NLRB v. I. Posner, Inc., No. 252

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtLUMBARD, , and WATERMAN and HAYS, Circuit
Citation342 F.2d 826
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. I. POSNER, INC., Posner Distributing Corp., and Posner Beauty and Barber Supply Corp., et al., Respondents.
Docket NumberNo. 252,Docket 29047.
Decision Date15 March 1965

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.


342 F.2d 827

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.

342 F.2d 828

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...

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5 practice notes
  • Trailmobile Division, Pullman Incorporated v. NLRB, No. 25470.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 20, 1969
    ...497, 498 (5th Cir. 1963). Trailmobile failed to call these cases to our attention; rather it chooses to rely on NLRB v. I. Posner, Inc., 342 F.2d 826 (2d Cir. 1965), where the court pointed out that § 8(a) (5) was restricted to the presentation of grievances by bargaining representatives en......
  • Fawick Corporation v. CIR, No. 15969.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • March 25, 1965
    ...privilege was limited to situations where the post-merger profits were attributable to an operation which could be said to be in "a 342 F.2d 826 continuity of business enterprise" with the operation which experienced the premerger loss. Petitioner argues that because after the merger the ho......
  • NLRB v. Howard Quarries, Inc., No. 18123.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 22, 1966
    ...or limited either in his right of self-expression or his freedom to participate in self-organization. N. L. R. B. v. I. Posner, Inc., 342 F.2d 826 (2nd Cir. 1965); S. H. Kress & Co. v. N. L. R. B., 317 F.2d 225 (9th Cir. 1963); J. S. Dillon & Sons Stores Co. v. N. L. R. B., 338 F.2d 395 (10......
  • NLRB v. PROFESSIONAL TAPE COMPANY, No. 17668.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • April 21, 1970
    ...Evidence of this is that most of the employees lied about their union activities. Respondent's reliance on N. L. R. B. v. I. Posner, Inc., 342 F.2d 826 (2d Cir. 1965), and N. L. R. B. v. Welsh Industries, Inc., 385 F.2d 538 (6th Cir. 1967), is misplaced. In Posner, the interrogation was con......
  • Request a trial to view additional results
5 cases
  • Trailmobile Division, Pullman Incorporated v. NLRB, No. 25470.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 20, 1969
    ...497, 498 (5th Cir. 1963). Trailmobile failed to call these cases to our attention; rather it chooses to rely on NLRB v. I. Posner, Inc., 342 F.2d 826 (2d Cir. 1965), where the court pointed out that § 8(a) (5) was restricted to the presentation of grievances by bargaining representatives en......
  • Fawick Corporation v. CIR, No. 15969.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • March 25, 1965
    ...privilege was limited to situations where the post-merger profits were attributable to an operation which could be said to be in "a 342 F.2d 826 continuity of business enterprise" with the operation which experienced the premerger loss. Petitioner argues that because after the merger the ho......
  • NLRB v. Howard Quarries, Inc., No. 18123.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 22, 1966
    ...or limited either in his right of self-expression or his freedom to participate in self-organization. N. L. R. B. v. I. Posner, Inc., 342 F.2d 826 (2nd Cir. 1965); S. H. Kress & Co. v. N. L. R. B., 317 F.2d 225 (9th Cir. 1963); J. S. Dillon & Sons Stores Co. v. N. L. R. B., 338 F.2d 395 (10......
  • NLRB v. PROFESSIONAL TAPE COMPANY, No. 17668.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • April 21, 1970
    ...Evidence of this is that most of the employees lied about their union activities. Respondent's reliance on N. L. R. B. v. I. Posner, Inc., 342 F.2d 826 (2d Cir. 1965), and N. L. R. B. v. Welsh Industries, Inc., 385 F.2d 538 (6th Cir. 1967), is misplaced. In Posner, the interrogation was con......
  • Request a trial to view additional results

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