Chauffeurs, Teamsters and Helpers, Local 633 of Newhampshire, Affiliated with the Internationalbrotherhood of Teamsters, Chauffeurs,warehousemen and Helpers Ofamerica, Petitioner, v. National Labor Relations Board, 509 F.2d 490 (D.C. Cir. 1974)

George Law is Treasurer of and owns a controlling interest in three sister transport corporations based in Nashua, New Hampshire. The largest of these three, Law Motor Freight, employed in June, 1972, approximately 80 non-supervisory workers and recognized as the sole bargaining representative of those employees Teamster Local 633. The other two corporations were respectively Bulk Haulers, Inc., which employed six non-supervisory workers, and Law Warehouses, Inc., which employed five non-supervisory workers. Neither of these two corporations had recognized a union in June of 1972. Ronald Hall was employed as a driver for Law Motor Freight in May, 1970, and pursuant to a then-existing union security agreement between Law Motor Freight and Local 633 became a member of the Teamsters. In November of 1970, Hall was transferred to Bulk Haulers where he was assigned to deliver certain shipments of liquor under a contract between Bulk Haulers and the New Hampshire State Liquor Commission. His immediate supervisor in that job was one Charles McKay and McKay's immediate superior was Henry Therriault. Stephen McKay was hired subsequent to Hall and also drove for Bulk Haulers under the supervision of Charles McKay and Therriault.

In November, 1971, after some tension between Hall and Therriault over a few late deliveries by Hall, Hall contacted Local 633 and held a meeting at his home which included Stephen McKay, a representative of the union and himself. Hall later spoke with at least two other drivers about the union on the telephone and at the terminal of Bulk Haulers. Sometime between November 23 and December 5, 1971, Therriault called Stephen McKay into his office and questioned him about union. On December 9, 1971, Therriault fired Ronald Hall. On December 14, 1971, Local 633 filed unfair labor practice charges against Bulk Haulers. On January 31, 1972, the General Counsel of the National Labor Relations Board filed a complaint alleging that Bulk Haulers had violated § 8(a) (1) of the National Labor Relations Act¹  by questioning Stephen McKay and had violated § 8(a) (1) and (3)²  by discharging Ronald Hall. The Trial Examiner found against the General Counsel on both counts and the Labor Board adopted without opinion the trial examiner's findings and order.³  Local 633 petitions this Court to review and set aside this order. Finding the Union's arguments persuasive, we reverse and remand the case for proceedings consistent with this opinion.

We first turn to the alleged violation of § 8(a) (1) through the questioning by Therriault of employee Stephen McKay. According to the trial examiner, Therriault initiated the questioning by calling McKay into the company's conference room. Therriault then asked McKay whether McKay had been approached by the union, adding that McKay did not have to answer this question if he did not wish to. McKay stated in response that he had indeed been approached by the union. Therriault then remarked that he expected that sooner or later Bulk Haulers would go union but that McKay would be wise to ensure that the benefits obtained through unionization were sufficient to offset any union dues. Therriault also stated that if the union came in, the senior driver would get the better work, if that driver wanted it, and that McKay who was relatively less senior 'could come up short.' The trial examiner found that the questioning was limited and that Therriault, by assuring McKay that he did not have to answer his question, 'blunted what otherwise might have been the coercive nature of the inquiry.'⁴  The trial examiner further found that statements relating to the adverse effects of a union seniority system were permissible predictions with a reasonable basis in fact and thus were legally protected speech under § 8(c) of the National Labor Relations Act.⁵ 

We begin our analysis with a brief discussion of the nature of the § 8(a) (1) offense of 'coercive interrogation'. The policy of § 8(a) (1) is to protect employee free choice in the decision whether to accept union representation,⁶  a free choice explicitly preserved in § 7 of the NLRA⁷  and implicit in a number of related areas of national labor policy. The specific focus of § 8(a) (1) is the prohibition of the use of employer economic power to interfere with this free choice.⁸  But neither § 8(a) (1) or its union counterpart, § 8(b) (1), could reasonably be read to eliminate employer and union attempts to persuade workers of the benefits or costs of accepting the union. First, such a result would lead to the absurd conclusion that free choice means a relatively uninformed choice and, second, the result would be inconsistent with § 8(c) of the Act which implements traditional First Amendment policies.⁹  The burden of § 8(a) (1) is thus to distinguish between employer attempts to persuade workers of the disadvantages of unionization and employer attempts to use their economic power to 'coerce' workers into voting against the union. But, as should be immediately obvious, there is no clear cut distinction between these two kinds of activity. There is always an iron 'fist inside the velvet glove'¹⁰  of persuasion. Established First Amendment doctrine would seem to indicate that this inability to easily distinguish protected from non-protected speech is cause for restricting the government's ability to remedy the non-protected speech,¹¹  but the Supreme Court has expressly rejected that analogy.¹²  It is thus the task of the Labor Board in the first instance and this Court on appeal to 'judge the impact of utterances made in the context of the employer-employee relationship.'¹³ 

The Board has since the inception of the National Labor Relations Act recognized that interrogation by an employer of a worker's attitude toward the union and that statements by the employer about what might happen if the union is selected as the representative of the employees have a tendency to coerce workers in the exercise of their § 7 rights.¹⁴  The Labor Board and the courts have over the years crystallized a number of 'factors' to be considered in determining whether employer questioning and predictions as to the consequences of unionization pass beyond permissible persuasion into impermissible use of employer economic power. A number of these factors were enunciated in the leading case of Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964) and other factors were suggested in a subsequent case in the Fifth Circuit.¹⁵  Virtually every Circuit Court of Appeals has adopted, explicitly or implicitly, the Bourne factors¹⁶  and we think that these factors supply the proper starting place¹⁷  for judicial and administrative analysis of whether particular employer questioning was in the totality of circumstances 'coercive' or merely persuasive. Passing from the coercive nature vel non of questioning about an employee's attitude toward a union to employer statements as to the effect of unionization, the recent decision in NLRB v. Gissel Packing Co., 395 U.S. 575, 616--620, 89 S. Ct. 1918, 1942, 23 L. Ed. 2d 547 (1969) establishes that such statements must be either non-coercive or a prediction 'carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control . . ..'¹⁸  Whether statements as to the effect of unionization are coercive involves an inquiry essentially similar to that suggested in Bourne.¹⁹ 

It is apparent from even a cursory reading of the trial examiner's decision in this case, adopted without opinion by the Labor Board, that the type of inquiry mandated by Bourne and related cases was not conducted here. The trial examiner properly considered the extent of the questioning by Therriault. Surely, an isolated and limited set of questions would not rise to the level of employer 'coercion'.²⁰  However, the trial examiner did not stop there but also stated that Therriault 'by assuring McKay that he need not answer unless he wanted to . . . blunted what otherwise might have been the coercive nature of the inquiry.' We find this conclusion highly problematic. Without a supporting discussion of the totality of circumstances surrounding the questioning, we are not prepared to hold that the bare 'assurance' that the employee need not answer is sufficient to eliminate what would otherwise be employer economic coercion. We think the Board should conduct a more searching inquiry into the nature of the questioning and the circumstances in which it was conducted before concluding the questioning was not coercive. As to Therriault's prediction that McKay might 'come up short' because of union seniority provisions, we are not prepared to evaluate this statement under the Gissel test until the Board has more fully considered whether the circumstances of the questioning were coercive. We also note that there was no evidence in the record to support the trial examiner's conclusion that Therriault had a reasonable basis in fact for his suggestion that the union might bring in a seniority system which would disadvantage McKay.²¹  We thus think that the better course of action at this stage is to remand the case to the Board for a more complete evaluation of Therriault's questioning of McKay in light of the discussion in this opinion. This remand is consistent with the holding in Gissel that the Labor Board must in the first instance perform the extremely delicate task to distinguishing employer coercion from employer persuasion.²² 

A consideration of the vagaries of this task compels us to suggest to the Board the beginnings of principled approach to distinguishing coercion from persuasion. This approach, it would seem, is also instructive on the similarly delicate issue of whether a statement is a 'prediction' or a 'threat of retaliation.' A § 8(a) (1) violation based on speech alone is made out solely by reference to imminent coercive actions. Speech which carries a message of actual coercion is more than pure speech and thus is subject to balance with other important social interests. The Congress has concluded that the right of workers to freely associate for their economic betterment is of more social importance than the employer's free speech rights when that speech is backed by a threat of action. The Supreme Court has let that judgment stand.²³  But coercion must surely be interpreted to mean more than a persuasive argument that certain events will occur which are distasteful to the listener.²⁴  Rather coercion is defined by reference to the will of the speaker--does the speaker intend to perform an act for no other reason than that the listener is in favor of the union?²⁵  Of course, the speaker's intent must be inferred from the circumstances as they appear to the reasonable person. Thus, to take examples from a recurrent § 8(a) (1) problem, employer assertions that 'serious harm' will result from unionization are generally not an unfair labor practice while assertions that the employer will 'bargain from scratch' are unfair labor practices.²⁶ 

We next turn to the alleged § 8(a) (1) and (3) violation by the discharge of Ronald Hall. The trial examiner found that the General Counsel had not proven by a preponderance of the evidence that Therriault knew of Hall's union activities when he fired Hall and that, therefore, the discharge could not have been motivated by Hall's union activities.²⁷  The trial examiner recognized that the Board's 'small plant doctrine' permits an inference that the company knew of the union activities of specific employees from evidence that union activities 'were carried on in such a manner, or at times that in the normal course of events, (the Company) must have noticed them.'²⁸  However, the examiner felt that any inference arising from the 'small plant doctrine' in this case was overcome by Therriault's denials that he had knowledge of Hall's activities. The Board in its brief on this appeal has apparently abandoned this argument in favor of the position that Hall's activities were not conducted in such a manner that the Company must have noticed them. The trial examiner also found that other circumstantial evidence introduced by the general counsel was not sufficient to establish Therriault's knowledge of Hall's activities. Since the trial examiner concluded that Therriault did not know of Hall's union activities, he did not decide whether Hall's discharge was based on good cause.

We need not decide here whether the 'small plant doctrine' permits or compels an inference of employer knowledge absent evidence--as opposed to conclusory denials--to the contrary.²⁹  The overwhelming weight of the circumstantial³⁰  evidence in this record requires a finding that no substantial evidence exists to support the position that Therriault did not know of Hall's activities. We first note that Therriault need not have been morally certain that Hall was engaged in union activities in order for a finding of discriminatory discharge to be permissible. It is enough that he had a reasonable suspicion that Hall was the 'culprit' and was therefore willing to take action upon that suspicion.³¹  Second, whether or not the 'small plant doctrine' compels any inferences, clearly the fact that only six³²  employees were involved in the relevant bargaining unit is some circumstantial evidence that any union activities would come to the attention of the Vice-President of Operations of the unit, in this case our Mr. Therriault. This circumstantial evidence is buttressed by fact that an employee of Law Warehouses and an employee of Bulk Haulers whom Hall had not directly spoken to were aware of Hall's activities. Furthermore, the 'small plant doctrine' suggests that the nature of the union activities is relevant circumstantial evidence.³³  Here Hall spoke with workers on the company premises--in particular, the terminal building. The trial examiner so found. These activities were carried on for approximately two months prior to Hall's discharge. Furthermore, Hall had brought himself to the attention of the Bulk Haulers management by several complaints and was admittedly known by the management as the only union member among the Bulk Haulers drivers. The very persuasive nature of this evidence is made legally compelling by Therriault's admissions that (1) he knew the union would attempt to organize the company (an admission made to Stephen McKay); (2) he and the Company were opposed to unionization and (3) he questioned his employees about whether they had been approached by the union 'every time that I talked to them, practically. . . .'³⁴  Therriault's testimony on why he did not ask Hall himself whether Hall had been approached by the union was dissembling to the point of disbelief.³⁵  We further note that the timing of Hall's discharge is highly suspect. Hall was discharged shortly after Therriault had questioned Stephen McKay. We refrain from commenting on the validity of the reason offered to support Hall's discharge, but we do note that Therriault's version of one particular event leading up to the discharge was not credited by the trial examiner.³⁶  We finally note that Hall was the spearhead of the unionization effort at Bulk Haulers and it is well known that discharge of a leading union adherent is a classis method of combatting unionization.³⁷  We would be very hesitant to give significant weight to Therriault's conclusory denial of knowledge of Hall's activities, but in this case we do not think it should be given any weight at all since Therriault's testimony was less than candid, to say the least.³⁸ 

Against these facts, the trial examiner's conclusion that Therriault did not know or reasonably suspect Hall was attempting to organize his employees is nothing short of incredible and is so devoid of evidentiary support that we must refuse to accept it as a rational conclusion. We thus reverse the Board's acceptance of the trial examiner's decision. However, we are not prepared to hold at this time that Hall's discharge violated § 8(a) (3) or (1). The trial examiner's determination that Therriault did not know of Hall's union activities made it unnecessary for him to consider whether Hall's discharge was motivated by legitimate business reasons or by animosity to the union. We would be very hesitant to find a § 8(a) (3) violation simply of the basis of employer knowledge of union activities and employer opposition to unionization.³⁹  There is, of course, more evidence than this in the record to support a § 8(a) (3) charge but we think that evaluation of this evidence is a task for the Labor Board in the first instance. We, therefore, remand the case for such an evaluation.

In sum, we reverse the Board's determination that Therriault did not violate § 8(a) (1) by questioning Stephen McKay and remand for further consideration in light of Part I of our opinion. We also reverse the Board's determination that Therriault did not know of Hall's union activities and thus could not have discharged him in violation of § 8(a) (1) and (3) and remand for a finding of whether Hall's discharge was motivated by his union activities.

So ordered.