Edward Fields, Inc. v. NLRB

• Citation: 325 F.2d 754
• Decision Date: 20 December 1963
• Docket Number: No. 169,Docket 28240.,169
• Parties: EDWARD FIELDS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

325 F.2d 754 (1963)

EDWARD FIELDS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 169, Docket 28240.

United States Court of Appeals Second Circuit.

Argued November 14, 1963.

Decided December 20, 1963.

COPYRIGHT MATERIAL OMITTED

Jonathan S. Liebowitz, New York City (Maurice Feldman, New York City, on the brief), for petitioner.

Robert A. Armstrong, Washington, D. C. (Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Allison W. Brown, Jr., National Labor Relations Board, Washington, D. C., on the brief), for respondent.

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

LUMBARD, Chief Judge.

Edward Fields, 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 found and directing petitioner to bargain, upon request, with Local 55 as the exclusive representative of its employees. The Board cross-petitions for enforcement of its order. We modify the order as hereafter stated and grant enforcement of it so modified.

Edward Fields, Inc. manufactures carpets, window blinds and related products at a plant in New York City. Its wholly owned subsidiary, International Dye Works, operates a dye shop across the street, and a winding department on the premises of petitioner's plant. In June 1962 the petitioner and its subsidiary employed 27 production and maintenance employees. Prior to the events in question, neither the petitioner nor its subsidiary was unionized. During the latter part of May and the first week of June 1962, organizers for Local 55 met with employees of the petitioner and its subsidiary and distributed authorization cards. Fifteen of the employees signed union cards and mailed them to the union's office. On June 5, 1962, the union sent petitioner a letter, received June 6, in which it stated in part: "This is to inform you that the majority of your employees in all branches of your company have designated Amalgamated Union Local 55, Affiliated with District 5 as their agent for the purpose of collective bargaining." The union requested a meeting at the petitioner's office on June 11 for the purpose of negotiating a contract. On June 7, Elliott Fields, vice president of Fields, Inc., replied to the union's letter stating that the petitioner would "be glad to meet with you for the purpose of determining whether your union represents a majority of our employees, and to determine whether you have bargaining rights in their behalf." He suggested that the proposed meeting be held on June 13. On or about June 7, 1962, Elliott Fields posted a notice on the plant bulletin board which invited any employee to discuss "the union situation" with him in privacy.

Elliott Fields first learned of the union's organizational activities in late May 1962. About May 30 Elliott Fields called employee James Zanata to his office to ask whether he had been approached by the union. When Zanata replied in the affirmative and indicated an interest in the organization, Fields told him that he would not like to see a union in the factory. Later, about June 7, an employee, William Bernardini, came to plant manager Richard Miller and to Elliott Fields to request a wage increase and during the ensuing conversation Fields told the employee this would be impossible until the union situation was settled. There is testimony that when Fields asked Bernardini what he thought of the union, Bernardini replied he not only was not interested, but that he was not going to attend a union meeting for the employees which was to be held that evening at a nearby restaurant. Fields then asked Bernardini to attend the meeting for the purpose of collecting information and to report back the following day. The next day Bernardini reported to the plant manager, Miller, that at the meeting the employees sought to select three or four men who would sit with the union in bargaining with management. Miller relayed this information to Fields who indicated he already knew about it. Further, employee Joseph Militello testified that shortly after the employee meeting of June 12, 1962, Elliott Fields called Militello to his office and asked him whether he or anyone else had signed a union card.¹ When Militello said he had not signed a card and was not aware whether his fellow employees had signed authorizations, Fields suggested that he "mingle in among the crowd * * * to find out what's going on with the union" and report back. Elliott Fields denied making a suggestion to any employee to spy on the union.

On June 11, four employees notified the plant manager, Miller, that they desired to see Elliott Fields on behalf of the other employees. The meeting, which was attended by Fields, Miller, and the employee committee, commenced early the afternoon of June 11 and lasted the rest of the day, the employees being paid for their time. Fields was informed that the employees didn't particularly want the union but there wouldn't be any alternative unless they received some assurance as to existing and prospective company policies. Thereafter, Fields and the employee committee reviewed various aspects of their current working conditions including sick leave, hospitalization benefits, posting of vacation schedules, pension plan for employees, pay raises, and the distribution of a booklet which would set forth company policy. Fields also indicated that if a union organized the plant, he would not continue to maintain the company policy of full employment during slack periods and the practice of paying for uniforms, providing free coffee and doughnuts, and the lenient policy on smoking. At the conclusion of the meeting the committee requested permission to hold a meeting in the plant so they could report to the other employees the results of the discussion and determine the preference of the men.

On the following morning a meeting was held for all the hourly paid employees. At the beginning of the meeting a majority of the employees signified that they had signed union cards; and the employee committee then reported on all the subjects that had been discussed with Fields and Miller the preceding day. Following the committee report, Elliott Fields was called to the meeting to answer questions concerning company policy. After Fields left, the committee asked for a vote as to the number who still preferred the union and this time a majority voted against it. Immediately following the meeting, employee Elroy Jones went to Fields' office to solicit help in preparing a petition repudiating the union. Fields dictated the heading for the petition and Jones circulated it among all the production and maintenance employees. Each employee was requested to sign the petition regardless of whether he had signed a union card. Twenty-four signatures were obtained and the petition was returned to Fields the same day.

Meanwhile, on June 11, the union filed a petition with the Board in which it requested certification as the representative of Fields, Inc. and its subsidiary employees. Petitioner received a copy of the union petition prior to June 13, the date set in Fields' June 7 letter for a meeting with the union. At the June 13 meeting the union representatives told Edward Fields, the company president, and Elliott Fields that Local 55 represented a majority of petitioner's employees. Elliott Fields replied that he was not aware the employees wanted a union or that the local in fact represented a majority. The union representatives refused to disclose the names of those who had signed union cards and consequently the petitioner's attorney Maurice Feldman announced that the petitioner would "not negotiate or do anything with the union until we have a vote with the National Labor Relations Board."

On June 19, representatives of the petitioner and Local 55 met at the Regional Office of the Board to discuss the possibility of a consent election; however, when the parties could not agree on a date for the election, the union withdrew its representation petition and filed unfair labor charges.

Following the filing of charges by Local 55, the Board issued its complaint, which alleged violations by Edward Fields, Inc., of §§ 8(a) (1) and 8(a) (5) of the National Labor Relations Act, 61 Stat. 140 (1947), 29 U.S.C. §§ 158(a) (1) (5). 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. The relevant part of § 7 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 material aid or protection * *" 61 Stat. 140 (1947), 29 U.S.C. § 157. Section 8(a) (5) makes it an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees * * *"

After a hearing, the Trial Examiner concluded that the petitioner, by unilaterally promising its employees changes in their working conditions and other benefits, together with its interrogation of employees and the suggestion they engage in surveillance of organizational activities, violated § 8(a) (1). He further found that the petitioner refused to bargain collectively in good faith with Local 55 in violation of § 8(a) (5). The Board accepted the Examiner's findings of violations of §§ 8(a) (1) and (5) but in addition found petitioner also violated § 8(a) (1) by unilaterally promising to grant its employees July 4 as an additional paid holiday and threatening to deprive its employees of accrued vacation rights. It issued the usual order requiring petitioner to cease and desist from refusal...