DocketNumber： 82-3063
Citation Numbers： 697 F.2d 534
Judges： Seitz, Garth, Rosenn
Filed Date： 3/31/1983
Status： Precedential
Modified Date： 10/19/2024
OPINION OF THE COURT
The National Labor Relations Board (“the Board”) found that Graham Architectural Products Corporation (“Graham” or “the Company”) committed six unfair labor practices violating section 8(a)(1) of the National Labor Relations Act (“the Act”) by its conduct during a union organizing campaign. The violations involved questioning of employees by company officials and, on one occasion, interfering with an employee’s right to distribute union literature on company property. The Board found that these practices infected the representation election among Graham employees, which the Union
I.
Graham manufactures aluminum replacement windows at a plant in York, Pennsylvania. In the spring of 1979, the Union commenced an organizing campaign among Graham’s employees, and on May 7, filed an election petition seeking to represent Graham’s production and maintenance employees. The Union and the Company signed, and the Board approved, a Stipulation for Certification upon Consent Election setting the election for July 20, 1979. Four days
In a decision filed February 13, 1981, the ALJ found company unfair labor practices involving coercive interrogations of two employees, Reisinger and Oberdick, about their feelings toward the Union. The ALJ recommended dismissal of all remaining charges, and further, concluded that the unfair labor practices did not warrant invalidating the election results. The Board, however, found four additional unfair labor practices arising out of other instances of interrogation and one instance of interfering with the distribution of union literature and rejected the ALJ’s recommendations for dismissal of charges relating to these incidents. The Board also concluded, contrary to the ALJ’s recommendation, that a rerun election was necessary. See 259 N.L.R.B. No. 153.
II.
We begin our analysis by noting the principles that define the scope of our review of the Board’s order. The Board’s factual findings must be affirmed if they are supported by substantial evidence on the record considered as a whole. 29 U.S.C. § 160(e). See Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Yet this does not relieve us of the responsibility to scrutinize the Board’s findings to ensure that national labor policíes are implemented. See NLRB v. K & K Gourmet Meats, Inc., 640 F.2d 460, 463 (3d Cir.1981). Although we are not permitted to substitute our view for any reasonable conclusion by the Board, “a reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial.” Universal Camera, supra, 340 U.S. at 488, 71 S.Ct. at 464. Finally, the courts bear the ultimate responsibility to decide and enforce the applicable legal standard. Cf. Allied Chemical & Alkali Workers of America v. Pittsburgh Plate Glass Co., 404 U.S. 157, 182, 92 S.Ct. 383, 399, 30 L.Ed.2d 341 (1971) (question of what is a mandatory subject of bargaining).
A.
Several cases, both within this circuit and elsewhere, have considered the circumstances under which employee questioning during a union organizational campaign will violate section 8(a)(1) of the Act.
DAVID REISINGER
Employee Reisinger testified before the ALJ that on July 9 shortly after lunch supervisor Michael Lehr called him to Lehr’s office. Reisinger met Lehr at the timeclock as he was on his way to Lehr’s office. Lehr asked Reisinger several questions concerning Reisinger’s activities during the preceding lunch hour, and Reisinger replied truthfully that he had been to the union hall. Lehr responded, “Yes, I know you were at the union hall.” Lehr demanded to see the union literature Reisinger had obtained, but Reisinger refused to show Lehr the materials. The conversation continued for 15 to 20 minutes and covered a variety of subjects. Reisinger testified that he and Lehr were personal friends and often played basketball together at lunchtime.
Several aspects of this incident lead us to agree with the Board’s finding that supervisor Lehr’s questioning of employee Reisinger was unlawful. The inquiries were not part of an ordinary casual conversation; rather, Lehr specifically requested Reisinger to come to his office. Lehr indicated that he had prior knowledge of Reisinger’s lunchtime visit to the union hall, implying that Reisinger’s activities were under the Company’s surveillance. Lehr demanded to see the materials Reisinger had picked up. Together, the circumstances created a risk from which Reisinger could reasonably conclude that if he engaged in further pro-union activities the Company might retaliate. Although Lehr’s and Reisinger’s friendship and the occurrence of the conversation in an open plant area tend to negate a coercive influence, considering all the evidence, including the peremptory demand for the union materials, the Board had a reasonable basis to find the interrogation coercive.
DIANA OBERDICK
Employee Oberdick testified to two conversations she had with her supervisor, Robert Reichard. Some time in early July, Reichard stopped by Oberdick’s work station and asked her if she knew “how the Union got started” in the plant. She answered that she did not know, and Reichard remarked that the Union would not help. The conversation then turned to other matters and lasted approximately 15 to 20 minutes. Later, on July 10, Reichard asked Oberdick to step outside the building to talk. Once outside, Reichard asked her how she was getting along with another supervisor, and they briefly discussed some personal matters of Oberdick that they had discussed on previous occasions. Reichard then asked Oberdick for her opinion about the “union situation.” Oberdick replied that she felt mistreated by the Company and she would support the Union if it won the election, although it did not really matter to her. Oberdick testified that this conversation lasted 30 minutes and ran over into her lunch period. Like Reisinger, Oberdick testified that she was quite friendly with her supervisor, Reichard, and that she talked with him almost every day. She noted that Reichard once had spoken to her at length to dissuade her from quitting her job with the Company.
The conclusion of the ALJ, affirmed by the Board, that Oberdick was coercively interrogated by her supervisor Reichard is supported by substantial evidence. On two occasions, Reichard initiated conversation in which he asked Oberdick questions about the Union. During the first conversation, he approached her at her work station and asked if she knew how the Union had gotten started in the plant. This was not a casual inquiry into a co-worker’s feelings, but a request from which a reasonable inference can be drawn that it was aimed at
As for the other instances of interrogation which were held to violate section 8(a)(1), however, we believe that the Board has cast its net too far. It has summarily found coercive activity without evidence in the record to support such a finding. We cannot affirm the Board’s findings that the questioning of employees Stambaugh, Shaeffer, and Jones was unlawful. We believe the ALJ who heard the testimony correctly concluded that the circumstances surrounding those incidents do not demonstrate the necessary element of intimidation or coercion. The ALJ obviously was in a better position than the Board to determine the character of the interrogation, and his findings must be considered in deciding whether the Board’s conclusions are supported by substantial evidence. Universal Camera, supra, 340 U.S. at 496, 71 S.Ct. at 468; K & K Gourmet Meats, supra, 640 F.2d at 466.
DARLENE STAMBAUGH
Employee Stambaugh testified that on July 13, Greg Nash, her supervisor, called her over to his desk and asked her whether she was for the Union. Stambaugh replied that she did not have to tell him, and Nash readily agreed that she did not. Stambaugh then said she was “not ashamed” and stated that she intended to vote for the Union. Stambaugh and Nash continued to discuss generally the advantages and disadvantages of the Union for about one and one-half hours. Stambaugh testified that she was an active supporter of the Union during the organizational campaign, wearing a union button and openly distributing union literature at her work area in plain sight of Nash and other supervisors.
We are unable to perceive substantial evidence to support the Board’s conclusion that this conversation between Stambaugh and supervisor Nash on July 13, the Friday immediately preceding the election, was coercive and violated section 8(a)(1). The question itself contained no veiled threat or implication that the Company contemplated reprisals against union supporters.
SONIA SHAEFFER
A few days before the election, employee Shaeffer had a discussion with Michael McArthur, a company official, concerning personal matters. During the course of this conversation, McArthur asked Shaeffer what she thought the Union could get for her, and Shaeffer, who was wearing a union button, replied, “More money and some better benefits.” They continued for a few minutes to discuss different wage rates, the cost of living, and the unavailability of unemployment benefits to striking employees. Shaeffer testified that she and McArthur were friends, and that she openly engaged in various union activities.
The ALJ had difficulty characterizing McArthur’s question as an “interrogation.” Even if it were, he found that it was not coercive because it “occurred in the context of a personal discussion” about McArthur’s baby and the national economy. We agree. McArthur’s question is not inherently threatening or intimidating, and was asked in the course of a casual conversation that Shaeffer herself initiated. McArthur was not Shaeffer’s supervisor and did not even work on the same shift with her. Moreover, because Shaeffer was openly active on behalf of the Union, there is no reason to think that McArthur was trying to discover her personal views. As the ALJ observed, the circumstances of the conversation do not suggest any element of coercion or possibility of reprisal.
ROSA JONES
The final instance of purported unlawful interrogation occurred on July 18, when employee Jones was approached at her work station by her supervisor, Art Danfelt, who asked her how she felt about the Union. According to Jones’ testimony, she told Danfelt that she did not want to talk about it, and Danfelt assured her that nothing would happen to her if she did talk. Jones said that she thought the Union was “all right.” Danfelt left the area looking upset, returning a few minutes later to ask Jones if she thought the Union could get her more money. She answered that she did not know, and Danfelt observed that it was by no means certain that it could.
We fail to discern a coercive element in the interrogation of employee Jones by her supervisor Danfelt. Even assuming that the casual inquiry into Jones’ feelings about the Union can be described as “interrogation,” the circumstances surrounding the questioning simply do not spell coercive activity. The discussion took place at Jones’ work station. Again, Dan-felt was not a high official in the Company. He conveyed no direct or implied threat or warning to Jones, nor was the question asked in the context of unlawful threats to other employees.
In deciding whether questioning in individual cases amounts to the type of coercive interrogation that section 8(a)(1) proscribes, one must remember two general points. Because production supervisors and employees often work closely together, one can expect that during the course of the workday they will discuss a range of subjects of mutual interest, including ongoing unionization efforts. To hold that any instance of casual questioning concerning union sympathies violates the Act ignores the realities of the workplace. Moreover, as the United States Supreme Court recognized in NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), the First Amendment permits employers to communicate with their employees concerning an ongoing union organizing campaign “so long as the communications do not contain a threat of reprisal or force or promise of benefit.” Id. at 618, 89 S.Ct. at 1942. This right is recognized in section 8(c) of the Act. If section 8(a)(1) of the Act deprived the employers of any right to ask non-coercive questions of their employees during such a campaign, the Act would- directly collide with the Constitution. What the Act proscribes is only those instances of true “interrogation” which tend to interfere with the employees’ right to organize. The Board has gone much further here.
B.
The Union also charged the Company with attempting to interfere with the distribution of union literature. Employee Jill Strayer testified that on July 18, shortly before her shift was due to start, she was handing out literature in the company parking lot. According to Strayer’s testimony, when Michael Lehr drove into the parking lot, he approached her and told her to “get the hell off” the parking lot and that she was not allowed “to hand junk out on company property.” Strayer answered that she had a right to distribute the literature, and Lehr told her to move to the railroad tracks near the plant entrance. Strayer complied with this instruction, and resumed her distribution of handbills to employees reporting for work at the plant entrance. The ALJ found that from the railroad tracks near the plant entrance Strayer actually was able to communicate with more employees than she could have from her position in the parking lot. When her shift commenced, she entered the plant and there distributed a few more leaflets to employees.
The Board held that Graham violated the Act by its attempt to interfere with the distribution of union literature by Strayer. The ALJ had recommended dismissal of this allegation, reasoning that by merely requiring Strayer to move to another location, the Company had not hindered her distribution of handbills to employees. The Board, in a conclusory fashion, stated that “employees have the right to solicit union support by handbilling during nonworktime while on their employer’s premises, and a violation of this right is not cured by the fact that an employer did not prohibit distribution on other occasions.”
Undoubtedly, employees have the right to distribute union literature in nonworking areas of the employer’s premises during nonwork periods. Employers may not interfere with this right except to the extent necessary to maintain production or discipline. See Eastex, Inc. v. NLRB, 437 U.S. 556, 570-72, 98 S.Ct. 2505, 2514-
The Board apparently takes the position that Strayer had a right to distribute literature wherever she pleased, and that any conduct by the Company intruding upon her choice of location is an interference which constitutes an unfair labor practice. We do not agree. The Tenth Circuit has refused to find a section 8(a)(1) violation where the incident of alleged interference with the distribution of literature was trivial and isolated. See NLRB v. First National Bank of Pueblo, 623 F.2d 686, 692 (10th Cir.1980).
III.
Although the ALJ concluded that the coercive interrogation involving two employees “[was] isolated and [too] minimal to warrant invalidating the election,” the Board thought, in view of its finding that there were other unfair labor practices, that a new election should be conducted among Graham’s employees and so ordered. The
The situation here, of course, is somewhat different from the ordinary ease, because the facts underlying the Board’s election order have already been considered by this court in reviewing the unfair labor practice findings. Therefore, considerations of efficiency and judicial economy seem to suggest that we review the election order as well. But we are powerless to do so because of the statutory restriction on our jurisdiction. We therefore agree with those circuits that, although reversing the Board on unfair labor practice determinations, have declined to review Board election orders issued in a consolidated proceeding and involving common facts.
IV.
In reviewing the Board’s cease and desist order in this case, we conclude that only two unfair labor practices were committed. They involved only two employees out of a unit of approximately 180 eligible voters. There is no evidence that their interrogation contaminated the rest of the bargaining unit. Under such circumstances, and in light of our decision, the Board may wish to give further consideration to whether a rerun election is required.
We affirm the Board’s findings that the Company violated section 8(a)(1) of the Act by its coercive interrogation of employees Diana Oberdick and David Reisinger. We enforce the Board’s order requiring the Company to cease and desist from unlawful conduct and to post proper notices only insofar as it is based on these violations. The Company’s petition to vacate the order directing a new election will be dismissed without prejudice for want of an appealable order. Each side to bear its own costs.
. The Union is District Lodge 98, International Association of Machinists and Aerospace Workers, AFL-CIO.
. Section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) (1976), makes it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of their rights, inter alia, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.
. See also NLRB v. Hasbro Indus., Inc., 672 F.2d 978, 985 (1st Cir.1982); Pioneer Natural Gas Co. v. NLRB, 662 F.2d 408, 415 (5th Cir.1981); Charge-Card Ass’n v. NLRB, 653 F.2d 272, 273 (6th Cir.1981); Midwest Stock Exch., Inc. v. NLRB, 635 F.2d 1255, 1267 (7th Cir.1980); Burns Elec. Security Serv., Inc. v. NLRB, 624 F.2d 403, 411 (2d Cir.1980).
. In Hedstrom Co. v. NLRB, 629 F.2d 305, 314-15 (3d Cir.1980) (in banc), cert. denied, 450 U.S. 996, 101 S.Ct. 1699, 68 L.Ed.2d 196 (1981), this court viewed the supervisor’s lack of assurances against reprisals and the lack of any valid reason for the inquiry as two factors indicative of coercion. Although these factors are also present here, they are outweighed by other circumstances indicating that the statement did not tend to restrain the employee. The inquiries in Hedstrom were made in an environment of serious unfair labor practices by the company. There was no such background behind the inquiry of Stambaugh. See Delco-Remy Div., General Motors Corp. v. NLRB, 596 F.2d 1295, 1311 (5th Cir.1979) (assurance of no reprisals unnecessary where it is apparent the interrogation is for an innocent purpose and the questions convey no veiled threat of reprisal).
. We believe the rationale of J.K. Electronics, Inc. d/b/a Wesco Elec. Co., 232 N.L.R.B. 479, 482 (1977) applies to this case. In Wesco, the Board found no violation of the Act because the supervisor withdrew the question into the employee’s union sentiments before the employee could answer. In the instant case, the Board distinguished Wesco on the ground that Nash “did not withdraw his question but simply conceded, when challenged, that Stambaugh was correct in saying she did not have to answer.” We fail to appreciate the significance to this distinction. The important point is that Nash clearly communicated to Stambaugh that she need not respond to the inquiry.
. See Midwest Stock Exch., Inc. v. NLRB, 635 F.2d 1255, 1268 (7th Cir.1980).
. In rejecting the ALJ’s findings, the Board stated that “an inquiry into an employee’s views toward a union, even in the context of assurances against reprisals, reasonably tends to interfere with the free exercise of an employee’s Section 7 rights.” To the extent this suggests the Board’s position is that an inquiry into an employee’s views is per se coercion and a showing of coerciveness is not required, we specifically held otherwise in K & K Gourmet Meats, supra.
. Regrettably, the conclusory nature of the Board’s opinion in this case makes it especially difficult for us to ascertain the basis for the Board’s findings that the inquiries to Stambaugh, Jones, and Shaeffer were coercive.
. In First National Bank of Pueblo, two high officials of the Company approached a union representative who was distributing union literature on the public street and confiscated a handbill. The court agreed with the ALJ that this was a “petty, momentary squabble” and rejected the Board’s conclusion that the incident constituted unlawful interference. The court noted “there was no showing that the incident precluded [the union] from distributing leaflets to all employees.” 623 F.2d at 692. Although counsel for the Board attempts to distinguish First National Bank of Pueblo from this case on the ground that the disputed incident in Pueblo occurred on public property, not on the employer’s premises, this actually makes the present case stronger for the employer.
. In Phillips, a supervisor attempted to prevent an employee from lawfully soliciting signatures on union authorization cards. When the employee protested that he was entitled to solicit during non-work periods, the supervisor instructed him to “cease and desist” until the supervisor could consult with higher management. A short time later, the employee was told that he could resume his solicitation of authorization cards during nonworking time. The Board found no violation of section 8(a)(1), observing that the initial blanket no-solicitation order was effectively cured by the retraction or that order a few hours later, and that pro-union employees solicited openly and without interference throughout the entire union campaign. 216 N.L.R.B. at 885.
. In its brief, counsel for the Board suggests that Lehr’s conduct might have had a chilling effect on Strayer’s willingness to distribute union literature “since she had reason to fear that Lehr’s interference might be repeated if she tried again—perhaps with more serious disciplinary consequences.” In view of the evidence that Strayer proceeded to distribute literature at the company entrance and that she and other employees freely distributed handbills without interference on numerous occasions, the General Counsel’s contention is baseless speculation.
. An employer aggrieved by the Board’s decision in a representation case may obtain judicial review only through a somewhat circuitous route. An order of the Board directing an election is not considered a final order and therefore is not appealable. NLRB v. International Brotherhood of Electrical Workers, 308 U.S. 413, 60 S.Ct. 306, 84 L.Ed. 354 (1940). Should the Union here win the rerun election and be certified as the bargaining representative of the employees, the Company may challenge the election order before the Board and refuse to bargain with the Union. If the Board finds that the Company has committed an unfair labor practice by refusing to bargain, the employer may then appeal this determination and can at that time raise any objections to the rerun election order. See Boire v. Greyhound Corp., 376 U.S. 473, 477, 84 S.Ct. 894, 896, 11 L.Ed.2d 849 (1964).
. The same position is taken by a prominent commentator. See D. Leslie, Cases and Materials on Labor Law 103 (1979).
. To the extent that the Ninth Circuit held otherwise in NLRB v. General Telephone Directory Co., 602 F.2d 912, 920 (9th Cir.1979), we decline to follow that case. Moreover, we note that General Telephone is of questionable authority in light of that circuit’s later statement in NLRB v. Marine World USA, 611 F.2d 1274, 1276 n. 3 (9th Cir.1980).