Trw-United Greenfield Division, Petitioner-Cross-Respondent v. National Labor Relations Board, Respondent-Cross-Petitioner

410 liability given if been advance notice of his care there are to act he doesn’t

cides Indeed, according by avoid it to such a search so he can witnesses. numerous far, pre- he pattern developed thus to travel air. choosing not because each one many possible as as fers 1272, Skipwith, F.2d United v. 482 States from potential hostage to shield him is a (5th 1973), quoting, 1276 United States Cir. be he can flown to apprehension until 667, Bell, 1972) (2d 675 v. 464 F.2d Cir. sanctuary place or conceal- political J., concurring); (Friendly, United See jeopardize Obviously, in order ment. 496, Edwards, (2d 498 F.2d States v. safety of the smallest num- the lives and J.). 1974) (Friendly, Cir. hijacker dis- people, the must be ber of bag plastic When Mrs. Ellis extracted dangerous is least covered when he it luggage plain in view from Wehrli’s was expects least confron- others and when he Coolidge Hamp agent. of the DEA v. New practical police. with In terms tation 2022, shire, 443, 464-473, 91 S.Ct. U.S. ground still on this means while he is 2037-42, (1970). According 29 L.Ed.2d any before taken overt action. he has admitted and ly, properly cocaine was Moreno, F.2d v. 48-49 United States is Wehrli’s conviction in, Fave, 1973), La (5th quoted Cir. Search AFFIRMED. Seizure, 10.6, 329-30 holding to our important It is also scope;

Mrs. Ellis’ search was reasonable in range beyond reasonably an area

it did dangers safety. to air

calculated discover Skipwith we :

As observed range variety real and of devices used to intimidate

simulated which can be the crew of aircraft when it is aloft TRW-UNITED GREENFIELD airport security almost limitless. DIVISION, has alert for all of them. officer to be Petitioner-Cross-Respondent, justified in un- Rodruguez Marshal was v. dertaking scope with search sufficient instrumentality object reveal or any NATIONAL LABOR RELATIONS reasonably Skipwith have used BOARD, piracy. effect an air act of Respondent-Cross-Petitioner. Mrs. task to 482 F.2d at 1277. It was Ellis’ No. 79-3456. bag sky- insure that was devoid of Wehrli’s Appeals, United States Court of myriad jacking weapons. of de- Given Fifth Circuit. safety, anything vices which air threaten bag of Wehrli’s thorough less than search Feb. incomplete. dangerously would have been 24, 1981. Denied Rehearing March sum, we panel Skipwith, In as did agreement Judge find ourselves in with

Friendly: jeopardy

When the to hun- risk is

dreds of human lives and millions of dol- property pirating inherent

lars airplane, blowing up large of a

or

danger alone the test of reasona- meets

bleness, long so as the search conducted purpose prevent- good faith for the damage

ing hijacking like passenger has scope

reasonable Smith, F.

Constangy, Brooks & James Edwards, Smith, Charles Lovic A. A. Brooks, III, Ga., Atlanta, for petitioner- cross-respondent. Lubbers, Counsel, A. John

William Gen. Jr., Counsel, E. El- Higgins, Deputy Gen. Moore, Counsel, Deputy liott Associate Gen. Allen, Acting E. Robert Associate Gen. Sewell, Dolin, Counsel, Robert L. G. Susan N.L.R.B., C., respon- D. Washington, for dent-cross-petitioner. Mack, Director, Region-10, L. N.L.

Curtis R.B., Atlanta, Ga., par- other interested ty- Giolito,

Stanford, Fagan Morgan C. & Stanford, Jr., Atlanta, Ga., Fagan, James D. for intervenor International et al. (UAW). HENDERSON, POLITZ,

Before WILLIAMS, Judges. Circuit WILLIAMS, Judge; Circuit JERRE S. (“the TRW-United Division Greenfield review, petitions for Company”) cross-peti- Labor Relations Board National enforcement, an tions for order of Board, adopting No. 245 N.L.R.B. 18,1977, petitioned conclusions of the Administra- October the Board findings and for a Judge that TRW-United violated representation tive Law election. The election was Labor Rela- 16,1977, of the National Section held on December and the employ- (1976), Act, seq. et against represen- U.S.C. ees voted tions 354 to among efforts TRW- during unionization tation. Evans, Georgia its employees

United’s During prior the three months plant. The Board found that the election, both the and the Union practices by coer- committed unfair labor campaign bombarded the cively interrogating certain con- propaganda. engaged The Company in a employees’ un- cerning their own and other number of instances of conduct which the activities, soliciting to re- ion Judge Administrative Law and the Board port employ- of other the union activities practices found unfair constituted labor ees, threatening with loss of subject petition which are the closure, jobs, promotions, plant and a loss cross-petition before this Court. if regressive bargaining posture they union- describing In these activities chronolog- Union, ized. The International United ically, eliminating we are some instances of Automobile, Aerospace Agricultural interrogation which the Board found coer- America, Workers of UAW Implement may cive but which not meet the substan- (“the Union”) to seek denial has intervened instances, tial evidence test. There are two Company’s petition and enforcement however, clearly which meet the test in our of the Board’s order. view, and we shall describe them and other question presented The review is chronological events related to them in our finding that the whether the Board’s Com- report. pany through violated of the Act October, Supervisor Around the first of solicitation, interrogation, coercive and the approached Archie Burke employee Milton making supported by of certain threats is Andrews at work Andrews’ station and substantial evidence on the record con- thought asked him what he about the Union sidered as a whole. supporting and what his reasons were for it. replied by alluding job security, Andrews I. management regarding employee access to The Facts problems, fringe and better benefits.1 Company corporation is an en- Ohio 7, On sent Company October a letter gaged manufacturing, in diversified employees part: to all of its which stated in plants throughout country. located know, you plant Plym- As all of our in Evans, This plant case involves its Geor- outh, Michigan and shut was closed down gia, engaged which is in the manufacture of permanently for economic reasons. The high speed cutting plant The Evans tools. plant UAW Union was in that and took 1974, operations commenced and at times money paychecks employ- from the employed material herein excess of 600 dues, charges. ees in fees and other employees. In January, the Union began organ- ^{[*] [*] [*] [*] [*] [*]} among izational activities attempting get Union is authoriza- meeting and ob- by conducting signed you tion cards which could commit taining signatures obligations on a number of autho- and liabilities that could temporary suspen- your job, your pay, rization cards. After a interfere with We, activity, your your sion of overt the Union resumed its life and future. home and, therefore, organization May you sign drive in a Union ask supervision Employee employ- Rela- each Pursuant to instructions from which indicated Manager Bailey, position campaign tions pervisor Jim each su- ee’s for that week. A plus support Company, throughout fall cam- for the maintained indicated and a paign weekly support under for the roster of the minus indicated Union. value” significant could be of “no the Union you and unless else until anything card employees. obligations exactly your what know you do. will be if liabilities pre- immediately two weeks During the election, Opera- November, ceding the December em- part of Around the first who Springstroh, Manager Roland in the office of tions was Milton Andrews ployee officer of the Evans operations chief Wyse in was Training Director Sam Safety and well as of two other plant as personal matter. section on personnel approximately a series of plants, An- conducted Wyse asked present, else no one With meetings with twenty employees in the drews what then from attempted to dissuade re- which he (Wyse). Andrews him thought about meetings, Spring- At these Wyse. unionization. not tell” that he “could plied text prepared from a made comments thought Andrews stroh asked Andrews then questions from then entertained respond- again Andrews about Union. meetings some of these employees. At each “nothing could tell” was ed that there [he] what would be employee would ask Andrews if he Wyse asked Wyse. Finally, negotiations in of contract report starting point meetings and in on union would sit point At this event of unionization. on.” An- going “was to him what back up sheet of would hold a blank anything Springstroh could not do replied that he drews conveniently always would be paper, like that. available, employees: and tell the Thanksgiving, Di- At some time before paper, sheet of start with a blank [W]e employee Willie Sut- Wyse instructed rector over here and us ... we have the union clock in ton, organizer, to a known Union that . .. here and we start from over in that he would be tell his foreman and paper] blank sheet of we’d start from [a a while. When Sutton Wyse’s office for starting would like we’d be ... it be office, told him that Wyse’s Wyse came to blank sheet of just scratch like this from Wyse about the Union. he wanted to talk paper. asked, know about the you “What do then me Union, . . . happening, what’s Springstroh if employee [T]ell When an asked not for something.” replied, away going my to take benefits “you’re “[I]t’s going on.” When you in, to tell what’s Springstroh me came me” if the Union from reply would any that;” that Wyse “No, assured Sutton say I not replied, did “[w]hen asked personal, Sutton be confidential and we bargaining table we sit down at the again to know. scratch, what he wanted nothing.” At another start from asked, replied happening?” Sutton said, “What’s saying “I’m not meeting, Springstroh employees the benefits, all he knew was that just saying that I’m any will lose you they they felt and that wanted a we, negotiators, sit down when me and the He also being properly. treated table, were not we will start off negotiating at the and better pay a need for more alluded to paper.” Springstroh of with a blank sheet by saying that Wyse responded leave. sick these employees told the at also could losing money and Company was go on for months or bargaining that could time, “things but that pay more at that that the indefinitely, gave no assurance then com- going get better.” are to bargain good would in faith. Company people quite a few mented that “there’s election, Employ- During the week of the meetings,” to Sut- been to the Bailey engaged Manager Jim ee Relations count heads.” replied, ton “I do not lengthy in a conver- employee Willie Sutton of In the course about the Union. Louis sation Supervisor December On about length discussion, Bailey spoke at Andrews at that employee Eldridge approached Company two other closings of present and about job one else was when no Detroit, Michigan, which had in plants, one signed a union card. him if he had asked Union, one in by the represented he was con- been that replied When Andrews unrepresented. had been Chicago, which act, told him that Eldridge sidering such an

415 plant (3) ties of management; the Detroit Bailey told Sutton employee plant for economic reasons in threatening been closed Sutton with had (the it, they Un- “they employees couldn’t afford closure if the unionized and also loss, business with ion) driving supporting ’em out of the for was Union; know, (4) it higher wages, you threatening was as a through outrageous asking jobs whole closure outrageous, they was and loss of in letter; Evans, Georgia (5) Referring threatening, its October things.” stated, if Bailey “[W]ell, Springstroh meetings, then and the plant, Leitner pay regressive those us out and didn’t want to take a stance sold just jeopardize wages, they existing close down write which would benefits if a tax loss.” unionized. it off as Tony Leit- Supervisor Company On December order Board’s directs the engaged in an informal discussion about interrogat- ner cease and from coercively desist group employees. with a ing the Union employees; threatening existing loss of benefits, When one asked Leitner closing plant, jobs, loss happen benefits if present would to their promotion, reprisals; loss of or other in, came replied, the Union Leitner soliciting employees report on the union “[W]e paper.” with a blank sheet of would start other employees. activities of The order employee, comment from the Leit- After a proscription gen- also includes usual by saying “they would ner continued forbidding eral terms from piece sit at the table with a blank with, down restraining, coercing interfering or its paper negotiate and would a contract. any like or related manner you get, maybe These the benefits of their rights guaranteed by exercise give want to of these up Act, union would some U.S.C. § and here are some more of these whatev- Affirmatively, the Board’s order directs er.” post appropriate notices. Finally, about the elec- days two before II. tion, Wyse approached Director at Sutton’s machine and told him The Unfair Labor Practices would like to on the that he have him 8(a)(1) of the National Labor Section said, Wyse side. then “[Y]ou Act, 158(a)(1) (1976), 29 Relations U.S.C. § go Company, you’ve got can with the places interfering with, prohibits employers from know, we are ability go places, you the in coercing restraining, process making things the better and of, alia, right their inter self-or exercise of you’ve got ability go places.” the Act, ganization under 7 of the 29 U.S.C. § election, losing determining 16 157 The test for After December § practice employer the Union filed unfair labor whether an has violated § charges objections.2 Agreeing employer’s and elections is questions, whether threats, Judge, coercive, with the Administrative Law with a or statements tend to be here, exceptions few minor not relevant not whether fact Forms, Sturgis Newport Board found that violated coerced. Bus. Inc. B., 1252, (1) engaging (5th 563 8(aXl) of the Act v. N. L. R. F.2d 1256 Cir. § 1977); interrogation describ- L. R. B. v. Huntsville Manufac coercive in the above N. 723, 1975). personnel Co., (5th 514 F.2d turing between 724 Cir. ed encounters Sutton, Andrews, presence and oth- The of coercive tendencies in a ers; (2) soliciting particular employer’s to at- instance of an conduct employee Andrews totality report light the activi- is to be determined in tend Union objections order consoli- in a final and thus are not before this 2. The Union’s election were Co., charges Manufacturing practice for Hendrix Inc. v. dated with unfair labor Court. See B., 100, 1963). (5th hearing purpose N. L. R. 321 F.2d 106 Cir. and determination. objection rulings election not result Board’s did 416 (6) whether employees’ reply; fulness of the particu in which that circumstances purpose in obtain R. has a valid employer occurred. N. L. of conduct

lar instance union; (7) Co., concerning the Bottling ing 613 information Coca Cola B. v. Laredo existent, denied, is purpose, if 1338, (5th 1980), cert. whether this valid Cir. F.2d 1342 - (8) 246, employees; and -, S.Ct, 66 L.Ed.2d communicated 101 U.S. Varo, Inc., employ assures the employer 425 whether the (1980); L. R. B. v. 115 N. if 1970). reprisals will be taken 293, (5th “Remarks ees that no 298 Cir. F.2d Newport Bus. Sturgis support when con the union. may appear coercive 1256; B., Forms, 563 F.2d at a different Inc. v. N. L. R. may take on sidered in isolation B., 529 F.2d respect Corp. v. N. L. R. Florida Steel meaning when evaluated 1225, 1976); B. v. (5th N. L. R. N. L. R. 1229 Cir. totality of the circumstances.” Co., 803, (5th Camco, Inc., 804 Cir. Bottling 613 340 F.2d Cola B. v. Laredo Coca 926, denied, 1965), 382 U.S. 86 S.Ct. (quoting N. L. R. B. v. Kaiser cert. F.2d at 1341 313, (1965). This list is not Chemicals, A. 15 L.Ed.2d 339 Div. of Kaiser & Agricultural exhaustive, however, 374, 1973)). may coercion oc (5th 473 F.2d 381 Cir. Corp., C. operate these factors cur even if all of validity We review Sturgis Newport employer. favor of the evi under the substantial Board’s order B., Forms, 563 F.2d at Inc. v. N. L. R. Bus. (f) (1976); 160(e) rule. 29 & dence U.S.C. 1256; Camco, Inc., 340 F.2d at L. R. B. v. N. B., Corp. v. N. L. R. 340 Camera Universal 474, 456, (1951); 95 L.Ed. 456 71 S.Ct. U.S. case, In this the Board found B., F.2d v. N. L. R. Mueller Brass Co. eight instances of co- Company engaged in 1977). separately analyze (5th We Cir. Ap- interrogation employees. of its ercive interroga findings of coercive the Board’s standard, it plying the substantial evidence closure, solicitation, tion, threats of questionable finding whether the Board’s loss, job and threats of loss and interrogation as to all of them is of coercive assumption regressive evidence on the supported by substantial posture. record considered as a whole. Interrogation A. Coercive however, to search unnecessary, It is interrogation Employer into instances, substantial evidence in all the illegal. N. L. R. B. v. per activities is not se the record as a since substantial evidence on Co., Bottling 613 F.2d at Laredo Coca Cola finding of coer supports whole the Board’s 1342; Management v. N. L. Ridgewood Co. be interrogation cive in the encounters B., 738, (5th 1969), Cir. cert. R. 410 F.2d around the first tween and Andrews denied, 24 L.Ed.2d 90 S.Ct. U.S. November, part of and between However, any interrogation of Thanksgiving. at some time before employer “presents an an employees by facts, in the These instances are related danger coercing employees present ever supra. rights.” N. L. R. B. in violation of their 7§ Co., Safety Bottling 613 F.2d The conversation between v. Laredo Coca Cola 1342; Industries, Wyse Training Inc. v. N. L. R. Director Texas 1964). around the B., (5th In Andrews in the former’s office Cir. 336 F.2d constituted coercive interrogation part first of November determining whether certain Company’s part, apply the totality interrogation of the on tends to be coercive determining circumstances, following ing are to the above criteria for the factors to be interrogation whether certain tends (1) history of the em be considered: First, (2) although history there is no employees; coercive. attitude toward its ployer’s Company’s sought; (3) practices labor at the of unfair nature of the information Evans, Company en Georgia plant, employer in rank of the official of the effort to ascertain (4) gaged systematic in a place employer’s hierarchy; conversation; employees its (5) sympathies the union the truth manner of the This throughout campaign. effort was truthful answer even to an ques- innocuous tion, accomplished by having Company each su- the inference of strong coercion is as pervisor talk to and observe the as if he pointed ques- refused answer a maintain, tion.” Id. at 807. supervision pursu- under his Employee ant to instructions from Rela- Sixth, is there no indication in the evi Manager Bailey, weekly tions Jim roster Wyse dence that or the Company had a particular employees of his indicated purpose inquiring valid employ into the employees supported feelings ees’ about Wyse or Andrews’ atti supported and which the Union for that Seventh, tude toward the Union. even if Additionally, by week. this time the Com- existed, purpose such a Wyse did not com pany implicitly opposition had indicated its Finally, municate it to Andrews. Wyse to the Union in the October letter which it gave Andrews no assurance that there employees. Repeated sent to all of its ef- reprisals would be no against either An employer forts to determine who drews “Question or the other employees. union, supports coupled with employer ing likely is much more to have a coercive opposition to the may be considered effect if the purpose interrogation background determining as when whether a explained and if there are no assurances Sturgis conversation tends to be coercive. Camco, retaliation.” N. L. R. B. v. against Forms, Newport B., Bus. Inc. v. N. L. R. 563 Inc., Sprocket Martin (citing 340 F.2d at 807 F.2d at 1257. B., & Gear Co. v. N. L. R. (5th 329 F.2d 417 Second, sought the information by Wyse 1964)). Cir. Wyse was of a coercive nature. asked An conversation between and em- drews what employees thought of him ployee Sutton at some time before Thanks- and also what thought Andrews of the Un giving similarly finding sustained a of coer- Although sought by ion. this information interrogation. cive Again, the encounter Wyse was more innocuous than would have occurred in the context been concerning information the identities opposition to the and its systematic leaders, of the union it was more potentially throughout effort the campaign to as- harmful possi terms of certain the sympathies of its employ- ble retaliation than would have The questions, although general ees. regarding been casual information how the face, sought specific their responses, includ- Camco, N. L. R. See B. v. doing. Union was ing possibly the identities of the Inc., 340 F.2d at 807. meetings. who had attended Union

Third, Director, Wyse as a held a relative questioner, Wyse, again high Director was high Fourth, ly Company. official; rank in the ranking Company ques- office, conversation place Wyse’s took tioning place took in the authoritative set- place authority formality,” office, “unnatural ting of the official’s a fact attributa- Inc., Camco, N. L. R. B. v. 340 F.2d at explicit request ble to the official’s that the rather than at Andrews’ work station or at come to his office.

some “neutral” Additionally, location. Moreover, Sutton refused to answer interrogation conducted his at a time Wyse’s probing questions about the Union’s seeking when Andrews was assistance from activities receiving until assurances of con- Wyse on a personal matter and was there and, fidentiality; although he then began potentially fore susceptible more to re to discuss the Wyse, Union with he still sponding to questioning. such gave response Wyse’s leading an evasive to Fifth, comment, gave Andrews evasive regarding answers to employee attendance at Wyse’s questions, indicating pos- Thus, he feared meetings. Wyse’s the Union even sible against retaliation himself or other implicit reprisals assurance no that would employees by Wyse or other Company dispel apparent offi- be taken did not Sutton’s if he give cials were to direct discussing honest and concern over the Union too ex- answers. “If employee give an refuses to tensively Finally, with a official.

418 there is Accordingly, we find that suffi- either or that is no indication

there finding a Board of ques- uphold purpose a valid cient evidence Company had that, purpose interroga- Sutton, if such instances of coercive tioning or least' two at to Sutton. existed, it was communicated tion. exhibited publically .That Sutton on Union Ac- Report B. Solicitation does leadership in the Union of and

support tivities Al coercion. suggestion of alter the not Wyse’s During their conversation declared his openly has though an November, part of the first employer is not office around support for Andrews directly indirectly or solicited probe Director thereby free to union. supporting report his reason for into attend Products Divi Electrical ITT Automotive of the Union. the activities management sion, prob 231 N.L.R.B. 878 unsuccessful, request “[S]uch this consti Although upon effect ing tends to have a coercive with interference impermissible tuted employees or not the employees, whether their the exercise of Sec employees in support for a their openly have declared See, R. B. v. g., e. N. L. rights. 7 tion Id.; Paceco, A Division see also union.” 708, Co., (5th F.2d 709 313 Citizens Hotel 399, 400 Corp., 273 N.L.R.B. Freuhauf 1963) (instructing employee engage Cir. grounds, 601 F.2d (1978), vacated on other R. meeting); N. L. of union in surveillance knowledge 1979). (5th was 180 Cir. Co., Contracting & Engineering v. Duval B. coerced in well not have been may able and 1962) 291, (5th (requesting 292 Cir. 311 F.2d confrontation, maintained a fa this respect to act as employees informers However, if an inter cade of friendliness. activities); Inc. v. N. Independent, to union makes no rogation in nature it is coercive 1969) B., 203, (5th Cir. L. R. 406 F.2d coercion was difference that actual request employees of two (manager’s instance. See particular achieved any if heard they “let him know Forms, v. N. L. Newport Bus. Inc. Sturgis talk”). B., F.2d at 1256. R. Therefore, prop- the Board we hold that Federal-Mogul relies on finding part order in erly based its (5th B., 566 F.2d 1245 Cir. Corp. v. N. L. R. report on employee to of an solicitation v. N. L. R. 1978), Delco-Remy Division union activities. 1979), support B., (5th 596 F.2d 1295 Cir. finding of that the Board’s of its contention Loss, Closure, Job Threats of Plant C. er interrogation was instances of coercive and Loss of Promotion inapposite, how These cases are roneous. employer It well settled that the Court found Federal-Mogul, In ever. loss, closure, and loss of job threats of campaign of systematic no there was unionization or in the event of sentiments; that the em monitoring union are violative of support for a union were and the ployer’s officials See, Pope g., N. L. R. B. v. the Act. e. friends; questions longstanding (5th Corp., 573 F.2d Maintenance supervisors; by low-echelon were asked Agricultur 1978); N. R. B. v. Kaiser L. Cir. interrogated infor employees were that the Chemicals, Corp., A. C. Div. of Kaiser & al their work stations mally casually 1973). (5th Cir. Sec 380-81 473 F.2d periods; and that during their break if, totality 8(a)(1) is violated under tion with were truthful and employees’ replies circumstances, “the Similarly, 566 F.2d at 1250-51. out fear. employer is conclude that reasonably sys was not Delco-Remy, questioning they sup if threatening reprisals economic tematic; were interrogators most of the Manufacturing Hendrix port the Union.” the conversations supervisors; low-level B., 100, 105 (5th Cir. L. 321 F.2d stations; v. N. R. Co. employees’ work place took at the Agri B. v. Kaiser 1963); N. L. R. see also candid questioned gave Chemicals, F.2d at 381. cultural answers. 596 F.2d at and bold

419 employees,” permanent- had been closed express to his the may employer An “for reasons.” It then admon- ly view about unionism economic general employees his sign” to a Union particu ished the “not views about any specific of his or their exactly until knew expression does card long as as such lar to the Union obligations force or and liabilities reprisal of or contain a “threat letter to 158(c) would be. The reference in the benefit.” 29 U.S.C. promise § of Co., Company plant Plym- Packing closing the of the v. Gissel (1976); N. L. R. B. 1942, outh, 1918, Michigan, where collective 575, 618, 23 89 S.Ct. 395 U.S. established, reasonably found 547, employer may was could be (1969). An L.Ed.2d might take simi- imply Company that the as to the economic to prediction even make a plant at the Evans as a retaliato- will lar action he believes unionization consequences of unionization Packing, ry measure in the event Gissel have on his business. letter’s 1942, despite This result holds 618, 23 L.Ed.2d at there. at 89 S.Ct. at U.S. closing Plymouth that the of the statement “for economic reasons.” plant had been however, case, prediction In such a of carefully phrased on the basis must be contentions, Company’s Contrary to the convey employer’s an objective fact closing Plym- the reference to the conse- demonstrably probable belief as to plant merely not serve to indicate outh did (citation quences beyond his control.... high obliga- dues and the effect of union omitted). any implication that If there is or to illustrate employees, tions on union action may may not take employer always help its that the Union does not initiative for reasons solely on his own high employee wages may While members. to economic necessities unrelated of a busi- bear on the economic condition him, is no the statement only known ness, dues, high which the letter ad- based on longer prediction a reasonable dressed, all. have no direct relevance at of retaliation available facts but a threat Further, the letter does not constitute a and coer- misrepresentation based on Pack- permissible prediction, under Gissel cion. . .. consequences of union- ing, of the economic 1942, 23 L.Ed.2d at Id. at at S.Ct. since it makes no plant, ization at the Evans conveyance of his employer’s An 580-81. consequences possible economic reference sincere, plant belief, that however any since such plant, at the Evans as a result of unioniza- might would or close susceptible have been reference would not of fact unless tion is not a statement requisite proof. The coercive nature proof, of closing capable is possibility Plym- Company’s reference to the Id. at highly unlikely. which is situation particularly validated plant outh 618-19, at 581. 23 L.Ed.2d 89 S.Ct. Manager testimony Employee Relations Plymouth Bailey that the Union at supports evidence Substantial wages negotiate offered to lower findings plant violated had Board’s plant open, and that labor costs threatening plant keep closure by twice significant underlying factor of unionization. were not a jobs and loss of in the event poor condition. Plymouth plant’s Octo economic was in the letter of The first instance employ- letter to the implication was in The employees. 7 to all The second ber accord with these facts estab- Director ees does not the conversation between hearing. lished at the Board’s days about two before Sutton conversation, Sutton the election. In this similarly threatened with loss of also was threatened job conversation be- closure and loss in the supporting the Union. Manager Bailey Employee Relations tween letter, during the week sent October conversation, During election. Compa- employees, stated that the all of its Company’s plant Bailey stated that where the Michigan plant, ny’s Plymouth, Union been closed because the Detroit had money paychecks from the “took ployees, by Supervisor Leitner wages during had demanded excessive and other employ- then that if similar his informal discussion with a few Bailey benefits. said plant by Evans ees the election. These days demands were made at the two before simply statements were would be- Company a could close that plant gin write it off as a “from or with a “blank sheet down the Evans scratch” paper” if the were to win the Bailey’s tax loss. comments constituted of view, might findings In these explicit Company threat that election. our plant supported by in the event of evidence. close down the Evans substantial resulting wage excessive demands from “ ‘Bargaining from scratch’ is a Further, unionization. this threat was dangerous phrase which carries with it the strengthened by Bailey’s linking unioniza- employer of a threat that will seed wage tion with excessive demands in his punitively intransigent in the event become plant. reference to the Detroit There is the union wins the election.” Coach & that some evidence labor costs were not the Equipment Corp., 228 N.L.R.B. 440 Sales closing decisive factor in the of the Detroit (1977). Whether such a statement is coer plant, there that this but is no indication depends upon cive the context in which it is fact was ever communicated to Sutton. “clearly uttered. If the articulated thrust Company also threatened bargaining-from-scratch statement promotion sup- with if he designation Sutton loss of the mere a union will ported During the Union. the conversation automatically wages secure increases in benefits, between Director Sut- and that all items are such election, days subject bargaining,” ton two id. before told to no coer If, however, (Wyse) Sutton that he would like to have cion will be found. the state ment Sutton on the side in the cam-

paign. Wyse then told Sutton that Sutton can reasonably be read in context as a ability go places” “had the with the employer threat either to unilater- Company. The close association of these ally existing prior discontinue benefits statements, two combined with the coercive negotiations, adopt regressive or to bar- interrogation undergone Sutton had in gaining posture designed to force a re- earlier, Wyse’s office a few weeks duction of existing pur- benefits for the very likely reasonably lead to con- Sutton pose penalizing for “go clude ability places” that his with the choosing representation, collective Company promotions in terms of was con- id., a violation will “[Bargaining- be found. tingent upon siding Company with the objectionable statements are from-scratch] campaign election. In realistic when, context, they effectively threaten terms, possible opportu- industrial future existing with a loss of benefits nity promotion supervisor was dan- impression and leave them with the gled before if he would side with they may ultimately depends receive Company. large upon measure what the union can Employer induce the to restore.” Plastron- findings Company Board’s ics, Inc., closure, 233 N.L.R.B. threatened its exists, question pres- When a job loss, close and loss of in the event “[t]he contemporaneous ence of threats or unfair supported by unionization are substantial practices is labor often a critical factor uphold evidence. We them. determining threatening whether there is a Regressive Bargaining D. Threats of a employer’s color to the remarks.” Coach & Posture Equipment Corp., 228 N.L.R.B. at 441. Sales Springstroh’s explicit-

The Board found coercive and in statements did not ly violation of the statements made threaten that the would discon- by Operations Manager Springstroh existing prior negotiations. tinue benefits did, however, throughout They implicitly his 20 with the em- threaten that adopt regressive bar- Accordingly, uphold would we the Board’s find- posture designed gaining ings to force a reduc- the Company, in violation of 8(a)(1), existing penalty tion of benefits as a for a threatened its with § the victory Springstroh’s assumption regressive in the election. of a bargaining pos- with ture in the event of a Union likely victory remarks left the in the election. impression they ultimately that the benefits

would receive in the event of unionization III. depend largely upon

would what the Union could induce the to restore. This Conclusion especially light conclusion is true in We conclude that substantial evidence high Springstroh rank of in the supports findings the Board’s that the Com- against background of the other pany 8(a)(1) by engaging violated in coer- practices unfair labor by committed solicitation, cive interrogation and by Company prior to contemporaneously closure, threatening job loss, promo- meetings. with these Even occasional as- loss, regressive tion bargaining pos- and a negotia- surances all benefits would be uphold ture. We therefore the order of the down, go up, ble and could either or remain Board and order its enforcement. result, the same do not alter this consider- ENFORCED. rank, ing Springstroh’s high his constant emphasis bargaining of “from a blank sheet POLITZ, Judge, Circuit dissenting: paper,” of bargaining his statements that months, Respectfully, I dissent from go majori- on for oth- ty’s conclusion that the petition- er unfair acts practices, Springstroh’s labor (TRW) er-employer justify the heavy hand graphic continuous use of a blank sheet of upon laid by Although recog- it the Board. paper point. to illustrate his See Plastron- nizing scope that ours is a limited ics, Inc., review (1977) (even 233 N.L.R.B. 155 only substantial necessary evidence though company official stated at support findings, my the Board’s review of negotiable that all benefits were and “could findings this record results in and conclu- down,” go up bargain-from-scratch state- markedly sions which differ from that of largely ments were coercive due to contem- majority. I find the credible evidence poraneous transparencies projected use of justify setting fails to aside of the elec- on screen which indicated that tion results and the other relief by ordered begin any existing benefits). would without purposes the Board. For clarity, gave Springstroh’s These factors state- headings majority opinion in the are used in significant ments a much more character my objections. the notation of principle than that attributed to them the Compa- ny, which contends without merit that these A. Coercive Interrogation merely replies statements were to Union AU, majority Board and found coer- misrepresentations interrogation. cive The ALJ and Board anything could not lose as a result of bar- instances; eight found majority found gaining. two, noting questionable it that was wheth- Supervisor “blank-piece-of-pa- supported by Leitner’s er the others were substantial statements, per” during made his evidence. I majority’s informal do not share the discussion with few employees days uncertainty; two hesitance or the instances election, implied glossed supported by before the a similar threat over are not substan- regressive bargaining posture example, of a tial supervi- evidence. For a new sor, Wilson, event of employee, unionization. Leitner’s statements Gisela called an Thomas, contemporaneously George inquire made with the into her office to were by Springstroh, According statements made and were how he felt about the union. Thomas, merely implied reiterations of the threats her that he had not made he told Springstroh’s responded Wilson that it was up statements. mind. representative apologized hyperbole his decision to make and she foreign nor uncommon AU concluded: “I rhetoric neither asking. Incredibly, the things were an election contest. There interrogation of Thomas was find that her which should not have been said on both coercive.” sides, of excesses did not but these instances equally “compelling” examples Other atmosphere as like- permeate so the election by the Board interrogation coercive found impermissibly distorted ly to lead to an supervisor asking include two instances of a result. thought he about Report B. Solicitation supervisor asking one instance of a Union Activities employee thought what he about an asking an company, supervisor to. already This been alluded incident has meeting, going if he was to a union and a union meet- Wyse asked Andrews to attend and, supervisor telling ings language majority, an who had of the badge: “report management to the activities of the wearing you been a union “I see have done this. Wyse Union.” should not your badge today.” have on don’t noted, Wyse testify, impos- As did not It is majority opinion The focuses on conversa- certainty purpose, sible to know with Safety Training Director tions between or intent from this record. Re- motivation Wyse employees Milton Andrews Sam gardless, impropriety justify this does not Willie None of these three Sutton. today’s ruling. employed by were TRW at the time of the Closure, C. Threats of Plant Job Loss hearing Wyse before the AU. did not and Loss of Promotion testimony Andrews and testify, and the singularly unimpressive. allegations, I con- Sutton is Much is made about these but evidence, I by merely points clude that in fact were not coerced as view the it the rhetoric and semantic excesses of a Wyse, their conversations with nor were moderately campaign. I heated election reasonably likely these conversations support conclude that the record does not coerce or intimidate these men. tried or finding anything by said written activities; pump he Sutton about representatives reasonably TRW be got anyone nowhere. If were intimidated interpreted (1) a as threat to close the discussion, obviously in that it was not Sut- loss, (2) job (3) plant, a threat of a threat ton. to loss of if the voted Andrews is equally The conversation with Spectres by were both sides. union. raised exception, insipid with one minor a mote correctly regarding As the ALJ concluded eye which became a beam in the of the ALJ allegations, number of other this was all Wyse inquired and Board. of Andrews of campaign and em- part of the election employees. Wyse want- the attitude out, ployees just could sort it as is done in employees thought what the ed know other election matters. Much is also made compre- him. I admit to a total failure of 1977 letter which TRW October possibly constitute hension how this could response sent its to a letter interrogation. Wyse was not cir- coercive which September dated the Union cumspect, go he asked Andrews to to union employees. had sent That letter going him on what “was and brief “We, ended with the exhortation: there- on.” Andrews refused and that was the fore, you sign a Card or ask not to episode. of that should not have end anything you else and unless until know asked, got unqualified but he answer exactly obligations and liabilities your This does not the matter. concluded you credulity be if It will do.” strains rise to the level of misconduct sufficient to this statement is found to be evidence of an set aside an election. practice. unfair labor I find it to be sound any in the ALJ situation: know conversations detailed advice to be offered effects, findings, you signing, the whole of the what and its before particularly more transcript, you sign. conversations as contained in the Regressive al-Mogul

D. we Threats of refused to enforce an order of Bargaining based, Posture alia, the Board which was inter alleged coercive interrogation and state its man- Finally, TRW is faulted because Federal-Mogul ments. The court noted ager, Springstroh, supervisor Roland and a refusal) (actually ALJ’s failure to apply the they purportedly made statements in which Delco-Remy Bourne test. In we denied en regressive to take a or intransi- threatened ostensibly of an order based on forcement gent bargaining position if the Union were interrogation, coercive soliciting against aid I successful in election. am in total discharge. and threatening finding. It disagreement with this is cor- Delco-Remy court did not find these rect that these men informed the charges supported by begin substantial evidence. sessions would “from In Paceco we vacated an order of the negotiators scratch” and that would Board paper,” start with' a “blank sheet of and remanded for failure of the Board to being graphically latter statement demon- set legal forth the standards which it pa- by holding up strated a blank sheet of interrogation determined that the was coer per. plain This vanilla bit of dramatics again cive. The Paceco court underscored illegal. somehow becomes unclean and then viability of the Bourne standards which I believe it to be neither. just apply, Board had failed to as the ALJ and Board failed in the case at bar. aspect evidence in this

Critical AU, dispute was noted who referred my appreciation Based on of the credible testimony Springstroh telling my evidence this record and under- “during negotiations, wages standing teachings prior juris- our same, go up, benefits remain the prudence, particularly trilogy cited in go company down.” An in the editorial I foregoing paragraph which find con- newspaper contained same statement the. trolling dispositive, deny I would en- testimony corroborated According- forcement of the Board’s order. Springstroh. ly, respectfully I dissent. colleagues majori- I differ with my

ty pa- when conclude that the “blank “bargain

per” and from scratch” scenario practice

constitutes an unfair labor

warrants the order. Board’s

Conclusion interroga- findings

The AU’s of coercive purely conclusory. HEMBREE, He failed to tion William G. v. follow test first enunciated in Bourne Plaintiff-Appellee-Cross-Appellant, B., (2d 1964), N. L. R. Cir. F.2d v. subsequently adopted by this circuit and COMPANY, GEORGIA POWER underscored on several occasions. Fed- See Defendant-Appellant-Cross-Appellee. B., eral-Mogul Corp. v. N. L. R. 566 F.2d (5th 1978), Cir. and cases there No. 80-7054. majority opinion attempts cited. The to fill Appeals, United States Court of scholarly this void in a careful and manner. Fifth Circuit. I remain unconvinced. Unit B Today’s with our holding is inconsistent decisions, prior particularly holdings Feb. B., (5th Paceco v. N. L. R. 601 F.2d 180 Cir. Div.,

1979), Delco-Remy General Motors B., (5th

Corp. v. N. L. R. 596 F.2d Cir.

1979), Federal-Mogul, supra. In Feder

Case Details

Case Name: Trw-United Greenfield Division, Petitioner-Cross-Respondent v. National Labor Relations Board, Respondent-Cross-Petitioner

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Feb 20, 1981

Citation: 637 F.2d 410

Docket Number: 79-3456

Court Abbreviation: 5th Cir.