NLRB v. General Stencils, Inc.

• Decision Date: 19 January 1971
• Docket Number: No. 265,Docket 34896.,265
• Citation: 438 F.2d 894
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GENERAL STENCILS, INC., Respondent.
• Court: U.S. Court of Appeals — Second Circuit

438 F.2d 894 (1971)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GENERAL STENCILS, INC., Respondent.

No. 265, Docket 34896.

United States Court of Appeals, Second Circuit.

Argued December 2, 1970.

Decided January 19, 1971.

COPYRIGHT MATERIAL OMITTED

Michael Barkow, Atty., N. L. R. B., Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and John D. Burgoyne, Atty., N. L. R. B., Washington, D. C., of counsel), for petitioner.

Bertrand B. Pogrebin, Mineola, N. Y. (Rains, Pogrebin & Scher, and Joel H. Golovensky, Mineola, of counsel), for respondent.

Before FRIENDLY, SMITH and ANDERSON, Circuit Judges.

FRIENDLY, Circuit Judge:

The most important issue on this petition to enforce an order of the National Labor Relations Board, 178 NLRB No. 18 is whether its findings of employer violations of § 8(a) (1), themselves challenged but in the main sustainable, warranted its placing this case in the "second" category recognized in NLRB v. Gissel Packing Co., 395 U.S. 575, 614-615, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), and thus justified an order requiring the employer to bargain with a union which had achieved a card-count majority. The case comes to us after the delay unhappily characteristic of such proceedings. The alleged unfair labor practices occurred in the summer of 1967. The hearing was held, promptly enough, in December, and the Trial Examiner rendered his report in June 1968. The Board refrained from handing down its decision and order until August 1969, apparently to ascertain the outcome of Gissel. It then waited until May 11, 1970, to seek enforcement. Since its brief was not filed for another four months, the petition came before us only in December, 1970, nearly three years after the hearing, and three and a half years after the incidents with which we are concerned.

The employer, General Stencils, Inc., is a small company in Brooklyn, N. Y., engaged in the manufacture, sale and distribution of marking devices, etched name plates, and related products. The operation is supervised by Joseph Klugman, who has been the company's secretary and general manager for more than four decades and was 67 years old at the time of the hearing. Despite his impressive title, Mr. Klugman regularly donned overalls and spent his days in the plant, directing the production force, assisting in the work, and getting materials.

In 1961, District 50 of the United Mine Workers of America demanded recognition as representative of the production and maintenance workers on the basis of a claimed majority of authorization cards. Klugman refused to recognize the Union unless it was certified at a Board-conducted election. An election was held and the Union did not prevail. In 1966, another union sought recognition on the same basis, Klugman made the same response, and the same result ensued. District 50's second organizing effort, which gave rise to this proceeding, commenced around June 8, 1967.

Trial Examiner Maller found that by June 23, when the Union made its initial demand for recognition and bargaining, it had authorization cards from 24 employees out of an appropriate unit of 32. While the employer challenges this determination in some respects, the finding is supported by substantial evidence, especially under the standard with respect to representations by card solicitors enunciated in Gissel, 395 U.S. at 604-609, 89 S.Ct. 1918. When Pohmer, the Union organizer, tendered the cards, Klugman declined to look at them, saying that he wanted an election. Pohmer said there was not going to be an election since the Union was filing a refusal to bargain charge, as it did that very day. Pohmer conceded that the Union could not win an election; about a week later, in another conversation with Klugman, he explained this pessimism as having arisen from the company's unfair labor practices.

In determining whether the employer had violated § 8(a) (1), the Trial Examiner put aside general statements wherein Klugman, without threatening reprisals or promising benefits, indicated his poor opinion of unions. He also rejected the testimony of several employees either as incredible or as not showing violations. At the same time, he refused to credit much of Klugman's testimony and found a number of § 8(a) (1) violations, hereafter discussed. Applying the Board's pre-Gissel standards, see Cameo Lingerie, Inc., 148 NLRB 535, 538 (1964); Hammond & Irving, Inc., 154 NLRB 1071, 1073 (1965), he concluded that, in view of Klugman's two prior experiences with union demands for recognition based on a claim of a card majority, of Pohmer's expressed pessimism about the possibility of a union victory in an election, and of Klugman's knowledge of employee sentiment, the employer had amply demonstrated its good-faith doubt, which was not vitiated by the adverse inference that might be drawn from the violations of § 8(a) (1). He therefore refused to recommend issuance of a bargaining order.

By the time the Board decided the case, the legal standard with respect to the issuance of bargaining orders had changed. It had now become "irrelevant that the employer may have a rational, albeit erroneous, doubt of majority or that he has a general distrust of cards." 178 NLRB No. 18 at 3 (mimeographed decision). It sufficed that the union in fact had a card majority and that the employer "engaged in widespread unfair labor practices during the Union's organizing drive, before and after receiving the Union's demand for recognition." Id. The Board here found such unfair labor practices on the grounds that the employer, in violation of § 8(a) (1), "interrogated employees about their union activities and evinced to employees its intention to revoke many existing privileges if they elected the Union," practices which "tended to destroy the employees' free choice by frightening them into withdrawing their allegiance from the Union and were of such a nature as to have a lingering effect and make a fair or coercion-free election quite dubious, if not impossible." Id. at 3-4. Accordingly, it issued an order which, in addition to directing the employer to cease and desist from the § 8(a) (1) violations listed in the margin,¹ ordered it to bargain with District 50 upon request.

I. The § 8(a) (1) Violations

We shall deal first with the employer's challenges to the findings with respect to § 8(a) (1).² The evidence concerning unlawful interrogation came from three credited witnesses. Edna Gromalski testified that about the time she signed an authorization card, Klugman asked her whether she was going to be "with the Union or with him," adding that he was "not forcing the issue upon me, it is up to myself, whether I belong or whether I don't belong." She did not answer. He also asked whether she knew who had signed cards, and she untruthfully denied this. Duane Nicholas testified that Klugman asked whether he had signed a card, and he answered in the negative; apparently this was then the truth although he later signed one. Robert Kretschmer was asked who had attended a Union meeting on August 2, whether he had given a statement to the Board, and what it was.

The Board argues that the interrogation of Kretschmer as to what he told the Board agent falls within the ban of our decision in Henry I. Siegel Co. v. NLRB, 328 F.2d 25, 27 (2 Cir. 1964), and of the Sixth Circuit's decisions in NLRB v. Winn-Dixie Stores, Inc., 341 F.2d 750, 752-753 (6 Cir.), cert. denied, 382 U.S. 830, 86 S.Ct. 69, 15 L.Ed.2d 74 (1965), and Surprenant Mfg. Co. v. NLRB, 341 F.2d 756, 762 (6 Cir. 1965). Unlike the situation in Henry I. Siegel Co., however, where we noted that the employer's requests for copies of statements given by employees to a Board investigator "did have an inhibitory effect on the employees' exercise of their right to have an effective investigation by the Board of alleged unfair labor practices," 328 F.2d at 27 — to the extent that several employees were induced to destroy the copies of their statements, Kretschmer's testimony does not suggest that he felt himself subject to coercion — indeed, he apparently had no qualms in indicating to Klugman that he told the Board "the truth." We thus might have hesitated in sustaining the Board's finding on this issue were it not that we perceive no legitimate employer interest in the solicitation of such information under the circumstances here presented and an order condemning such questioning without proof of effect is thus justified.³

On the other hand, we do not see how the interrogation of Gromalski or Nicholas came within the Board's own criteria laid down in Blue Flash Express, Inc., 109 NLRB 591 (1954) and, more particularly, within the standards announced by this court in Bourne v. NLRB, 332 F.2d 47 (2 Cir. 1964), which we have so often cited and applied. See, e. g., NLRB v. Lorben Corp., 345 F.2d 346, 348 (2 Cir. 1965) (Marshall, J.); NLRB v. Rubin, 424 F.2d 748, 751 (2 Cir. 1970); NLRB v. Gladding Keystone Corp., 435 F.2d 129, 132 (2 Cir. 1970). Of the five elements there listed, items (2) and (4) are clearly negative in this case. Klugman did not "appear to be seeking information on which to base taking action against individual employees"; indeed, he affirmatively assured Gromalski that he was not doing this. The employees were not "called from work to the boss's office" and there was no "atmosphere of `unnatural formality.'" Neither do we find any substantial case for the Board on items (1) and (3). The reference in Bourne to "a pattern of employer hostility and discrimination" with respect to unions was not to the common general expression of desire not to have a union in the shop but rather to specific manifestations of animus, of which unusual discipline or discharge of known adherents would be the most probative. A man working in overalls alongside the other employees is hardly what Bourne meant as being "high * * * in the...