Standard-Coosa-Thatcher Carpet Yarn Div., Inc. v. N.L.R.B.

• Decision Date: 23 December 1982
• Docket Number: No. 81-1673,AFL-CI,I,CL,STANDARD-COOSA-THATCHER,81-1673
• Citation: 691 F.2d 1133
• Parties: 111 L.R.R.M. (BNA) 2987, 95 Lab.Cas. P 13,792 CARPET YARN DIVISION, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Amalgamated Clothing and Textile Workers Union,ntervenor.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1133

691 F.2d 1133

111 L.R.R.M. (BNA) 2987, 95 Lab.Cas. P 13,792

STANDARD-COOSA-THATCHER CARPET YARN DIVISION, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent Amalgamated Clothing and Textile Workers Union, AFL-CIO CLC, Intervenor.

No. 81-1673.

United States Court of Appeals Fourth Circuit.

Argued March 30, 1982.

Decided Sept. 20, 1982.

Rehearing and Rehearing En Banc

Denied Dec. 23, 1982.

Homer L. Deakins, Jr., Greenville, S. C. (Ogletree, Deakins, Nash, Smoak & Stewart, Greenville, S. C., on brief), for petitioner.

Richard Michael Fischl, Washington, D. C. (William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., on brief), for respondent.

Barbara Jane Carey, Asst. Gen. Counsel, New York City (Arthur M. Goldberg, Gen. Counsel, George A. Kirschenbaum, Associate Gen. Counsel, New York City, on brief), for intervenor Amalgamated Clothing and Textile Workers Union, AFL-CIO, CLC.

Before WINTER, Chief Judge, BRYAN, Senior Circuit Judge, and HALL, Circuit Judge.

HARRISON L. WINTER, Chief Judge:

In February 1979, the Amalgamated Clothing and Textile Workers Union (the Union) began a campaign to organize a plant of the Standard-Coosa-Thatcher Carpet Yarn Division, Inc. (the Company) in Boaz, Alabama. ¹ The Union had lost a previous election in the plant in December 1977. By March 21, 1979, however, eighty-seven of the 147 bargaining-unit employees had signed cards designating the Union as their exclusive bargaining representative. The Union therefore filed a petition for a representation election and made a bargaining demand on the Company, which was refused. The Board conducted an election on May 18, 1979, and the Union lost by a vote of 67 to 74.

On July 29, 1981, the Board adopted, as modified, an administrative law judge's determination that the Company committed various unfair labor practices in connection with the 1979 campaign. The Board's order not only required the Company to cease and desist from such practices and to reinstate a discharged employee, but also directed the Company to bargain with the Union upon request. The Company petitions for review of the Board's order, and the Board cross-petitions for enforcement. We grant enforcement.

I.

The Board found numerous violations of Sec. 8(a)(1) of the National Labor Relations Act as amended (NLRA), 29 U.S.C. Sec. 158(a)(1) (1976). For purposes of this discussion, the asserted violations will be grouped according to the Company personnel involved.

A. Statements by Plant Manager Bowman

On the morning of the election, employee Kathy Holland engaged plant manager Jack Bowman in a conversation about unionization. Holland volunteered that she had read the Company's contract covering unionized employees at another plant and found nothing in its terms of benefit to employees. Bowman responded that that contract was the first thing the Company's lawyers would insist on if the Union won the election.

The Board found that Bowman's response was a threat that the Company would not bargain in good faith if the Union were victorious. Noting that the conversation took place just hours before the voting, the Board concluded that Bowman's threat of insistence on contractual terms he knew Holland found unpalatable coerced Holland in the exercise of rights guaranteed by Sec. 7 of the NLRA, including the right to exercise the franchise free of intimidation.

The Company insists that this finding puts the Board in the impermissible posture of judging contractual terms. The argument is unpersuasive, however, for the Board focused, not on particular contractual terms, but rather on the possible effect of Bowman's statement. We have previously held that such statements as "a union would do employees no good" may be unlawfully coercive in some circumstances. N. L. R. B. v. McCormick Concrete Co., 371 F.2d 149, 152 (4 Cir. 1967). Here, the fact that the statement was made on the brink of the election to one who saw no benefit in the contract is substantial evidence supporting a finding of coercion. See Procter & Gamble Manufacturing Co. v. N. L. R. B., 658 F.2d 968, 984 (4 Cir. 1981); Wyman-Gordon Co. v. N. L. R. B., 654 F.2d 134, 145-46 (1 Cir. 1981); Daniel Construction Co. v. N. L. R. B., 341 F.2d 805, 811 (4 Cir.) (whether an employer's remarks are coercive "is a question essentially for the specialized experience of the NLRB"), cert. denied, 382 U.S. 831, 86 S.Ct. 70, 15 L.Ed.2d 75 (1965).

B. Statement by Personnel Manager Bouldin

In mid-February, ² employee Patricia Whisenant remarked to personnel manager Ernest Bouldin that employee Holland was engaged in "Union business." According to Whisenant's testimony, which was credited by the administrative law judge, Bouldin replied that if Holland "don't watch it she's going to get her ass fired."

The Board properly concluded that this threat of discharge for union activity was coercive. See, e.g., N. L. R. B. v. Aerovox Corp., 435 F.2d 1208, 1210 (4 Cir. 1970). The Company's sole objection is that this violation was not alleged in the complaint. At the administrative hearing, however, the General Counsel moved to amend the complaint, and the motion was granted.

In mid-March, Bouldin advised Whisenant that she would not be given a job she had applied for. Whisenant lost her composure and told Bouldin, "You just hate me." Bouldin answered that he would like her a lot better if she were on the right side.

The Board characterized Bouldin's reply as an invitation to abandon the Union in order to obtain the benefits of an improved relationship with management and held that it violated Sec. 8(a)(1). ³ The Company argues that there is no substantial evidence of coercion since it was known to Whisenant that, under established procedures, the job in question would go to the most senior applicant. Bouldin's remark, however, can be fairly understood as implying that management would confer advantages on anti-union employees. Coming from the senior personnel officer at the plant, such a comment can reasonably be deemed coercive.

On the day before the election, Whisenant went up to Bouldin and told him she was sorry to be working against him in the campaign but that she "would be on the gates [for the Union] the next morning." Bouldin asked, "Pat, what has this company done to you? What have you got against this company?" Whisenant answered, "Nothing." Bouldin persisted, asking Whisenant again why she was working for the Union. She responded, "[I]t was something I believed in." The Board concluded that Bouldin engaged in "coercive interrogation" by "probing into Whisenant's motives for supporting the Union."

Employers are free to ask employees about their sentiments regarding a union provided the questioning is not coercive. The test of coerciveness " 'is not whether the language or acts were coercive in actual fact, but whether the conduct in question had a reasonable tendency in the totality of the circumstances to intimidate.' " N. L. R. B. v. P. B. & S. Chemical Co., 567 F.2d 1263, 1267 (4 Cir. 1977) (quoting Corrie Corp. v. N. L. R. B., 375 F.2d 149, 153 (4 Cir. 1967)). Here, the fact that Whisenant initiated the conversation, unhesitatingly volunteered her pro-union sentiment, and stuck by her position under questioning militates against the finding of coerciveness. But Bouldin's senior position, his repeated questions, and the fact that he was speaking on the eve of the election reasonably support the Board's determination. Because the Board's finding is supported by substantial evidence, it must be sustained.

C. Statements by Supervisor Lowery.

On May 12, employee Betty Underwood (a Union activist) and other employees protested to plant manager Bowman that their paychecks for the night shift were too low by $2.00. Bowman explained that there had been a computer error and promised to rectify the matter. Supervisor Frank Lowery later approached Underwood at her work station and inquired about the problem. Underwood asserted that the Company had deliberately shortchanged the night-shift employees. According to Underwood's credited testimony, the following conversation ensued:

Frank said, just raise hell, Betty, said if you'll notice Dennis Williams raised hell for a couple of weeks, and he's not here any longer. ⁴

And I said, Frank, if that's a threat, I won't be as easy to get rid of as Dennis was. And he said if you'll notice this is a one-on-one conversation, and I'll keep it that way. My word's as good as yours, and I told him we'd let the government decide whose word was best.

The Board found that Lowery threatened Underwood with discharge for engaging in protected concerted activity. ⁵ The Company maintains that Underwood was not participating in concerted activity when she spoke with Lowery and that her accusation that the Company had cheated night-shift employees was patently false and therefore not protected. These contentions are unpersuasive. Lowery's statement was a thinly veiled warning that further activities like Underwood's protest to management would result in her dismissal. That protest was clearly concerted activity; the truth or falsity of Underwood's views does not deprive such activity of its protection.

On March 5, Lowery issued Underwood a verbal warning for dropping "hard waste" on the plant floor in violation of Company rules. According to Underwood, Lowery

told me that he wanted to break me from a bad habit while the Union was in town. He said that he knew I was in a Union campaign, and that at this time I'd do nothing to break a rule. And so he was going to break me from a bad habit while they were in town.

Crediting Underwood's testimony, the Board found that Lowery's warning to Underwood was "an implied threat ... of reprisals for union activity."

If the Board had found that the disciplinary warning issued to Underwood was...