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National Labor Relations Board v. River Togs Inc.

decided: July 27, 1967.


Moore, Friendly, and Anderson, Circuit Judges.

Author: Friendly

FRIENDLY, Circuit Judge:

By petition dated December 23, 1966, the National Labor Relations Board sought enforcement of an order issued July 1, 1966, 160 NLRB No. 2, finding that River Togs, Inc. had violated § 8(a)(1), (3) and (5) of the National Labor Relations Act in the course of a union organizing campaign in the winter and early spring of 1965. We grant enforcement as to most of the § 8(a) violations but deny it as to others and as to the violations of § 8(a) (3) and (5).

River Togs, solely owned by Salvatore Avellino, Jr., has a plant at Riverhead, Long Island, where it acts as a contractor, receiving materials from jobbers to sew into dresses according to their specifications, for which the jobbers pay a flat fee per garment. River Togs followed a "complete section" procedure whereby each employee performed only a single operation on a garment; this required frequent transfers or lay-offs, especially in the skirt department. A number of the employees were of Polish origin and several had little or no knowledge of English. During February 1965, Local 107, International Ladies Garment Workers Union, began an organizing campaign in Suffolk County. It held dinner meetings of River Togs' employees on March 3, 10 and 15, at the Henry Perkins Inn at Riverhead, with the Union providing the meals and Edward Banyai, the manager, addressing each meeting.

Section 8(a)(1).

On March 10 "Billie" Mastrioni, a supervisor, asked Alice Wright where she was going that night and, on receiving an evasive answer, inquired whether Wright was attending a union meeting. An employee, James Tolar, attended the meeting with a camera and sought unsuccessfully to take pictures. Next morning Mastrioni addressed the employees over the plant loud-speaker. She recounted a telephone call in which Avellino had said that he knew who had attended the meeting, that he would close the plant before he would "join a union," and that any employee who wanted a union could leave the plant. Toward the end of the working day Avellino encountered Tolar in front of supervisor Martin and four other employees. Avellino asked Tolar if he had the pictures, reproached him for not getting them, inquired how he knew there was a union meeting, suggested he not "buy a house because you can't buy a home if you don't have a job and none of us will have a job," and told Martin "this guy is a ringleader."*fn1 We uphold the Board's conclusion that these incidents constituted violations of § 8(a)(1).

On March 11 Banyai wrote River Togs that the Union had been duly designated as collective bargaining representative by a majority of the employees and requested a meeting for negotiations. Upon receiving the letter the following day, Avellino promptly telephoned Banyai who offered to show authorization cards signed by a majority; Avellino took the position that since the company had been losing money, he would be forced to close the plant if the Union persisted in its organizing efforts unless it got him a "union jobber" since they paid higher fees per garment. Banyai informed him that the Union had filed a petition with the NLRB for an election and asked if Avellino would consent; the latter did not commit himself. The two men arranged to meet for lunch at a restaurant on March 17.

Immediately after this talk Avellino met some employees who asked what he was going to do about the Union and said they didn't want to join. He told them not to worry "because right now I'm not joining the union either," and inquired how the cards had come to be signed. One employee said he had signed in order to obtain a meal the Union had furnished. The two supervisors also reported that "the girls were under the impression that they were signing these cards for a dinner."

Avellino called the employees together on March 15. He told them he knew that most of them had attended Union meetings and that a meeting would be held that night at the hotel; he advised them to attend and ask what the Union was going to do to get work for the plant. He put the question how, since "a lot" of the employees were still unable on a piece-work basis to "make" the statutory minimum wage of $1.25 per hour, they could make the Union's minimum of $1.75 or $1.80, a figure which only five operators were sufficiently skilled to attain. He said it would take months to find a "union jobber" and he could not pay union benefits on the fees received from non-union jobbers; on the other hand he would have no objection to the Union and would recognize it if it got him a "permanent registration" with a union jobber. He asked several employees to tell their experience in union shops; they reported these had closed down. When some of the workers said they were "against" the Union, Avellino ended the discussion, saying he was "not interested."

The Trial Examiner found this speech did not violate § 8(a)(1). The Board disagreed, concluding that it created the impression of surveillance and constituted a threat of reprisal. While the disagreement did not result in any change in the order, see fn. 11 to the Board's opinion, we would not wish to be understood as approving the Board's finding of a threat of reprisal. Avellino's statements as to the economic effect of unionization are the kind of speech protected by § 8(c). Rather than being threats of reprisals to be imposed because of the employer's anti-union bias, these remarks were a prediction as to the likely economic consequences of unionization. Compare NLRB v. Cousins Associates, Inc., 283 F.2d 242, 243 (2 Cir. 1960). Furthermore -- and this distinguishes NLRB v. Miller, 341 F.2d 870, 872-73 (2 Cir. 1965), on which the Board relies -- Avellino had a reasonable basis for his fears, in ILGWU's well-known minimum wage standards, the poor performance of his workers, his already dim economic picture, and the difficulty of making connection with union jobbers, none of which facts are disputed; and he explained these considerations so that the employees could make their own evaluation. His lack of general anti-union animus was evidenced by his statement that he would have no objections to the Union and would recognize it if it got him the arrangement with a union jobber needed to continue operation of the plant with union benefits. Although the Board apparently thinks workers should be shielded from such disconcerting information, an employer is free to tell his employees what he reasonably believes will be the likely economic consequences of unionization that are outside his control, as distinguished from threats of economic reprisal to be taken solely on his own volition. Cf. Bok, The Regulation of Campaign Tactics in Representation Elections under the National Labor Relations Act, 78 Harv. L. Rev. 38, 77-82 (1964). If § 8(c) does not permit an employer to counter promises of pie in the sky with reasonable warnings that the pie may be a mirage, it would indeed keep Congress' word of promise to the ear but break it to the hope.

The next § 8(a)(1) violation found was this: On March 16 two employees came into the office of Lillian Andreasen, the sole office worker at River Togs. They asked for two pieces of paper so that they might circulate anti-union petitions. When Andreasen complied, one of the employees explained that her own hand-writing was poor and asked Andreasen to write out the petition, incorporating the substance of what the employees wanted to say. She did.*fn2 Two employees (including one of those who had gone to Andreasen's office) then solicited signatures during the coffee break and for 15 minutes thereafter. The two supervisors, Mastrioni and Martin, were in the shop, saw the petition being circulated and did nothing to interfere.*fn3 One of the employees later brought the petitions, signed by twenty-six employees,*fn4 to Andreasen to put in the files; when she refused to receive the paper, it was given to Mastrioni.

The Board properly makes no claim that respondent initiated or actively encouraged the preparation and circulation of the petition, as in NLRB v. Movie Star, Inc., 361 F.2d 346, 348-49 (5 Cir. 1966), and NLRB v. S & H Grossinger's Inc., 372 F.2d 26, 39 (2 Cir. 1967), which it nevertheless cites to us. Neither does the evidence go so far as in Edward Fields, Inc. v. NLRB, 325 F.2d 754, 760 (2 Cir. 1963), where the employer advised the employees how to nullify the previously signed cards and dictated the petition and an employee told the others that everybody had to sign. Even if respondent were chargeable for what Andreasen did, which we doubt, compare NLRB v. Newton Co., 236 F.2d 438, 442 (5 Cir. 1956), she simply made a courteous response to the request for two pieces of paper and for her talents as a scribe. Although the issue is close, we think the evidence does not fairly support a conclusion that the supervisors' action or inaction created an impression that the petition was company sponsored or that any reprisals would follow from failure to sign it. Their activities came nowhere near what was held sufficient to warrant a finding of a "combined" violation of § 8(a)(1) and (2) against the employer in Irving Air Chute Co. v. NLRB, 350 F.2d 176, 179-81 (2 Cir. 1965). The most that can be fairly inferred is that their action was taken by the employees as a manifestation of their view that unionization would be detrimental, a position already well known.

Section 8(a)(3).

When the meeting between Banyai and Avellino on March 17 proved unproductive as we shall later recount, the Union established a picket line. A jobber had withdrawn 1000 uncompleted dresses with separate skirts, and the work scheduled on these garments disappeared along with them. Frances Kozak, Vera Gaines and Angelina Dixon were laid off on March 19, Carol Kotun on March 22, and Rose Mayo and Cecile Adair on March 24, each after she finished the skirts that had been assigned to her. All had signed union cards but Dixon and Kotun had also signed the anti-union petition. Avellino testified that, with the withdrawal of the 1000 dresses, the plant had only 6000 garments to manufacture, none of these having separate skirts; that since production ran from 2000 to 2500 dresses per week, there would thus be no need for skirt operators for two or three weeks; that he also decided to change to a "semi-section" operation where each employee would perform several operations on the same garment; and that this constituted an added reason to lay off the skirt operators, retrain the other employees, and later recall the former for retraining when work became available.*fn5 All the laid-off employees except Kotun and Adair were primarily skirt-makers; Kotun operated a "merrow" machine*fn6 and the dresses remaining in ...

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