Sturgis Newport Business Forms, Inc. v. N.L.R.B.

Citation563 F.2d 1252
Decision Date01 December 1977
Docket NumberNo. 77-1281,77-1281
Parties96 L.R.R.M. (BNA) 3383, 82 Lab.Cas. P 10,218, 2 Fed. R. Evid. Serv. 1186 STURGIS NEWPORT BUSINESS FORMS, INC., a Division of Litton Business Systems, Inc., Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

M. J. Diederich, Beverly Hills, Cal., for petitioner-cross respondent.

Elliott Moore, Deputy Assoc. Gen. Counsel, John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Assoc. Gen. Counsel, Robert Sewell, Supervisor, N. L. R. B., Washington, D. C., for N. L. R. B.

Reg. Dir., Reg. 26, Clifford Davis, Memphis, Tenn., for other interested parties.

Petition for Review and Cross Application for Enforcement of an Order of the National Labor Relations Board. (Georgia Case)

Before WISDOM, GEWIN, and AINSWORTH, Circuit Judges.

WISDOM, Circuit Judge:

The National Labor Relations Board found that the petitioner, Sturgis Newport Business Forms, Inc., violated Section 8(a)(1) of the National Labor Relations Act 1 eleven times during a campaign to organize its Corinth, Mississippi plant. We find that substantial evidence on the record as a whole supports the findings. Accordingly, we enforce the Board's order.

I.

Sturgis Newport Business Forms, Inc. is a Division of Litton Business Systems, Inc., a Subsidiary of Litton Industries, Inc. The Company prints, sells, and distributes business forms. It operates plants in Michigan, Wisconsin, and Virginia and has its corporate offices in Fitchburg, Massachusetts. Until late September 1975 it also operated a plant in Corinth, Mississippi, where the alleged violations of Section 8(a)(1) occurred. The plant employed forty-six workers, three supervisors and two managers.

The Corinth plant was not successful. In an effort to increase its profitability, the Company changed the management and certain operating procedures at the plant. Apparently, the employees objected to some of the changes. In 1975, several of them became interested in obtaining union representation. They sought assistance from union organizer Dale Fortenberry. Fortenberry met with Corinth employees several times beginning May 11. By May 27, the Union 2 had obtained valid authorization cards from 25 of the 46 production, maintenance, and shipping employees. By May 29, three more employees had signed cards.

On May 27, Fortenberry wrote to Mr. Gene Crawford, the general manager of the Corinth plant, to request recognition, offering to submit the authorization cards to a third party for inspection. The letter advised Crawford that the Union would petition for a Board election, if the Company did not recognize it. Crawford refused to recognize the Union in a letter dated May 30. On June 3 he sent a letter to all employees setting forth the Company's opposition to unionization.

The Board directed an election on July 7, 1975. It was never held. The financial losses at Corinth continued and in September 1975, Sturgis Newport decided to close the plant. 3 There is no evidence that the Company plans to reopen the Corinth plant. 4

The Union filed a charge with the Board on June 30, 1975, alleging violations of Sections 8(a)(1), (3), and (5) of the Act. These charges were amended several times. They were consolidated for hearing with an amended charge of another 8(a)(5) violation filed later. The Administrative Law Judge dismissed the 8(a)(3) and (5) charges. He found eight violations of 8(a)(1). The ALJ issued a cease and desist order. Since the plant had closed, however, and there was no evidence that the unfair labor practices had affected the remaining Company operations, the ALJ found no reason to post a notice. 5

The Board accepted the dismissal of the 8(a)(3) and (5) charges. It affirmed the eight 8(a)(1) findings and, based on its reading of the record, added three more. In addition to issuing a cease and desist order, the Board ordered the Company to mail a notice to each person employed at its Corinth plant on May 29, 1975. 6

The Board based its conclusions on evidence of one incident when employees spotted a supervisor driving by a union meeting and ten conversations between supervisors and employees during the organization campaign. The ten conversations all took place in work or rest areas. The participants worked together and, in some cases, the supervisor and the employee were old friends. Each conversation involved only one or two employees.

Supervisor John Dunning initiated two conversations. After the May 11 meeting, Dunning asked employee Morris Simms if Simms had been at "the meeting". When Simms replied, "what meeting?", Dunning said, "I know you was there". Dunning also asked employee Mike Knight if Knight had attended the first union meeting. Knight responded that he had; Dunning then asked how many employees had attended. Knight told him that there had been a "pretty good size" crowd.

Two conversations involved supervisor George Dangler. Both took place on the Company loading dock. Employees Ronald Castile and Gary Marolt were waiting on the dock one morning when Dangler arrived. Castile put a card promoting a candidate for sheriff in Dangler's pocket and said "George, are you going to vote?". Dangler, who did not know the subject of the card, replied, "Boys, I hope you don't do anything to jeopardize the plant or your jobs". Several weeks later, Simms asked Dangler what he thought the Company would do if the employees unionized. Dangler replied that his personal feeling was that the Company would "just lock the doors".

Supervisor Marcus Brewster participated in the other conversations. Although the Company instructed Brewster not to ask directly about the union, the ALJ believed that Brewster utilized the device of starting conversations with employees, asking if there was anything new or anything wrong, to draw them into a conversation about the union. 7 About a week after the May 11 meeting, Brewster asked Castile "what the problem was?". Castile asked what he meant and the two then speculated on the Union's strength. Brewster guessed 30 to 40 percent; Castile, closer to 80 or 90 percent.

After an unpopular plant manager had been discharged, Brewster asked employee John Smith if the change satisfied him. Smith responded that he would do everything he could to help organize the plant. Brewster told him he hoped he "would think about it some and maybe change (his) mind about it". Brewster spoke twice with Teddy Wigginton, another employee he supervised. The first time, he suggested that Wigginton talk some sense into Smith about the Union. Wigginton responded that he supported the Union himself. The second time, Brewster began the conversation by asking Wigginton what was going on, and, after the subject of the Union had come up, advised Wigginton to "do whatever is best for your family".

Brewster and employee Edward Hohn had many conversations about the Union. During one, Brewster asked if Hester Rickman, another employee, had been at a Union meeting the evening before. After Hohn replied that he did not know, Brewster asked how many pressmen attended. Hohn said all of them; Brewster commented that he had heard two or three did not. Brewster also told Hohn that if the employees organized "the plant would probably close its doors".

The employee Brewster had inquired about was later laid off. Brewster told Rickman that he had heard from another employee, who had once supervised Rickman, that Rickman was being laid off because she supported the Union.

On another occasion, employee Claude Hinton asked Brewster what a stranger was doing around the plant. Brewster explained that he was in labor relations and had come to study complaints about the plant. Hinton agreed that the employees were dissatisfied. Brewster then told Hinton that he should do the best thing for himself and his family. Brewster also said that the last dealings he had with a union were at a hosiery mill and that he lost his job over it.

The final 8(a)(1) charge is surveillance of a union meeting. The Union held a meeting on June 8, 1975, at a local motel. After the meeting several employees were standing in the parking lot when they saw Office Manager Nathan Coates in his car, looking in their direction. They testified that he drove by, turned around, passed the motel again and then followed Fortenberry to Fortenberry's home 12 miles out of town. Coates said he did not turn around. He admitted, however, that he followed Fortenberry home.

II.

The Board's determinations must be sustained if they are supported by substantial evidence on the record considered as a whole. 29 U.S.C. § 160(e); Universal Camera Corp. v. N.L.R.B., 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456; Mueller Brass Co. v. N.L.R.B., 5 Cir. 1977, 544 F.2d 815. Moreover, we must recognize the Board's expertise in labor relations law. If the Board has made a plausible inference from the evidence, we do not overturn its findings even if we might reach a contrary result in deciding the case de novo. N.L.R.B. v. United Insurance Co., 1968, 390 U.S. 254, 88 S.Ct. 988, 19 L.Ed.2d 1083; Mueller Brass Co. v. N.L.R.B., 544 F.2d at 817.

The petitioner's brief points out that the employees at the Corinth plant were not, in fact, coerced by any of the conversations or the surveillance. This is beside the point; the test for an 8(a)(1) violation is whether questions, threats or surveillances tend to be coercive, not whether the employees are in fact coerced. N.L.R.B. v. Huntsville Mfg. Co., 5 Cir. 1975, 514 F.2d 723, 724; N.L.R.B. v. Camco, Inc., 5 Cir. 1965, 340 F.2d 803, 804 n.6; N.L.R.B. v. American Mfg. Co., 5 Cir. 1943, 132 F.2d 740.

Among the factors frequently identified as relevant in an evaluation of the tendency of conversations to be coercive are (1) the history of the Company's attitude toward its employees; (2) the type of information sought or related; (3) the rank...

To continue reading

Request your trial
30 cases
  • N.L.R.B. v. Big Three Indus. Gas & Equipment Co., 77-2592
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 24, 1978
    ...appearances that the supervisors represented their employer in the anti-union campaign.7 Compare Sturgis Newport Bus. Forms, Inc. v. NLRB, 563 F.2d 1252, 1256-1258 (5th Cir. 1977) With NLRB v. Huntsville Mfg. Co., 514 F.2d 723, 725 (5th Cir. 1975), and NLRB v. Mueller Brass Co., 509 F.2d 70......
  • N.L.R.B. v. Brookwood Furniture, Div. of U.S. Industries, 81-4475
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 28, 1983
    ...637 F.2d 410, 415 (5th Cir.1981). See Pioneer Natural Gas Co. v. NLRB, 662 F.2d 408, 414 (5th Cir.1981); Sturgis Newport Business Forms, Inc. v. NLRB, 563 F.2d 1252, 1256 (5th Cir.1977). The coercive tendencies of an employer's conduct must be assessed within the totality of circumstances s......
  • Virginia Elec. and Power Co. v. N.L.R.B., 82-1130
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • March 15, 1983
    ...the employee refused to comply with the employer's request preclude a finding of violation. Id. at 271; Sturgis Newport Business Forms, Inc. v. NLRB, 563 F.2d 1252, 1256 (5th Cir.1977). Neither can the Board's determination be attacked as legally erroneous on precedential grounds. To the ex......
  • Purolator Armored, Inc. v. N.L.R.B., 84-5222
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • July 9, 1985
    ...deciding the case de novo we might have made contrary findings." Weather Tamer, 676 F.2d at 487 (quoting Sturgis Newport Business Forms, Inc. v. NLRB, 563 F.2d 1252, 1256 (5th Cir.1977)). 9 In addition, "[v]iolation vel non of [section 8(a)(3) ] depends on the employer's motive for terminat......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT