Bonnie BOURNE, an individual, d/b/a Bourne Co., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent

United States Court of Appeals for the Second Circuit1964-05-15No. No. 408, Docket 28583

332 F.2d 47

Summary · law.co

Holding. The court granted enforcement of the Board's order with respect to surveillance, instructing employees against unionization, and payment of benefits, but set aside the interrogation portion because the facts did not meet the standards required to establish that particular violation as an unfair labor practice.

The National Labor Relations Board found that an employer violated labor law by creating the impression of surveillance over union activities, instructing workers to discourage unionization, providing financial benefits to influence workers' union decisions, and interrogating employees about their union involvement. The employer challenged this order in court. The court agreed that the Board properly found violations regarding surveillance, discouragement of union activity, and payments to employees. However, the court determined that the evidence did not support the Board's blanket prohibition on interrogation about union matters. The court established that non-threatening interrogation is unlawful only when it meets specific stringent criteria, including whether the employer had a history of hostility, whether the questioning sought information to target individuals, the rank of the person asking questions, the setting and manner of questioning, and whether employees feared retaliation.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether employer created impression of surveillance over union activities
Whether employer instructed employees to discourage union membership
Whether employer provided money or benefits to influence union decisions
Whether interrogation about union activities constitutes an unfair labor practice
Standards for determining when non-threatening interrogation violates labor law

Procedural posture

An employer petitioned for review of a National Labor Relations Board order finding violations of the National Labor Relations Act.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

PER CURIAM:

This is a petition to set aside an order of the Board, 144 N. L. R. B. No. 75, in which the Board found that petitioner violated Section 8(a) (1) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1) (1958). Petitioner was ordered to cease and desist from:

“creating an impression among employees that their union activities are under surveillance; instructing employees to dissuade other employees from joining or engaging in activities in behalf of a labor organization; giving employees money or other benefits to influence them in regard to their union activities; [and] interrogating employees concerning their union activities * -x- -x- »

The Board requests that its order be enforced.

We hold that with respect to surveillance, instructing employees to dissuade union activity, and payment of money, the Board’s order is authorized by law and supported by substantial evidence, Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L. Ed. 456 (1951), but that the.facts established before the Board are insufficient to sustain the broad ban on interrogation. We accordingly set aside the order with respect to interrogation and grant enforcement of the other portions of the order.

.Under our decisions interrogation, not itself threatening, is not held to be an unfair labor practice unless it meets certain fairly severe standards. N. L. R. B. v. Firedoor Corp., 291 F.2d 328 (2d Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 242, 7 L.Ed.2d 136 (1961); N. L. R. B. v. Syracuse Color Press, Inc., 209 F.2d 596 (2d Cir.), cert. denied 347 U. S. 966, 74 S.Ct. 777, 98 L.Ed. 1108 (1954); N. L. R. B. v. Montgomery Ward & Co., 192 F.2d 160 (2d Cir. 1951).

These include:

(1) The background, i. e. is there a history of employer hostility and discrimination ?

(2) The nature of the information sought, e. g. did the interrogator appear to be seeking information on which to base taking action against individual employees ?

(3) The identity of the questioner, i. e. how high was he in the company hierarchy ?

(4) Place and method of interrogation, e. g. was employee called from work to the boss’s office? Was there an atmosphere of “unnatural formality”?

(5) Truthfulness of the reply.

Examination of the record, interpreted in the light most favorable to the Board, indicates that the interrogation involved here did not in any realistic sense meet the tests set forth.

(1) There is very little to show any pattern of employer hostility and discrimination.

(2) The information sought was quite general. “How is the union doing?”; “Are the employees for the union?” rather than specifically “Who are the ring leaders?” “Who has joined?” etc.

(3) The principal interrogation was by low ranking supervisors.

(4) The employees were interrogated informally while at work.

(5) In general the replies were truthful, i. e. there was no evidence that the interrogation actually inspired fear.

The order of the Board is modified by striking from paragraph 1 the words “interrogating employees concerning their union activities.” Enforcement of the order as thus modified is granted.