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National Labor Relations Board v. Hendel Manufacturing Co.

decided: June 14, 1973.


Lumbard and Timbers, Circuit Judges, and Wyzanski, District Judge.*fn*

Author: Wyzanski


Pursuant to § 10(e) of the NLR Act, 61 Stat. 136, 73 Stat. 519, 29 U.S.C. § 151, the NLRB petitions for enforcement of its June 28, 1972 order, reported at 197 NLRB No. 179. The only issues are whether substantial evidence supports the Board's findings, first, that respondent company violated § 8(a) (1) of the Act, 29 U.S.C. § 158(a) (1), by interfering with employees in the exercise of the rights guaranteed by § 7 of the Act, 29 U.S.C. § 157, and, second, that since March 5, 1971, respondent company has been violating § 8 (a) (5) and (1), 29 U.S.C. § 158(a) (5) and (1), by refusing to recognize the union; -- and, in connection with the aforesaid findings, whether the Board was authorized to command the respondent company to bargain with the union, Local 164, International Ladies' Garment Workers Union.

This is a summary of the findings of the Board which are supported by substantial evidence.

About February 8, 1971, Kaufman, an assistant manager of the aforesaid union, scheduled for February 11 a meeting requested by one of the respondent's employees. 35 of the company's employees attended and heard Kaufman describe what he regarded as the benefits and methods of unionization. He distributed blank cards authorizing the union to represent respondent's employees.

On the same day, February 8, the respondent's plant manager suggested to the respondent's president that he consider a wage increase. On February 10 the president agreed and the next day he advised the manager that the increase would be about 4 or 5 per cent. The same day he called an employees' meeting for that night. At the meeting the president advised the employees that he was giving a wage increase to the pieceworkers and that later he would look into the possibility of a raise for the hourly workers. Up to the time of this meeting, there is nothing in the record to show that the president knew of the union's organizing activities.

On February 11, following the president's speech, the manager and one of respondent's foremen reported that a union meeting was scheduled for that night. The day following, and again on February 16, the manager asked employees, "What is this I hear about the union?" He received somewhat evasive answers which were nonetheless indicative of union activity.

On February 18, at a meeting of employees convoked by him, the president stated he was aware of the organizing campaign, and set forth, not in the form of a threat but in the not unfamiliar paternalistic manner of some employers, what in the management's view were the plausible reasons why a union offered no advantages to the employees. He recommended that the employees form their own committee. Finally, he reminded employees that he had previously "mentioned" his intention to grant cost-of-living increases in accordance with past practice and he said that the company was in the process of implementing these increases when it heard of "this union stir" and decided that it was "advisable not to be accused of making changes at this time."

On the same day, the union held its second meeting. Cards embodying authorizations to the union to act as collective bargaining agent were given by 30 of the 68 employees in the relevant unit at the February 11 union meeting, by 13 additional employees who signed before the company president's February 18 speech but who delivered their authorization cards to the union at the second meeting, and by 5 other employees who signed after the speech and who delivered the cards to the union at the second meeting.

On February 19 the company's supervisor conversed with two employees, one of whom he approached and the other of whom approached him. In the first talk he solicited the employee's opinion about the union; in the second he answered the employee's questions by saying the union "won't be very good" because she would "have no work" and would "have to go home."

The plant manager on February 25 approached 5 employees during a coffee break to ask if they were talking about the union. On February 26 she suggested to an employee that "a few girls can talk it over to break the union."

On February 26 the president's brother and the plant manager questioned an employee about his wearing a union button and his taking notes. The same employee was asked on March 1 by the president whether he liked his working conditions and why he was wearing a union button.

On March 2 the union held its third meeting, and agreed to demonstrate the next day. On March 3, 27 employees for 20 minutes marched in front of the plant with union placards. During the picketing the union's representative, Kaufman, presented to the company's president the authorization cards and asked for recognition. The president did not reply.

On March 5 about 37 supporters of the union picketed again. The plant manager and supervisor urged them to stop demonstrating and the manager told one employee that "It's too bad when this is over, you won't be around." She told another employee that if she left the plant the doors would be ...

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