National Labor Relations Board v. Arthur Winer, Inc.

• Decision Date: 26 February 1952
• Docket Number: No. 10498.,10498.
• Citation: 194 F.2d 370
• Parties: NATIONAL LABOR RELATIONS BOARD v. ARTHUR WINER, Inc.
• Court: U.S. Court of Appeals — Seventh Circuit

194 F.2d 370 (1952)

NATIONAL LABOR RELATIONS BOARD v. ARTHUR WINER, Inc.

No. 10498.

United States Court of Appeals Seventh Circuit.

February 26, 1952.

David P. Findling, Associate Gen. Counsel, Nancy M. Sherman, George J. Bott, General Counsel, A. Norman Somers, Asst. Gen., Counsel, and Frederick U. Reel, Attorneys, National Labor Relations Board, all of Washington, D. C., for petitioner.

Maurice A. Riskind, Donald J. Yellon, and Jacob M. Shapiro, all of Chicago, Ill., D'Ancona, Pflaum, Wyatt & Riskind, Chicago, Ill., of counsel, for respondent.

Before KERNER, FINNEGAN and SWAIM, Circuit Judges.

SWAIM, Circuit Judge.

This cause comes before this court on petition of the National Labor Relations Board, as authorized by § 10(e) of the Labor Management Relations Act, 29 U.S. C.A. § 141, et seq., for enforcement of its order directed to the respondent, Arthur Winer, Inc., to cease and desist from certain unfair labor practices in violation of § 8(a) (1) and § 8(a) (3) of the Act. The Board had charged and found that, in violation of these two sections of the Act, the respondent had interfered with, restrained and coerced its employees in their organizational rights and had discharged two of its employees on account of their membership in and activities on behalf of the Amalgamated Clothing Workers of America, hereinafter referred to as the "union."

The trial examiner found that, beginning in 1945, the union had each year made unsuccessful attempts to organize the Winer employees. In June 1949 the organizers for the union started another organizational drive, at first by making phone calls and later by making personal calls at the homes of the employees. At that time there were about seventy-five employees on the respondent's pay roll. About September 1, 1949, the union organizer, Robert Hardy, mailed individual notices to the Winer employees calling a union meeting on September 6th. About fifteen of the respondent's employees, including Helen Little and Hazel Munyon, attended the meeting and participated in the short discussion which followed Hardy's explanatory talk about the union. Within a short time after this meeting two of the respondent's employees, Little and Munyon, were discharged.

Interference, Restraint and Coercion

On the charge of interference, restraint and coercion, the trial examiner found that Arthur Winer, president of the respondent company, in the latter part of July or the first part of August, called three different employees to his office and, among other things, interrogated them about any dissatisfaction among the employees and as to "what was going on"; that such questioning was in effect "`* * * interrogation of its employees about their union activities, was so understood by the employees and violated Section 8(1) of the Act'." The trial examiner also found that a question by Winer to one of these employees, Eva Van Meter, as to "how the girls felt about the union," and to another, Katherine Romansky, as to "what the union had to offer," were also violative of the Act. It is conceded, however, that in his conversation with Van Meter, Winer also said: "As I understand it, you are trying to organize a union. If that is what the girls want that is what they can have." Van Meter testified that there had been a slowdown since the company had moved to its new plant and that "something was wrong"; that most of her conversation with Winer was on the question of what was causing the trouble; that they decided that a machine was not properly placed for the best work; and that the moving of this machine, shortly after her conversation with Winer, helped to speed up the work. There was no testimony indicating that Winer asked any of the girls he interviewed whether or not they or any other employees belonged to the union or had engaged in any union activities. Van Meter testified positively that Winer did not ask her such questions. The third girl did not remember his asking anything about dissatisfaction or any similar matter.

Romansky testified that in her talk with Winer he said that he "was trying to make it better for the girls so that they could have two weeks vacation." The trial examiner did not believe Winer's denial that he made this statement and found that "under the circumstances it was made, * * * (it was) an offer of benefit for the purpose of influencing the employees' concerted activities and also violated Section 8(a) (1) of the Act." Yet, in this same report, the trial examiner also found facts from which he concluded that "the General Counsel has failed to establish by a preponderance of the evidence that respondent had knowledge of the union activity of its employees at the time the 1949 vacation policy was fully effectuated and executed." The trial examiner could not reasonably have concluded otherwise since the 1949 two-week vacation period had been taken and the employees had been paid therefor prior to the time Winer talked to Romansky and the other two employees and prior to the time Winer could have had any knowledge of any union activity in the plant. Moreover, the statement about two weeks vacation was never directly, or by intimation, connected with any suggestion that this was on condition that the girls refrain from union activities. In view of these facts there was no reasonable basis for the inference drawn by the trial examiner and approved by the Board that Winer offered the employees the benefit of two weeks vacation on their abstaining from union activities.

Just prior to the union meeting which was held on September 6, 1949, discussions concerning the union became prevalent among the Winer employees. At noon on the day of the meeting one of the employees, Anne Kusmierz, went to the desk of Anne Winkler, the sewing room supervisor, and, showed Winkler a copy of the letter calling the union meeting and Kusmierz said to Winkler: "Well, I don't know what to do, if I should go to the meeting or shouldn't go." Kusmierz testified that Winkler replied: "Well, you are your own boss. It is up to you. If you want to, you can go and find out what it is all about." The trial examiner found that later in the day Winkler told Kusmierz: "If you go, find out what is going on, what they are offering, things like that," and also asked Kusmierz to call her when she got home from the meeting; that after the meeting Kusmierz did call Winkler and, upon questioning by Winkler, gave detailed information about what took place at the meeting and who attended. The trial examiner found "that Winkler's request for and acceptance of a report on the union meeting constituted surveillance of its employees' union activities in violation of Section 8(a) (1) of the Act." The Board approved this finding. The trial examiner also found that Winkler asked several other employees if they intended to attend the meeting and asked Romansky what she "would get out of the union."

While we seriously question whether there was sufficient evidence to sustain many of the findings of the trial examiner and the Board on the question of coercion, we are of the opinion that the facts found, if accepted as true, fall far short of justifying the conclusions of the trial examiner and the Board that the respondent's actions constituted such interference, restraint and coercion of its employees as is prohibited by § 8(a) (1) of the Act.

There was no finding that there was any statement derogatory of the union made by the respondent or by anyone speaking for it. We find in this record no finding by the Board that the respondent made any threats against employees in reference to union membership or activity. There was no finding that the respondent promised any benefits except as to vacations and as to that finding, as we pointed out above, there was no reasonable basis for it in the evidence. In Sax v. N. L. R. B., 7 Cir., 171 F.2d 769, 772-773, this court said of questioning of employees similar to the questioning we find in the instant case, at page 773: "Mere words of interrogation or perfunctory remarks not threatening or intimidating in themselves made by an employer with no anti-union background and not associated as a part of a pattern or course of conduct hostile to unionism or as part of espionage upon employees cannot, standing naked and alone, support a finding of a violation of Section 8(1)."

And again in John S. Barnes Corporation v. N. L. R. B., 7 Cir., 190 F.2d 127, 130, this court said: "However, the courts have not considered isolated remarks or questions, which did not in themselves contain threats or promises, and where there was no pattern or background of union hostility, as coercion of the employees and as a violation of § 8(a) (1)." See also N. L. R. B. v. Montgomery Ward, 2 Cir., 192 F.2d 160, 163, and Pittsburgh Steamship Co. v. N. L. R. B., 6 Cir., 180 F.2d 731, 735.

In the instant case, as in the Barnes case, a small plant with less than one hundred employees is involved. The trial examiner found that during the period in question "union discussions among the employees became quite prevalent in the plant." It is also apparent that the employees talked freely before and with the supervisor, Winkler, and with the company president, Winer. Thus Kusmierz offered information to Winkler and asked Winkler's advice about attending the union meeting. In such a situation, with no anti-union background nor pattern of conduct hostile to unions, the questions and remarks of Winkler and Winer cannot be considered as violations of the Act.

Nor could the trial examiner and the Board reasonably find, in view of the general relations existing between the respondent and its employees as shown by the undisputed evidence and the findings, that Winkler's request for and acceptance of a report on the union meeting constituted surveillance of the employees' union activities in violation of § 8(a) (1) of the Act. The request for and acceptance of this information in itself contained neither a...