oral responses of employer's representatives at informational meetings may rebut inferences of unlawful conduct and should be persuasive to the Board
How later courts described this case
- oral responses of employer's representatives at informational meetings may rebut inferences of unlawful conduct and should be persuasive to the Board
- conduct is considered in the total context in which it occurred
- conduct must be viewed in total context
- “Only where the threats or opinions refer to matters over which the speaker has no control may employees not reasonably conclude that they are being coerced.”
Written by the judges who cited it.
The opinion
KRUPANSKY, Circuit Judge,
concurring in part and dissenting in part.
I concur in the majority’s determination that Okun Brothers Shoe Store, Inc. (Okun) did not engage in unfair labor practices when (1) it hired a management consultant firm to assist in communicating management’s position concerning unionization, and (2) supervisor Chris Nezamus (Neza- *111 mus) questioned employee Smirlie Weston (Weston) about the number of employees who had signed up to vote for the union.
However, because Nezamus’ unsupported conjecture of a possible reduction in hours did not tend to interfere with, coerce or restrain employees in the exercise of their rights to self-organization, I must respectfully dissent from Part I of the majority opinion.
The record disclosed that, by all accounts, Nezamus was a supervisor in name only. Employee Mark De Lisle (De Lisle) testified that all Okun employees were aware of his lack of authority and that everyone knew he did not speak for management. 1 De Lisle’s impressions were confirmed by Francis O’Brien (O’Brien) and Weston, the employees to whom the statement about reduction in hours was directed. O’Brien testified that he had defied Nezamus’ instructions on various occasions and that, in fact, he had continued working after Nezamus had attempted to discharge him. In addition, Weston executed an affidavit in which he stated that Nezamus “never gave me the impression that he was reporting back to anyone” after engaging in conversations about unionization. Weston further acknowledged that Nezamus had, himself, been considering joining the union, a fact which demonstrated that he was, by no means, a voice of the management team.
Both O’Brien and Weston testified that Nezamus’ predictions about the effects of unionization were phrased in equivocal language. O’Brien testified that Nezamus prefaced his statements about a reduction in hours with the words “I don’t know.” Similarly, Weston testified that Nezamus stated that hours would “probably” be cut.
This circuit has concluded that a statement of a supervisor relating to unionization will be deemed coercive if, when viewed in all the surrounding circumstances, its probable effect tends to interfere with the employees’ free exercise of their rights to self-organization. NLRB v. E.I. DuPont de Nemours, 750 F.2d 524, 527 (6th Cir.1984). Considering the low esteem in which Nezamus was held by Okun employees and their knowledge that he didn’t speak for management, coupled with the innocuous import of his comments, Neza-mus’ statement about the possibility of a reduction in hours had no coercive tendencies.
Accordingly, for the reasons stated above, I would reverse the Board’s decision and deny enforcement of the Board’s order.
. De Lisle testified as follows:
Q. Do you know a person named Chris Nez-amis? [sic]
A. Sure.
Q. Who is he?
A. He’s manager, I guess.
Q. Why do you say, "You guess."?
A. Well, that’s the title they hung on him. I don’t really know what — it didn’t really mean much of anything.
Q. Why didn’t it mean much of anything?
A. Because nobody really paid any attention to him.