NLRB v. I. Posner, Inc.

• Decision Date: 15 March 1965
• Docket Number: No. 252,Docket 29047.,252
• Citation: 342 F.2d 826
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. I. POSNER, INC., Posner Distributing Corp., and Posner Beauty and Barber Supply Corp., et al., Respondents.
• Court: U.S. Court of Appeals — Second Circuit

342 F.2d 826 (1965)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. I. POSNER, INC., Posner Distributing Corp., and Posner Beauty and Barber Supply Corp., et al., Respondents.

No. 252, Docket 29047.

United States Court of Appeals Second Circuit.

Submitted January 5, 1965.

Decided March 15, 1965.

Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Melvin Pollack, Hans J. Lehmann, Attys., N. L. R. B., for petitioner.

Leight, Drimmer & Weinstein, New York City (Isidore Drimmer, New York City, of counsel), for respondents.

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

WATERMAN, Circuit Judge:

The National Labor Relations Board petitions for enforcement of an order, reported at 145 N.L.R.B. 1190, based upon a finding that respondents violated Sections 8(a) (1), 8(a) (3), and 8(a) (4) of the National Labor Relations Act, 29 U.S.C. §§ 158(a) (1), (3), and (4). Specifically, the Board agreed with its trial examiner that respondents, in violation of Section 8(a) (1), had attempted to defeat a unionization campaign amongst their employees by threats of reprisals, offers of benefits, interrogation, surveillance, and restrictions on meetings between their employees and a union representative. The Board also agreed with its trial examiner that respondents, in violation of Section 8(a) (3), had discharged eight employees on account of their union activities, and that, in violation of Section 8(a) (4), one of these employees was also discharged for testifying at a Board hearing. The Board ordered the respondents to cease and desist from committing these and related unfair labor practices in the future, to reinstate the discharged employees with back pay, and to post the customary notices.

We hold that respondents were accorded a fair hearing by the trial examiner and that the Board's order was supported by substantial evidence, within the principles of Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), except as set forth hereinafter.

The finding of unlawful interrogation was based upon a single encounter occurring at the start of the unionization campaign, in which Jose Greenberg, a supervisor, asked Guillermo Cuellar, an employee, "what did he know about the Union, District 65," and "who were the leaders of Union 65." Since these questions were not inherently coercive, the Board's finding must be reviewed in the light of the doctrine stated in Bourne v. NLRB, 332 F.2d 47, 48 (2 Cir. 1964): "Under our decisions interrogation, not itself threatening, is not held to be an unfair labor practice unless it meets certain fairly severe standards."

It is true, as the Board points out, that the encounter took place against a background of employer hostility and discrimination. See I. Posner, Inc., 133 N.L.R. B. 1573 (1961); I. Posner, Inc., 133 N.L.R.B. 1567, enforced in part, 304 F. 2d 773 (2 Cir. 1962). It is also true that the information sought by Greenberg could have been used to take action against individual employees, particularly the leaders of the unionization campaign in the plant, and that Cuellar's answer, namely that he had "only heard through rumors that the union was beginning * * *," was probably not strictly truthful. These facts have been regarded, in past decisions, as indicia of unlawful interrogation. Bourne v. NLRB, supra; NLRB v. Firedoor Corp. of America, 291 F.2d 328, 331 (2 Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 242, 7 L.Ed.2d 136 (1961); NLRB v. Syracuse Color Press, Inc., 209 F.2d 596, 599 (2 Cir.), cert. denied, 347 U.S. 966, 74 S. Ct. 777, 98 L.Ed. 1108 (1954).

At the same time, these decisions have looked also to the rank of the interrogator in the company hierarchy and to the setting in which the questioning took place. Greenberg was in charge of a single room in respondents' factory, in which twenty women worked. His questioning of Cuellar took place in Cuellar's home, where Greenberg formerly lived with the Cuellars and where, after Greenberg moved away, he often returned to visit Cuellar. The two men had known each other for eight years, they were fellow Hondurans and close friends, and Greenberg had gotten Cuellar his job with respondents.

In view of the apparent brevity and amicable atmosphere of the questioning, we hold that the "fairly severe standards" required for a finding of coercive interrogation have not been met. The Board has adduced no other examples of allegedly coercive interrogation, although it has shown that respondents repeatedly committed other unfair labor practices. Accordingly, paragraph 1(c) of the Board's cease and desist order shall be modified so as to omit the words: "Unlawfully interrogating employees as to their union sympathies, * * *."

The Board based its finding of interference with the right to unionize, in part, on the following statement by the trial examiner:

"On August 10, 1962 in the morning before work hours began, Hamilton Posner was again outside the plant as Al Evanoff a union official spoke with employees on the street. With four of them, Evanoff approached Posner and asked

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