Southwire Co. v. N.L.R.B., 85-1787

• Decision Date: 12 June 1987
• Docket Number: No. 85-1787,85-1787
• Citation: 820 F.2d 453,261 U.S.App.D.C. 45
• Parties: 125 L.R.R.M. (BNA) 2798, 94 A.L.R.Fed. 117, 261 U.S.App.D.C. 45, 56 USLW 2043, 106 Lab.Cas. P 12,438 SOUTHWIRE COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 453

820 F.2d 453

125 L.R.R.M. (BNA) 2798, 94 A.L.R.Fed.

117, 261 U.S.App.D.C. 45,

56 USLW 2043, 106 Lab.Cas. P 12,438

SOUTHWIRE COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 85-1787.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 4, 1986.

Decided June 12, 1987.

Walter O. Lambeth, Jr., Atlanta, Ga., for petitioner.

Patrick Szymanski, Atty., N.L.R.B., with whom Robert E. Allen, Associate General Counsel, Elliott Moore, Deputy Associate General Counsel and John Elligers, Atty., N.L.R.B., Washington, D.C., were on the brief, for respondent.

Before WALD, Chief Judge, WILLIAMS, Circuit Judge, and WILL, ^* Senior District Judge.

Opinion for the Court filed by Circuit Judge WILLIAMS.

WILLIAMS, Circuit Judge:

Southwire Company has petitioned for review of an order of the National Labor Relations Board finding several violations of the National Labor Relations Act, 29 U.S.C. Sec. 151 et seq. (1982), and the Board has filed a cross-application for enforcement of its order.

Southwire operates facilities located in Carrollton, Georgia employing some 1,500 workers in the manufacture of rod, wire, and cable. In the spring of 1983, the United Steelworkers of America, AFL-CIO, began an organizational campaign at the Carrollton facilities. Union activity, including solicitation of signatures for authorization cards and wearing of union badges, was most intensive from September to December, when all the conduct at issue here occurred.

The Administrative Law Judge found that the employer conducted coercive interrogations and made threats in violation of Sec. 8(a)(1), and that certain discharges, suspensions, and work restrictions were motivated by union activity and therefore in violation of Sec. 8(a)(3) and (1). ¹ See Southwire Co., 277 N.L.R.B. No. 43 (Nov. 12, 1985). The Board accepted these findings and ordered Southwire to cease and desist from coercive interrogations, threats, and discriminatory conduct against employees supporting the union. It also provided for reinstatement of the discharged employees, make-whole relief for both the discharged and the suspended employees, cancellation of the work restrictions, correction of the records of the disadvantaged employees, and posting of a notice. Id. For the reasons given below, we deny Southwire's petition and grant the Board's application for enforcement.

I. INTERROGATIONS AND THREATS

A. Interrogations

An employer's interrogations of employees concerning union sympathies violate Sec. 8(a)(1) if they coerce employees in the exercise of rights guaranteed by Sec. 7 of the Act. ² Midwest Regional Joint Board, Amalgamated Clothing Workers v. NLRB, 564 F.2d 434, 443 (D.C.Cir.1977) [hereinafter Midwest Regional ]. The coerciveness of an interrogation must be considered in the totality of the circumstances. Rossmore House, 269 N.L.R.B. 1176, 1178 & n. 20 (1984), aff'd sub nom. Hotel Employees & Restaurant Employees Union, Local 11 v. NLRB, 760 F.2d 1006 (9th Cir.1985). These include the company's labor relations history, the information sought, the rank of the questioner, the place and method of questioning, and the truthfulness of the answer. Midwest Regional, 564 F.2d at 443. In our review of these decisions, we "must recognize the Board's competence in the first instance to judge the impact of utterances made in the context of the employer-employee relationship." NLRB v. Gissel Packing Co., 395 U.S. 575, 620, 89 S.Ct. 1918, 1943, 23 L.Ed.2d 547 (1969).

The ALJ specifically found Sec. 8(a)(1) violations in two interrogation incidents occurring at the height of the unionization campaign. The first involved questioning by a plant manager of Tommy Jarrell at Jarrell's machine. The ALJ credited Jarrell's testimony that the plant manager looked at Jarrell's union badge and asked what he thought the union was going to get him. Jarrell continued:

He was getting angry. He tried to get me to tell him, he said just name him one thing, just one thing [t]hat I thought the badge was going to get me and I told him maybe a little respect, and he told me, he said, "Well, if you are not for me and Southwire, you are on the other side of the fence."

Joint Appendix ("J.A.") at 395.

The other incident involved a supervisor's interrogation of Randall Hanson at The ALJ found that these interrogations were not "casual questioning concerning union sympathies," but rather involved a "coercive and threatening atmosphere." J.A. at 22. Considering such circumstances as Southwire's hostility to unionization and reprisals against union supporters, the focus of the questioning on whether the employees supported the union, the ranks of the interrogators, and the angry or jeering tone of the questions, we believe the Board could reasonably find that these interrogations were coercive and therefore in violation of Sec. 8(a)(1).

                Hanson's machine.  According to Hanson, the supervisor said, "It is all over the plant that you are for the Union, did you sign a Union card?"    J.A. at 120.  The supervisor went on to ask what Hanson hoped to gain from the union, and to ask, "Besides, what makes you think that this Company will deal with a Union?  ...  They may shut down, fire everyone who goes on strike and hire new people."    Id. at 121
                

B. Threats

Coercive threats by an employer regarding unionization violate Sec. 8(a)(1). See, e.g., Midwest Regional, 564 F.2d at 444; Amalgamated Clothing Workers v. NLRB, 527 F.2d 803, 806 (D.C.Cir.1975), cert. denied, 426 U.S. 907, 96 S.Ct. 2229, 48 L.Ed.2d 832 (1976). In Gissel Packing Co., 395 U.S. at 618-20, 89 S.Ct. at 1942-43, the Court determined that the employer must refrain from any coercive "threat of reprisal," id. at 618, 620, 89 S.Ct. at 1942, 1943, and that any prediction as to the consequences of unionization "must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control ...," id. at 618, 89 S.Ct. at 1942. If the "intended and understood import" of the employer's statement does not fall within this range, the statement is not protected by the First Amendment and may constitute an unfair labor practice. Id. at 618-19, 89 S.Ct. at 1942. See Amalgamated Clothing Workers, 527 F.2d at 806; Southwest Regional Joint Board, Amalgamated Clothing Workers v. NLRB, 441 F.2d 1027, 1032 (D.C.Cir.1970).

The ALJ found that Southwire made several threats to its employees in violation of Sec. 8(a)(1). These included claims that if the union won the election, the company would close the plant and fire everyone, and that unionization would result in lower wages and loss of benefits. A supervisor told Randall Hanson that unionization might result in the elimination of his job as crew chief. This supervisor also told Hanson, "If you signed a union card and it is all over the plant that you did, you will probably never be promoted and you will have a long hard road ahead of you." J.A. at 124.

Southwire seeks to characterize these statements as "statements about the uncertainty of negotiations ... or management's lawful option of replacing economic strikers." Brief for Petitioner at 46. Instead, they conjure up a company policy of deliberate retaliation, both in employee relations generally and with special reference to union activists. They surely lack the air of predictions "carefully phrased on the basis of objective fact." See Gissel, 395 U.S. at 618, 89 S.Ct. at 1942. The Board could reasonably find that they fell outside the sphere of employer speech protected under Gissel.

The Board also found the following handwritten notice posted on a company bulletin board and a speech repeating some of the same language to be unlawful threats:

BE CAREFUL WHAT YOU SIGN

Read what the United States Court of Appeals says about Union Cards

A U.S. court of appeals upheld the following statement made by a company to its employees. Don't be fooled into signing misleading card's [sic] that are mailed in secrecy. It is said that when you sign no one other than a union Representative or a representative of the NLRB will ever see this card. This is not the truth. In many instances, the signed card is disclosed to the company by the union, the NLRB, or both of them.

Be careful about what you sign. Don't sign anything unless you know what you are signing, and what it might mean to you, your family or your fellow employee's [sic]. NLRB v. Hobart Bros. Co., 372 F.2d 203 (CA6 1967)

DON'T SIGN A CARD!

J.A. at 1037. Southwire claims that it "merely disseminated truthful and relevant information" in posting this notice. Brief for Petitioner at 48.

The Board analyzed the character of the statement in light of the surrounding circumstances. See, e.g., J.P. Stevens & Co. v. NLRB, 638 F.2d 676, 681, 684 (4th Cir.1980). In adopting the ALJ's finding that the notice constituted a threat, it said:

The speeches and notices were made against the general background of the Respondent's history of violating the Act and in the immediate context of the pervasive violations in this case, particularly those directed at open union adherents, including coercive interrogations, unlawful threats, and unlawful discharges and other retaliatory discipline. In context, the Respondent's comments are a "rather pointed hint" that it would, on learning their identity, similarly retaliate against employees who signed cards.

277 N.L.R.B. No. 43 at 2, J.A. at 75. ³ As we have seen, the "unlawful threats" comprised at least one explicitly linked to signature of a union card.

We think the Board's conclusion was reasonable. In Hobart itself, in a portion of the Sixth Circuit opinion that Southwire chose not to quote, the court indicated that surrounding circumstances could transform otherwise "sound advice" into an implicit threat. Hobart Bros., 372 F.2d at 204; see also J.P. Stevens & Co., 638 F.2d at 680-81 (recognizing significance of employer's history of Sec. 8 violati...