Southern Moldings, Inc. v. N.L.R.B.
| Decision Date | 06 October 1983 |
| Docket Number | No. 81-1230,81-1230 |
| Citation | 715 F.2d 1069 |
| Parties | 114 L.R.R.M. (BNA) 2100, 98 Lab.Cas. P 10,401 SOUTHERN MOLDINGS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Jon C. Flinker (argued), Duvin, Flinker & Cahn Co., Cleveland, Ohio, for petitioner.
Elliott Moore, Deputy Associate Gen. Counsel, Ralph Simpson (argued), N.L.R.B., Washington, D.C., for respondent.
Dennis J. Buckley, Cincinnati, Ohio, Irwin H. Cutler, Jr. (argued), Louisville, Ky., for intervenor.
Before KEITH, JONES and WELLFORD, Circuit Judges.
This case is before us on a petition for review and a cross-petition for enforcement of an order of the National Labor Relations Board. The Board found that the petitioner, Southern Moldings, Inc. (the company), committed several violations of §§ 8(a)(1) and (5) 1 of the National Labor Relations Southern Moldings, Inc., operates a plant in Frankfurt, Kentucky which manufactures parts for the automotive and appliance industries. This company had its genesis in two prior companies, the first of which, also called Southern Moldings, opened in 1953 and ceased operations in 1959. The company was then purchased by H.K. Porter. Several years later H.K. Porter also discontinued its manufacturing business. When the company reopened in 1974 as the new Southern Moldings, the majority of the company's employees were represented by Allied Industrial Workers' Union. Shortly after the business began its operations, an election was held pursuant to a decertification petition and Allied Industrial Workers was decertified.
Act by interfering with a representation election. The decision and order of the Board are reported at 255 N.L.R.B. 115 (1981). The company challenges this finding and seeks to have the bargaining order set aside
Four years later, the United Auto Workers (Union) initiated a campaign to organize at Southern Moldings. The actions taken by the company during the Union's campaign to become the bargaining representatives of its employees gave rise to the series of unfair labor charges presently before this Court.
The Board's conclusion that the company had engaged in unfair labor practices is based upon the following findings. The first union organizational meeting was held on August 11, 1978. Union authorization cards were obtained and employee signatures were solicited. By August 25, the union had received valid authorization cards from 101 of 163 employees. Thus, it dispatched a letter on that date to the company seeking recognition and bargaining. Three days later, it filed a representation petition with the Board.
On August 30, the company's superintendent and part-owner, Dominick Moccia, observed employees distributing union literature. That afternoon and the following day, he informed four employees that the company prohibited soliciting on company property and that any employee caught doing so would be reprimanded. Moccia also informed another employee that he was not to distribute literature on company property. Following these conversations, Moccia contacted the personnel manager and asked him to make a note of the above incidents. Consequently, the names of the five employees were placed in the "warning log" with the notation, "Passing out material/solicitation verbal warning." On September 5, the company posted a notice which prohibited employees from any solicitation on company property during working hours, and prohibited the distribution of literature at any time without prior written permission. 2 Prior to this notice, the company had never informed employees of solicitation or distribution restrictions. In fact, Avon and Tupperware solicitation was and continued to be permitted even after the notice was posted.
A meeting was called by company president Sullivan on September 11 to discuss the union campaign with the employees. Sullivan told the employees that they did not need a union and that he had been fair with them. During the meeting, he informed On September 12, company officials learned that employees were distributing literature in the parking lot. In light of this information, personnel manager Stansbury, superintendent Moccia and other foremen positioned themselves outside the plant near the employee entrance. Union representatives arrived about the same time and stood across the street. When employees began distributing union handbills, the personnel manager instructed them to take the handbills out to the public road and stop littering the premises. Thereafter, the company recorded the names of the employees who were distributing union material.
employees as well that they would not be receiving their annual raises which were due on September 17. He stated that granting raises during a union election campaign was forbidden by labor relations laws since it could be considered a bribe
On September 22, company president Sullivan called another meeting. He reiterated that the raises would not be granted in light of the impending union election. Sullivan went on to say that he had prior dealings with a union when he worked for the predecessor company, H.K. Porter, and that the union had caused the demise of the company. He additionally stated that if the Union was certified its demands might be so great that the company would have to shut down.
Shortly after the meeting, union representative Kettler sent Sullivan a letter advising that the raises would be legally permissible. Kettler also assured Sullivan, in the letter, that the union would not object to the raises, and that he would be willing to sign an affidavit to that effect.
A third meeting was called by Sullivan on October 2. At this meeting employees were informed that all wages and benefits would be frozen during collective bargaining negotiations if the union won the election. In an October 6 letter to all employees, Sullivan reiterated that there would be a continuous freeze, and stated that there was no guarantee that employees would retain existing benefits during negotiations. The letter also speculated that union strikes during negotiations could result in loss of income.
In the weeks that followed, employees were warned by a company foreman that their jobs would be placed in jeopardy if they were caught wearing union buttons or reading union literature. The foreman further cautioned employees against union representation by stating that unionization would inevitably lead to a strike; and if that happened, the company would lose its contract with Chrysler Corporation and have to close. 3 In response the union representative sent letters to the foreman indicating that the employees had a right to wear union buttons, and that if he continued to threaten the employees or otherwise interfere with their rights, an unfair labor practice charge would be filed. Also during the middle of October the company posted a new solicitation notice prohibiting distribution "at any time they [were] expected to be working." This notice differed from the previous notice which prohibited distribution of literature "at any time." 4
The company president conducted his final pre-election meetings with employees on October 19, 25 and 26. At these meetings he again discouraged union representation by asserting that it would hurt the company The Board representation election was held on October 27, 1978. The election resulted in a vote of ninety-one against the union and seventy-six for the union. The union filed timely objections to the election results alleging numerous threatening coercive practices of the company. These election objections were consolidated with similar unfair labor practice charges filed earlier by the union. Meanwhile, the company granted a wage increase on November 6, retroactive to September 17.
reduce productivity and decrease job security. For example, in his October 19th speech, Sullivan relayed that he had talked with managers of companies whose employees voted to unionize. According to Sullivan: "They all say the same thing. It's not necessarily wage and benefit costs that hurt these companies, because they are often able to negotiate less in wages and less in benefits than they would have given without a union. What hurts is the loss of production and the rising costs that come from the restrictive practices and hassling that a union can often bring."
Prior to the January 19, 1979 hearing before an Administrative Law Judge, the company extensively interrogated employees regarding union activities. The ALJ credited the testimony of six employees who stated that they had not been given assurances against reprisals prior to the company's interrogations. One employee also revealed that she was not informed that the interview was voluntary until after she refused to answer a question. A company official admitted that he asked each employee whether he or she attended union meetings and asked each to identify other employees who attended union meetings. The official further admitted that asking employees for the identity of other individuals who attended union meetings was not for the legitimate purpose of investigating the circumstances surrounding the signing of union authorization cards. 5
Based on the foregoing evidence, the ALJ determined that the company's conduct had so undermined the union's card-based majority that it prevented a fair election. In affirming the ALJ's findings, the Board concluded that the company violated Section 8(a)(1) of the Act in the following manner: 1) by announcing to employees a rule prohibiting solicitation and distribution on company property; 2) by promulgating and enforcing a no-distribution rule prohibiting employees from distributing literature in non-working areas during non-working time; 3) by threatening employees with discipline for wearing union buttons and for...
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