Wellington Mill Division, West Point Mfg. Co. v. NLRB

• Decision Date: 25 March 1964
• Docket Number: 9019.,No. 8974,8974
• Citation: 330 F.2d 579
• Parties: WELLINGTON MILL DIVISION, WEST POINT MANUFACTURING COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. TEXTILE WORKERS UNION OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. West Point Manufacturing Company, Intervenor.
• Court: U.S. Court of Appeals — Fourth Circuit

330 F.2d 579 (1964)

WELLINGTON MILL DIVISION, WEST POINT MANUFACTURING COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

TEXTILE WORKERS UNION OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

West Point Manufacturing Company, Intervenor.

Nos. 8974, 9019.

United States Court of Appeals Fourth Circuit.

Argued September 30, 1963.

Decided March 25, 1964.

COPYRIGHT MATERIAL OMITTED

Frank A. Constangy, Atlanta, Ga. (Constangy & Prowell, Atlanta, Ga., on brief), for petitioner in No. 8974.

Edward Wynne, New York City (Patricia Eames, New York City, on brief) for Petitioner in No. 9019.

Janet Kohn, Atty. National Labor Relations Board (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Allison W. Brown, Jr., Atty. National Labor Relations Board, on brief) for respondent.

Before HAYNSWORTH, BOREMAN and J. SPENCER BELL, Circuit Judges.

BOREMAN, Circuit Judge.

These consolidated cases are before the court upon petition of Wellington Mill Division, West Point Manufacturing Company, hereinafter referred to as the Company, to review and set aside an order¹ of the National Labor Relations Board following proceedings under section 10 of the National Labor Relations Act, as amended, 29 U.S.C.A. § 151 et seq., 61 Stat. 136, 73 Stat. 519, and upon the separate petition of Textile Workers Union of America, AFL-CIO, hereinafter referred to as the Union, to review a particular portion of the Board's decision. The Board has cross-petitioned for enforcement of its order against the Company and seeks denial of the Union's petition.² These cases were before a duly authorized panel of three Board members.

The Board found that the Company violated section 8(a) (1) of the Act, 28 U.S. C.A. § 158(a) (1), by discouraging union membership by discriminating in regard to the hire and tenure of employment of three of its employees who were active in the Union's organizational effort; by subjecting employees to repeated interrogation; by threats of harm and promise of benefit; by ordering employees not to discuss grievances and to inform other employees of their abandonment of union activity; and by suggesting and assisting in the formation of an antiunion employee group. The Board further found that the Company had violated section 8 (a) (3) of the Act, 29 U.S.C.A. § 158(a) (3), by discriminatorily discharging Milford Allen, Luther Jackson Evans and H. C. McKinney, Jr., the three active union adherents mentioned above.

The Company's plant here involved is a textile mill located at Anderson, South Carolina. The top executive in the plant is Andrew B. Calhoun, the Company's vice president. The plant manager, second in command, is J. R. Swetenburg. The work in the plant is divided into three eight-hour shifts, the first from 7:00 A.M. to 3:00 P.M., the second from 3:00 P.M. to 11:00 P.M., and the third from 11:00 P.M. to 7:00 A.M.

Late in July 1961, some of the Company's employees contacted representatives of the Union and began efforts to unionize employees in the plant. A committee was formed in August and numerous employees were solicited at their homes to sign applications for union membership. Some responded favorably and signed applications while others did not. Calhoun first became aware of these union activities early in September. On September 15 the Union wrote to the Company claiming to represent a majority of the production and maintenance employees in the plant and requested a meeting for the purpose of negotiating a contract. On or about September 20 the Company replied, declining to recognize the Union as bargaining representative of the employees until such time as it was certified by the Board. Meanwhile, on September 18 the Union had filed with the Board a petition seeking such certification.

Soon after learning of union activities, Calhoun began summoning small groups of employees into his office for discussion respecting the installation of new equipment, the Company's future plans and for the airing and consideration of any "gripes" the employees might have. At one of these meetings in Calhoun's office, about September 28, Calhoun informed the assembled employees that he did not think the Union could do them any good, that it could do them some harm and that the Company intended to oppose the Union to the last ditch. There was testimony to the effect that Calhoun said the intention was to oppose the Union by legal means. Be that as it may, the Board found the statement that the Union could do the employees some harm to be a warning constituting a veiled threat of reprisal violative of the Act. We are of the opinion that this finding and conclusion of the Board was in error. The statement by Calhoun was manifestly no more than a pronouncement of his opinion and contains no discernible threat of reprisal. We held in N. L. R. B. v. Threads, Incorporated, 308 F.2d 1 (4 Cir.1962), that a substantially similar statement by an employer to his assembled employees was unqualifiedly privileged under the provisions of section 8(c) of the Act, 29 U.S.C.A. § 158 (c).³

On September 20 the Company posted in its plant a notice which contained, among other things, the following language:

"Since the Union Has Started Up a Campaign in Our Plant, Some of You Have Been Asking Questions in Regard to the Following Matters. We have Decided to State the Company\'s Position on These Subjects as Clearly as We Can For Everybody alike:

"1. In the First Place, It Is Our Definite View That If the Union Were to Come in Here, It Would Work to Your Serious Harm."

We disagree with the Board's determination that the above quoted portion of the posted notice was coercive and violative of the Act. What we have said above respecting the statement by Calhoun applies with equal reason to such notice.

On or about September 14 Douglas Bryant, one of the Company's employees, began wearing in the plant a union badge symbolizing his adherence to the Union. On September 24 George Cromer, a supervisor in the plant, approached Bryant and said, "Doug, don't tell nobody I told you this, but for your own interest and the interest of your job, it is best that you turn in your badge." Bryant replied that he "would think about it." Later that same day Cromer again approached Bryant and said, "Doug, I wish you would turn in your badge." These statements by Cromer to Bryant were found by the Board to constitute a veiled threat of reprisal to induce Bryant not only to cease wearing the badge but to "turn it in"; in short, to thus notify the Company that he had abandoned his union activities. Whether Cromer meant to imply that Bryant turn in his badge to the Company or to the Union is not made clear from the testimony and we consider this point to be relatively immaterial. The fact is that, two days later, Bryant sought and was granted an interview with Calhoun and Swetenburg, at which time he physically tendered the badge to Calhoun stating that he would like to "turn in" his badge. Calhoun demurred saying, "I don't want that badge, you can throw it in the trash can." Bryant complied with Calhoun's suggestion by discarding the badge and Calhoun then stated, by way of terminating the interview, "We believe what you have got to say, I don't know what your fellow workers in the mill are going to think about it, unless you tell them." The latter statement was found by the Board to be a direction that Bryant tell the other employees what he had done and that it constituted an illegal interference. In view of the evidence in the record befor us, we are of the opinion that the statements made by Cromer were violative of the Act in that they were calculated to induce Bryant, by threat of danger of loss of his job and did successfully induce him, to relinquish a protected right, i. e., the wearing of a union badge. However, we find no substantial evidential support for the conclusion of the Board that by anything he said Calhoun directed Bryant to tell the other employees what he had done. Calhoun's statement was ambiguous and could well have been intended as an admonition to Bryant not to tell the others about it and thus spare himself the possible embarrassment of being considered what Bryant himself described as "a pimp to them the company officials."

As found by the Board from substantial evidence in the record, Ernest Ivester, a rank and file employee of the Company, during September helped to initiate and was one of the principal moving spirits behind a proposed organization of employees designated the "Citizens Club". The apparent intended purpose of the organization was to attempt to combat the organizational efforts of the Union by drawing together into discussion groups a number of employees "who were not interested in either party, either side, at the particular time." Ivester became the club's first and only chairman, addressed meetings of the club, explained why a Union would not help the employees and wrote a letter for publication in the local newspaper on the same subject. Ivester's efforts were aided to some degree by Sam Jordan, the personnel director of the plant. Jordan's assistance in this regard was limited to inquiring of some 15 to 25 employees whether they would be willing "to meet and discuss the problem. And ask any questions that they might have to ask." Jordan noted the names and addresses of those who indicated to him their willingness to attend and turned over the list to Ivester. Despite a finding by the Board that there was no evidence to connect either of the two principal officers, Calhoun and Swetenburg, with Jordan's assistance to Ivester, the Board concluded that by virtue of Jordan's conduct the Company was guilty of illegally interrogating the employees and of interfering with the employees in the exercise of their organizational rights. Here, as in N. L. R. B. v. Brookside Industries, Inc., 308 F.2d 224 (4 Cir. 1962)...