National Labor Relations Board v. Lenkurt Electric Company, Inc.

рroducts it sells. Atty., (argued), Burgoyne D. John August 29, On filed the Union1 Ordman, Counsel, Dominick Gen. Arnold representation petition the Board Counsel, Manoli, Mar- Associate Gen. L. seeking an election for certification Counsel, Mallet-Prevost, Asst. Gen. cel bargaining representative of 14 un- B., Atty., Burgoyne, N. R. L. D. John represented Publica- Hoffman, C.; Roy Washington, O. D. Department tions Production of Division Francisco, B., Director, L. R. N. San employees operated 83. These certain Cal., petitioner. for printing equipment produc- used Thelen, (argued), B. Frank Max Jr. duplication printed tion and of matter. Marrin, & Thelen, Morgan, Johnson of representation hearing, After a the Re- Deroy, & Van Bridges, Levy, Geffner gional Director ordered for the Board respon- Cal., Francisco, Bourg, for San that an election be held on October dent. rejec- 1966. The election resulted in a DUNIWAY, Before BROWNING tion of the Union vote of 7 *, District Judges, and TAYLOR Circuit challenged. being with two ballots Judge. thereafter labor Union filed an unfair charge objections conduct certain Company allegedly of the affected Judge: TAYLOR, District the outcome of the election. presently before case is This stated, Briefly Na- application the contentions of the upon the Court Union, (hereinaf- which the Board here seeks Board Relations tional Labor uphold, Board”) its imme are that weeks the two for ter “the enforcement * Printing Taylor, Pressmen Dis- International M. States No. Fred United Hon. America, by* Idaho, sitting Judge, North Union of and Assistants’ District trict designation. AFL-OIO. Vicinity Printing Press Francisco & San Assistants’ Union men Offset Workers & election, legal conclusions prior the mana the inferences and diately department, We printing one facts found.3 ger be drawn from the set Linka, conclude, hereafter for the made certain reasons Kenneth forth, department petition groups printing that the of the of the de- coerced should be enforcement its order which restrained free exercise nied. rights Na under Section law that It is established well Act, thereby vio tional Labor Relations lating opin right express has 8(a) (1) Act. The Section conse of unfavorable ions quences position Company that Linka’s takes may result which he believes per comment fair statements were predictions or from unionization. Such predictions of the missible opinions the Na not violations are protected unionization, under and are they have Act if tional Labor Relations 8(c) of the Act.2 Section pro in fact and reasonable basis some practice labor The unfair they are in fact vided that Compa charge objections to the and the opinions rather than veiled threats or hear ny’s for consolidated conduct were retalia part visit the of the examiner, ing con who a trial before employees in tory upon consequences the Company had committed cluded that the prevails. the union the event that practice otherwise no unfair or labor authoritative The recent and most acts, objectionable and recommended in L. found N. rule is enunciation complaint dismissed. be Co., Packing U.S. 395 R. B. Gissel v. reversed, finding pre 1918, 547 575, L.Ed.2d 23 89 S.Ct. Linka, by con election statements made (1969). Supreme there' set Court sidered in context which standards forth a clarification of the made, implied threat were constituted an impact determining of an be used in deprive Company its em that the employer’s pre-election statements. employ of certain benefits 619, stated, 89 S. Court rigid ment, impose more and would 1942: Ct. at working if the conditions Union bargaining rep employees’ commu- “Thus, elected as the is free to an reject any Board did not of his resentative. The nicate to his any findings the trial general and conclusions of or unionism about views examiner, particu- resolu it disturb his specific nor did views about of his witnesses, except credibility long union, tion the communica- lar so disagreed extent thаt the Board re- a ‘threat of not contain tions do 8(c) provides whole, that: 2. Section no record as a from the drawn any views, argument expressing given special weight “The the conclu be need thereof, opinion, or dissemination or examiner. Hawkins sions of the trial graphic, written, printed, 1966) ; (7th N.L.R.B., or whether Cir. F.2d 281 form, Cheney shall not constitute or visual v. N.L Lumber Co. California practice 1963). (9th .R.B., labor under evidence of an unfair Cir. 319 F.2d any provisions subchapter, accept of this basic facts free to The Board is expression credibility no if such contains threat of and to draw determinations reprisal promise or force or of benefit.” different from those inferences therefrom In examiner. such drawn trial cases, however, reviewing 3. The Board found no fault with thе fact- court will findings credibility carefully findings, ual resolutions of examine the Board’s examiner, overbearing calling but held that the witness in evidence testimony supported contrary Linka’s own to those of the Board ferences controlling. Board’s inference that Linka’s statements must be considered Jervis implicit N.L.R.B., Corp., constituted threat. We note that Bolivar Division v. disagreement (6th 1967) ; where a between the Board N.L.R.B. v. Cir. upon Telephone Corp., trial examiner does not turn Mt. Vernon questions upon credibility of fact or witnesses, upon the inferences to be promise arising prisal from or force or benefit.’ sources his outside volition prediction may as to He make a This even would not be a retal- control. iatory threat, precise improper union- hе believes effects but would be an company. ization will have on restraint L. R. B. nevertheless. N. v. C. Co., case, however, (1st J. Pearson such a 420 F.2d 695 1969). Thus, carefully phrased employer may basis an im- must employ- pliedly convey retaliatory objective consequences an threaten fact demonstrably probable control, may he, within his nor er’s belief as an imagination beyond or to consequences his control excess under already guise management prediction, hobgoblin convey decision fabricate ease of at to his control close the outside arrived no Textile Workers have basis in See fact. unionization. Darlington Mfg. U.S. premises mind, With these basic we 994,. 13 L.Ed.2d 85 S.Ct. n. turn Company’s to an evaluation of the implica- any (1965). If there communications tо its may may tion that instant case. The record reflects that solely initiative own on his take action printing his conversations with the de- ne- unrelated economic for reasons partment employees, suggested Linka him, only to and known cessities unionize, if the were to longer a reasonable no statement possible regi- it was that a strict more facts on available based working mentation of hours would be on misre- based a threat of retaliation implemented. explained He that under coercion, such presentation and as and present working company conditions, protection the First of without policy respect breaks, with to coffee agree with therefore Amendment. We lunch hours and conversation while ‘[conveyance of that the court below working fairly had been casual in the though belief, employer’s even printing department, in while the union- may sincere, will unionization that departments plant ized of the em- closing plant of is in the result ployees strictly were controlled to cof- unless, which of fact a statement general breaks, fee lunch hours and at- eventuality of improbable, most Linka tention to their further labors. closing proof.’ capable employees explained were elsewhere, an em- stated As unionized, of their com- and basis only ployer he to tell ‘what is free salary changed monthly pensation from likely reasonably believes will be the hourly rates were the basis which consequences of unionization economic cоmpensation of other union for control,’ that are outside his ployees plant, more strict ob- in the reprisal to be ‘threats of economic working proba- time would servance solely on his N. taken own volition.’ bly were observations result. These Togs, Inc., L. R. B. River largely observa- on Linka’s own based (C.A.2d 1967).” 198, 202 employees in the tions when other gone an had hour- were unionized and opinion read this estab We ly compensation. basis of lishing by two standards which an em working suggested ployer’s objectionable. may utterances Linka further might may appears more difficult It be made clear that an conditions Company by not make indicate that unionization because which operating will, might costs he for his seek to reduce his own volition and using paper in the еxpensive reasons, stock conse less own inflict adverse explained that printing department. quences upon employees if union He his usually worked is chosen. constitute a while the This would paper, if it were Also, “premium stock” threat an of retaliation. prob- may not, necessary he would reduce costs basis the absence of a factual stock, quality therefor, ably which lower predict introduce adverse might oper- problems retaliatory Company. cause more action determining of the ators machines. various whether com- permissible argu- constitute munications meetings, In the course of the Linka prohibited threats, ment or the state- also stated that leave other sick ments must considered the context fringe benеfits, particularly compa- background they of the factual in which working ny’s policy providing smocks made, totality were view the laundry employees, service conduct. N. L. v. Vir- B.R. changed by might be unionization. ginia Electric & Power leave, respect to sick Linka ex- With ; (1941) 62 ‍‌​​​​‌‌‌‌​‌‌‌‌‌​​‌​​​‌​‌​​‌​‌​‌​​‌‌​‌‌‌‌​‌​​​​​‌‍S.Ct. L.Ed. hearing plained at the Mallory B., P. R. & Co. N. L. R. understanding employees with the F.2d 704 The record International Electrical Brotherhood background reveals no antiunion ani- Union, represented most Workers part Company onmus of the nor on plant, did not of the in the part Virtually em Linka. all the get paid if did not come to work. respondent Company discontinuing possibility of the laun- already represented by bargaining dry working service and smocks was representatives except supervisory and necеssary potentially described as to re- professional personnel printing and the competitive.” duce costs to “remain department, nothing and there is what an unfair also found labor ever the record to indicate that practice in fe- Linka’s statements two Company adamantly opposed to the male that their to the effect advent of the Pressmen’s Union. experience operat- lack of ing diversified clearly record shows that Linka had been printing machines work friendly terms with the disadvantage of union- in the event printing department, a un had been appears It ization. these women past, ion member in the and had known ability print shop had limited printing employees in most of the operate only or two of could one thе ma- Moreover, department years. for some policy company chines. It had in been persuasive Compa the record is that the past, the when these machines broke ny any studiously and Linka avoided slack, or when to move down work was campaign against the the union until departments these women to in the other election, preceding last two weeks the day. plant in order to fill out their work that the had on themselves Linka told that from his these women approached Linka of several occasions shops, observation of union unions were their own on accord to obtain his views temporary adverse to transfer of em- prospective unionization, the and that primary depart- outside their held, meetings part, in least ment, print and in event response requests by the em shop were and work slow unionized was record, ployees. the basis of the we On printing department, Compa- in the implied are there no convinced that ny might be to send these women unable by expressed of threat retaliation departments out to work other or- Linka, that his were at but statements day’s der obtain a time. Linka full predictions possible most tages disadvan of might pointed further nec- out that which arise from economic essary, if these were unable to women necessity of demands or because union lay departments, in other them work policies. or union Don Beachcom The during temporarily periods off those B., (9th v. R. ber L. N. to work in the when were unable 1968); R. B. Sun department. Cir. N. L. v. Sonora printing Sales, Inc., (9th dry 399 F.2d 930 Cir. contrary find, We 1968); R. v. N. B. TRW-Semiconduc L. nothing by expressions Board; in these 1967); Inc., (9th tors, F.2d 753 Cir. Company’s supervisor to constitute Inc., express implied Engineers, of N. L. Laars threat B. v. either R. 1964); (9th limitations we have heretofore set forth. Automation F.2d 664 Cir. Workers, Division, Linn The Bendix v. United Plant Guard & Measurement (6th B., L. Corp. F.2d 141 R. N. v. L. Corp., (1966); 1968); Ed.2d v. L. R. B. L. R. B. v. Golub Cir. N. N. 1967); Inc., TRW-Semieonductors, supra. (2d Mal- The R. P. 388 F.2d 921 B., supra. speech lory Co., exercise of free cam v. L. R. & Inc. N. paigns unduly restricted should of question There remains highly It is de narrow construction. by Linka predictions made whether in a sirable that involved We any fact.” had “basis campaign of union should hear all sides factual such a there was conclude question they may ex order The predictions made. for all the basis ercise the informed and reasoned choice eliminаting suggested necessity of right. Corporation is their Colonial using laundry and of service smock and B., L. v. N. 427 F.2d 302 R. out grade paper of stock arose a lower 1970); B. L. TRW-Semiconduc N. R. higher wage The anticipated costs. of supra; tors, Inc., Mallory R. & P. Co. giv campaign, had, part as of its Union B., supra. N. L. The of R. statements copy cur the then of en the justify Linka do not the strained inter Local rent contract for the Pressmen’s Board, pretation given them clearly such No. indicated protection were within of free Company’s increase a contract would provisions speech of the First Amend regarding sick costs. The statements ment, 8(c) implemented by as of Section accounting em leave and more strict the National Labor L. Relations Act. N. primarily on ployees’ based time were supra. Engineers, Inc., B.R. v. Laars unions prior other union contracts ‍‌​​​​‌‌‌‌​‌‌‌‌‌​​‌​​​‌​‌​​‌​‌​‌​​‌‌​‌‌‌‌​‌​​​​​‌‍with petition for enforcement experi plant, and on Linka’s own Board’s order is denied. of the results ence observations predict organizations.4 prior union BROWNING, Judge (dissent- Circuit transferring difficulty in ed ing) : among departments was based majority per has undertaken prior experience member a union own namely, form function of the Board: shop and on his observations employees’ the accommodation operations On printing in the area.5 right association and record, hold that each this we right communication, and, part challenged founded task, impact the evaluation of the objective facts, and that upon employees particular were, the all under Linka advanced particular management- in a statements demonstrably probable circumstances, discharging the In labor context. might anticipated consequences be moreover, majority function, Board’s the of unionization. as result pro to afford has failed Supreme employer-state and this cir Court tection from coercive principle that Packing cuit are committed ments mandated Co. Gissel campaigns 616-620, B., should 575, in union 89 debate L. 395 v. R. N. U.S. uninhibited, subject vigorous 1918, (1969). to Ct. 23 L.Ed.2d S. 547 employer’s predictions interdepartmental objection to relate Where an trans to such likely permissible predic to be- which are occur to fers held was activity, proper N.L.R.B., Suprenant Mfg. union for cause of in Co. v. tion prediction opinion 1965). also, (6th him to base F.2d Cf. 341 756 Cir. personal past experiences, Mfg. N.L.R.B., events or v. Russell-Newman Co. truthfully depicted. 1966), pre (5th P. R. Mal- these are lory where 370 F.2d 980 Cir. supra, N.L.R.B., at & v. 389 F.2d Co. to diction that have 707, pol voluntary n. 2. its make-work discontinue upheld during was icies slow seasons argument. permissible 5. Similar adverse conse- quences employees arising out

1109 findings within I Labor “carry au specialized field Board’s Accommodating right employer’s thority do expertness which courts of an speak right employees’ with the to as- respect.” possess and therefore must presents problems. sociate troublesome B., Corp. R. v. N. L. Camera Universal The balance has shifted often as Con- 465, 474, 488, 456, 95 71 340 U.S. S.Ct. gress, Board, and the courts have (1951). determination 456 L.Ed. adjusted changing values and condi- category. challеnged “ in this here falls relationships. tions industrial-labor recognize reviewing must court [A] Initially, required employ- the Board competence first instance in the Board’s neutrality. ers to maintain strict “This impact judge made of utterances approach based on the belief that an employer-employee in the context of the employer’s di- could not be Gissel, supra, at relationship.” 395 U.S. position vorced from his of economic expertise 620, 1943.1 “[T]he 89 at power employees, over his so no matter particularly relevant of the Board speech itself, how innocent the em- a latent of whether the determination pressure would be under to fol- hidden the words threat lies express employ- low the desire of Towing, Inc. v. employer.” Mon River Employer’s er.” Restrictions (3d 1, B., 9 Cir. 421 F.2d N. L. R. Right During Speech Organiz- of Free 1969) R. B. v. General . also L. See N. ing Campaigns Bargain- and Collective 297, Co., F.2d Electronics 401 Industries ing, 40, (1968). 43-44 Nw.U.L.Rev. 1968); Lin (8th Dubin-Haskell Cir. “The Board reasoned that the choice of 568, B., ing Corp. L. v. N. R. bargaining representative 1967); (4th Daniel Construc Cir. concern, workers’ exclusive which the 805, B., R. tion Co. N. L. v. employer had no more interest than Corp. (4th 1965); N. Conolon Cir. cf. participating would have (9th 324, B., 327-28 L. R. 431 F.2d company’s the choice of the of di- board 1970) . Bok, rectors.” Cox Law Cases & Labor Board’s But if it were within (7th 1969). and Materials 170 ed. competence whether special to determine the decision N. L. B.R. implied conveyed an Linka’s statements Virginia & Power Electric U.S. im- employees, still be threat it would required 62 S.Ct. 86 L.Ed. 348 reviewing displace proper court recоgnition First fairly two the Board’s “choice between right speech. Amendment of free That though conflicting views, court even ruling assumption “abolished justifiably a different made have expres- employer’s position made his it de had matter been before choice organizing sions context coercive supra, Corp., novo.” Universal Camera se,” per Nw.U.L.Rev., supra at 44. 465; at Su- 71 S.Ct. regulate employer The Board could still Manufacturing R. prenant N. Co. v. L. speech, only part totality of a B., 341 F.2d activities “restrain Redwood B. v. Miller also N. R. See L. in his free coerce Co., 1366, 1369 407 477, at choice.” 62 U.S. S.Ct. and the the law A brief consideration 348. that, at a mini- demonstrate facts will mum, a choice 1947, Congress Board made such In reaffirmed the em- instance, choice the right not ployer’s this albeit to comment on union or- prefers. majority ganizational by adding efforts section 157, employer language 1. In NLRB v. Sinclair an has used “Whether (1st 1968), question one of the three con is coercive in its effect is a disposed experience essentially specialized Gissel solidated cases for the Appeals said, opinion, the Court of the Board.” indulge pre- great leeway 8(c) in dire Labor Relations ers to to the National to dissuade the Plant Guard dictions order Act. Linn v. United See America, 114, supporting union.” from Local Workers Bok, Regulations Campaign 53, 62, Tac- L.Ed.2d 582 by early National La- (1966). “the tics in under the Elections And 1950’s Act, greater give began to Relations Harv.L.Rev. latitude bor * * (1964).2 trend employer speeches A though amelio- that continued thereafter complaints. There were other changes in Board rated somewhat point diffi- was made that it was membership subsequent & Cox prohibition cult administer Bok, supra at exaggeration against fabrication or 1960’s, During period imme- this unionization, consequences —the economic diately preceding decision Gissel such a of busi- shutdown loss among Bok, and Dean —Professor Cox ness, factors involved were because the others, suggested prevailing conflicting, specula- complex, often employer (which prohibited rule tive, generally ultimate decision during organizational cam- “threats” subjective judgment. “As a a matter of result, “predictions”) paigns, permitted un- rarely disprove the Board could duly free exercise of inhibited the employеr’s predictions,” the unjustifiable without an right employees’ Professor to associate. agency expenditure of re- wrote, Cox “The lower value which Harv.L.Rev., supra sources. 78 at 81. puts upon of asso- freedom NLRB now argued It was that the rule that “total employer the notion that an ciation and context” determines whether defeating legitimate a a interest has “places un- statements are coercive both increasing the latitude union led to have employers position ions and in a of un- employers of free in the name allowed speech certainty may properly as to what point law- a clever where during pre-election campaign,” said yer readily an how can show ‍‌​​​​‌‌‌‌​‌‌‌‌‌​​‌​​​‌​‌​​‌​‌​‌​​‌‌​‌‌‌‌​‌​​​​​‌‍for “definite there was a need with- threaten coerce Totality guidelines.” Cuneo, NLRB’s proceedings. An em- fear of NLRB out Theory Representation Elec- Conduct lawfully re- ployer may ‘threaten’ Ap- tions in Its and Problems Involved wages plant if or close duce plication, Duquesne L.Rev. may ‘predict’ organized but he (1968). 242, 244 things happen.” Cox, Law will Policy 42-43 Labor and the National II principle, (1960). Dean Bok: “In And enough, policy for when was sound opinion The section of the Gissel simply pointed ad- out the employer-speech with the issue is deals lawfully verse apparent re- effort to restate and provided the unionization he result from governing meet structure complaints doctrine to information that Although kind.3 this clearly pertinent to the decision adopted by remedies the Court were prаctice, upon make. were called invariably suggested critics, those however, gave employ- policy hostile appli- seems demonstrable that the “[i]t point speaker justi- ordinary 2. Both writers made the him from the employee dependence con- special right economic fies limitations on his (70). ditioned his reaction to communicate” “Arguments Professor Cox: words. speaker’s strong course, desire which disclose the 3. Of was aware of the Court wholly appeal if the legal publications an to reason are not relevant literature. power” (42). speaker’s in the listener is and Dean referred of Professor Cox Bok power opin- that [the Bok: It is “the Dean are cited in to text the Gissel employer] ion, livelihood of his holds over the see at 620 n. 89 * * * distinguishes employees which S.Ct. 1918.

lili ’ (617, by governing employer speech a ear 89 more disinterested cable rules recogni- 1942). greatly that case.” A vote union altered S.Ct. have been comparable Suppression Sachs, of tion is not to election of “the Browne & legisla- legislators Employer Speech of Ban the enactment New Free —A * * Overstatements,” independent and a Ca- tion the where “Conscious objec- Against Brinksmanship, may Vill.L. voter be freer to listen more veat tively (1970). employers a class freer to as Rev. (618, 1942). talk” 89 S.Ct. emphasized that Gissel It should be specific formulated The Court then express threat re- an of did not involve evaluating impact of for the standards taliatory is overt coercion action —such еmployer during union a statements Sinclair, employ- Indeed, rare Mr. organizational campaign. he er, employees that his had assured freely employer may “his in retaliation An state not close the “would general voting any employees for a union.” of views unionism or about Vill.L.Rev., supra question specific particular his views about whether, case, Gissel, general subject only in this union” as statu- threat, express tory reprisal despite an interdiction of “threat of absence reasonably (618, promise conclude that could or force or the Board of benefit” 1942). employer’s would be un- S.Ct. employees not as bona derstood however, applies, A standard stricter predictions conse- economic fide employer’s “prediction to an as to manage- beyond quences of unionization precise effects he believes unionization control, purported to ment’s (IbidO. company” will have on his reality, rather, be, notice of as good And for As Professor Cox reason. might management changes choose out, pointed and Dean had an em- Bok employees un- to chose make working ployer’s forecast as to future ion. conditions of busi- his own ness the event unionization outset, rejected any no- At the Gissel message ready conveying vehicle for organizational during tion that an cam- to deal does care paign confront is free to union, with the and that if his “uninhibited, ro- his ployees unappreciative are as to com- so appropriate open” speech bust and wide pel so, likely him to return to do he is contrary, “in in other contexts. On the Accordingly, risk unkindness. organiza- nascent union of a context high an will understand drive,” held, “employers tional the Court changes employer’s of such waging their anti- must be careful bring them a threat about. (395 campaign” U.S. S.Ct. 1941). rights employer’s cannot the Court devised The standard “[A]n outweigh rights equal employer predictions of the em- to assure that * * freely *. unionization associate adverse rights any balancing carry implication must of retal- And of those an depend- prediction must be take into account economic iation is this: “The objec- employ- carefully phrased on the ence of the on their basis tendency convey ers, necessary belief faсt tive former, relationship, demonstrably probable conse- because (618, pick up implications beyond quences of the lat- control” intended readily 1942).5 ter dismissed be more Inc., Packers, “Today engages Bros., seldom NLRB v. Neuhoff Nowadays flagrant crude, derelictions. usually subtlety, per- it is a case of more convey certainly added, effective, haps a man- “or to the more 5. The Court already legal agement likely escape arrived at more condemnation.” decision joy benefits, present and employer’s sick leave fore- By requiring that the paid facts,” time was lost would not be when “objective upon cast be based due to Linka also admitted predicted appears sickness. it from which telling employees, Birt- and twо Brown “demonstrably probable conse- is a event well, could unionization, that their limited abilities that is and one quence” of disqualify control,” in a union them for work employer’s] “beyond [the shop, came largely because when the Union clear, Court established in, employees operate virtually per- would have that a assure criteria presses, not all could those who the bona prediction reflect will mitted operators regarding replaced by other be judgment of the fide addition, from the union In Lin- It hall. unionization itself. the effects Respon- ka told Birtwell that implicit if an in Gissel her, dent to rehire but found criteria wanted these not meet does people hiring at the hall could do im- who a coercive have that will the risk work, jus- high rehired better she would be upon employees as to pact is so pension.” her mak- would forfeit from tify prohibiting the (Footnotes omitted.) ing it. re- imposed additional one The Court Board noted that the statements employer predictions upon striction —one or were made at a of a dozen so series they rather than substance: of form during meetings held in Linka’s office * * * phrased “carefully must be period immediately preced- the two-week convey employer’s in terms belief” ing meeting at- Each was election. purpose of criteria. the substantive tended employees or fourteen three four requirement is to assure this employee of the unit—each know that hearer will meetings. attending As or three four prediction and statement is bona fide оbserved, “systematic inter- threat, considera- for the critical not a purpose exposing views for the upon impact of the tion statement propaganda not dis- antiunion employees. by Linka similar conducted those inherently held have been coercive Ill setting grounds an election.” aside Although deci- The Board the Board did rest its summarized the circumstances, Linka, supervisor, upon employees’ it did sion rely noting challenged case, upon them, that “evaluation in this as follows: requires considera- of Linka’s remarks directly them, told either “[H]e they tion of the context which implication, they clear that if selected made.” The Board continued: Union, their coffee breaks tightly import con- lunch would clear his statements hours “The conсerning during breaks, peri- trolled, conversations coffee lunch working restricted, leave, jobs, ods, possible would sick loss of hours stop providing regimentation, etc., present Respondent would endangered laundry for em- di- service benefits would be smocks ployees, grade and would run lesser minished advent the Un- with the stocks, paper oper- Coming make which would from Linka who had been ion. ating by Respondent years presses employed difficult. more for 15 manager addition, told unit in Linka shop not en- under a union election these refer- was directed Citing Corp., close the in case of unionization. General N.L.R.B. Shoe Mfg. Darlington 499, 501-02; Machinery, See Textile Economic Workers Co., 263, 274, 947; n. The Great Atlantic & N.L.R.B. provide (1965),” to 134- 13 L.Ed.2d 827 Pacific Tea 140 N.L.R.B. special with in the for the situation dealt сited case. concerning steps employees. enees that could be precisely These are the by management taken event the the sort of forecasts that would quite Union was certified would natu- describing changes understand man- great rally given weight by agement be em- the itself impose intended to if the ployees. Accordingly, they whether be union won.7 predictions expressions viewed as question is whether the Board upon experience based Linka’s with reasonably could conclude that unions, his statements were reflective stated in terms of facts Respondent in a restrictions was sufficient pre- demonstrate the position if to invoke dicted probable events were conse- designated ‘It the Union. is well set- quences beyond of uniоnization the em- employer’s “prediction” tled that an ployer’s negative control and thus may consti- untoward economic events natural inference of retalia- illegal tute an has it with- threat if he tion. prediction power make likely import come true.’ And ‘the A. respondent’s pronouncements was prediction Linka’s “possibly coercive,’ and calculated to dissuade sick leave would changed, supporting the from Union breaks, as far as coffee hour, regi- lunch impact election, impending mentation of shop, that would be en- upon repeated threats em- of Linka’s forced,” upon was based “what I had ob- ployee freedom of cannot choice Building served down in compa- 4” —the dismissed as isolated because ny’s factory unit, main employing union- by anti- shown to have been motivated ized leave, As to sick labor. Linka add- Accordingly, find we animus. ed, arrangement “[T]he had been that * * * * * * Respondent up department manager’s dis- 8(a) (1) Act.” violated of the Section * * * approve cretion a leave of (Footnotes omitted.) up days pay. My absence to five with understanding Linka’s remarks This evaluation of of the Union was record, particu- you you get a rational choice on didn’t come to work didn’t light larly subsequent paid decision for it.” Linka testified that re- ferring Gissel. “the Union” he meant IBEW, represented bulk challenged predicted factory Company unit workers. The de- the union would make certain underlying asserts that factual basis them, mands, grant company would of these wаs that the Press- impose granting demands would Union,8 here, nego- men’s involved hardships upon had who changing tiate a contract the basis of represent All chosen the union to them. pay monthly salary hourly from to an predicted hardships related scale, inas the IBEW contract. employer’s control— within matters rules, rigid working out, points sample As the Board enforcement leave, inferior elimination of sick use of contract the Pressmen’s Union cir- sup- materials, provide hourly of free culated did not raw curtailment scale plies weekly salary and, further, furnished but a it did services rehiring discharge provide ployees, and the sick Faced leave. Drilling NLRB, Varo, Inc., 293, (5th See 425 F.2d Fe Co. v. Cir. Santa 1969); (9th NLRB Cir. (5th Dow Chem. 420 F.2d Vicinity Printing Francisco & Press- San Inc., 1969) ; Mink-Dayton, NLRB Cir. men, Offset Workers & Assistants’ Union (6th 1969) ; 328-329 Printing No. International Pressmen Wylie Mfg. Co., NLRB ‍‌​​​​‌‌‌‌​‌‌‌‌‌​​‌​​​‌​‌​​‌​‌​‌​​‌‌​‌‌‌‌​‌​​​​​‌‍v. 417 F.2d America, North Assistants’ Union of 1969) ; NLRB v. 194-195 AFL-CIO. ing upon

patent “competitive” as- inconsistencies between the conditions company required that the meet. serted for Linka’s basis obviously facts, the most employees relevant naturally that infer would C. changes predicted was of real cause most Linka’s serious was manage- retaliatory a decision to and Brown Britwell conjectured Moreover, if even ment. jobs would lose their if won. pay change hourly had been scale to testimony Linka’s as to these statements consequence of demonstrably probable was as follows: Company’s beyond con- unionization explaining “In to this [Wanda] change why trol, explained this no one Birtwell, I told Brown [Eleanor] compel of elimination in turn would they specialized I them that felt were of em- introduction sick leave plant they If could what do. regimentation. ployee go op- to were union and I needed an U.S. which there strate that pany’s mands would rent levels of income, areas.” predicted hardships quences company’s main fact, NLRB, and essary were befall them the event of unionization tions that fact Printing would demand ities was most service for the specificity, but the cause of those calam- eliminate ka said It could The reason Linka the record to demonstrate these economies then would sufficient use of meet at described with general competitive.” were, control. There was approached Finally supra, of unionization or from Union’s Mon River identified free that the higher permit costs. See handle, hardly escape more difficult for the he, there is income, terms. lower-grade paper substantially 89 S.Ct. work 421 F.2d there were company Linka, reduced costs labor costs demonstrate that B. hardships the leval of obtain yet only smocks and gave great precision and nothing Nothing Gissel, Towing, company unannounced beyond 1918. Even out of would vaguely probable little “could for his no higher enhance out that would facts bear- supra, to demon- the union anywhere increased that Lin- listening probably in other (3d shift laundry Inc. “to re- not, of cur- predic- wages conse- stock, com- nec- de- to probable, ment of fact the employer’s capable I wasn’t job laid off. would foreit her move her body probably * * * the Union that wasn’t an cases, being them. for go could. and I didn’t feel erator ‘Go * ion, and couldn't use her on another should * also principle closing ****** ^[******] was conceivable that bring unionization Gissel out to another ** ** any period home,’ or another if else explained slow down This is what things spot her back and we I proof.’ belief, do I would be jn thg * * * equipment out of the hall that one of these other hall and In “that unless, into another and I would have to call her eventuality with Lenkurt. more or less Supreme Wanda’s were hourly-type operation, will Gissel, supra, 395 ” job to [Eleanor Birtwell] event even is not a plant they ‘[conveyance press if time and she job and we wanted get somebody who pension if a little compelled slow hers, though there could Court I may and Eleanor’s she explained found some- is most at Lenkurt department or couldn’t better, specialized closing the work operate would be result operated, approved presses, sincere, to would state- there a un- say, im- she it 618-619, at at U.S. S.Ct. 1942. particularly employees are noted that Court America, UNITED STATES clo to threats Appellee, sensitive Ibid, 619-620, sure. believe, would seem no reason There BROWN, Stephen Appellant. Ernest however, equally are No. 26352. employ of loss threats sensitive Appeals, United States Court case) (as in Birtwell’s loss ment Ninth Circuit. rights pension as well.9 Feb. nothing approaching Linka offered . predictions. Again,

proof while of these prophesied Linka was clear the evil justification specific, factual vague general. company suggests in- that Linka thought cоnvey

tended

Printing permit its Union would not presses

ployee to other members to shift printing jobs toor odd

within the unit departments. It would seem other repre-

improbable that a union elected to fourteen in one de-

sent small having

partment company of a a 3500- impose either

man work force would sug- company does not condition.10 The

gest sample contract circulated ‍‌​​​​‌‌‌‌​‌‌‌‌‌​​‌​​​‌​‌​​‌​‌​‌​​‌‌​‌‌‌‌​‌​​​​​‌‍Printing purported to do Union

so. again, simply point, insufficiently

Linka’s statements were by objective facts,

supported rather the Board could conclude that be- of this lack of factual cause Kilkenny, Judge Circuit dissented support tenden- there would a natural opinion. and filed cy take state- for the ments as a threat.

Finally, company, nor the neither the

majority, attempts justify Linka’s

final that Birtwell would not company

be rehired found someone “a little

else better.”

The Board’s order should enforced. bargaining appears 9. Eleanor Birtwell was 56 She collective contract eligible plantwide, including benefits under become to have been a num company’s pension plan departments, at 62. ber and to have contained provisions restricting interdepartmental Suprenant Mfg. NLRB, 759; transfers. Co. v. 144 N.L. upon 1965), relied R.B. at 513-14. 759-760 contrary. company, is not

Case Details

Case Name: National Labor Relations Board v. Lenkurt Electric Company, Inc.

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Apr 2, 1971

Citation: 438 F.2d 1102

Docket Number: 24035

Court Abbreviation: 9th Cir.