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National Labor Relations Board v. D'armigene Inc.

decided: November 22, 1965.

NATIONAL LABOR RELATIONS BOARD, PETITIONER,
v.
D'ARMIGENE, INC., RESPONDENT



Friendly, and Kaufman, Circuit Judges, and Bryan,*fn* District Judge.

Author: Bryan

BRYAN, District Judge:

The National Labor Relations Board, having found that respondent employer had engaged in unfair labor practices in violation of § 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), (3), petitions for enforcement of an order requiring respondent to cease and desist from such practices and to reimburse two discharged employees for lost wages.

The findings of unfair labor practices made by the trial examiner and affirmed by the Board,*fn1 insofar as they are directly attacked by respondent here, are (1) threatening employees with economic reprisals and promising them economic benefits during union organizational activities; (2) interrogating applicants for employment about union membership; and (3) discharging two employees for union membership.

The sole issue before us is whether these findings are supported by substantial evidence on the record considered as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 95 L. Ed. 456, 71 S. Ct. 456 (1951); NLRB v. Walton Mfg. Co., 369 U.S. 404, 7 L. Ed. 2d 829, 82 S. Ct. 853 (1962) (per curiam); National Labor Relations Act, § 10(e), 29 U.S.C. § 160(e). We conclude that the findings as to threats of reprisals and promises of economic benefits and as to the discharge of two employees for union membership are so supported but that the finding as to interrogation of applicants for employment as to union membership is not.

Respondent D'Armigene, Inc., is a New York corporation which, since 1952, has manufactured women's uniforms at a plant in Bay Shore, Long Island, employing up to 93 persons.

The events with which we are concerned occurred within the space of a week in June 1963. On Wednesday evening, June 5, representatives of Local 107, International Ladies' Garment Workers Union began a campaign to organize D'Armigene employees by soliciting some of them at their homes. Respondent's president, Mrs. D'Armigene Johnson, was apprised of this the next day. On Friday, June 7, all employees were assembled during working hours and Mrs. Johnson addressed them for half an hour. It is this speech on which the finding of threats of economic reprisals and promises of economic benefits is based.

On Monday, June 10, Jean Crescimanno, a member of Local 107 and its vice president, was discharged. On Tuesday, June 11, Dante Galdi, a member of Local 10, was discharged. On June 12 the D'Armigene employees struck to protest the alleged discriminatory discharges of Crescimanno and Galdi because of union membership.*fn2

The proceedings which resulted in the order now before us ensued. They were instituted on a complaint filed by the general counsel after the regional director had dismissed charges instituted by the union.

We will deal separately with each of the four findings to which respondent takes exception.

(1) Threats of retaliation and promises of benefits

The finding that respondent violated § 8(a)(1) of the Act by threatening its employees with economic reprisals and promising them economic benefits is based on Mrs. Johnson's speech of June 7, 1963.

There is no serious dispute as to the major portion of the speech. Mrs. Johnson described her humble antecedents in Tennessee and dwelt at some length on her problems in overcoming her childhood fear of a bogeyman. She told of her unpleasant experiences in union shops and of her refusal to become a union organizer. She contrasted the "happy family" atmosphere at the D'Armigene plant with the disharmony and unhappiness she had found in unionized plants. She reviewed the difficult times experienced in the early days of the company and emphasized the precarious competitive position with which it was still confronted. Nevertheless she announced imminent improvements in vacation policies and spoke of impending wage increases which she had under consideration. She suggested that any dissatisfied employees were free to leave.

In addition, there was testimony that in response to a question from one of the employees Mrs. Johnson said: "I don't want the union. I won't sign with the union and if it ever comes to that I'll close the place down." At the hearing before the trial examiner she flatly denied that she had said this.

The examiner did not credit Mrs. Johnson's denial and found as a fact that she had threatened to close the plant if it were unionized. His findings as to her credibility and as to what her speech contained are supported by substantial evidence on the record as a whole. The examiner observed the witnesses and there is no basis on this record to question these findings.

Section 8(a)(1) makes it an unfair labor practice for an employer "to interfere with, restrain or coerce employees in the exercise" of their organizational rights. 29 U.S.C. § 158(a)(1). The question of violation turns on the motivation for the employer's conduct. See American Ship Building Co. v. NLRB, 380 U.S. 300, 13 L. Ed. 2d 855, 85 S. Ct. 955 (1965); NLRB v. Brown, 380 U.S. 278, 13 L. Ed. 2d 839, 85 S. Ct. 980 (1965); NLRB v. Great Atlantic & Pacific Tea Co., 340 F.2d 690 (2 Cir. 1965). Conduct which by its very nature would have the effect of interference, restraint or coercion carries the implication of unlawful intent. See Radio Officers' Union v. NLRB, 347 U.S. ...


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