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Irving Air Chute Co. v. National Labor Relations Board

decided: August 18, 1965.


Moore and Anderson, Circuit Judges, and Levet, District Judge.*fn*

Author: Moore


Irving Air Chute, Inc. (Irving or the Company) petitions to review and set aside the decision and order of the National Labor Relations Board (the Board) which directed the Company to cease certain violations of the National Labor Relations Act, as amended (the Act), and to recognize and bargain with the Textile Workers Union of America (TWU or the Union). The Board in its answer cross-petitions for the enforcement of its order.

On June 5, 1963, a Board-supervised representational election was held among the employees of the Company's Marathon Division, Cortland, New York, pursuant to a petition for representation filed by the Union on April 30, 1963. The Union lost but filed charges alleging the commission of unfair labor practices which adversely affected the election result.

A Board Trial Examiner found that the Company violated section 8(a)(1) of the Act by threatening its employees with reprisals for engaging in union activities; that the Company violated sections 8(a)(1) and (2) of the Act by suggesting, assisting and promoting the formation of an "inside" labor organization; and that the Company violated section 8(a)(5) of the Act by refusing to bargain with the Union. The Examiner's conclusions were approved by the Board.

1. The 8(a)(1) violation :*fn1 The Board found that on April 26, 1963, Payne, an admitted Company supervisor, observed Kinner, an employee, carrying union literature. Payne asked Kinner if he were trying to get himself fired for carrying the literature. Payne also told Kinner that the Company might move its Marathon plant to Kentucky if the Union succeeded in organizing the plant.*fn2

On April 29, Mathewson, the plant manager, told Kinner that he had orders to fire all the Union agitators among the employees and that there would be reprisals against the members of the paint department, where Kinner worked, because of their union activity.

These statements constitute a clear violation of section 8(a)(1). Threats of discharge for pro-union activity tend to deny employees the free exercise of the right of self-organization guaranteed by section 7 of the Act. NLRB v. Syracuse Stamping Co., 208 F.2d 77 (2d Cir. 1953). Threats to close a plant if a union organizing drive is successful obviously have a similar coercive effect. NLRB v. Somerset Classics, Inc., 193 F.2d 613 (2d Cir.), cert. denied sub nom. Modern Mfg. Co. v. NLRB, 344 U.S. 816, 97 L. Ed. 635, 73 S. Ct. 10 (1952); NLRB v. Franks Bros., Inc., 137 F.2d 989 (1st Cir. 1943), aff'd 321 U.S. 702, 88 L. Ed. 1020, 64 S. Ct. 817 (1944).

Irving argues that there is no evidence (1) that these threats were authorized or sanctioned by the Company or were part of any program of coercion; (2) that similar threats were made to other employees or that Kinner ever communicated these threats to anyone prior to the election of June 5th; and (3) that such threats affected Kinner or the union preference of other employees.

However, "declarations made by 'supervisory employees' will charge the employer [under the Act] [even] though they would not charge him under the doctrine of respondeat superior." NLRB v. Moench Tanning Co., 121 F.2d 951, 953 (2d Cir. 1941). This broader rule places responsibility on an employer for acts of a supervisor when "employees would have just cause to believe that he was acting for and on behalf of the company." NLRB v. Texas Ind. Oil Co., 232 F.2d 447, 450 (9th Cir. 1956). The Company in the present case is thus certainly responsible for Mathewson's statement on May 29. Although Payne's earlier threats, standing alone, might well be attributed to the Company, Mathewson's encounter with Kinner in effect placed the stamp of official approval on Payne's action.

Evidence of the dissemination of the Company's threats or that they were part of an organized program of coercion is also not required. The Union's organizing drive began on April 5, 1963 and "any expressions of company attitudes even to small groups of individuals, were likely to be rapidly disseminated around a plant during the struggle of organization."*fn3 Bausch & Lomb Optical Co. v. NLRB, 217 F.2d 575, 576 (2d Cir. 1954). The Company cannot claim its threats are de minimis as a mere isolated incident since they were reiterated and took place in a context where their effect was enhanced. Similarly, proof of the actual effect of the Company's threats is not required in view of their inherently coercive nature. Elastic Stop Nut Corp. v. NLRB, 142 F.2d 371 (8th Cir. 1944). Thus it is enough in this case that these threats were made.

2. The combined 8(1) and (2) violations :*fn4 On May 13, 1963, about two weeks after receipt of the Union's initial bargaining demand issued on April 25 Mathewson and Wallace, the plant business manager, met employees Fear and Wells in a local bar. Wells testified that Wallace mentioned that the plant employees "could have a Committee going in the shop instead of getting a Union." On May 17 Wallace stated to the assembled plant employees:

"I don't see why a small group of employees, who could represent all of you, couldn't work together with management without bringing in outside interference. We all make mistakes, but we would like to be told about them. We don't like to receive a telegram telling us of them. A talk every week or every 2 ...

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