued it. The suspensions of Edwards and Sullivan were continued pending further investigation, but Thompson, whose aggressor role was clear, was discharged the day of the fight for having violated Company Rule 14 prohibiting unprovoked assaults. When further investigation turned up no new facts, Sullivan was also discharged for having violated Rule 14 and Edwards was reinstated in her job.

I. The § 8(a) (1) VIOLATIONS

The Company argues there is no showing of a background of employer hostility and discrimination toward unionization such as would induce in its employees a fear of reprisal for lawfully pursuing their union activities. With the exception of Foreman Chaffin's interrogation of Lettie Braxton, the Company contends there are no threats of reprisal or force or promises of...