NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AEROVOX CORPORATION OF MYRTLE BEACH, SOUTH CAROLINA, Respondent, 435 F.2d 1208

CRAVEN, Circuit Judge: This is an appeal from a Decision and Order of the National Labor Relations Board finding Aerovox Corporation guilty of unfair labor practices in violation of Sections 8(a) (1) and (3) of the National Labor Relations Act, 29 U.S.C. § 151 et seq., and directing reinstatement of employment and the posting of the usual notices. Involved are circumstances surrounding two union elections on February 24, and July 27, 1967, for different employee units within appellant’s company. The Union was successful in both elections and was subsequently certified as bargaining representative.

During the course of the troubled campaign nine union-connected employees were fired or suspended, and there was evidence of verbal threats. The company posted a “serious harm” notice and directed a personal letter to each employee which the Board considered coercive. It is only these elements of a complex fact situation that need concern us for the company commendably has consented to enforcement of much of the Board’s Order. I. Firing and suspension of company employees because of union activity in violation of Sections 8(a) (1) and (3) of the Act.

Aerovox contests the Board's finding that certain employees laid off ostensibly for legitimate causes were in fact fired or suspended because of their union activity. Our scope of review is narrow.

Unless we find that there is no substantial evidence in support of the Board’s position “when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board’s view” we may not “displace the Board’s choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951). See also NLRB v. Walton Manufacturing Co., 369 U.S. 404, 405, 82 S. Ct. 853, 7 L.Ed.2d 829 (1962); NLRB v.

Pittsburgh Steamship Co., 337 U.S. 656, 659, 69 S.Ct. 1283, 93 L.Ed. 1602 (1949). Since the company has consented to enforcement of the Order as to five of the concerned employees we need only consider the four charges contested on appeal. E. B. Martain, an employee of some seven years at Aerovox, was discharged for “soliciting for the union on company time * * * and interfering with production” because he had talked to a production employee at a time before organization among the production workers had commenced. During the brief encounter the other employee had not ceased her work.

Munick Carl Hucks, an employee for some four years, was discharged for failure to report for work on December 31, 1966, while other employees absent on that day were given only oral or written reprimands. The trial examiner found that the reasons stated by the company for these drastic remedies were merely pretextual since no reasonable investigation was made into Martain’s alleged violation and other employees were treated less harshly than employee Hucks. We are unable to say these findings were not supported by substantial evidence.

Mary Mishoe and Arlene Hucks were suspended for wearing union badges on May 22, 1967. The company admits the motivating factor behind these suspensions was their union activity, but insists that Mishoe and Hucks were not “employees” under the Act, but were “supervisors” as defined by Section 2(11) and therefore not protected. The Board found that the two were not supervisors because of the nature of their work and their lack of managerial powers.

The trial examiner credited testimony that they were never told that they were supervisors or invited to attend any supervisors’ meetings until the day of their suspension and upon substantial evidence made the ultimate finding that these employees lacked “scope for independent judgment or discretion” (Trial Examiner Opinion and Order) concerning the operations in their section. The important thing is the possession and exercise of actual supervisory duties and authority and not the formal title.

It is a question of fact in every case as to whether the individual is merely a superior workman or lead man * * * or is a supervisor who shares the power of management. NLRB v. Southern Bleachery & Print Works, 257 F.2d 235, 239 (4th Cir. 1958). We agree with the Board’s findings that, upon the whole record, employees Mishoe and Hucks were “employees” under the Act and that they were suspended in violation of

Section 8(a) (1) and (3). II. Coercive activity by interroga> tions and threats in violation of

Section 8(a) (1) of the Act. Appellant contests the findings of the Board in two of four instances with respect to charged verbal threats made to employees.

In one instance a plant engineer allegedly told employee James Todd that if the union won the election on February 24, employees’ “files would be thrown in the trash can” and that the employees “would have to stand a test.” In another instance, a foreman allegedly warned employee Velma Messer, who had been promised a union authorization card by another employee, not to “let any of those girls talk you into doing anything * * * [because] it will cause you to lose your job.” Aerovox admits that the findings of the Board in these instances involved determinations of credibility, tasks for which the Examiner and Board are well suited, and for which this court is not.

NLRB v. School-Timer Frocks, Inc., 224 F.2d 336, 337 (4th Cir. 1955). Thus Aerovox’s contention that the findings of the Board are not supported by substantial evidence is without merit. It is clear in the factual context that the words were coercive and in violation of

Section 8(a) (1). In question also are two charges of coercive literature distributed by the company. On December 5, Aerovox posted a “serious harm” notice, the pertinent part of which we set out here: This matter is, of course, one of concern to the company. It is also, however, a matter of serious concern to you and our sincere belief is that if this Union were to get in here, it would not work to your benefit but, in the long run, would operate to your serious harm. In prior decisions we have held that the typical “serious harm” notice was protected by the First Amendment and the “free speech” provisions of

Section 8(c); Wellington Mill Div., West Point Mfg. Co. v. NLRB, 330 F.2d 579, 583 (4th Cir. 1964); NLRB v. Threads, Inc., 308 F.2d 1, 9 (4th Cir. 1962); J. P. Stevens & Co. v. NLRB, 406 F.2d 1017, 1021 (4th Cir. 1968). In these decisions we have concluded that a “serious harm” statement does not, alone, amount to a “threat of reprisal or force or promise to benefit.” We adhere to that proposition. We also agree, however, that all statements and notices must be viewed in the setting in which they are made. NLRB v. Gissell Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 656 (1969); NLRB v.

Greensboro Hosiery Mills, Inc., 398 F.2d 414, 417 (4th Cir. 1968). We did not say otherwise in J. P. Stevens & Co. v. NLRB, 406 F.2d 1017 (4th Cir. 1968), which the Board reads to imply that such a notice is absolutely privileged without regard to the context of its labor relations setting. Perhaps the closest we have come to a rejection of the “circumstances” test of speeches and notices was in NLRB v. Threads, Inc., 308 F.2d 1 (4th Cir. 1962); see the opinion of Judge Sobeloff concurring in NLRB v. Kayser-Roth Hosiery Co., 388 F.2d 979, 981 (4th Cir. 1968).

But if the Threads decision stands for such a proposition, it was clearly rejected in NLRB v. Greensboro Hosiery Mills, Inc., supra. Cf. NLRB v. McCormick Concrete Co., 371 F.2d 149, 152 (4th Cir. 1967).

Moreover, none of these cases was decided in light of GisseU, supra, which teaches that the right of the employer to speak freely must be balanced against the right of employees to associate freely. “[A]ny balancing of those rights must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear.” NLRB v. Gissell Packing Co., 395 U.S. 575, 617, 89 S.Ct. 1918, 1942, 23 L.E.2d 656 (1969).

When viewed in “the context of its labor relations setting”, NLRB v. Gissell, 395 U.S. at 617, 89 S.Ct. at 1942, we cannot agree that the company’s “serious harm” statement amounted to a threat of reprisal in violation of

Section 8(a) (1). This notice was posted just a few days after the union filed its petition to represent the maintenance employees and some two months before the coercive letter of February 3 discussed below. In the interim the climate changed and was reflected in the tone of the letter, parts of which are set out below. Remember, the Union cannot guarantee that present benefits will continue under a Union contract. Bargaining starts from scratch!

You might think that a change will result in improvement, but a Union often brings many more problems than it solves. * * * The only weapon a Union has to attempt to force concessions from an unwilling employer is the strike. With a Union, you must be willing to accept the serious possibility of a strike with all its hazards. * * * Hard feelings, broken friendships and even violence are * * * dangers associated with unionization. Remembering the “tendency (of employees) * * * to pick up intended implications of the (employer) that might be more readily dismissed by a more disinterested ear,” NLRB v.

Gissell, 395 U.S. at 617, 89 S.Ct. at 1942, we agree with the Board that the letter was coercive and thus without the protection of

Section 8(c). Taking into account the economic dependence of employees on their employers we think the Board might reasonably infer a threat to arbitrarily discontinue present benefits including present wage scales. That is not an unreasonable

interpretation of the rather cryptic phrase “bargaining starts from scratch!” Nor is it unreasonable for the Board to infer from the language a suggestion that Aerovox would surely become an “unwilling employer” thus raising the spector of a strike. We think it perhaps significant that the Board in its Decision and Order devoted a separate full paragraph to a discussion of the coercive letter of February 3, 1967, and made no mention whatsoever of the “serious harm” notice of December 5, 1966.

Since the letter was unquestionably coercive and is by itself sufficient to support the Board’s Order, the Board’s present insistence that we reconsider the possible implication of J. P. Stevens & Co. v. NLRB, 406 F.2d 1017 (4th Cir. 1968), appears to be rather academic. There is no occasion for us to reconsider our prior decision in Stevens because the result here will be the same whether that decision should be reaffirmed, rejected, or distinguished. Although we believe the “serious harm” notice in the context of this case is protected by the First Amendment and

Section 8(

c) of the Act, for the reasons hereinbefore stated, the Order of the Board will nevertheless be Enforced. . Presently, only the 6th Circuit supports such notices as privileged under

Section 8(e). See Surprenant Mfg. Co. v. NLRB, 341 F.2d 756, 759-760 (6th Cir. 1965). Three other circuits have adopted the “circumstances test.” See Amalgamated Clothing Workers v. NLRB, 420 F.2d 1296, 1299-1300 (D.C.Cir. 1969) ; Serv-Air, Inc. v. NLRB, 395 F.2d 557, 561 (10th Cir. 1968) ; J. P. Stevens & Co. v. NLRB, 380 F.2d 292, 302-303 (2nd Cir. 1967). The 5th Circuit declined to decide the issue when the employer “wisely we think, eliminated this critical language. * * * ” [e. g. “serious harm”] from his notices. NLRB v. Southwire Co., 352 F.2d 346, 348 (5th Cir. 1965). .

The portion of the Order referred to reads as follows: “We will not threaten loss of jobs or other adverse economic consequences because the employees join a union or select it as their collective bargaining representative.”