Irving Air Chute Company v. NLRB

Decision Date18 August 1965
Docket NumberNo. 498,Docket 29425.,498
Citation350 F.2d 176
PartiesIRVING AIR CHUTE COMPANY, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
CourtU.S. Court of Appeals — Second Circuit

COPYRIGHT MATERIAL OMITTED

Arnold I. Burns, New York City (Mermelstein, Burns & Lesser, Jay D. Fischer, Donald M. Ochacher, New York City, of counsel), for petitioner.

Nancy M. Sherman, Atty., N. L. R. B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, William J. Avrutis, Atty., N. L. R. B., of counsel), for respondent.

Before MOORE and ANDERSON, Circuit Judges, LEVET, District Judge.*

MOORE, Circuit Judge.

Irving Air Chute, Inc. (Irving or the Company) petitions to review and set aside the decision and order of the National Labor Relations Board (the Board) which directed the Company to cease certain violations of the National Labor Relations Act, as amended (the Act), and to recognize and bargain with the Textile Workers Union of America (TWU or the Union). The Board in its answer cross-petitions for the enforcement of its order.

On June 5, 1963, a Board-supervised representational election was held among the employees of the Company's Marathon Division, Cortland, New York, pursuant to a petition for representation filed by the Union on April 30, 1963. The Union lost but filed charges alleging the commission of unfair labor practices which adversely affected the election result.

A Board Trial Examiner found that the Company violated section 8(a) (1) of the Act by threatening its employees with reprisals for engaging in union activities; that the Company violated sections 8(a) (1) and (2) of the Act by suggesting, assisting and promoting the formation of an "inside" labor organization; and that the Company violated section 8(a) (5) of the Act by refusing to bargain with the Union. The Examiner's conclusions were approved by the Board.

1. The 8(a) (1) violation:1 The Board found that on April 26, 1963, Payne, an admitted Company supervisor, observed Kinner, an employee, carrying union literature. Payne asked Kinner if he were trying to get himself fired for carrying the literature. Payne also told Kinner that the Company might move its Marathon plant to Kentucky if the Union succeeded in organizing the plant.2

On April 29, Mathewson, the plant manager, told Kinner that he had orders to fire all the Union agitators among the employees and that there would be reprisals against the members of the paint department, where Kinner worked, because of their union activity.

These statements constitute a clear violation of section 8(a) (1). Threats of discharge for pro-union activity tend to deny employees the free exercise of the right of self-organization guaranteed by section 7 of the Act. NLRB v. Syracuse Stamping Co., 208 F.2d 77 (2d Cir. 1953). Threats to close a plant if a union organizing drive is successful obviously have a similar coercive effect. NLRB v. Somerset Classics, Inc., 193 F.2d 613 (2d Cir.), cert. denied sub nom. Modern Mfg. Co. v. NLRB, 344 U.S. 816, 73 S.Ct. 10, 97 L.Ed. 635 (1952); NLRB v. Franks Bros., Inc., 137 F.2d 989 (1st Cir. 1943), aff'd 321 U.S. 702, 64 S.Ct. 817, 88 L.Ed. 435 (1944).

Irving argues that there is no evidence (1) that these threats were authorized or sanctioned by the Company or were part of any program of coercion; (2) that similar threats were made to other employees or that Kinner ever communicated these threats to anyone prior to the election of June 5th; and (3) that such threats affected Kinner or the union preference of other employees.

However, "declarations made by `supervisory employees' will charge the employer under the Act even though they would not charge him under the doctrine, of respondeat superior." NLRB v. Moench Tanning Co., 121 F.2d 951, 953 (2d Cir. 1941). This broader rule places responsibility on an employer for acts of a supervisor when "employees would have just cause to believe that he was acting for and on behalf of the company." NLRB v. Texas Ind. Oil Co., 232 F.2d 447, 450 (9th Cir. 1956). The Company in the present case is thus certainly responsible for Mathewson's statement on May 29. Although Payne's earlier threats, standing alone, might well be attributed to the Company, Mathewson's encounter with Kinner in effect placed the stamp of official approval on Payne's action.

Evidence of the dissemination of the Company's threats or that they were part of an organized program of coercion is also not required. The Union's organizing drive began on April 5, 1963 and "any expressions of company attitudes even to small groups of individuals, were likely to be rapidly disseminated around a plant during the struggle of organization."3 Bausch & Lomb Optical Co. v. NLRB, 217 F.2d 575, 576 (2d Cir. 1954). The Company cannot claim its threats are de minimis as a mere isolated incident since they were reiterated and took place in a context where their effect was enhanced. Similarly, proof of the actual effect of the Company's threats is not required in view of their inherently coercive nature. Elastic Stop Nut Corp. v. NLRB, 142 F.2d 371 (8th Cir. 1944). Thus it is enough in this case that these threats were made.

2. The combined 8(1) and (2) violations:4 On May 13, 1963, about two weeks after receipt of the Union's initial bargaining demand issued on April 25 Mathewson and Wallace, the plant business manager, met employees Fear and Wells in a local bar. Wells testified that Wallace mentioned that the plant employees "could have a Committee going in the shop instead of getting a Union." On May 17 Wallace stated to the assembled plant employees:

"I don\'t see why a small group of employees, who could represent all of you, couldn\'t work together with management without bringing in outside interference. We all make mistakes, but we would like to be told about them. We don\'t like to receive a telegram telling us of them. A talk every week or every 2 weeks between management and a group representing the employees would be welcomed."

Wallace reiterated his suggestion at a second meeting of the assembled plant employees held on May 29:

"I see no reason why we can\'t deal with our problems without outsiders. We could get together periodically, either singly or in a group to discuss our problems. Some folks need someone to talk to them, perhaps a group could be approved by you to meet with management." Emphasis in original.

At the May 29 meeting Clark, a plant employee, told Wallace that he had a petition for an employees' committee signed by 50 fellow employees and asked what the Company planned to do about the petition. Wallace took the document and replied that he was "pretty sure" the Company would recognize the Committee.

After the Wallace statement of May 17, the Company gave considerable support to the formation of the committee. A supervisor granted Clark permission to keep the petition in the department where he worked so that employees could sign it during working hours. Supervisory employees circulated the petition through their departments for signatures and arranged for the Company to print ballots for the election of committee members. Supervisor Lee appeared on the ballots as one of the nominees for membership in the committee. Supervisor Harper and employee Keller helped count the ballots after they were cast. Supervisor Irvin then had an office employee type up a notice informing employees about the existence and purposes of the committee. The notice invited employees to deposit any suggestions to the committee in a ballot box on a wall in the plant.

The committee never functioned nor was ever extended formal recognition by the Company. Nevertheless, the Trial Examiner and the Board concluded that the Company's support of the committee violated section 8(a) (1) and the "interference" prohibitions of section 8(a) (2), although it did not violate the "domination" prohibitions of section 8(a) (2).

Irving does not deny that its supervisors made the suggestions or lent the assistance noted above. The Company argues that Wallace's statements were protected under the First Amendment to the United States Constitution and section 8(c) of the Act. The Company also contends that the committee was formed by Clark and other employees independent of any company suggestion or aid.

The Board's findings "cannot stand in the face of the First Amendment or of § 8(c) if the employer's statement * * * does not contain some threat of reprisal or force or promise of benefit." Coppus Eng'r Corp. v. NLRB, 240 F.2d 564, 570-571 (1st Cir. 1953). But "in determining whether such statements and expressions urging formation of an independent labor organization constitute, or are evidence of unfair labor practice, they must be considered in connection with the positions of the parties, with the background and circumstances under which they are made, and with the general conduct of the parties. If, when so considered, such statements form a part of a general pattern or course of conduct which constitutes coercion and deprives the employees of their free choice guaranteed by section 7 of the Act, such statements must still be considered as a basis for a finding of unfair labor practice." (Emphasis supplied.) NLRB v. Kropp Forge Co., 178 F.2d 822, 828-829 (2d Cir. 1950).

In this context the Board's conclusions were consistent with well-established principles. It has been consistently held that employer support of an "inside" or "independent" labor organization, even absent company domination, constitutes unlawful interference with employees' freedom of choice within the meaning of section 8(a) (2). NLRB v. Link-Belt Co., 311 U.S. 584, 597-600, 61 S.Ct. 358, 85 L.Ed. 368 (1941); NLRB v. Philamon Labs., Inc., 298 F.2d 176 (2d Cir.), cert. denied, 370 U.S. 919, 82 S.Ct. 1555, 8 L.Ed.2d 498 (1962); NLRB v. Buitoni Foods Corp., 298 F.2d 169, 173 (3d Cir. 1962); ...

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