Kiley and Kilkenny,*fn* Senior Circuit Judges and Stevens, Circuit Judge. Stevens, C. J., dissenting in part.
Before us for enforcement is the order of petitioner finding that respondent violated § 8(a)(1) of the National Labor Relations Act 29 U.S.C. 151 by threatening employees with a lockout or shutdown in the event they persisted in organizing activities in connection with selection of Local 372, Bakery and Confectionery Workers International Union of America, to replace Roselyn Bakery Employees' Union as the collective bargaining agent of the company's production and maintenance employees. Additionally, petitioner found that respondent had violated the Act by telling an employee that she should confine her use of the restroom to her breaks.
In July, 1970, Local 372 started an organizing campaign among respondent's employees seeking to unseat the incumbent Employee Union. Local 372 filed a representation petition with the Board on July 31st. Unsuccessful in the election, Local 372 filed objections to the general conduct of the election and a charge alleging numerous acts of interference and coercion on the part of respondent during the pre-election period. The cases were consolidated for hearing by a trial examiner who found that the employer had not engaged in any unlawful conduct and recommended that the complaint be dismissed and the objections overruled. On review, a divided panel of the Board found that respondent had violated the Act in the mentioned particulars.
The campaign to unseat the incumbent employees' union was hotly contested. Respondent vigorously attacked Local 372 emphasizing the theme that unions with international affiliation, such as Local 372, constituted a threat to job security and actively campaigned against Local 372, orally, and with a series of eight letters to employees over the vice-president's signature. Respondent's president, John Clark, posted printed articles next to the time clock where, in his own words, the employees "couldn't help but see." One of the articles described a lockout situation at a local taxi company. A few days before the election, Clark brought to the employees' attention a one page magazine article on the subject of lockouts. It defined a lockout as occurring ". . . when an employer decides either to shut down his operation or temporarily to put his regular employees on the street. . . ." According to the article, a lockout ". . . has practically achieved the status of legality in almost all situations. . . ." Included was a statement that the Supreme Court had ". . . struck at the very roots of the Labor Board's restrictive view of the lockout. . . ." and that ". . . while many questions still remain . . .", the Board ". . . seems to have concluded that a lockout should be held lawful simply on a finding of business justification. . . ." There was conflicting evidence on whether Clark read portions of the article to the employees. He admitted, however, that he read aloud the heading to the article "Management's Lockout Rights Firmly Entrenched" and urged the employees to read it. He left a copy of the magazine turned to the appropriate page on the foreman's desk. When employee Turner asked Clark if he would actually shut down the plant, Clark showed her the article and suggested that she might read it.
On the entire record, the Board found respondent had violated the pertinent sections of the Act.
(1) While it is well settled that an employer is free to communicate to its employees any of its general views about unionism or any of its specific views about a particular union, NLRB v. Gissel Packing Co., 395 U.S. 575, 618, 23 L. Ed. 2d 547, 89 S. Ct. 1918 (1969), it is equally well established that its communications must not contain a threat of coercion or reprisal, express or implied. Gissell, supra, p. 618. If the employer expresses his views on the effect that unionization may have on the future economic health of the company, his projections must be very carefully phrased on the basis of objective fact. Textile Workers v. Darlington Mfg. Co., 380 U.S. 263, 274 n. 20, 13 L. Ed. 2d 827, 85 S. Ct. 994 (1965). If there is any implication that employer may or may not take action solely on his own initiative for reasons unrelated to economic necessity and known only to him, the statement is no longer a reasonable prediction based on available facts, but is a threat of retaliation based on misrepresentation and coercion and, as such, without the protection of the First Amendment. Gissell, supra, p. 618. Any balancing of the rights of the employees under § 7, as protected by § 8(a)(1) and the proviso in § 8(c), must take into account the economic dependence of the employees on the employers and the necessary tendency of the former, because of that relationship, to be alerted to intended implications of the latter that might be more promptly dismissed by one who was entirely disinterested. Beyond question, employees are particularly sensitive to rumors of plant closing and view such rumors as coercive threats, rather than honest forecasts.
As a reviewing court, it is our duty to recognize the Board's competence, in the first instance, to judge the impact of the statements made in the context of the employer-employee relationship. Gissell, supra, p. 620; NLRB v. Virginia Electric & Power Co., 314 U.S. 469, 479, 86 L. Ed. 348, 62 S. Ct. 344 (1941); NLRB v. Kolmar Laboratories, 387 F.2d 833, 836 (CA-7 1967). In accord, Madison Brass Works, Inc. v. NLRB, 381 F.2d 854, 857 (CA-7 1967). Inasmuch as lockouts are unlawful when used for the purpose of defeating an organizational drive or avoiding an obligation to bargain, the respondent's action in here threatening such consequences was plainly unlawful. Tonkin Corp. of California v. NLRB, 392 F.2d 141, 145 (CA-9 1968), cert. denied 393 U.S. 838, 21 L. Ed. 2d 108, 89 S. Ct. 114 (1968).
The authorities cited by respondent, such as NLRB v. Herman Wilson Lbr. Co., 355 F.2d 426 (CA-8 1966); Colecraft Mfg. Co. v. NLRB, 385 F.2d 998 (CA-2 1967); National Can Corp. v. NLRB, 374 F.2d 796 (CA-7 1967); Texas Industries, Inc. v. NLRB, 336 F.2d 128 (CA-5 1964), and Sax v. NLRB, 171 F.2d 769 (CA-7 1948), predate Gissell and are not controlling. NLRB v. Automotive Controls Corp., 406 F.2d 221 (CA-10 1969), although decided six months subsequent to Gissell makes no reference to the decision and is distinguishable on the facts. Likewise, our decision in Lake City Foundry Co. v. NLRB, 432 F.2d 1162 (CA-7 1970), is grounded on a factual situation bearing little similarity to the one before us. There, the president of the company told an employee who commenced a solicitation of union membership that the company was opposed to an outside union and if there was to be a union, he preferred one by the employees. The statements by the company's secretary to an employee with reference to obtaining personal loans and other matters were held to be nothing more than expressions of opinion. Moreover, the court there held that letters sent by the company to employees before an election involving a choice between two unions asking whether outsiders, or people known to employees, could run the company best and stating that employees' union knew the problems, did not constitute interference, restraint or coercion of the employees. There is nothing in Lake City even remotely approaching the implied coercive threat of plant closure in the record before us. Our latest pronouncement on the subject, Utrad Corp. v. NLRB, 454 F.2d 520 (CA-7 1971), is of no aid to respondent. There, the court found that a single isolated statement made by an employee, without the knowledge or encouragement of management, would not support a finding of coercion by the employer. Here, in contrast to Utrad, the coercive activities were conducted by respondent's highest officers.
In the totality of circumstances here presented, the Board was clearly justified in finding and concluding that the respondent was threatening its employees with a lockout or shutdown if the then organizational activities continued or if they selected Local 372. We have no difficulty in holding that petitioner reasonably concluded that respondent's implied warnings of a lockout were coercive in nature and in violation of the Act.
(2) In our examination of the record, we find insufficient evidence to support the Board's finding that respondent unlawfully restricted the employee Turner's use of the restroom. Although we suspect that the employees' union activities may have prompted the ...