National Labor Relations Bd. v. Syracuse Color Press

• Decision Date: 05 January 1954
• Docket Number: Docket 22813.,No. 99,99
• Citation: 209 F.2d 596
• Parties: NATIONAL LABOR RELATIONS BOARD v. SYRACUSE COLOR PRESS, Inc.
• Court: U.S. Court of Appeals — Second Circuit

209 F.2d 596 (1954)

NATIONAL LABOR RELATIONS BOARD v. SYRACUSE COLOR PRESS, Inc.

No. 99, Docket 22813.

United States Court of Appeals Second Circuit.

Argued November 4, 1953.

Decided January 5, 1954.

George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, Frederick U. Reel, John F. Lawless, Attys., N. L. R. B., Washington, D. C., for petitioner; Arnold Ordman, Washington, D. C., of counsel.

Estabrook, Estabrook, Burns & Hancock, Syracuse, N. Y., for respondent; James P. Burns, Jr., Bernadine A. Luttinger, Syracuse, N. Y., of counsel.

Before CHASE, Chief Judge, CLARK, Circuit Judge, and BRENNAN, District Judge.

BRENNAN, District Judge.

Petitioner seeks the enforcement of its order of March 6, 1953, which principally requires that respondent shall cease and desist from interrogating its employees concerning their membership in, or activities on behalf of the International Mailers Union, or any other labor organization. The proceeding is based upon the provisions of Sec. 10(e) of the National Labor Relations Act, 29 U.S. C.A. § 160(e). The Board's decision and order are reported at 103 N. L. R. B. No. 26. No procedural or jurisdictional question is involved. The existence of substantial evidence to support the findings of the Board is the sole problem here.

The Board found that the respondent violated Section 8(a)(1) of the Act, 29 U.S.C.A. § 158(a) (1), in that certain of the respondent's employees were interrogated concerning their union membership, their attendance at union meetings, the location of such meetings, and the outcome of a pending representative election. The factual background will be concisely stated.

The respondent, Syracuse Color Press, Inc., is engaged primarily in the business of printing comic books. Its principal place of business is located at Syracuse, New York, where it maintains two plants; one located on Geddes Street, the other on Charles Street. The latter is sometimes referred in the record as being located at Solvay, New York. It appears that the employees were unorganized, but it is undisputed that the respondent evidenced no hostility generally to organization efforts. In fact, the respondent, with the permission of the Allied Trades Council, affixed a "bug" or label to some of its products, which seemingly indicated union approval.

In the latter part of 1950, the International Mailers Union, hereinafter referred to as Mailers, began an organization campaign among respondent's employees. Similar activities were also commenced by the International Brotherhood of Bookbinders, A. F. L., hereinafter referred to as Bookbinders. Mailers thereafter filed a petition for certification as the bargaining representative of respondent's employees, and the Board directed that an election by production and maintenance employees be conducted on March 31, 1951. Mailers was not a member of the Allied Trades Council, while Bookbinders was a member, and the question of the possible cancellation of the right to use the label should Mailers win the election arose. This contingency was the subject of general discussions, and the respondent's interest therein is understandable by reason of its possible economic loss.

About a week or two prior to the election date, respondent's superintendent called some five employees into the Charles Street plant office and he, with the general manager, conversed with them. Two foremen were also called into the office, but the conversation with them is not pertinent here. The employees were considered by the superintendent as key men and he presumed that the discussions with them would be reported to the remaining employees of the plant. Three of the employees came to the office singly; the other two came together.

Generally, the first part of the discussions related to the use by the respondent of the label, and an explanation by the superintendent or manager of the possibility of the loss of the use of the label with its consequent economic effect. Both the Trial Examiner and the Board found no violation in such discussions, and the details of same need no repetition here. After discussing the problem of the label with each of said employees they were questioned as to union membership and activities, and such interrogation is the basis for the order sought to be enforced. Employee Anthony was asked if he belonged to the Mailers Union, if he attended any meetings, where the meetings were held, and if he knew of anyone who attended such meetings. Anthony's replies do not appear in detail in the record, except that he said that he was not a member of Mailers, although he was in fact such a member. Employee Yagelski was asked if he attended meetings of the Mailers Union, and was asked if "the fellows" attended the meetings. To each question he replied "* * * a few times." Employees Weirzbicki and Maholick were interviewed at the same time. Weirzbicki was asked if he were a member of the Mailers, and replied in the negative, although he attended its meetings and was active in its behalf. He was asked what the employees talked about (apparently concerning the organization activities of the two unions). The manager asked: "You are among the fellows. Why don't you find out how many members there are and who they are?" The witness replied "O.K." Maholick was also asked if he were a Mailer and there was a discussion as to how many of the employees were members of Mailers. Employee Sarna was advised that he was not called into the office to obtain information as to his membership in any union. He was asked if he had an opinion about the coming election, and he replied that he had not.

The Trial Examiner found no evidence to warrant the conclusion that the interrogation of the employees had any coercive effect upon them, or interfered with their rights; that there was no background of company hostility to organization. He concluded, however, that the interrogation above described was in violation of Section 8(a) (1) of the Act, because of the Board's position to the effect that the questioning of employees concerning their union membership or activities constituted such a violation.

The Board adopted the findings and conclusions of the Trial Examiner with certain modifications. As pertinent here, the Board summarized the interrogations of the five employees above mentioned, and proceeded to discuss the rationale of Standard-Coosa-Thatcher Co., 85 N. L. R. B. 1358, to the effect that interrogation of employees regarding union activities violated Sec. 8(a) (1) of the Act, even in the absence of any unfair labor practice. We do not here pass upon the Board's theory or holding in that case, because the Board evaluated the interrogations in this case as carrying an implied threat of reprisal, and concluded that upon the entire record a violation of Section 8(a) (1) is established. It likewise found that the interrogations improperly interfered with the employees' freedom of choice in the election, which is but another way of stating a violation of 8(a) (1) of the Act. The Board adopted the employees' version of the interrogation, and rejected the respondent's denial thereof. This the Board had the right to do, and the problem then becomes one of evaluating such evidence in the light of existing circumstances. The findings of the Board are not to be lightly disregarded; however, the responsibility for the determination of the existence of substantial evidence to support the findings and order is that of this court. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456.

Judicial precedents are helpful but not conclusive. Of necessity, interference, restraint or coercion depend upon the facts and circumstances of each individual case, so that the inquiry here is directed to the evidentiary basis for the Board's order in this particular case. If same is found, then the petition must be enforced, even though we do not necessarily use the same method of reasoning as that used by the Board.

It is plain that the respondent preferred Bookbinders rather than the Mailers as an employee representative. The reason is probably economic, and no criticism is to be attached to that preference alone. N. L. R. B. v. Clark Bros. Co....