NLRB v. Orleans Mfg. Co.
| Decision Date | 29 May 1969 |
| Docket Number | No. 523,Docket 32996.,523 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ORLEANS MFG. CO., Inc., Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
Frank H. Itkin, Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Eugene B. Granoff, Richard N. Chapman, N.L.R.B., on the brief), for petitioner.
Alan J. Levenson, Levenson & Levenson, Portland, Me., for respondent.
Before WATERMAN, SMITH and KAUFMAN, Circuit Judges.
The National Labor Relations Board petitions for enforcement of its order against the Orleans Mfg. Co., Inc. (the Company) issued March 11, 1968. The Board found that the Company had violated § 8(a) (1) of the Act by interrogating its employees about their union activities, by maintaining an overly broad rule forbidding the distribution of literature on Company premises, and by promising and granting wage increases for the purpose of discouraging union membership. Additionally, the Board found that the Company had violated both § 8(a) (1) and (3) by discharging an employee because of his union activities. Accordingly, the Board ordered the Company to cease and desist from its unfair labor practices, to rescind the illegal no-distribution rule, to offer reinstatement and back pay to the discharged employee, and to post appropriate notices. With one modification indicated below, we grant the application for enforcement.
The Company is engaged in the manufacture of furniture at its plant in Orleans, Vermont. At the time of the events in question it employed approximately 423 employees exclusive of supervisory and clerical personnel.
During the latter part of November 1966, a representative of the United Furniture Workers of America (the Union) contacted one of the Company's employees, Kenneth Prue, and expressed interest in organizing the plant. Shortly thereafter, on December 5, fifteen of the employees met with Union representatives and decided to try to unionize the plant; Prue was given authorization cards, which he then distributed among employees attending the meeting. Between that time and January 23, 1967, the date of Prue's discharge, 130 signed authorization cards were obtained from the employees.
After learning about the possibility of an attempt to organize the plant, the Company's manager Bjarne Kvingedal spoke to all the employees, department by department, on November 28, 1966. While affirming the right of the employees to join a union if they wished, he indicated the disadvantages of unionization, and concluded his speech by advising the employees to report to him any threats made to them in connection with the organization campaign.
On January 9, foreman Gilfillian approached employee Larry Broe while Broe was at work and discussed the Union with him. In the course of the conversation, Gilfillian asked Broe if he was going to the Union meeting that night, and Broe replied that he was. On January 18, foreman Curtis spoke to Prue while he was at work, commenting, "I hear you need only 20 more cards to get the union in." Prue disavowed any knowledge on the subject.
The Board found that these two conversations constituted illegal interrogation which coerced the employees and also gave them the impression that their union activities were under close surveillance by the Company. We believe however, that these two isolated incidents were too innocuous to give rise to a violation of § 8(a) (1). Up to the time of Gilfillian's and Curtis' comments there was no history of Company hostility toward the Union. Moreover, the conversations were between the employees and their immediate supervisors. Also, they took place at the employees' work stations, thus giving rise to no atmosphere of unnatural formality. In sum, we do not find in these brief and unrelated conversations the indicia of coercion requisite to a determination of illegal interrogation. See Bourne v. N.L.R.B., 332 F.2d 47 (2d Cir. 1964) (per curiam).
During the time of the Union's organizational campaign and for some years previously, the Company maintained a rule prohibiting the distribution of literature on Company premises without written authorization. The Board found that since this rule forbade such distribution by the employees on non-working time in non-working areas, such as the Company lunchroom and parking lot, it was overly broad, and hence invalid under § 8(a) (1). Since the Company has suggested no special circumstances adequate to justify the extensive ban on distribution it has imposed, we must agree with the Board that the rule is invalid. N.L.R.B. v. United Aircraft Corp., Pratt & Whitney Aircraft Division, 324 F.2d 128 (2d Cir. 1963), cert. denied, 376 U.S. 951, 84 S.Ct. 969, 11 L.Ed.2d 971 (1964). Nor do we believe that this overbreadth is cured by the provision that distribution may be permitted upon Company authorization. Since the employees have a statutory right to distribute Union literature in non-work areas on their free time, the Company may not require them to obtain its permission to exercise that right. See Republic Aluminum Co. v. N.L.R.B., 394 F.2d 405, 407, n. 1 (5th Cir. 1968).
An amendment to the Fair Labor Standards Act increased the federal minimum wage from $1.25 to $1.40 an hour, effective February 1, 1967, and to $1.60 an hour, effective February 1, 1968. At various meetings during 1966, Company management expressed the fear that the new minimum rate might make it unable to price its products competitively. The Company maintains that it decided to comply with the new law gradually; therefore, on October 10, 1966, it raised the lowest beginning day rate to $1.40 per hour, the increase then to be applicable only to new employees and not to the older employees in the same category. On January 16 of the following year, the Company notified all the employees that "in keeping with its policy of continuously reviewing its wages and fringe benefits" it would make the following "changes and improvements" as of February 1, 1967: all non-probationary day rate employees making less than $1.50 per hour were to receive at least that amount; those earning $1.50 or more per hour were to receive a $.06 per hour increase; and the overall wages of incentive rate employees were raised by improvements in their vacation and holiday pay. The notice did not mention that the new wage scales were in any way necessitated or prompted by the new requirements of the Fair Labor Standards Act. It is of some interest that during...
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