National Labor Relations Board v. Harbison-Fischer Manufacturing Co. , 304 F.2d 738 ( 1962 )

GRIFFIN B. BELL, Circuit Judge.

The National Labor Relations Board here seeks enforcement of its order against Harbison-Fischer based on its finding that two of the respondent’s supervisors interrogated employees concerning their union activities in such a manner as to constitute interference, restraint, and coercion within the meaning of § 8(a) (1) of the National Labor Relations Act, 29 U.S.C.A. § 158(a) (1). The complaint against the employer charged that an employee named Maddux had been discriminatorily discharged in violation of § 8(a) (1) and 8(a) (3). The complaint also charged that Nelson and Bums, two supervisory employees, violated § 8(a) (1) in conversations with certain employees. The Trial Examiner recommended dismissal of the complaint as to Maddux’s discharge. He found that Supervisor Nelson violated the Act in conversations with employees Holmes, Slimp, and Maddux, and that Superintendent Burns violated the Act in a conversation with employee Bailey. The Board adopted the Examiner’s findings and recommendations.

It is our view that the employer violated § 8(a) (1) of the Act by activity of such nature as might reasonably be said to interfere with the free exercise of employee rights under the Act. While it is true that there was no evidence that the employer had any history whatever of labor trouble or unfair labor practices, it nevertheless exceeded legal bounds here. First, a supervisor called on an employee at his home on Sunday seeking to have the employee verify the names of those who were pushing the union. This conduct was not neutralized by having the supervisor inform the employee simultaneously that it was his right to sign a union card. This event was such that the employee gained the impression that the supervisor was worried about him signing a union card. Next, this same supervisor stated to another employee that the union would not be too bad in his opinion but that the company president could not see it, thus indicating presidential opposition. He also inquired of another employee if he had anything to do with the union and upon receiving an affirmative answer inquired as to how many union cards were signed. The supervisor responded upon receiving the answer of forty that he had heard there were forty one, thus indicating close surveillance. Later, another supervisor asked the employee heading the union movement to name the fifty people that he was representing for the union.

The examiner, who had the opportunity of hearing the witnesses and judging their demeanor, and whose findings were approved by the Board, found that such expressions of concern and the opposition of the president tended to cause employees to fear the consequences of union activity and membership and were vio-lative of the Act under the circumstances involved.

Proscribed coerciveness could be inferred from this activity when considered in totality. The visit to the home of the employee in an effort to obtain the identity of those pushing the union viewed in the context of the other stated conduct took the matter beyond innocuous inquiry and into the realm of unlawful interference.

The facts here are somewhat more compelling toward enforcement than those in our case of N. L. R. B. v. Armour & Co., 5 Cir., 1954, 213 F.2d 625, and are more nearly comparable to those in N. L. R. B. v. Mid Western Instruments, Inc., 10 Cir., 1959, 264 F.2d 829, where enforcement was granted and where it was said:

“The evidence with respect to violation of § 8(a) (1) of the Act is rather meager. There is, however, no conflict in this part of the record. It stands admitted that Superintendent Piester questioned employee Cart as to the identity of the union leaders and that Foreman Lowe questioned Navarro as to whether Neu-man had tried to persuade her to join the Union. Such conduct could well intend to influence the employees and interfere with the free exercise of their organizational rights under the Act.”

This conduct of the employer was not rendered permissible as free speech under § 8(c) of the Act as it was neither the expression of a view, argument or opinion as there contemplated.

Interference, restraint and coercion within the meaning of the Act depend upon the facts and circumstances ot each individual case and our inquiry must be directed to the evidentiary basis for the order of the Board. Sufficient basis existing for the order, it should be and is

Enforced.