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First Lakewood Associates Ltd. v. National Labor Relations Board

decided: August 9, 1978.


On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board

Before Pell and Wood, Circuit Judges, and Solomon,*fn* Senior District Judge.

Author: Pell

This is a petition for review and cross-application for enforcement of a decision and order of the National Labor Relations Board (Board) which held that the employer in this case violated §§ 8(a)(1) and 8(a)(5) of the National Labor Relations Act (Act). The Board ordered the employer to cease and desist from the unfair labor practices it was found to have committed and, in addition, after a finding that the employer's violations made a fair election unlikely, ordered it to bargain with Janitors Union Local 1 (union).

The employer owns and manages an apartment building and townhouse complex where it employs a number of janitorial workers. On December 5, 1975, the union held an organizing meeting with these workers and obtained signed authorization cards from six of the employees in the unit. One other employee in the unit was already a member of the union. On December 8, 1975 a union organizer advised Thomas Holmes, the employer's Property Manager, that the union represented a majority of the employer's janitorial employees and requested recognition and bargaining. Holmes responded that he had nothing to do with union matters, and that the appropriate person with whom to speak was Vice-President Allen. It is at this time that the unfair labor practices commenced.

The Section 8(a)(1) Violations

The Board found that the employer violated § 8(a)(1)*fn1 by interrogating employees concerning their union activities, threatening employees with deprivation of benefits if the union should be selected to represent them, threatening an employee with discharge for refusing to reveal the identities of employees who attended a union meeting, creating the impression that its employees' union activities were under its surveillance, informing an employee that it knew (or heard) that the employee had joined the union, and promising to pay and paying employees for certain medical benefits to discourage them from supporting the union. The employer argues that there is not substantial evidence on the record considered as a whole to support the Board's conclusion. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488, 71 S. Ct. 456, 95 L. Ed. 456 (1957). We now view that evidence in some detail.

A. Interrogations

On December 8, 1975, after the union had first requested recognition, maintenance supervisor Lynn Mehrholz telephoned employee Gregory Tomek at his home and asked if any union people had contacted him. Tomek replied that none had. The next morning Mehrholz entered the maintenance office where the janitorial employees reported for work and asked employee Arley Canterbury, "What has the union done for you?" Canterbury did not reply. Mehrholz then entered his own office and called in employee Theodore Ervin. Mehrholz told Ervin that he knew that the employees had brought in an organizer and wanted to organize a union. He then asked Ervin if he attended the meeting and if he knew who sent for the organizer. When Ervin denied attending the meeting and any knowledge about who sent for the organizer, Mehrholz repeated the questions and concluded by telling Ervin not to sign anything or talk to any organizer and to keep him informed of any such activities.

On the evening of December 9, 1975 Mehrholz again telephoned Tomek and asked whether he had spoken to any union people. Tomek admitted that he had, but refused to offer any further information. Mehrholz continued to question him about why he was doing this and who attended the meeting. That same evening Mehrholz telephoned George Green, another employee, and asked why he had not told him about the union meeting. Green denied knowledge of the meeting. Mehrholz then telephoned Ervin and again asked who brought in the organizer. He repeatedly attempted to elicit this information, but Ervin said he did not know. Mehrholz ended the conversation by telling Ervin to keep his ears and eyes open and to let him know if he heard anything. He also told him not to sign anything.

Mehrholz continued these interrogations on December 10, 1975. That morning he called Andrew Hogue, an employee, into his office and asked, "So you want to join the union, huh?" Hogue responded, "Who told you that?" Mehrholz said, "The union man." Hogue then left, and Mehrholz called in Curt Snelten and asked him if he had joined the union. Snelten responded that it was none of his business. Mehrholz told him that he just wanted him to know that there were no hard feelings and that he would probably do the same thing if he were in Snelten's position.

During the second week of December 1975 Mehrholz asked employee Michael Stein if he knew anything about "this union stuff." Stein replied that he did not.

These facts clearly constitute substantial evidence on the record considered as a whole to support the Board's conclusion that the employer violated § 8(a) (1). Employer interrogation of employees concerning union activities is not per se coercive under § 8(a)(1). Satra Belarus, Inc. v. N.L.R.B., 568 F.2d 545 at 547 (7th Cir. 1978). The proper analysis, however, is whether the interrogation reasonably would have been coercive when viewed and interpreted as the employee must have understood the questioning and its ramifications. N.L.R.B. v. Gogin, 575 F.2d 596 at 600 (7th Cir. 1978). Accordingly, the circumstances of the interrogations are critical to a determination of whether they violated § 8(a)(1). We have noted several factors that are relevant to such a determination: (1) the background of employer-employee-union relations; (2) the nature of the information sought; (3) the questioner's identity; (4) the place and method of interrogation; and (5) the truthfulness of the reply. Id. at 600 n.5. See also N.L.R.B. v. Pope Maintenance Corp., 573 F.2d 898, 904 (5th Cir. 1978). Although these factors provide some guidance, they are not exclusive and thus we must consider all relevant circumstances in making our determination.

An important characteristic of the interrogations in this case is that they were made without any accompanying explicit explanation for the employer's interest in the union's activities. Moreover, to the extent that Mehrholz intimated reasons for the employer's concern, it was that the employer did not want a union and wanted to know who was behind the organizational drive. Mehrholz's persistent questioning with respect to the identity of those employees responsible for the initiation of the union's organizational attempt and those expressing support for the union, absent a persuasive, explicit, legitimate explanation, could reasonably suggest to the employees that the underlying reason for the questioning was to segregate the union supporters for future reprisals. Most of the interrogated employees denied knowledge of the union meeting, denied knowledge of who attended the meeting, or denied personal support for the union, a strong indication that they feared reprisals.

We also note that Mehrholz, the questioner, was a supervisor and was perceived as an agent of the employer. His alliance with the employer and his anti-union posture were readily apparent to the employees and thus heightened the coercive nature of his questioning and diminished the likelihood of the employees perceiving his questions as casual, isolated, or the product of friendly discussion. See B. F. Goodrich Footwear Co., 201 N.L.R.B. 353 (1973). Under these ...

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