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National Labor Relations Board v. Firedoor Corp.

June 9, 1961


Author: Lumbard

Before LUMBARD, Chief Judge, CLARK and SMITH, Circuit Judges.

LUMBARD, Ch. J.: On the petition for the N.L.R.B. for enforcement of its orders against Firedoor Corporation, 127 N.L.R.B. No. 144, we have to resolve the usual question of whether there is in the record substantial evidence to support the Board's unfair labor practice findings and whether the orders are appropriate to remedy the conduct which the Board condemns. The Board found that the Firedoor Corporation had violated § 8a(1), (2) and (3) of the National Labor Relations Act, 29 U.S.C. § 158, by restraining its employees in their efforts to join Local 66 of the American Federation of Technical Engineers, AFL-CIO, by supporting and dominating the "Employee Bargaining Committee," a company union set up by Firedoor to compete with Local 66, and by discharging two employees because of their activity on behalf of Local 66. We find substantial evidence in the record considered as a whole to support the Board's findings, and accordingly we direct enforcement of its orders, which we hold to be appropriate remedies for the unfair labor practices committed. Universal Camera Corp. v. N.L.R.B ., 340 U.S. 474 (1951).

This dispute involves thirteen of Firedoor's employees who were engaged, as of November 1958, in drafting and related technical work necessary to the company's manufacture of hollow metal doors. The record supports the following findings of the Board:

Late in November of 1958, the union notified Firedoor of its claim to represent a majority of these men and petitioned the Board for an election. Shortly thereafter, Barry Mirsky, a supervisor of the technical work, asked seven or eight of the men, including Alvin Zeleznik and Richard Campagnola, who were later discharged, whether they were members of the union. All forswore membership.The next day, Mirsky asked the men to sign a petition addressed to the Board which stated that the union did not have their support. All but one refused to sign.

Thereafter on December 12, 1959, Firedoor's vice president, Bernard A. Schecter, spoke to the assembled employees, saying that signing the petition would have been a vote of confidence in the company, that certain benefits were cancelled and that, despite the election petition pending before the Board, the employees must immediately decide whether they opted for the union.*fn1 The employees did not make the decision as requested and Firedoor's next move was to have Mirsky convey President Bernard J. Sussman's offer to give them anything contained in a contract between the union and another manufacturer of metal doors if they bargained directly with the company and abandoned the union.

In January and February of 1959, President Sussman twice requested Zeleznik to assist him in his efforts to persuade the employees to abandon the union. In February, Vice President Schecter told trainees Angel Garbizu and Raymond Orsi that they could not have the second of promised quarterly pay increases "because of the union" telling Orsi that if he could "get those * * * damn guys in the back to drop out of the union the trainees would receive their raises."*fn2 Mirsky similarly explained the cancellation of the pay increases to Orsi. In March, as is discussed more fully below, Zeleznik and Campagnola were discharged.

With the Board-conducted election due to occur on April 23, Schecter addressed the eight remaining*fn3 employees on April 17. He told them their last chance to negotiate privately with the company was at hand and they decided to prepare a contract. After several hours of discussion and some negotiation, all during working hours (for which they were paid), a contract was agreed upon to become effective if the union lost the election.

The union was defeated by a 4-4 tie vote but apparently the agreement, which had provided little more than what was already in effect, was never executed.

The findings made by the Board were all supported by substantial evidence and clearly justify its orders that Firedoor cease and desist from threatening its employees with reprisals if they engaged in union activities, or did not engage in concerted activity supported by the company, and from promising benefits for the converse conduct. Equally proper was the Board's order that the employer cease and desist from dominating, interfering with or furnishing financial or other support to the Employee Bargaining Committee and from recognizing it or any similar committee as the representative of its employees.

The Board also ordered the employer to cease and desist from "interrogating its employees as to their union * * * affiliations in a manner constituting interference, restraint or coercion." Though we think that this also should be enforced, it merits somewhat fuller discussion. In brief our conclusion is that Mirsky's interrogation of the employees was not an unfair labor practice, but that in light of the unfair labor practices committed after the interrogation the Board could infer that future interrogation might be coercive and, therefore, order Firedoor not to interrogate its employees in a coercive manner.

Interrogation of employees is legal, when the questioning is not accompanied by any explicit threats, cf. N.L.R.B. v. Beaner Meadow Creamery, 215 F.2d 247 (3 Cir. 1954), if under all the circumstances coercion is not implicit in the questioning. Matter of Blue Flash Express, Inc ., 109 N.L.R.B. 59(1954); N.L.R.B. v. Armco Drainage & Metal Prod ., 220 F.2d 573, 582(6 Cir. 1955), cert. denied, 358 U.S. 838; N.L.R.B. v. Assoc. Dry Goods Corp ., 209 F.2d 593(2 Cir. 1954); N.L.R.B. v. Syracuse Color Press, 209 F.2d 596(2 Cir. 1954).*fn4 The most relevant factors are whether there has been a background of employer hostility to and discrimination against the union*fn5 and whether the questions seem to seek information which the employer in good faith needs - as when individuals are asked whether they belong to the union so that the employer can check the union's claim to represent a majority*fn6 or, to the contrary, seem to seek information most useful for discrimination - as when employees are asked who organized the union or whether named fellow workers belong.*fn7 Other relevant factors are whether the identity of the questioner and the place or method of interrogation imbue the interview with an unnatural formality which tends to intimidate the employee and, to a lesser extent, whether the employees did conceal their allegiance or denied membership when they actually had not made up their mind and, therefore, became unwilling to take an active part in later organizational activity or even, in the case of a small unit, afraid to vote their true convictions at a later Board-conducted election. See Syracuse Color Press, supra; Blue Flash Express, Inc., supra .

The interrogation of the employees was not improper under these standards. There was no past history of anti-union discrimination; Mirsky had reason to check the union's claim of majority status for the claim came as a "complete surprise" to him;*fn8 the questioning was limited to whether the questioned employee belonged to the union; Mirsky worked closely with the men and questioned them in a casual manner. Though the men all denied membership they were not thereby cowed into avoiding any pro-union stands for the very next day all but one refused to sign an anti-union petition.

Even though the interrogation was proper, the Board's injunction against any future coercive questioning should be enforced. The coercive and discriminatory conduct after the questioning makes it reasonable to conclude that any future interrogation would have a coercive effect upon the employees. The Board has power to enjoin conduct other than those specific violations proved so long as there is a reasonable relation between the illegal act committed and the ...

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