Surprenant Manufacturing Company v. N. L RB

• Decision Date: 27 February 1965
• Docket Number: No. 15592.,15592.
• Citation: 341 F.2d 756
• Parties: SURPRENANT MANUFACTURING COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

341 F.2d 756 (1965)

SURPRENANT MANUFACTURING COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 15592.

United States Court of Appeals Sixth Circuit.

February 27, 1965.

Matthew E. Murray, Chicago, Ill. (Richard L. Marcus, John D. O'Brien, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., on the brief), for petitioner.

Robert A. Armstrong, Atty., N. L. R. B., Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Lee M. Modjeska, Atty., N. L. R. B., Washington, D. C., on the brief), for respondent.

Before MILLER and EDWARDS, Circuit Judges, and McALLISTER, Senior Circuit Judge.

SHACKELFORD MILLER, Jr., Circuit Judge.

The petitioner, Surprenant Manufacturing Company, hereinafter referred to as Surprenant, seeks a review of an order of the National Labor Relations Board issued on September 11, 1963. In its answer to the petition, the Board has requested enforcement of the order.

Surprenant is engaged in the manufacture and sale of insulated wire and cable, with its principal place of business in Clinton, Massachusetts. It transacts business in Michigan and Ohio, within this judicial circuit. Petitioner sought the present review in this circuit rather than in Massachusetts, which it was authorized to do under Section 10 (f) of the National Labor Relations Act, Section 160(f), Title 29 United States Code. The Board found that Surprenant violated Section 8(a) (1) of the Act, Section 158(a) (1), Title 29 United States Code, (1) by posting a notice on its bulletin boards which stated that the advent of a union would work to the employees' serious harm; (2) by threatening to deprive employees of overtime work opportunities, to close or move the plant, and to discontinue existing benefits if a union succeeded in securing representation rights, and (3) by interrogating employees as to the contents of statements given by them to agents of the Board investigating unfair labor practice charges. The Board's order required petitioner to cease and desist from the unfair labor practices found and from in any like manner interfering with or coercing employees in the exercise of their rights under the Act, and to post the customary notice. We will consider each of these findings in turn.

POSTING NOTICE ON THE BULLETIN BOARDS

On October 5, 1962, the United Steelworkers of America, AFL-CIO, filed a representation petition seeking an election among production and maintenance employees at Surprenant's plant in Clinton, Massachusetts. An election was set for November 9, 1962. On or about October 15, 1962, Surprenant caused the following notice to be posted on all bulletin boards in its Clinton, Massachusetts, plant.

"Notice to All Employees

"As you know, unions are again campaigning to organize some of our employees. Some of you are again asking questions regarding this campaign. Because of your questions, we are stating the Company\'s position on this matter as clearly as possible.

"(1) This matter, is, of course, one of concern to the Company. It is also a matter of serious concern to you. Our sincere belief is that if a union were to represent you in our plant, it would not work to your benefit but to your serious harm.

"(2) We sincerely believe that the introduction of a union into our plant is not necessary or beneficial to your welfare and growth with this Company. We, therefore, propose to use every proper means to prevent a union from becoming established here.

"(3) We would like to make it clear that it is not necessary for anyone to belong to any union in order to work in this plant.

"(4) Those who might join or belong to a union will not receive any advantages or any preferred treatment of any sort over those who do not join or belong to a union.

"(5) If anyone causes you any trouble at your work or puts you under any kind of pressure to join a union, you should let the Company know, and we will undertake to see that this is stopped.

"(6) No person will be allowed to carry on union organizing activities on the job. Anyone who does so and who thereby neglects his own work or interferes with the work of others will be subject to discharge.

"You should be aware that the above statements are factual and that any information you may receive, which is in conflict to this, is not true. Please feel free to continue to discuss any questions or problems that you may have concerning these matters with either Mr. Paul Gordon or any supervisory employee."

The Board contends that this notice was a veiled threat, tending to coerce the employees in their selection of a union in the subsequent election. The Board centers its contention on the two statements that the advent of a union "would not work to your benefit but to your serious harm" and that Surprenant proposed "to use every proper means to prevent a union from becoming established here." Surprenant contends that the notice was in exercise of its constitutional right of free speech under the First Amendment to the Constitution of the United States. N. L. R. B. v. Brown-Brockmeyer Co., 143 F.2d 537, 543, C.A. 6th. In that case we stated "An employer has the right of freedom of speech and may express his hostility to a union and his views on labor problems or policy, providing he does not threaten or coerce his employees."

This statement of the law has since been recognized in the enactment of Section 8(c) of the National Labor Relations Act in 1947, Section 158(c), Title 29 United States Code. Section 8(c) of the Act provides:

"The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit."

It has been held under this section of the Act that the prediction of unfavorable consequences resulting from unionization is not a violation of the Act, provided that it is a prediction of such consequences, rather than a threat on the part of the employer to visit such consequences upon the employees in the event of unionization. Union Carbide Corp. v. N.L.R.B., 310 F.2d 844, C.A. 6th; N.L. R.B. v. Transport Clearings, Inc., 311 F.2d 519, 523-524, C.A. 5th.

The facts in this case are very similar to those in N.L.R.B. v. Threads, Inc., 308 F.2d 1, 4, 8-9, C.A. 4th. In that case the Court reversed the finding of the Examiner that the employer engaged in an unfair labor practice by stating its opposition to the union, its "positive intention to oppose the Union and by every proper means to prevent it from coming into the plant," and that it was its "sincere belief that if this Union were to ever get into this plant it would not work to your benefit but to your serious harm." It was held that such statements were privileged under Section 8(c) of the Act.

See also: Texas Industries, Inc. v. N.L. R.B., 336 F.2d 128, 130-131, C.A. 5th; Henry I. Siegel Co. v. N.L.R.B., 328 F.2d 25, 26, C.A. 2nd.

The evidence shows that Surprenant's Director of Employee Relations spoke to different groups of its employees on a number of occasions prior to the election. In these speeches he pointed out the probability of the loss by the employees of regular and overtime work if the union won the election. It was pointed out that under existing arrangements, an employee would not be sent home before the workday was over when work was no longer available in his own regular department, but would be temporarily transferred to another department where work was available. This enabled the employee to receive pay for a full day's work, instead of for only a part of the day. Such a transfer would not be possible under union policy and the provisions of its collective bargaining contract with the company. The Trial Examiner found this to be "no more than forceful argumentation" and not to constitute a threat to discontinue the existing regular work opportunities. It was also pointed out in these speeches that existing overtime work would be lost in the advent of the union in that the company would avoid paying the 50% premium on top of the union wage scale, which would be required by the union contract. We believe that these are the logical and reasonable explanations of what was meant by the statement in the notice that the advent of the union "would not work to your benefit but to your serious harm." Section 8(c) of the Act not only gives the employer the right to express his opinion in opposition to the union, but also the right to express "argument" in support of such opinion. The right would be of very little value if the employer in expressing opposition to a union was forbidden to point out in what ways the advent of the union would not work to the benefit of the employees, but to their serious harm.

We are of the opinion that the posting of the notice to all employees on the bulletin boards was protected by Section 8(c) of the Act and did not constitute an unfair labor practice under Section 8(a)(1) thereof. N.L.R.B. v. Threads, Inc., supra 308 F.2d 1, 4, 8-9, C.A. 4th; Texas Industries, Inc. v. N.L.R.B., supra, 336 F.2d 128, 130-131, C.A. 5th; Union Carbide Corp. v. N.L.R.B., supra, 310 F. 2d 844, 845, C.A. 6th.

THREATS CONTAINED IN SPEECHES OF SURPRENANT'S DIRECTOR OF EMPLOYEE RELATIONS

Paul Gordon, Surprenant's Director of Employee Relations, delivered a series of 21 addresses to employee groups ranging in size from 37 to 73. These speeches were given in the plant conference room. Employees were directed by their respective supervisors to attend. Gordon gave essentially the same speech to the different groups 21 times. He used an outline of topics, which were basically designed to induce employees to refrain from supporting the union in the pending campaign. His talk does not appear to have been memorized. Gordon's discussion of...