NLRB v. D'Armigene, Inc.

• Decision Date: 22 November 1965
• Docket Number: Docket 29535.,No. 19,19
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. D'ARMIGENE, INC., Respondent.
• Court: U.S. Court of Appeals — Second Circuit

353 F.2d 406 (1965)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. D'ARMIGENE, INC., Respondent.

No. 19, Docket 29535.

United States Court of Appeals Second Circuit.

Argued September 29, 1965.

Decided November 22, 1965.

Melvin Pollack, Atty., N. L. R. B., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Bernard M. Dworski, Atty., N. L. R. B., for petitioner.

Bertrand B. Pogrebin, Harry H. Rains, Mineola, N. Y., for respondent.

Before FRIENDLY and KAUFMAN, Circuit Judges, and BRYAN, District Judge.^*

FREDERICK van PELT BRYAN, District Judge:

The National Labor Relations Board, having found that respondent employer had engaged in unfair labor practices in violation of § 8(a) (1) and (3) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1), (3), petitions for enforcement of an order requiring respondent to cease and desist from such practices and to reimburse two discharged employees for lost wages.

The findings of unfair labor practices made by the trial examiner and affirmed by the Board,¹ insofar as they are directly attacked by respondent here, are (1) threatening employees with economic reprisals and promising them economic benefits during union organizational activities; (2) interrogating applicants for employment about union membership; and (3) discharging two employees for union membership.

The sole issue before us is whether these findings are supported by substantial evidence on the record considered as a whole. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); N. L. R. B. v. Walton Mfg. Co., 369 U.S. 404, 82 S.Ct. 853, 7 L.Ed.2d 829 (1962) (per curiam); National Labor Relations Act, § 10(e), 29 U.S.C. § 160(e). We conclude that the findings as to threats of reprisals and promises of economic benefits and as to the discharge of two employees for union membership are so supported but that the finding as to interrogation of applicants for employment as to union membership is not.

Respondent D'Armigene, Inc. (D'Armigene) is a New York corporation which, since 1952, has manufactured women's uniforms at a plant in Bay Shore, Long Island, employing up to 93 persons.

The events with which we are concerned occurred within the space of a week in June 1963. On Wednesday evening, June 5, representatives of Local 107, International Ladies' Garment Workers Union began a campaign to organize D'Armigene employees by soliciting some of them at their homes. Respondent's president, Mrs. D'Armigene Johnson, was apprised of this the next day. On Friday, June 7, all employees were assembled during working hours and Mrs. Johnson addressed them for half an hour. It is this speech on which the finding of threats of economic reprisals and promises of economic benefits is based.

On Monday, June 10, Jean Crescimanno, a member of Local 107 and its vice president, was discharged. On Tuesday, June 11, Dante Galdi, a member of Local 10, was discharged. On June 12 the D'Armigene employees struck to protest the alleged discriminatory discharges of Crescimanno and Galdi because of union membership.²

The proceedings which resulted in the order now before us ensued. They were instituted on a complaint filed by the general counsel after the regional director had dismissed charges instituted by the union.

We will deal separately with each of the four findings to which respondent takes exception.

(1) Threats of retaliation and promises of benefits

The finding that respondent violated § 8(a) (1) of the Act by threatening its employees with economic reprisals and promising them economic benefits is based on Mrs. Johnson's speech of June 7, 1963.

There is no serious dispute as to the major portion of the speech. Mrs. Johnson described her humble antecedents in Tennessee and dwelt at some length on her problems in overcoming her childhood fear of a bogeyman. She told of her unpleasant experiences in union shops and of her refusal to become a union organizer. She contrasted the "happy family" atmosphere at the D'Armigene plant with the disharmony and unhappiness she had found in unionized plants. She reviewed the difficult times experienced in the early days of the company and emphasized the precarious competitive position with which it was still confronted. Nevertheless she announced imminent improvements in vacation policies and spoke of impending wage increases which she had under consideration. She suggested that any dissatisfied employees were free to leave.

In addition, there was testimony that in response to a question from one of the employees Mrs. Johnson said: "I don't want the union. I won't sign with the union and if it ever comes to that I'll close the place down." At the hearing before the trial examiner she flatly denied that she had said this.

The examiner did not credit Mrs. Johnson's denial and found as a fact that she had threatened to close the plant if it were unionized. His findings as to her credibility and as to what her speech contained are supported by substantial evidence on the record as a whole. The examiner observed the witnesses and there is no basis on this record to question these findings.

Section 8(a) (1) makes it an unfair labor practice for an employer "to interfere with, restrain or coerce employees in the exercise" of their oganizational rights. 29 U.S.C. § 158(a) (1). The question of violation turns on the motivation for the employer's conduct. See American Ship Building Co. v. N. L. R. B., 380 U.S. 300, 85 S.Ct. 955, 13 L.Ed. 2d 855 (1965); N. L. R. B. v. Brown, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965); N. L. R. B. v. Great Atlantic & Pacific Tea Co., 340 F.2d 690 (2 Cir. 1965). Conduct which by its very nature would have the effect of interference, restraint or coercion carries the implication of unlawful intent. See Radio Officers' Union v. N. L. R. B., 347 U.S. 17, 74 S.Ct. 323, 98 L.Ed. 455 (1954); N. L. R. B. v. Erie Resistor Corp., 373 U.S. 221, 83 S.Ct. 1139, 10 L.Ed. 308 (1963); N. L. R. B. v. Great Atlantic & Pacific Tea Co., supra.

The question here then is whether the nature and circumstances of Mrs. Johnson's speech were such as to have the natural and foreseeable effect of interfering with the rights of the employees. This must be determined from the speech itself in the light of the background and circumstances under which it was delivered. E. g., N. L. R. B. v. Kropp Forge Co., 178 F.2d 822, 828 (7 Cir. 1949), cert. den., 340 U.S. 810, 71 S.Ct. 36, 95 L.Ed. 595 (1950).

Viewed in this context it is plain that the speech combined promises of benefits and threats of reprisal timed so as to impinge on the employees' freedom of choice as to whether or not their interests would best be served by unionization. Mrs. Johnson spoke the day after she had learned of the commencement of a campaign for unionization of the plant. She made it clear that she had no use for the union. Dissatisfied employees were pointedly invited to leave. Coupled with this were announcements of imminent improvements in vacation policy and wages. There was a plain "suggestion of a fist inside the velvet glove." N. L. R. B. v. Exchange Parts Co., 375 U.S. 405, 409, 84 S.Ct. 457, 460, 11 L.Ed.2d 435 (1964). See also Medo Photo Supply Corp. v. N. L. R. B., 321 U.S. 678, 684, 64 S.Ct. 830, 88 L.Ed. 1007 (1944); N. L. R. B. v. Flomatic Corp., 347 F.2d 74. 77 (2 Cir. 1965); N. L. R. B. v. Howe Scale Co., 311 F.2d 502, 504 (7 Cir. 1963); N. L. R. B. v. Philamon Labs., Inc., 298 F.2d 176, 180-181 (2 Cir.), cert. den., 370 U.S. 919, 82 S.Ct. 1555, 8 L.Ed.2d 498 (1962); N. L. R. B. v. Pyne Molding Corp., 226 F.2d 818, 820 (2 Cir. 1955); Indiana Metal Prods. Corp. v. N. L. R. B., 202 F.2d 613, 620 (7 Cir. 1953); Bok, The Regulation of Campaign Tactics in Representation Elections Under the National Labor Relations Act, 78 Harv.L. Rev. 38, 112-16 (1964).

The first sans velvet glove appears unmistakably from the threat to close the plant if it were unionized. The coercive purport and effect of the speech as a whole and the consequent violation of § 8(a) (1) are too clear to require further discussion.

(2) The discharge of Mrs. Crescimanno

Jean Crescimanno, a sewing machine operator, was a member of the union, as management knew. She was also vice president of the local, though apparently she had taken no part in the organizational campaign.

Mrs. Crescimanno was discharged on the Monday following Mrs. Johnson's speech of June 7. She was told that the reasons were absence and lateness.

It is plain that Mrs. Crescimanno's record of attendance and punctuality left a great deal to be desired. She failed to report for work a total of 20 out of the 69 days she was working at D'Armigene and was frequently late.

However, the quality of her work had often been commended and only a month before she had been given a five dollar raise. She claimed that management knew when she was hired that her family responsibilities would necessitate absence and lateness. There was evidence that this sort of thing was not uncommon among the female operators, many of whom were married and had children, and that there was no adverse reaction from the management. None of the other operators were discharged.

Viewed against the background of Mrs. Johnson's attitude toward unionization which she had expressed in her speech of the previous Friday, the summary discharge of Mrs. Crescimanno under these circumstances permits the inference that it resulted from anti-union animus rather than from legitimate disciplinary considerations. The power of the Board to draw reasonable inferences from the facts in evidence was not curtailed by Universal Camera. Radio Officers' Union v. N. L. R. B., supra, 340 U.S. at 48-50, 71 S.Ct. 456 (1954); see Local 357, International Broth. of Teamsters v. N. L. R. B., 365 U.S. 667, 675, 81 S.Ct. 835, 6 L.Ed.2d 11 (1961).

The question here is not whether there were in fact legitimate grounds...