Texas Industries, Inc. v. NLRB, 20099.

• Decision Date: 02 September 1964
• Docket Number: No. 20099.,20099.
• Citation: 336 F.2d 128
• Parties: TEXAS INDUSTRIES, INC., and Dallas Lightweight Aggregate Company, Texcrete Structural Products Company, Texcrete Mosaic Company, and Texcrete Company, Divisions of Texas Industries, Inc., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

336 F.2d 128 (1964)

TEXAS INDUSTRIES, INC., and Dallas Lightweight Aggregate Company, Texcrete Structural Products Company, Texcrete Mosaic Company, and Texcrete Company, Divisions of Texas Industries, Inc., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 20099.

United States Court of Appeals Fifth Circuit.

September 2, 1964.

John Edward Price, Fort Worth, Tex., for petitioners.

Marcel Mallet-Prevost, Dominick L. Manoli, Melvin Pollack, Washington, D. C., for respondent.

Before BROWN, WISDOM and BELL, Circuit Judges.

GRIFFIN B. BELL, Circuit Judge.

Texas Industries, Inc. and its named divisions, Dallas Lightweight Aggregate Company, et al., have petitioned this court, pursuant to § 10(f) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 160(f), to review and set aside an order of the National Labor Relations Board finding it in violation of § 8(a) (1) of the Act. 29 U.S.C.A. § 158 (a) (1). The Board filed a cross petition requesting enforcement of its order. The Board found that the employer had violated § 8(a) (1) through the medium of a letter sent to company employees just prior to a union election at its plant, and by interrogating employees about the contents of statements given to Labor Board agents, and requesting the employees to furnish the company with copies of those statements.

I.

In October 1960, the union began an organizational drive at the company's Chalk Hill Road plant, and the Board held an election on June 30, 1961, at which the union was defeated. Three days prior to the election, the company mailed a letter to each of its two hundred employees urging them to vote against the union. This letter provided in pertinent part:

"2. The union is against your best interests. If the union wins the election, an outsider will negotiate or make demands upon the Company for you. There is no law that requires that I agree to anything he desires or says. There is only one way that a union representative can enforce his demands upon the Company. This is by calling a strike. When you strike, you will lose your wages and possibly your job. The Company is free to hire someone to take your place while you are striking and when the strike is over there may not be a job for you.

"3. The union question is not whether it is good for great numbers of men in the mass of employment industries, but whether it is best for you, your job and your family at this Company. Pretty generally in small companies the employees have refused to go along with union methods. They recognize that their jobs and earnings, including overtime depend upon the Company\'s ability to sell their product in the competitive market. You know that under union methods we would not have been able to operate with continuous employment for you during the past year. Good pay checks depend upon continuous full time employment."

The Board focused upon the bracketed portions of the above paragraphs from the letter,¹ and found that these statements were threats of economic loss should the union win the election, and as such constituted interference, restraint, and coercion of employees in violation of § 8(a) (1) of the Labor Act.² We hold that these statements are protected by § 8(c) of the Act, and order that this portion of the Board's order be set aside.

It is well settled that under § 8(c)³ the employer must be regarded as a rightful contestant for his employees' loyalty in a union election. This section permits an employer to state his legal rights under the Act and to predict that dire economic consequences will follow from a union victory. N. L. R. B. v. Transport Clearings, Inc., 5 Cir., 1963, 311 F.2d 519; Union Carbide Corp. v. N. L. R. B., 6 Cir., 1962, 310 F.2d 844. It is only when the employer goes further and threatens to himself take economic or other reprisals against the employees that a § 8(a) (1) violation may be found. Thus, a prediction that competitive conditions will force a plant to close if a union contract is signed is protected, whereas a threat to close down in retaliation to unionization is beyond the pale. N. L. R. B. v. Morris Fishman & Sons, Inc., 3 Cir., 1960, 278 F.2d 792. The precise issue presented here is whether the above quoted letter constituted a prediction or a threat.

In paragraph 2 of the letter, the company has gone no further than to state its legal rights under the Act. It it true that no law requires the company to agree to union demands, § 8(d), 29 U.S.C.A. § 158(d); N. L. R. B. v. American National Ins. Co., 1952, 343 U.S. 395, 72 S.Ct. 824, 96 L.Ed. 1027, and that so long as the strike is not provoked by an employer unfair labor practice, the company is free to hire permanent replacements for the striking workers. N. L. R. B. v. Bradley Washfountain Co., 7 Cir., 1951, 192 F.2d 144. The company does not threaten to force a strike in order to break the union. By merely stating its legal rights under the Act and indicating that it might follow a course which the Act clearly permits, the company may not be found to have threatened its employees in violation of § 8(a) (1).

As to paragraph 3 of the letter, the Board objected only to the last two sentences, which it read as a threat to discontinue full time employment should the union win the election. We are unable to accept this reading. The statement is not phrased in the language of a threat. When read in context with the preceding part of the paragraph setting forth the need for the company to maintain its competitive position, the fair meaning of the statement is simply that unionization will lead to higher costs and consequently lower production and employment. This prediction of adverse economic consequences is protected by § 8(c).⁴

II.

The Board also found that the company violated § 8(a) (1) by questioning employees about the contents of statements given to Board agents, and by demanding copies of these statements from the employees. The original complaint issued by the Board in this case charged the company with a discriminatory discharge in violation of § 8(a) (3) and various acts of coercion in violation of § 8(a) (1).⁵ About two weeks prior to the hearing on this complaint, 147 of the company's two hundred employees were separately interviewed by the personnel manager and a company attorney. Each employee was asked a series of questions from a prepared questionnaire, including the following:

20. Have you talked to an agent of the NLRB about this case?

21. Did you give a sworn statement?

22. What, if anything, did you tell the agent of the NLRB?

23. Do you object to giving us a copy of the statement you gave the NLRB?

24. Will you sign a request for the NLRB to send a copy of your statement?

Four employees indicated that they had given statements to the Board, and all four agreed to sign letters prepared by the company requesting the Board to furnish them with copies of their statements. The Board complied with the requests, and copies were forwarded to the employees who in turn handed them over to the company. Each of the four was then again separately interviewed. A company attorney read each employee his statement, asked whether it was true, and questioned the employee about the incidents referred to therein.

At the hearing, the complaint was amended to include allegations that the above activities on the part of the company violated § 8(a) (1), and the Board so held. In seeking to set aside this portion of the Board's order, the company contends first that the original charge filed by the union was inadequate to support the amended portion of the complaint, and second, that in any event its activities went no further than it was privileged to go in order to adequately prepare a defense to the pending unfair labor practice charges.

The original charge filed by the union in this case alleged generally that the company had "engaged in * * unfair labor practices within the meaning of" § 8(a) (1) and (3), and then went on to allege specifically a discriminatory discharge and various acts of coercion with respect to employee Tadlock. The company maintains that the charge is addressed only to unfair labor practices committed against Tadlock, and that since Tadlock was not involved in the interrogation here found violative of § 8(a) (1), there was an impermissible variance between charge and complaint. The Board contends that the general allegation of § 8(a) (1) and (3) violations was sufficient to cover the interrogation of employees other than Tadlock. We agree with the Board.

Section 10(b) of the Act provides:

"Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the Board * * * shall have power to issue * * * a complaint stating the charges in that respect * * *."

It is established that this section precludes the Board from issuing a complaint on it own initiative, and that a charge is a prerequisite to the institution of proceedings before the Board. N. L. R. B. v. Kohler Co., 7 Cir., 1955, 220 F.2d 3. However, the charge is not a formal pleading, and its function is not to give notice to the respondent of the exact nature of the charges against him. N. L. R. B. v. Fant Milling Co., 1959, 360 U.S. 301, 79 S.Ct. 1179, 3 L.Ed.2d 1243; Consumers Power Co. v. N. L. R. B., 6 Cir., 1940, 113 F.2d 38. This is the function of the complaint. The charge rather, serves merely to set in motion the investigatory machinery of the Board. It is largely for the benefit of the Board, not the respondent, so that it may intelligently determine whether and to what extent an investigation is warranted. Consequently, the Board has considerable leeway to found a complaint on events other than those specifically set forth in the charge, the only limitation being that the Board may not get "so completely outside * * * the charge that it may be said to be initiating the proceeding on its own motion * * *." N. L. R. B. v. Kohler Co., supra. See also N. L. R. B. v....