Weather Tamer, Inc. v. N.L.R.B.

• Decision Date: 17 May 1982
• Docket Number: No. 80-9034,80-9034
• Citation: 676 F.2d 483
• Parties: 110 L.R.R.M. (BNA) 2573, 94 Lab.Cas. P 13,591 WEATHER TAMER, INC. and Tuskegee Garment Corporation, Petitioners-Cross-Respondents, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 483

676 F.2d 483

110 L.R.R.M. (BNA) 2573, 94 Lab.Cas. P 13,591

WEATHER TAMER, INC. and Tuskegee Garment Corporation Petitioners-Cross-Respondents, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner.

No. 80-9034.

United States Court of Appeals, Eleventh Circuit.

May 17, 1982.

Bass, Berry & Sims, William N. Ozier, Nashville, Tenn., for petitioners-cross-respondents.

Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Susan L. Dolin, Washington, D. C., for respondent-cross-petitioner.

James R. Goldberg, Atlanta, Ga., Max Zimny, New York City, for Intern. Ladies' Garment Workers' Union, AFL-CIO.

On Petition for Review and Cross Application for Enforcement of the National Labor Relations Board.

Before RONEY and FAY, Circuit Judges, and EDENFIELD ^*, District Judge.

FAY, Circuit Judge:

Weather Tamer, Inc. and Tuskegee Garment Corporation petition for review and the National Labor Relations Board cross-petitions for enforcement of an order of the Board ¹ which adopted with modifications the findings and conclusions of the Administrative Law Judge that the companies violated § 8(a) (1), (3), and (5) of the National Labor Relations Act, 29 U.S.C. § 151 et seq. (1976). The International Ladies' Garment Workers' Union, AFL-CIO (the Union) has intervened to seek enforcement of the Board's order. We conclude that there is substantial evidence in the record to support the § 8(a)(1) findings; however, the § 8(a)(3) and § 8(a)(5) findings are not supported by substantial evidence. Enforcement of the Board's order is granted in part and denied in part.

Weather Tamer, Inc. is a manufacturer of children's clothing with a main plant located in Columbia, Tennessee and two other plants located in Lewisburg, Tennessee and Athens, Alabama. The Athens and Lewisburg plants are located sixty and twenty-five miles, respectively, from the Columbia facility. Prior to October, 1978, Weather Tamer also operated a plant in Tuskegee, Alabama, the Tuskegee Garment Corporation. It was approximately 300 miles from the main plant.

The findings of unfair labor practices were based on actions and conduct of management during and after a unionization drive at the Tuskegee plant in July and August, 1978. At that time Steve Kennedy was the plant manager of Tuskegee Garment and Eugene Heller was the president of Tuskegee Garment and the vice-president of Weather Tamer.

Management first learned of union activity at Tuskegee Garment on July 18, 1978, when the union presented Kennedy with a demand for recognition. After the demand for recognition was refused, an election was scheduled to be held on September 15, 1978. Between those two dates work at Tuskegee Garment gradually came to a halt. As they completed their work on the fall line of clothing then in process, the employees were laid off and work for the spring line of clothing was not delivered to the plant. After August 29th the plant was operated by a skeleton workforce, and as of September 9th only two employees remained on the payroll. Also during August a sign which read "Applications taken here" was replaced with one reading "No more applications being accepted," and a "Weather Tamer" sign was removed from the outside of the Tuskegee facility and sent to the Lewisburg plant then under construction. ²

Despite a vigorous anti-union campaign by company officials, the employees voted for the Union on September 15th. The Union was certified to be the collective bargaining representative of the production employees on September 25th, and on September 29th it made a request to President Heller to meet and negotiate. Counsel for Weather Tamer responded on October 9th, advising the Union that the Tuskegee plant was permanently closed and that Weather Tamer was willing to bargain over the effects of the decision to close on the employees of the bargaining unit. Certain information requested by the Union was refused on the basis that it dealt with the decision to close the plant which was a subject of pending unfair labor charges. A single negotiating session was held on November 2nd at which the Union's requests for severance and vacation pay and to reopen the plant were refused.

The Board and the Administrative Law Judge found that Weather Tamer and Tuskegee Garment Corporation committed unfair labor practices by coercively interrogating employees, threatening plant closure, closing the plant in reprisal against the Union, and refusing to bargain over the decision to close the plant. In addition to cease and desist provisions, the Board's order affirmatively requires Weather Tamer to reopen the Tuskegee plant, reinstate the discharged employees, and make them whole for their loss of wages.

The Anti-Union Campaign at Tuskegee-Section 8(a)(1)

In reviewing the merits we are bound by the Board's factual determinations if they are supported by substantial evidence on the record considered as a whole. 29 U.S.C. § 160(e); Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951). If the Board has made a "plausible inference from the evidence" we may not overturn its findings, although if deciding the case de novo we might have made contrary findings. Sturgis Newport Business Forms, Inc. v. NLRB, 563 F.2d 1252, 1256 (5th Cir. 1977).

Section 8(a)(1) makes an unfair labor practice of employer actions which "interfere with, restrain, or coerce" employees in the exercise of their right of self-organization. 29 U.S.C. § 158(a)(1). President Heller and Plant Manager Kennedy were found to have violated this section by making statements to the employees which contained threats of plant closure. Several speeches and a letter were found to contain such threats.

Clearly an employer's threat to close a plant if the employees vote to be represented by a union is a violation of § 8(a)(1). NLRB v. Gissel Packing Co., 395 U.S. 575, 618-19, 89 S.Ct. 1918, 1942, 23 L.Ed.2d 547 (1969); TRW-United Greenfield Division v. NLRB, 637 F.2d 410, 418 (5th Cir. 1981). On the other hand, it is not a violation to close a plant for legitimate economic reasons and an employer is entitled to campaign against a union. Section 8(c) permits an employer to express his "views, argument, or opinion" regarding unions as long as his communications to employees contain "no threat of reprisal or force or promise of benefit." 29 U.S.C. § 158(c). The employer may speak against unions in general or against the particular union seeking representation, and he is entitled to make predictions regarding the effects he perceives unionization will have on the operation of his plant. Gissel, 395 U.S. at 617-19, 89 S.Ct. at 1918, 1941-42. Such predictions, however, "must be carefully phrased on the basis of objective fact" and if there is any implication that action may be taken by the employer for reasons unrelated to economic necessities, "the statement is no longer a reasonable prediction based on available facts but a threat of retaliation." Id. at 618, 89 S.Ct. at 1942.

The line between conduct permitted under § 8(c) and that prohibited under § 8(a)(1) is often finely drawn. An evaluation of the employer's comments "must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear." Gissel, 395 U.S. at 617, 89 S.Ct. at 1941. In making this inquiry the background against which the complained of actions take place must be considered. TRW-United Greenfield, 637 F.2d at 415-16; NLRB v. Laredo Coca Cola Bottling Co., 613 F.2d 1338, 1342 (5th Cir.), cert. denied, 449 U.S. 889, 101 S.Ct. 246, 66 L.Ed.2d 115 (1980). "The scope of inquiry must encompass the entire pattern of employer conduct. Remarks that may not appear coercive when considered in isolation may take on a different meaning when evaluated with respect to the totality of the circumstances." NLRB v. Kaiser Agricultural Chemicals, 473 F.2d 374, 381 (5th Cir. 1973). Moreover, the test is not whether the employer actions actually have the effect of restraining or coercing employees, but whether they would tend to have such an effect. Laredo, 613 F.2d at 1340-41; Delco-Remy Division, General Motors Corp. v. NLRB, 596 F.2d 1295, 1309 (5th Cir. 1979).

President Heller made four speeches to the Tuskegee employees during the period between the Union's demand for recognition and the representation election. The Administrative Law Judge credited testimony that during the first two speeches made in July, Heller remarked that "he didn't want a union; and he would close down if the union came in," that "a union could put (the employees') job(s) in jeopardy" because it would drive up the prices of clothing so that "there wouldn't be no point in making them," and that a company previously operated at the Tuskegee site went out of business because the company was unionized.

The third speech, given on August 17th, included the following:

First of all, you should know that there is no way that the Union can guarantee a single job or a single paycheck for the employees of this plant. Each of you has a job here today because we are able to produce a quality product at a competitive price which our customers are willing to purchase. Anything which interferes with our ability to produce good garments at competitive prices can have a serious effect on the furture (sic) of this plant.

....

It is our desire to continue the operation of this plant as long as it is economically feasible and as long as work is available. I would hate to see any group of outsiders come into this plant and cause the interference and disruptions which would prevent us from attaining that goal.

General Counsel's Exhibit # 24.

The fourth and final speech by Heller was given on September 13th, two days before the election and after all production employees had been laid off....