Bon-R Reproductions, Inc. v. NLRB

• Decision Date: 05 November 1962
• Docket Number: No. 4,Docket 27290.,4
• Parties: BON-R REPRODUCTIONS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

309 F.2d 898 (1962)

BON-R REPRODUCTIONS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 4, Docket 27290.

United States Court of Appeals Second Circuit.

Argued October 2, 1962.

Decided November 5, 1962.

Seymour W. Miller, New York City (Miller & Seegar, New York City, on the brief), for petitioner.

Paul S. Spielberg, National Labor Relations Board, Washington, D. C. (Stuart Rothman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel. Marion Griffin and Robert Sewell, Washington, D. C., on the brief), for respondent.

Waldman & Waldman, New York City, for Sign-Pictorial & Display Union Local 230, amicus curiæ.

Before LUMBARD, Chief Judge, and FRIENDLY and KAUFMAN, Circuit Judges.

LUMBARD, Chief Judge.

Bon-R Reproductions, Inc., petitions this court pursuant to § 10(f) of the National Labor Relations Act, 61 Stat. 148 (1947), as amended, 29 U.S.C. § 160 (f), to review and set aside a Board order enjoining certain unfair labor practices and directing the reinstatement of one employee. The Board cross-petitions for enforcement of its order. We modify the order as hereafter stated and grant enforcement of it so modified.

Bon-R, a printer of advertising and sales promotion material, employs about twelve men in its shop. Prior to the events in question, the shop was not unionized. In August 1960, Scrima, an employee, started an organization drive and solicited applications for membership in Sign-Pictorial and Display Union Local 230, Brotherhood of Painters, Decorators & Paperhangers of America, AFL-CIO. On Monday, August 22, Morandi, the union's business manager sent a telegram to Bon-R claiming that the union represented a majority of the employees and requesting recognition as bargaining representative. After Spielman, the president of Bon-R, had been advised of the telegram he came to the shop and called to his office each of the employees in turn and questioned them about their attitude toward the union. The results of the poll contradicted the union's claim to a majority, and later that afternoon Spielman telephoned Morandi to tell him this. Morandi, according to his testimony, offered to conduct a secret ballot, which offer Spielman refused.

The next day, soon after the employees were paid, Spielman called them together and reported the previous day's events. He made some remarks, the nature of which is in dispute, and asked who was behind the union activity. Scrima admitted that he had brought in the union. Spielman discharged Scrima and walked out. A few moments later he returned and told the employees that Scrima had been fired because he was incompetent and not because of his union activity.

Following the filing of charges by Local 230, the Board issued its complaint, which alleged violations by Bon-R of §§ 8(a) (1) and 8(a) (3) of the National Labor Relations Act, 61 Stat. 140 (1947), as amended, 29 U.S.C. §§ 158(a) (1), (3). Section 8(a) (1) provides that it shall be an unfair labor practice for an employer to "interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in" § 7 of the Act. Section 7, in relevant part, confers on employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." 61 Stat. 140 (1947), 29 U.S.C. § 157. Section 8(a) (3) makes it an unfair labor practice for an employer "by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization."

After a hearing, the trial examiner found that in all the circumstances of the case, the interrogation of employees violated § 8(a) (1), and recommended an appropriate order. He found that the discharge of Scrima did not violate § 8 (a) (3) and recommended that that portion of the complaint be dismissed. The Board accepted the examiner's finding of a violation of § 8(a) (1) but it rejected his finding that the discharge was not a violation of §§ 8(a) (3) and 8(a) (1). It issued an order that Bon-R shall:

"1. Cease and desist from:

"(a) Discouraging membership in Sign-Pictorial & Display Union, Local 230, Brotherhood of Painters, Decorators & Paperhangers of America, AFL-CIO, or any other labor organization, by discharging any of its employees, or otherwise discriminating in regard to their hire or tenure of employment or any term or condition of employment.

"(b) Coercively interrogating its employees concerning their union membership or sympathies.

"(c) Threatening its employees that they could not have any union unless it wanted one.

"(d) In any other manner interfering with, restraining or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Sign-Pictorial & Display Union, Local 230, Brotherhood of Painters, Decorators & Paperhangers of America, AFL-CIO, or any other labor organization. * * *" 134 NLRB No. 38.

In addition, Bon-R was required to offer to reinstate Scrima with back pay and to post appropriate notices in its plant.

We grant enforcement of the order with respect to the provisions prohibiting threats that the employees could not have a union unless management wanted one and requiring the posting of an appropriate notice. In all other respects the order is set aside.

1. The Interrogation of Individual Employees on August 22.

The interviews followed a standard pattern. Each lasted for just a few minutes, and the entire process was completed in about an hour. Miss Book, the bookkeeper and a stockholder of Bon-R, and Janz, the foreman, were present at the interviews, the nature of which is well shown by the testimony of Reid, one of the employees.

"* * * Mr. Spielman told me that he had received a letter from the Union stating that there was a majority of the people that wanted the Union in Bon-R Reproductions and he wanted to know how the fellows felt about it. He had a yellow pad * * * in front of him, with the fellow\'s sic names on it.

"There was one fellow that went in before me. I was asked to go in after him. And he asked me if I had known anything about the telegram.

And I told him I hadn\'t. And he asked me how I felt about the Union. I told him I didn\'t know. I knew nothing about it. I didn\'t know anything that was in it for me so, therefore, I told him I wasn\'t sure if I did or if I did not want the Union.

"Q. Did he do any marking on the pad? A. Yes, he had the fellows\' names. He checked the `no\' on my name.

* * * * * *

"Q. Did he tell you that he got a letter from the Union or a telegram? Was a telegram envelope on the desk? A. A telegram.

* * * * * *

"Q. About how long did the interview last? A. Two to three minutes.

"Q. Now, at that interview did Mr. Spielman threaten you with discharge or any other discipline if you were in favor of the Union? A. No, he did not.

"Q. Did he promise you any benefits or advantages such as a better job or higher wages if you were against the Union? A. No.

"Q. As a matter of fact, didn\'t he state to you that he didn\'t care one way or the other whether you were in favor of the Union or against it? A. Yes, he did.

"Q. Did he make clear to you that the reason why he was asking your opinion with respect to the Union was so that he would know how to answer the telegram that he had received from the Union? A. More or less I\'d say."

Substantially the same account is given by all the employees, and by Spielman, Miss Book and Janz. There is a variation only in the case of Ford, who testified that after Spielman asked him whether he would be interested in the union, "He Spielman said not that it matters because if he wants the Union in the shop, he will have it. If he doesn't want it, he won't have it." The record is clear that Spielman said nothing else which could be construed as a threat and made no promises of benefit. Three of the employees testified that Spielman stated positively that he was entirely indifferent to the union. Even Scrima, fired in unpleasant circumstances the next day, testified that no threats were made. Ford testified that there were no threats; despite Spielman's remark to him, Ford said that he would be interested in the union, the only employee to do so. The record thus confirms the trial examiner's conclusion that the interviews were prompted by the union's claim to a majority, that they were brief, and that, with the exception of the remark to Ford, they were conducted without any suggestion that Spielman had any antipathy toward the union.

2. The Telephone Conversation with Morandi.

Spielman had reason to telephone Morandi following his poll of the employees, since the result of the poll contradicted the union claim. Most of the conversation concerned this conflict. Morandi testified, and the trial examiner believed him, that when he offered to conduct a secret ballot, Spielman replied that no union would come into his shop unless he wanted it to.

3. The Meeting of August 23 and Scrima's Discharge

In the middle of the afternoon, Spielman called the men together in the shipping room, where they were having a coffee break. He told them that despite the negative result of his poll, the union still claimed a majority. What happened next is in dispute except as to its outlines. The trial examiner accepted Spielman's account, with one modification. Spielman testified that:

"Phil Scrima at one point said that he was behind the whole thing and that he was very familiar with the thing, with the union. And I had asked him at that point, I said, `Well, I asked you yesterday what you knew about it and at that time I was interested in information. Why hadn\'t you told me? You were emphatically no against this.\'

"He said this — these were his words, `They had told me

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