Sta-Hi Div., Sun Chemical Corp. v. N.L.R.B., STA-HI
| Decision Date | 16 August 1977 |
| Docket Number | STA-HI,No. 76-1513 |
| Citation | 560 F.2d 470 |
| Parties | 96 L.R.R.M. (BNA) 2051, 82 Lab.Cas. P 10,078 DIVISION, SUN CHEMICAL CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
Stanley R. Strauss, Washington, D. C., with whom Peter H. Kiefer, Chester H. Lopez, Jr., Vedder, Price, Kaufman, Kammhols & Day, and Hamblett, Kerrigan, LaTourette & Lopez, Nashua, N. H., were on brief, for petitioner.
Paul J. Spielberg, Deputy Asst. Gen. Counsel, Washington, D. C., with whom John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and Edmund D. Cooke, Jr., Atty., Washington, D. C., were on brief, for respondent.
Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and MILLER, * Judge.
Sta-Hi Division of Sun Chemical Corp. petitions for review of a decision and order of the National Labor Relations Board ("board"), 1 and the board cross-petitions for enforcement of its order. In its decision, the board concluded that petitioner violated section 8(a)(1) and (3) of the National Labor Relations Act, as amended ("Act") (29 U.S.C. § 158(a)(1) and (3)). 2 The board ordered, inter alia, 3 that a representation election held on October 16, 1975, be set aside 4 and that the matter be referred to the Regional Director for the purpose of conducting a second election; also, that petitioner "Make its employees whole for the wages they lost in the period from August 4, 1975, to October 25, 1975, plus interest, as the result of its announcement on August 4, 1975, that it had canceled a raise because of the Union's organizing campaign."
Sta-Hi occupies a small part of the plant (located in Nashua, New Hampshire) of Kollsman Instrument, another division of Sun Chemical. During the period involved (1975), Robert MacNally was the divisional Vice President and General Manager of the Sta-Hi portion of the plant, and Francis Haggerty was the senior Kollsman official at the plant. The labor relations aspects of the Sta-Hi operation were the responsibility of William Machaver, Vice President of Personnel and Industrial Relations for Sun Chemical, and of Stanley Rosen, Sun Chemical's Director of Labor Relations.
At a meeting in mid-June, employees asked MacNally about the possibility of a cost-of-living wage increase. His response was not encouraging. At another meeting of Sta-Hi employees on July 23, Haggerty told the employees that Kollsman was conducting an area wage survey which had not yet been completed. He did not state whether or not the employees could expect a raise as a result of the survey, and his answers to questions did not quiet the employees' unrest over their wages and other working conditions. MacNally was not present at the July 23 meeting, but he learned of the employees' questions and Haggerty's answers soon after. Although he had heard rumors of union interest among the employees, he was not aware at this time that the Union had undertaken an organizing campaign; nor did he think that unrest among the employees was a serious problem. However, on July 29, he telephoned Sun Chemical's headquarters in Fort Lee, New Jersey, with a view to having something done about the problem. 5 He talked to Rosen and recommended an immediate raise for the employees on the basis of the Kollsman survey, some of the details of which he had learned from Haggerty. Rosen reported MacNally's recommendation to Machaver and recommended a raise of eight percent. Machaver concurred and took the recommendation to the president of Sun Chemical who, on the evening of July 30, approved an immediate raise of eight percent for Sta-Hi's hourly employees. Machaver told Rosen to relay the news to MacNally, which he did on the morning of July 31.
Later that morning MacNally called back and told Rosen that he had just received a letter from the Union claiming to represent Sta-Hi employees. Rosen instructed MacNally to do nothing about the raise until he (Rosen) got back to him. Rosen reported the new development to Machaver and gave his legal opinion that it would be an unfair labor practice to implement the decision to grant a raise under the circumstances and recommended that the raise be cancelled. Machaver agreed, and Rosen reported the decision to MacNally. Accordingly, the raise was not announced to the employees.
Machaver went to Nashua on Sunday evening, August 3, to try to do something about the problem of unrest among the employees. He conferred with MacNally and his manufacturing manager in the morning and early afternoon of August 4. During the conference, MacNally received the copy of the representation petition the Union had filed with the board which had been mailed by the board's Regional Office on August 1. It was decided that an open meeting would be held with all of the employees. Machaver testified that he told MacNally that "if anything in the economic area comes up, we must tell them that by law we are prevented from making any comments that . . . could be construed to be coercive, or promises, or so forth."
The August 4 meeting lasted from around 3:30 until after 5:00 P.M., with Sta-Hi's 38 production and maintenance employees present, along with Machaver, MacNally, the manufacturing manager, and a foreman. Machaver spoke for about fifteen minutes. He testified that, among other things, he told the employees:
. . . I wanted to discuss with them the fact that I did not believe a union was needed, but I would not be discussing it with them at this meeting; that my primary objective at this meeting was to find out what problems there were, to develop constructive relations between the management and the people, because that was the only way we found that we could run a profitable business that was to everybody's benefit.
The meeting was then opened for "comments, suggestions, criticisms, anything they had to offer that would be helpful to us to improve the situation." Machaver answered questions appropriately, taking care not to make statements that might be interpreted as promises of benefits if the employees would vote against the Union; and when a question called for such a response, he told the employees explicitly that was the reason for his not saying more.
Machaver testified that, at one point, when wages were being discussed, one employee said, in so many words:
Mr. Machaver, you know for a fact that the company never considered giving an increase, has no intention of giving an increase, and the only reason that you're here talking to us is because you want us to vote against the union. And, is it true if we do vote against the union, we're not going to get an increase anyway?
Thereupon, according to Machaver, he turned to MacNally and said:
According to Machaver, MacNally then said:
Machaver testified that he continued from that point as follows:
In November, following the representation election, petitioner placed a nine percent wage increase into effect, retroactive to October 25.
OPINIONAlthough the record does not show that petitioner, in ipsis verbis, "told its employees on August 4 that they would have received a wage increase but for the initiation of the union campaign," we are persuaded that the reasonable inference from William Machaver's statement, quoted above, was that because of the union representation petition a decision to increase wages (by how much and by what date not inferable) was not going to be carried out. We agree with the board that the words "we could go no further," in their setting, "effectively admitted that 'the decision' was to grant a raise; otherwise there would have been nowhere 'further' to go." Accordingly, we do not agree with petitioner's argument that Machaver's statement was privileged under section 8(c) of the Act (29 U.S.C. § 158(c)). 6
The Administrative Law Judge ("ALJ") found "no evidence, as of July 31, that Machaver's purpose in canceling the raise was anything other than protecting Respondent (petitioner here) from charges of unlawful conduct," and stated, with respect to the August 4 meeting, "I do not find that undermining the Union was uppermost in his mind when he spoke out." Petitioner argues that such findings preclude a holding that it violated either section 8(a)(1) or (3), citing this court's statement in NLRB v. Otis Hospital, 545 F.2d 252, 254, n.3, 93 LRRM 2778 (1st Cir. 1976):
An employer violates section 8(a)(1) if the effect and purpose of his actions can be said to impinge upon the employees' right to unionize. NLRB v. Exchange Parts Co., ...
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