# Van Dorn Plastic MacHinery Company v. National Labor Relations Board > Court of Appeals for the Sixth Circuit · July 17, 1984 · 736 F.2d 343 URL: https://www.frixlaw.com/law-library/cases/9472259 ## Case - **Full name:** VAN DORN PLASTIC MACHINERY COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** July 17, 1984 - **Citations:** 736 F.2d 343 - **Precedential status:** Published - **Opinion:** Concurring in part by Contie - **Judges:** Lively, Jones, Contie - **Cited by:** 48 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9472259 ## Opinion text CONTIE, Circuit Judge, concurring and dissenting. I fully agree with the majority’s analysis of all issues presented in this case except one. Accordingly, I join in the majority opinion in every respect except for its determination in Part V that Van Dorn Vice- *351 President William Sheffield violated § 8(a)(1) by interrogating employee Thomas Vale. I conclude that Sheffield’s conversation with Vale was not unlawful. Strike votes were held by the Union on April 2, 1978 and May 7, 1978. Prior to each of these votes, Sheffield approached Vale at the latter’s work station. Vale testified that Sheffield asked him on each occasion if he thought that the employees would vote in favor of a strike. Vale further testified that Sheffield stated that the employees did not need to strike and did not need a Union. Absent other evidence, these remarks would constitute substantial evidence of a § 8(a)(1) violation. Additional testimony of Vale, however, demonstrates that these conversations were not coercive. One must begin with the proposition that, since an employer has the right to question employees in a noncoercive manner, see NLRB v. Streamway Division, 691 F.2d 288, 296 (6th Cir.1982), an employer’s questioning of an employee is not per se unlawful. NLRB v. Homemaker Shops, Inc., 724 F.2d 535, 548 (6th Cir.1984); NLRB v. Price’s Pic-Pac Supermarkets, Inc., 707 F.2d 236, 239 (6th Cir.1983); NLRB v. Armstrong Circuit, Inc., 462 F.2d 355, 357 (6th Cir.1972). Generally, “[i]n determining whether the ... particular questioning ... violates the Act we look to all the surrounding circumstances to determine whether it may reasonably be said that the interrogation ‘tends to interfere with the free exercise of employee rights under the Act.’ ” Armstrong Circuit, 462 F.2d at 357 (quoting Hughes & Hatcher, Inc. v. NLRB, 393 F.2d 557 , 563 (6th Cir.1968)). The single most important factor I rely on in concluding that Sheffield’s conversation with Vale did not violate the Act is Vale’s testimony that he did not feel coerced by Sheffield’s questioning. 1 The rule that the Board does not have to show that an “employee was in fact intimidated,” see NLRB v. Electric Steam Radiator Corp., 321 F.2d 733, 736 (6th Cir.1963), and that the Board need only show that a given conversation “tends to interfere” with an employee’s rights, see Armstrong Circuit, 462 F.2d at 357 , has no application to a case in which the employee in question affirmatively testifies as to his subjective mental state at the time of the conversation. If the content and tenor of a given conversation “tends to interfere” with an employee’s rights, we will infer, in the absence of evidence to the contrary, that the conversation was in fact coercive. Thus, it is true in such cases that the Board does not need to prove that the “employee was in fact intimidated.” In the present case, however, there is evidence which squarely rebuts the inference of coercion: Vale’s own testimony- Several other elements of Vale’s testimony add support to the conclusion that he was not coerced. First, in responding to Sheffield’s inquiry as to the likelihood of a strike, Vale told Sheffield that he thought the employees probably would strike and then made a joke: “We wouldn’t mind if you would save the old skids back there. We need it for a bonfire.” Vale testified that Sheffield laughed at this remark. Second, Vale testified that he told Sheffield that he thought one of the supervisors should be fired. Third, there was nothing in Vale’s testimony indicating that Sheffield made any statements which could be construed as an overt threat. Fourth, Sheffield did not question Vale about his personal feelings about a strike, only about the likelihood of a strike. Fifth, Sheffield commonly talked to employees and the conversation occurred at Vale’s work station, where Vale presumably felt at ease, and not in Sheffield’s office. *352 All of these factors lead to the conclusion that there was nothing coercive about Sheffield’s conversation with Vale. Moreover, Vale’s own testimony directly and expressly supports this conclusion. I would conclude that the Board’s finding that this conversation was a violation of § 8(a)(1) of the Act is not supported by substantial evidence on the record considered as a whole. . Vale testified as follows: Q. Let me ask if during either conversation you had with Mr. Sheffield you felt intimidated in any way? A. By Mr. Sheffield? Q. Yes, sir. A. He just asked me a question and I just answered it. Q. But you didn’t feel afraid, did you? A. Afraid? Q. Yes. A. No, sir. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9472259. Public record. Not legal advice.