Petition for Writ of Certiorari — Atlas Engine Works, Inc. v. NLRB
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spies COURT U. & ry
JANG 1969
i}
WIS CLERK
IN THE
Supreme Court of the United States
Octoser Term, 1968
No. ——
9 06
Turirt Druc Company oF PENNSYLVANIA,
Petitioner,
—vV.—
NationaL Lasor Rexiations Boarp,
Respondent. —
‘PETITION FOR A WRIT OF CERTIORAh. ©
TO THE. UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Rosert Lewis
Counsel for Petitioner
11 West 42nd Street
New York, N. Y. 10036.
Of Counsel:
Jackson, Lewis, ScHnitzLer & KrupmMan
New York, New York
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a et
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- TABLE OF CONTENTS
Opinions Below .............. wnsesaninsocin SAE ES aM na Beebe 2
I ote ie ee ae Thee po
Questions Presented. ............................... Saslasinahincdioeabascinitians 2
Statutes OMT EN LONG RT AR KOON Oe TIO See
Statement of the Case -.............:...-c-ecscceeceees eee 6
Reason for Granting Review .........................s.scsscscscssesseseee 9
Pornt I—
This Court Is Presently hiviowing the Identical
Issue Involved in This Case .................. 9
Point II—
Assuming That ‘This Court Holds That Authoriza-
tion Cards May Be Used as a Basis for Certifying
a Union, Certiorari Should Be Granted in Order
to Resolve a Sharp Conflict Within the Circuits
With Respect to the Rule to Be Followed Where
“There Is: Evidence of Misrepresentation as to the
Purpose of the Cards ..... oamseiaai 11
Point. III—
The Decision of the Court Below Is in Conflict
With Decisions of the 7th and 8th Circuits With.
Respect to the Applicable Rules of Evidence and
Procedure to Be Followed in Determining the
Authenticity of Authorization Cards ......2............... 16
il
8
xy
Pornt [IV—
Certiorari Should Be Granted to Resolve a Con-
PAGE
flict in the Circuits as to Whether an Employer’s ©
Good Faith Doubt of a Union’s Majority Can Be’
Negated by Subsequent Unfair Labor Practices ....
Porst V—_
Certiorari Should Be Granted ‘to Determine
Whether the Policies of the Act Are Effectuated
by: the Issuance of a Bargaining Order in Every
18
-Case in Which an Employer Unlawfully Refuses -
to Recognize a Majority Union ......... satanacitninhainetamasions
SY Bet RS EEN SN RO a OT OO CT
APPENDIX A—
Opinion of the Court of Appeals for the Sixth
TMI secs nis ci acinonsnrnnsonnnsnomennvencncetfamnstnnncenntn pantie
AppenDIx B— |
Decisions and Orders of the National Labor Rela-
tions Board and Trial Examiner ...........................-
Appenvix C—
Excerpt From Petitioner’s Brief Filed With the
Court of Appeals for the Sixth Circuit -...................
20
la
Se ES een ie i ise - :
lil
Table of Cases
| PAGE
Automobile Workers v. Scofield, 382 U.S. 205 .2.......... 15
.Bauer. Welding and Metal Fabricators, Inc. v. NLRB,
358 F.2d 766 (8th Cir. 1966) 2. ececeeeeeees Se (14
Bryant Chucking Grinder Company v: NLRB, 389 F.2d °
_ 565 (2nd Cir. 1967), cert. denied 392 U.S. 908 .......... . 13
Colson Corp. v. NLRB, 347 F.2d 128 (8th Cir. 1965);°
I, I Te te I aati cnc cctttticiecmsctinnins 17
Crawford Mfg. Co. v. NLRB, 386 F.2d 367 ssaae Cir.
1967), cert. denied Rr ccrestcieeretnctees BB.
Engineers & Sidihietin. Inc. v. NLRB, 376 F.2d 482
(Sth Cir. 1967) ....... ieccsibinadiele | . 14
Franks Bros. -Co. v. NLRB, 321 U.S. 702 jake ach ee 10
Furr’s Inc. v. NLRB, 381 F.2d 562 (10th Cir. 1967) ... 15
Garner v. siwmeueel Local 776, 346 U.S. 485 00... 15
NLRB v. isbn Shoe Corp., 351 F.2d 917 (6th.
BI SP seeecicesceisessteiapiiiensebiensiicheasteenien eissatibaaeios 12
NLRB vy. Dan Howard Mfg. Co., 390, F.2d 304° (7th
Ns TED uicssinicdeaitnoccspeimenonscsceegionatnadadanenieinistonaiamlaaians 14
NLRB vy. Economy Food Calas, 333 F.2d 468 (7th
Cir. 1964) ....... sacha tencecuseliiaeecigheahshanscnnalegiascajuapualbadaniagdaedibheres 17
NLRB v. Gissel Packing Co., Inc., 398. F.2d 336 (4th
Cir. 1968), cert. granted December 16, 1968 (Case
es IE eeisitncrinsisepessrtntninecenniniabaidbeaniadtabiaiinsakeeeikalaabiometnniee 1,9
' NLRB v. Pembeck Oil Corp., — F.2d —, 69 LRRM
2811 (2nd Cir. November 27, 1968) 0.0.0.0 21
NLRB v. River Togs, Inc., 382 F.2d 198° (2nd_ Cir.
I aearacetia cased haclinanrataieransscenineismenelelaaciaiee 19:
iv
‘PAGE |
| NDIRB vy. Sandy’s Stores Inc., 398 ‘F.2d 268 dast Cir.
’ 1968) ..... sischeadidianisanibtnipiaamintipianniiint 14
NLRB v. S. E. Nichols Co, 380 F.2d 438 (2nd Cir.
1967) 7” RSE Tey Sh Be a eT LC Ce Ce nee 13
NLBB v. Sinclair Co., 397 F.2d 157 (Ist Cir. eae
cert. granted December 16, 1968 (Case No. 585). ..
NLRB v. S.S. Logan Packing Co., 386 F.2d 562° ~~
RE RRSSIEAREPIESE CASTE see nee nS ean eet ee, SERINE NO Dero 9
NLRB v. Swan Super Cleaners, Inc., 384 F.2d 609
(6th Cir. 1967) . lesibaiieiehiah iesdaaiaesseibtuiendodelabeinettbladecis ae
NLRB v. West Side Carpet . Cleaning Co., 329 F.2d
a III. cetedissenelhada sadtliaitdapisonteedsareinamianishrenepraiioiiniens 18
_ NEIRB v. World Carpets of New York, Inc., — F.2d —,
69 LRRM 2681 (2nd Cir. November 8, 1968) ............ 20
Textile Workers Union v. ‘NLRB, 386 F.2d 790 —
RE See” scidatienikensaembginnnacahipraidpeeninaninets . 19
- U.A.W. v. NLRB (Preston Products), 392 F.2d 801
(D.C. Cir. 1967), cert. denied October 1968 (Case No.
BED ihinienoinas idea dbdenteniantemnasamasamnntiicibies . a
Statutes and Authorities Cited
National Labor — Act, as amended (61 Stat.
136; 72 Stat. 945; 73 Stat. 544; 29 USC. § 141 et
GAD scetercsennnnsheninnentenmnnvicninnvitinlonsl secinigciisabaambnedaingueliaainiibe 3, 4,5
-Krupman, William, “The Joy Silk Rule—The Courts
- Weave A New Fabric,” 19 Lab. L.J. 603 (October, —
OES lh CR EET RO
PAGE _
~ Lewis, Robert, “NLRB Again Stretches Joy Silk’s
Tenuous Fabric,” 18 Lab. L.J. 222 (April, 1967) .... 12
Lewis, Robert, “The Use and Abuse of Authorization
Cards in Determining Union Majority,” 16 Lab. L.J.
434 (July, 1965) 2. cceecceecseeeeee. Mgiicktamescei ceded
IN THE
oe Court uf the United States
~ Ocroser Term, 1968
No. am
Turirt Drug Company OF PENNSYLVANIA, *
;
Petitioner, |
a —_—vV.—
?
aaa
NatronaL [japoR Retations Boarp,
fr; ee \ » Respondent.
PETITION FOR A’ WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Thrift Drug Company of Pennsylvania, Petitioner herein,
prays that a Writ of Certiorari be issued.to* review the
decision of the United States Court of Appeals for the
Sixth Circuit, entered in the above-entitled ease on Decem-
ber 11, 1968, granting enforcement of an order issued
against Petitioner by the National Labor Relations Board.
On December 16, 1968, this Court granted certiorari in
Case Nos. 573, 585 and 691.’ The pivotal issue in these
eases is the reliability of union authorization cards. The
same issue is present in the instant matter. In addition,
this case presents important closely related subsidiary is-
sues. It therefore provides an appropriate vehicle for a
thorough consideration by this Court of the law pertaining
1 NLRB v. Gissel Packing Co., Inc. (Case No. 573) ; The Sinclair
Co. v. NLRB (Case No. 585) ; and Local No. 347, Food Store Em-
ployees Union v. NLRB (Case No. 691).
-
wre 6 em
FRG LEIS Sut a * een Wrens
eaten: |
.
+
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2
to the se of authorization cards as a basis for certifying
ye |
unions. P es
-. Opiniens Below
The opinion of the Court of Appeals has not yet been
officially reported. It is annexed as Appendix A, pp. 1a-6a.
- The findings of fact, conclusions of law and order of the
National Labor Relations Board are reported at 167 NLRB -
No. 57 ae B, pp.-7a-49a).
Pee eee ae
Jurisdiction. - er
~The jurisdiction of this,Court is invoked ‘under 28 U. S. C.
§1254 (1) and Section 10(e) of the National tel Relations -
Act, as amended, 29 U. 8.C. Section 160(e).
Questions Presented
1. Where an employer réfuses a union’s offer to prove
that a majority of employees signed authorization cards
' "on the ground that in its experience a card check is un-
) - ° reliable because it would not reveal whether employees had.
signed cards as a result of misrepresentation as to the pur-
‘pose Of the card, and the employees. subsequently reject
“union representation in an election, is the National Labor
Relations Board nevertheless lawfully entitled to certify
the union based upon such cards? |
‘
a .
BRAN RADI eet SOK RAS AE 8! OP OK ICES NS
| 2. Should authorization cards be counted in determining
4 a union’s majority, and as a basis for a bargaining order, .
4 where the solicitor told one employee that the card was an
| 7 ‘election card’, and stated to four additional employees that
a - they were under no obligation by signing the cards?-
2 Should this Court erent certiorari herein, Petitioner will file ©
its Brief. within a shorter period of time than provided in this-
Court’s Rules, in order to facilitate the review of this case at the
- game time as this Court reviews Case Nos. 573, 585 and 691.
A Se aged SIT < To oa en Uh an OP On are gle atten a i emptied Noe Amman
=
.
..3. Should authorization cards’ be admitted in evidence
in the absence of testimony from the signer or a witness
to their execution? ans “er, -
4. May an employer’s good faith doubt of a union’s
, majority status at the time the union demands recognition —
' be negated solely on the basis of unfair labor practices
committed subsequent ‘te the demand?
| d. Does it effectuate the policies of the Act to issue a
_ bargaining order in every case where an employer unlaw-
fully refuses to recognize a majority union? ees
Statutes Involved
-The National Labor Relations Act, as amended (61 Stat.
136; 72 Stat. 945; 73-Stat. 544; 29 U.S.C. dani et seq.),
insofar as is here pertinent, provides : .
Section 7:
* “Employees, Hall have the right.to self-organization,
. to form, join or assist labor organizations, to bargain
collectively through representatives of their own ghoos-
‘ing, and to engage in other concerted activities for the .
purpose of collective bargaining or other mutual aid ~
-or protection, and shall also have the right to réfrain |
from any or all of such activities except to the extent _
that such right may be affected by an agreement re-
.quiring membership in a labor organization as a con- 7
dition of employment as authorized in section 8(a)(3).” :
Section 8(a):
“Jt shall be an unfair labor practice for an employer— ,
“(1) to interfere with, restrain, hr coerce Se ie ”
in the exercise of the rights guaranteed in section 7 .
~~
A teak OO i CRRA CHE
DP EE UNS
POM ODI TOR oa « tors Sv Ree
4
“(5) to refuse to batgede: collectively with the repre:
sentatives of his employees, subject to the provisions
of section 9(a). % |
Section 9(c): a
“(e) (1) Wherever a petitin shall have been filed, in
. accordance with such regulations as may be prescribed
by the Board |
“(A) by an employee o or group, of employees or
any individual or labor organization acting -in their
behalf alleging that a substantial number of employees
(i) wish to be represented for collective bargaining and
that their employer. declines to recognize their repre-—
sentative as the representative defined in section 9(a),
or (ii) assert that the individual or labor organization,
which has been certified or is being currently -recog-
nized by their employer as the bargaining representa-
tive, is no longer a repr esentative as defined in section
9(a); or ae SSL RO en
“(B). by an employer, alleging that one or more
individuals or labor organizations have presented to
him a claim to be recognized as the representative
defined in section 9(a) ;
the Board shall investigate such petition and if it has
reasonable cause to believe that a question, of repre-
sentation affecting commerce exists shall provide for:
an appropriate hearing,pipon due notice. Such hearing.
may be conducted by an officer or employee of the
‘regional office, who shall not-make any recommenda-
tions with respect thereto. If the Board finds upon the
record of such:hearing that such. a question of repre- ©
sentation exists, it shall direct an election by secret
ballot and shall — Oe results thereof.” a
<a
Section 10(b):
“ee? Any such proceeding shail, so far as practicable,
be conducted i in accordance with ‘the rules of evidence
~ applicable in the district courts of the United States
under the rules*of civil procedure for the district courts
of the United States... .” 3
Section 10(e):
“«* * * The finding of the Board with vilinien to ques-
tions of fact if supported by ‘substantial. evidence on
the record considered as a ‘whole shall be conclusive.
ee Upon the filing of the record with it the jurisdic-
tion of the court shall be exclusive and its judgment
and decree shall be final; except that the same shall
be subject to review by the appropriate United States
court of appeals if application was made to the district .
court as hereinabove provided, and by the Supreme
Court of the. United States upon writ of certiorari or
~—-— ¢ertifieation as-provided—in section 1254 of title 28." —
ovr
Legit erie!
°
in the unit.
2 : 6
Statement of the Case
Thrift Drug ‘Company ef Pennsylvania, hereinafter re-
ferred to as the “Petitioner”, is a Pennsylvania corporation
having its principal office i in Pittsburgh, Pennsylvania.
-- In May, 1966, the Retail Clerk’s Union, Local 526, Retail
‘Clerks’ International Association, hereinafter’ referred to
-as the “Union,” began organizing the employees of Peti-
tioner’s store in Kenosha, Wisconsin. | P
The Union’s organizer testified that he advised one em-
e ployee whose signature he solicited that she would be
signing “an election card” which “would not obligate her
in any way.” When asked what he explained to this em-
ployee, he responded “only the election is as far as I went.”
~ The organizer also testified that in obtaining cards from
four additional employees he advised them that they would
not be under any obligation by signing the cards.
After approximately four months of such solicitation, .
the Union signed up ten (10) of the sixteen (16) employees
= =
On August bE 1966, by mail, the Union requested recog-
nition as the bargaining representative for all of the em-
ployees. :
Petitioner, through its counsel, responded to the Union
‘by letter on August 29, stating i in part:
| ‘asians. your offer’ ‘of a card check is not @ suit-
able way to attempt to resolve the company’s doubt of
your claim of majority status. A mechanical check of -
alleged signatures would in no way indicate whether
an employee had signed a card under coercion or be-
cause of misrepresentation as to the’ purpose of the
" card. Our office knows, and you do, too, of many situ-
7
—_
ations where cards signed under the above.circum-
stances have been held to be intalid. A mechanical
ecard check would not reveal such shortcomings. We
are in agreement with you that the quegtions- raised
by yourleiters and petition can best be resolved under
the auspices of the National Labor Relations Board in.
a secret pemangs election among the employees of the >
company,”
On August 30, on received a notice of representa-
- tion hearing-from the Board. On,September 19, the parties
entered into a Stipulation for Certification Upon Consent
Election which was approved by the Regional Director of
the Board.’ On September 21, the Union filed unfair labor
practice charges, alleging that Petitioner had violated Sec--
tion 8(a) (1) - of the Act. On October 12, the election was
held. Out of fifteen (15) eligible votes cast in the election,
seven, (7) votes were for the Union, and eight (8) were |
against representation.
‘On October 18, the Union filed ‘opfibions to. conduct af-
fecting the results of the election and an amended charge. -
A complaint was issued by the Board on November 15. The -
- ease was heard on. December 12 and 13, 1966, in Kenosha,
Wisconsin.
Decision of the Trial Examiner Mes
- The decision ‘of the Trial Examiner, rendered on May
30, 1967, found that Petitioner had committed varius acts
lof interferezice and restraint in violation of Section 8(a)(1)
of the Act. He further found that the-Union represented
a majority of the employees based upon authorization
cards and that. the Petitioner’s refusal to recognize the
Union was in violation of Section 8(a)(5)' of the Act. He.
sp aknss to DAR” Sx atte ta Ee Aa
- and Order affirmin :
_and recommendations of the Trial’ Examiner. Petitioner
Jeiab eae ee SOO eee eseoooOrerr
therefore recommended that the election be set aside, the ©
representation petition be ‘dismissed, and that. Petitioner
commence. pelts © ad with the Union.
. | ; = +
‘ a aaragy « of the Board ’
On- September 15, 967, the Board bein its Decisiart |
and adopting the findings, conclusions
filed a petition for review with the Court of a for
the Sixth by eames on October, 2, 1967.
| "Decision of the Court of Appeals
Or December 11, 1968, the Court ‘of Appeals rendered
its decision enforcing in full the Board’s Order.
. OO tis ed < <r 5 a ot See SD ke Sots es
,
Reason for Granting Review . .
- This Court has already granted certiorari to resolve a
: ’ conflict between the circuits concerning - ‘the reliability of
poe GE ecards in deter mining a ‘union’ Ss majority
status. If certiorari is granted herein, this Court can
resolve additional conflicts concerning other aspects of —
the same question.- — ‘ _
POINTI ss *
~ This Conn Is Presently Reviewing the Identical Issue |
Invelved in This Case.
_ The issue in NLRB v. Sinclair Co, 397 F. 2d 157 (1st
Cir. 1967), cert. granted December 16, 1968, is identical to
the primary issue in the instant matter. In Sinclair, the
Court of Appeals for the-First Circuit relied upon author-
ization cards as a bagis for enforcing a bargaining order. |
The Sinclair decision is in conflict with the holding of the
Fourth Circuit in NLRB-v. Gissel Packing Co., 398 F.2d _
336 (4th Cir. 1968), cert. granted December 16, 1968. In
_ Gissel, the Court stated: .
?
“In recent cases we have had occasion to pblat out that
authorfvation cards are such unreliable indicators of
the desires of the employees’ that an-employer con-
fronted with a demand for recognition based solely
upon them is justified in -withholding recognition pend-
ing the result of a esemnares election. » 398 F. 2d at
337.
The decision of the Court of Appeals for the Sixth Cir
cuit in the instant matter is similarly in conflict with the
Gissel decision .and the decision on which it was based,
NLBB v. S.S.. Logan Packing ‘Co., 386 F. 2d 562 (4th Cir.
ee eg ee ae ee ee
10.
1967). This conflict ions .the circuits was succinetly
stated by the sour) below:
“Appellant cites and relied on the Fourth Circuit view
of NLRB bargaining orders expressed in NLRB v.
S.S. Logan Packing Co,, 386 F. 2d 562 (4th Cir. 1967).
SRA an te 2 ae 7 4 t
¢
This court has, however,’ coftsidered and rejected the ©
Logan holding. NLRB v. Atco-Surgical Supports, Inc.,
394 F. 24 659 (6th Cir. 1968).” (Appenth
A, p. 6a).
It therefore would be iatineenitaiis to consider this mat- |
ter along with the Gissel and Sinclair cases.
th
Pd
.
3In Gissel and Sinclair the most significant issue presented is
whether the NLRB may certify a-union based upon authorization
eards. The resolution of this issue will depend in large part on
an interpretation of the Act and its legislative history. In Gissel,
counsel for the Union has indicated in its Petition for a Writ of
Certiorari that legislative history supports an interpretation of the :
Act that the Board may use authorization cards as a basis for
bargaining orders. There is no indication that any other party will
present a contrary interpretation.
In its Brief to the Court of Appeals for the Sixth Circuit, Peti-
tioner argued that the Board is restricted to the use of secret
ballots for the resolution of representation questions, Petitioner
cited legislative history and misinterpretation of this Court’s de-
cision in Franks Bros, Co. v. NLRB,-321 U.S. 702 (1944), in sup-
. port of its argument. Petitioner submits that this discussion would
be beneficial to this Court in resolving the. conflict between the.
circuits concerning the reliability of authorization cards. - The pertt- .
nent part of its Brief is attached nenete< as Appendiz C, pp. 50a-64a.
7
y,
11
| POINT ;
de Mag he This Court Holds That Authorization
Cards May Used as a Basis for Certifying a Union,
Certiorari Should Be Granted in Order to Resolve a
Shatp Conflict Within the Circuits With Respect to the
Rule to Be Followed. Where There Is Evidence of Mis-
representation as. to the Purpose of the Cards.
A. By Aihane To Its Cumberland Shoe Rule The : Court
Below Refused To Invalidate Authorization €ards Ob;
tai Through Misrepresentation.
“ The ist significant issue to be decided by this Court ~ f..
in Sinclair and Gissel is whether the N ational Labor Rela-. if
tions Board may certify a union based upon authorization. ° !
cards. Inextricably related to this question is another,
equally troublesome: Does a misrepresentation by the
solicitor as“fo-the card’s purpose invalidate the card?
Court that unions have in fact engaged in such misrepre-
sentation. -In its Petition for a Writ of Certiorari in
Gissel; the Board states:
“Although. there have ‘been. abuses in: the unions’ use of
authorization cards—primarily misrepresentations as
to whether by signing the cards! the employees were _ }
designating the union as their representative or mere- |
ly authorizing it to seek an election ‘to determine that
issue—it does not~follow that such cards are inher- ~
ently unreliable.” (p. 19).
- Counsel for Petitioner agrees with the Board that there
have been abuses in the use of authorization cards and }
have explicated their views in legal periodicals.‘
\The National Labor Relations Board has advised this
* See Robert Lewis, “The Use and Abuse of Authorization Cards F
in Determining Unior Majority,” 16 Lab. L.J. 434 (July, 1965) ;
ee’
12
: Y
- Inasmuch as this question is not presently before the
Court,’ we submit that this case presents a most appro-
priate vehicle to yesolve the conflict between the circuits,
as discussed below: -It presents the issue squarely.
The Union representative unequivocally testified that he
advised the employee whose signature he solicited that she
would be signing “an election card” which’ “would’ not.
obligate her in any way.” When asked what he explained
to this employee, he responded “only the election is as
far as I went.” (App. 73a, Record in Court of Appeals).
The Board counted. this ,card, and others similarly ob-
tained, towards determifing the Union’s. majority. The
- court below affirmed, in reliance on its “Cumberland rule.” °
(Appendix A, pp. 3a-4a).
_ The Sixth Circuit’s Cumberland rule holds that union
authorization cards will be invalidated on the grounds of
misrepresentation in only one situation: where the so-
licitor’s words “create in the mind of the one-solicited a
belief that the only purpose of the card is to obtain an_
election.” NLRB y. Swan Super Cleaners, Inc., 384 F. 2d
609, 618 (6th Cir. 1967) (emphasis in original).
.Accordingly, since the solicitor in the instant matter did
not represent that an election was the “only purpose” of
the card, the court below, relying on its “Cumberland rule”,
Robert Lewis, “NLRB Again Stretches Joy Silk’s Tenuous Fabrie,”
18 Lab. L.J. 222 (April, 1967) ; and William Krupman, “The Joy
Silk Rule—The Courts Weave "A New Fabric,” 19 Lab. LJ. 603
(October, 1968).
5In its Petition for a Writ ide Certiorari in Gissel, the Board
states:
“The standard 7” which the Board determines the validity of -
challenged cards .. . is not at issue in the present cases.” (at
pp. 20-21, n.20). —
‘NLRB v. Cumberland Shoe ton: 351 F. 2d 917 (6th Cir.
1965).
@
a 13
upheld the Board’s finding that the Union represented a
majority of the employees.
A different result would have been renicbed in the cir-
euits which do not follow Cumberland.
B. The Decision Below Conflicts With Decisions In The 2nd,
4th oth, 7th and 8th Circuits Regarding The Rule To Be
Followed Where Cards Have Been Obtained Through Mis-
representation.
The Sixth Civoukt's Cumberland re has been rejected
by five other circuits.
The Second Circuit’s rejection of the rule’ of the Sixth -
Circuit was expressed in Bryant Chucking Grinder Com-
-pany v. NLRB, 389 F. 2d 565 (2nd Cir. 1967), cert. denied —
392 U.S. 908. Referring to an-earlier decision,” Judge
Friendly, in his. concurring opinion, stated:
eo oe rejected the rule announced by the Board
in Cumberland Shoe Corp., 144 N.L.R.B. 1268 (1963),
enforced 351 F. 2d 917 (6th Cir. 1965), that an au-
thorization card ‘clear’ on its face could be invalidated
for misrepresentation as to its purpose only by proof
that the solicitor had said that the ‘sole’ purpose of
the card was to secure an NLRB conducted election;
we held that cards were_invalid if ‘si Ss were in:
duced to affix their signatures by statements. causing
them to believe that the union would not achieve repre-
sentative status without an election.’ ” 389° F. 2d at
569 (emphasis added).
- The Fourth Circuit repudiated the Cumberland Shoe rule
in Crawford Mfg. Co. v. NLRB, 386 F. 2d 367 (4th Cir.
1967), cert. denied 390 U.S. 1028:
“Despite the regard we hold for the ‘contrary opinion,
eg., NLRB v. Cumberland Shoe Corp., 351 F. 2d 917,
’ NLRB v. 8..E. Nichols Co., 380 F. 24 438 (2nd Cir. 1967).
.
q .
EE EL SO I EY LOT
eerie Rhy
a
14°
920 (6th Cir. 1965) and cases there cited, we will not
» stick mechanically to the literal phrasing of the cards. -
_ A ghost of the parol evidence rule, such literalism sub-
ordinates what really counts: the actual understanding |
of the signers.” 386 F'.°2d at 372.
~The Fifth Circuit aes Shoe in Engi-
neers & Fabricators, Inc. v. NLRB, 376 F. 2d 482 (5th Cir.
1967) :
“The Trial Examiner and the Board rely on Cumber-
land Shoe Corp., 144 N.L.R.B. 1268 and Aero Corp.,
149\N.L.R.B. 1283 (1965) for the rule that if such
cards as.these are solicited by a statement that they
are to be used to get an election, but are later used
to prove. majority status, there is no misrepresenta-
tion.. According to the Board, it would require a state-
ment that the cards were to be used only to get an
election to constitute misrepresentation.
This Court’has previously shown its impatience with
such contentions.” 376 F: 2d at 486 (emphasis in
original). .
The Seventh Circuit in NLRB v. Dan Howard Mfg. Co.,
390 F. 2d 304 (7th Cir. 1968), and the Eighth Circuit in-
Bauer Welding and Metal Fabricators, Inc. v. NLRB, 358
F. 2d 766 (8th Cir. 1966), have refused to follow the Board’s
rule as enforced by the Sixth Circuit.*
8 The First Circuit has apparently lined up with the 2nd, 4th,
5th, 7th and 8th-Circuits in disapproving the Cumberland Shoe
rule. In NLRB v: Sandy’s Stores; Inc., 398 F. 2d 268, 271 (1st
Cir. 1968), the court stated :
“Moreover, affirmation of the card authorization findings would
require reliance in the most mechanical semse on the Cumber-
land rule, an approach rejected by a number of other circuits
and, we think, not necessarily commanded in the instant case
- by our own remarks in NLRB ‘v. Southbridge Sheet Metal |
Works, Ine., 380 F. 2d 851 a Cir. 1967).” -
C. The. Decision Below Is Canute With The Rule Of The |
Ib .
District Of Columbia And The Tenth Circuits.
The United States Court of ‘Appeals for the District of
Columbia in U.A.W. vy. NERB (Preston Products), 392
F. 2d 801 (D.C. Cir. 1967), cert. denied October, 1968 (Case
No. 160), held:
“This court has consistentiy upheld the rule, announced
by the Poard in N.L.R.B. v. Cumberland Shoe Corp.,
144 NLEB 1268 (1963), enforced, 6 Cir., 351 F. 2d 917
(1965), that where the cards are unambiguous on their
”
face, unless employees were told that an election was -
the only purpose of the cards, the employees would be
held to the terms of the cards which — ‘had signed.”
392 F. 2d at 807 (emphasis 1 in er
Accord: ‘Pews Inc. v. NLRB, 381 F. 2d 562 (1oth Cir.
1967). :
D. Uniformity Of Interpretation Of National Labor Policy
Is Desirable. _
_ The Sixth and Tenth Circuits, and the Distriet of Colum-
‘bia Cireuit, have one rule concerning misrepresentation.
The Second, Fourth, Fifth, Seventh, Eighth and, appar-
ently the First Circuits, have another rule. The resolution
of this continuing and ever-increasing conflict would be
beneficial. The continued existence of different rules on
this important issue in labor-management relations i impairs
the uniformity of national labor policy that the Act was
designed to achieve.’ Cf., Garner v. Teamsters Local 776,
346 U.S. 485, 490-91.
* Resolution of this conflict between the circuits would also lessen
‘the likelihood of “undersirable ‘circuit shopping’.” Automobile
Workers v. Scofield, 382 U.S. 205, 212-13 and 222, n. 20.
~
16
POINT Ill
The Decision of the Court Below Is'in Conflict With
Decisions of the 7th and 8th Circuits With Respect to
the Applicable Rules of Evidence and Procedure to
Be Followed in Determining the cane ‘end of Au-
thorization Cards.
The Petitioner argued before the court below that two
of the Union’s ten authorization eards should not be counted
. in determining the Union’s majority. Petitioner submitted
that the two cards were not properly authenticated because :
(1) The card signers did not testify, and .
(2) The person who authenticated the cards was not
a witness to the signing.
——
The Trial Examiner, upheld by the Board, found:
“IT merely restate the obvious, for emphasis, by point-
ing out that Crowe did not testify that the cards were
signed in her presence, or that- they had come into
her’ possession in connection with her duties as a
steward for the Union.
Of course, it was unnecessary for the Respondent to
put forth any effort to help the General Counsel prove
his case, and the question as to whether I was right
in receiving General Counsel’s Exhibits 9 and 10 is
whether the General Counsel’s submission, through
Crowe’s testimony, establishéd a prima facie case.”
(Appendix B, pp. 21a-22a).
“On the basis of the thin and barely adequate identifi-
cation by Crowe that she recognized’ the signatures
a
on General Counsel’s Exhibits 9 and 10 as being those
of Hix and McClelland, I affirm my ruling admitting
_- those exhibits in evidence, and find that the purported
signatures are genuine, and the authorization eards
valid.” (Appendix B, P. 26a).
General Counsel’s initia pf authentication was to call
upon a complete stranger to verify the signatures. The
Trial-Examiner and the Board approved this procedure.
The court below did not specifically ‘pass .on this issue.’
However, by refusing to invalidate the cards, it impliedly
affirmed the method used to authenticate them. Thus, the
Sixth Circuit placed itself in conflict with the decisions of .
the Seventh and Eighth Circuits.
The rule of the Seventh and Eighth Circuits is that
~ “authorization cards must be signed in the presence of the
witness who seeks to authenticate them. — |
In NLRB v. Economy Food Center, 333 F, 2d 468 (7th
Cir. 1964), the court stated:
“The signatures on the cards of the two employees
absent at the time of the hearing were authenticated
by Union representative Goss, who testified that both
cards were signed in his presence and that he wit-_
nessed each signature.” 333 F. 2d at 471.
The Eighth Circuit similarly held in Colson Corp. v.
NLRB, 347 F. 2d 128 (8th Cir. 1965), cert. denied 382
U.S. 904, that for the purpose of authenticating authori-
10 The court below did not resolve this issue because i in its opinion
“the two cards would not eliminate the union’s majority status.”
Appendix A, pp. 3a-4a, n. 3. However, these two cards would be
determinative of the union’s majority status if even one additional
card was obtained through misrepresentation. _ (See* Point II,
supra).
18
zation cards the witness must have been present when |
the card was signed:
“Petitioner argues that each employee who signed a
card should have personally authenticated his own
signature. The law permits alternative methods of -
authentication. Thus the courts have approved the_
authentication of such cards by a witness-to their
execution, N.L.R.B. v. Economy Food Center, 7 Cir.
1984, 333 F. 2d 468, 471, or by comparison with a
known specimen of the person’s handwriting, N.L.R.B.
v. Philamon Laboratories, 2 Cir. 1962, 298 F. 2d 176,
179-180, certiorari denied, 370 U.S. 919, 82 S. Ct. 1555,
8 L. Ed. 2d 498.” 347 F. 2d at 134 (emphasis added).
The manner by which authorization cards are authenti-
cated will often be determinative of the card’s reliability.
The proper method of authentication should therefore be
resolved by this Court.”
POINT IV ;
-Certiorari Should Be Granted to Resolve a Conflict
in the Circuits as to Whether an Employer’s Good Faith
Doubt of a Union’s Majority Can Be Negated by Sub-
sequent Unfair Labor’ Practices. |
_ The Trial Examiner and the Board resolved the ques-
tion of whether the Petitioner had a good faith doubt of
the Union’s majority solely on the basis of unfair labor
practices committed subsequent to the Union’s demand for
11 This Court may desire to pass upon the applicability of See-
tion 10(b) to the proper method of authentication. As noted by
the court below, (Appendix A, pp. 3a-4a, n. 3), varied interpreta-
tions have been placed on this section in different circuits. Cf.
NLRB v. West Side Carpet Cleaning Co., 329 F. 2d 758 (6th Cir.
1964). Er
\
19
recognition. Referring to the Petitioner’s reasons for re-
jecting the Union’s demand for recognition, the Trial Ex-
aminer stated: “ee
“The assertions malt. in other circumstances, have
established a good. faith doubt, but here their force
has been effectively blunted by its aggravated conduct
in coercing and intimidating its employees. . .” (Ap-
pendix B, pp, 37a-38a).
The court on held that:
“The Trial Examiner and the Board had ample reason
to conclude that Petitioner’s course of conduct repre-
sented rejection of collective bargaining rather than a
good faith doubt of the ——— S majority status. ” (Ap-
pendix A, p. 6a).
ber
This holding ie in conflict with the decisions of the Sec-
ond Circuit. The Second Circuit does not rely on evidence
of a company’s “course of conduct” subsequent to a re-
quest for recognition to determine whether the company
acted in bad faith at the time it refused recognition.
‘In NLRB vy. River Togs, Inc., 382. F. 2d 198 ae Cir.
1967), the court. stated:
“.. . . We see no logical basis for the view that substan-
tial evidence of good faith doubt is negated solely by.
an employer’s desire to thwart unionization whether
by proper or even =? improper means.” 382 F. 2d at
206-07.
In Textile Workers Union v. NLRB, 386 F. 2d 790 (2nd
Cir. 1967), the court reaffirmied this doctrine:
“The use of (a): campaign speech as evidence to infer
bad faith at an earlier time is a hazardous business
™
as we pd@mted out in NLEB v. River Togs, Inc., supra,
382 F. 2d at 206-207 ; since votes may be oitead or lost
during a campaign, presenting anti-union arguments
- affords no logical basis for belief that the employer if
did not doubt the card majority.” 386 F. 2d at 794.
If certiorari were granted ‘herein, ®his conflict between
the Sixth and the Second Circuits could be resolved.
POINT V
- Certiorari Should Be Granted to Determine Whether
the Policies of the Act Are Effectuated by the Issuance
of a Bargaining Order in Every Case in Which an
Employer scalar Refuses to Recognize a ey
Union.
Almost immediately after the election seven of the ten
employees who signed authorization cards voluntarily ter-
minated their employment. (Appendix B, p. 38a). -Peti-
tioner argued before the Board and the court below that
a bargaining order therefore was not justified because it
‘ was an inappropriate remedy under the facts of this case.
(Appendix A, p. 3a).
‘The Board automatically adopted the Trial Examiner’s
recommended order that Petitioner bargain with the Union.
The court below enforced the Board’s order. It did not. .
consider whether the facts of this case warranted a dif-
ferent conclusion. (Appendix A, p. 62)..
The Second Circuit would have made such an inquiry.
In NLRB v. World Carpets of New York, Inc., —— F. 2d
—, 69 LRRM 2681 (2nd Cir. November 8, 1968) the
court stated:
\
\
NSE, OB OR tus FD MD CAP Bare ~
rte Petar n't
21
“On the other hand, if, on the remand we are directing,
the Board should find the facgs in a sense favorable
to the General Counsel, it should not proceed imme- -
diately to the issuance of a bargaingpg order but should
- consider whether such an. order in, this case will further
_. the policies of the National Labor Relftions Act,
notably ‘to provide orderly and peaceful procedures
for preventing the interference’ by employees and em-
ployers ‘with the legitimate rights of the other.’ § 1(b).
Cf. Phelps Dodge Corp. v. NLRB, 313 U:S. 177, 193-97,
8 LRRM 439 (1941). As said in NLRB v.. Flomatic
Corp., 347 F.2d 74, 78, 59 LRRM 2535 (2 Cir. 1965),
a bargaining order is ‘strong medicine’ whose ‘poten-
tially adverse effects on the employees’ §7 rights
_ must not be overlooked.’ While, despite the contrary
ruling of another circuit, NLRB v. S 5S. Logan Pack-
ing Co., 386 F.2d 562; 66 LRRM 2596 (4 Cir. 1967),
we continue to hold that a union validly authorized
by a majority of the employees in an appropriate
unit is generally entitled to recognition without hav-
ing to submit toa Board- -supervised election, the Board
should not automatically i issue a bargaining: order in
every such case without considering whether the poli-_
cies of the Act will be effectuated thereby. ‘The Act
does not create rights for individuals,’ or for unions,
‘which must be vindicated according to a rigid scheme
of remedies. It entrusts to an expert agency the main-
tenance and promotion of industrial péace.’ Phelps
Dodge Corp. v. NLRB, supra, 313 U.S. at 194, 8 LRRM
439.” 69 LRRM at 684.
To the same effect, NLRB v. Pembeck Oil Corp., ——
_ F.2d ——, 69 LRRM 2811 (2nd Cir. November 27, 1968).
22
If certiorari were granted herein, this Court could de-
termine whether the policies of the Act effectuate the, is-
suance of a bargaining order in every case.
- CONCLUSION
It is respectfully requested that this Court issue a Writ -
of Certiorari-to review the decision of the United States
Court of Appeals for the Sixth Circuit and thereby resolve
significant conflicts in the circuits eoncerning the broad
and frequently litigated subject of authorization cards. -
Respectfully submitted,
Rosert Lewis
Counsel for Petitioner
11 West 42nd Street
New York, N. Y. 10036
my)
Of Counsel: +
_ Jacxson, Lewis, Scunirzter & Krupman ~
New York, New York
Dated: December 31, 1968. . .
Rh to
ut eee See:
a
°
' APPENDIX A
- Opinion of the Court of Appeals’
for the Sixth Circuit
FILED
’ Dec 11 1968
Cart W. Revss, Clerk
No. 18216\.
UNITED STATES COURT OF APPEALS
For tHe Sxuta Circurr
- Petition for Review of an Order of the
National Labor Relations Board.
. . .
Turirt Druc Company oF PENNSYLVANIA,
Petitioner,
v.
NationaL Lasor Reiations Boarp,
E Respondent.
Decided December 11, 1968.
Before: O’Sutuivan, Epwarps and McCnree, Circuit Judges.
Epwarps, Circuit Judge.. Petitioner in this case seeks to
set aside the findings and the bargaining order entered by
the National Labor Relations Board, and the Board in turn
seeks enforcement of its order. The conclusions of law, as
set forth in the Trial Examiner’s decision and as adopted
by the Board, are as follows:
OO xe
ESAT EO Er TT NEN note
ee ee ee ee ee ee ee
2a.
Opinion of the Court of Appeals al the Siath Circuit
“a, All employees at —s Kenosha, Wis-
consin, store, excluding the store manager, assistant.
store manager, lunch counter manager, professional
employees, guards, and supervisors as defined in ‘the
Act,’ constitute an appr opriate unit for the’ purposes
of collective bargaining within the meaning of Section
9(b) of the Act. es
“2. At all times since August 24, 1966, the Union?
has been the duly designated bargaining representative
of the aforesaid collective-bargaining unit.
“<3. The Respondent has interfered with, restrained,
and coerced its employees in the exercise of their rights
guaranteed in Section 7 of the Act, in violation of
Section 8(a) (1), by threatening them.that the Kenosha
store or it®@fountain department would be closed down
or that they would lose their store or food discounts,
_by promising them wage increases and other benefits,
by coercively interrogating them as to how they were
going to vote, or if they had attended union meetings, —
by intimidating them through its orders to reject ap-
plications for employment from provfnion applicants,
and by telling them that ‘their. attendance at union ~
meetings had been observed and noted.
“4. By failing and refusing on August 26, 1966, and
at all times thereafter, to recognize and bargain with
tlie Union as the collective-bargaining representative
of the employees in the aforesaid unit, and by unilater-
ally changing the wages of employees in October 1966,
without notice to or consultation with the Union, the
1 National Labor Relations Act, 29 U.S.C. §§ 151-168 (1964).
2 Retail Clerks International Association, Local 526, AFL-CIO.
\
' 3a
Opinion of the Court of Appeals for the Sixth Circuit
Respondent has engaged in unfair labor practices in
, violation of Section 8(a)(5) of the Act. :
“9. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
_ the Act.”
f,
Petitioner does not contest the section 8(a)(1) violation
findings in this proceeding. It also concedes the fifth of
the conclusions above, reserving most of its argument for
three contentions :
1. The bargaining order was not justified because in
fact the union never had a valid card majority.
2. ‘The bargaining order was not justified because peti-
tioner had a good faith doubt of the union’s majority.
3. The bargaining order was not justified because under
the facts of this case it was an inappropriate remedy.
, The Board found that edu had ten authorization
cards out of an appropriate bargaining unit of fifteen when
it made its demand for bargaining rights on August 24,
1966. Petitioner’s primary argument attacking this ma-
jority is that a number of cards should be held to be in-
valid because of solicitor misrepresentations.? In this re-
3Two of these cards are also challenged by petitioner on the ground
that the witness who testified she “recognized” the signatures had not
been properly qualified to so testify. The statute under which NLRB -
hearings are authorized provides in part: “Any such proceeding shall,
so far as practicable, ‘be conducted in accordance with the rules of evi-
dence applicable in the district céurts of the> United States under the
rules of civil Procedure. ...” 29 U.S.C. §160(b) (1964). Some courts
looking at the “so far as “practicable” language have held that “the
Board is not required to observe the legal rules of evidence as are com-
a ash
es PIPES HONS KP MEY nen Eanes iene
POO Peele
ond
RAEN SnD iwc Be RI ctl PE CNM a Bn MB aS pe RL en ee ee
?
Opinion of the Court of Appeals for the Siath Circuit
gard petitioner relies upon this court’s holding in NLRB.
.v. Swan Super Cleaners, Inc., 384 F.2d 609 (6th Cir. 1967) :
“We think it right now to say that we do not con-
sider that we have announced a rule that only where
the solicitor of a card actually employs the specified
words ‘this card is for the sole and only purpose of
. having an election’ will a card be invalidated. We did
not intend such a narrow and mechanical rule. We
believe that whatever the style or actual words of the
solicitation, if it is clearly calculated to create in the
mind of the one solicited a belief that the only purpose
of the card is to obtain an election, an invalidation of
such card does not offend our Cumberland rule [VLRB
v. Cumberland Shoe Corp., 351 F.2d 917 (6th Cir.
1965)].” Id. at 618. (Emphasis in original.)
~~Tn. our instant case there is no claim that the eards them-
selves contained any ambiguity or misrepresentation. We
have examined the claimed misrepresentations of the so-
licitots. Taking into account our court’s limited function
in review of NLRB findings of fact and inferences based
thereon, we do not find any language which compelled the
Board to hold that a particular solicitor was ‘seeking to
convey “a belief that the only purpose of the card ts to
obtain an election.”
- We now turn to appellant’s second and third substantial
contentions pertaining to “good faith. doubt” and “inap-
mon law courts.” NLRB v. W. J. Jones Lumber Co., 245 F.2d 388 (9th
Cir. 1957). See also Sardis Luggage Co. v. NLRB, 234 F.2d 190 (5th
Cir. 1956). However, in view of the fact that the two cards would not
eliminate the union’s majority status, we do not find it necessary to pass
on petitioner’s contention that the Trial Examiner’s receipt of om in
evidence was error.
. ; oa °
Opinion of the Court of Appeals for the Sixth Circuit
propriate remedy.” These we believe to be closely related
and hence they will be considered together.
This record shows that close on the heels of the union’s
August 24, 1966, bargaining demand (and even before its
refusal by petitioner), one of the petitioner’s employees
heard the store manager say: “I don’t know what’s the
matter with these girls. They won’t believe me when I tell
them they’re going to close the store, if the union gets in,
and we'll all be out of a job.” This same witness also -
testified to another conversation with this same store man-
ager shortly before the NLRB election:
“Well, he asked me did I hear — he said, ‘You know,
the election is October 12th.’ And.I said, yes, I did.
And he said, ‘Well, maybe you’d like to come in and
work for a couple of hours on the 12th,’ because that -
was my day off. And he said, ‘You have to be in the
store to vote.’ And I said, ‘Well, don’t worry,.Tll
come in to vote.’ And he said, ‘Well, I thought you -
might like to get some time-in before the 12th, because
if the union gets in you’re not going to get any time
in after the 13th.’ ”
The record is replete with similar testimony from other
witnesses. It also contains support for the Trial’ Exam-.
iner’s finding of promises of wage increases. One witness
testified that midway in the election campaign the store
manager told three employees: “I’m planning to give you
a raise in October, or see you get a raise ia October; if.
‘the union doesn’t come in, and I’m thinking of a dollar
and a half.’ . :
All in all, the course of conduct shown on the part of
petitioner immediately after receipt of the union’s demand
fe RAK ns GRR ARE, die heh co NE aE 0 RIE RA ier POE Rf. +
6a
Opinion of the Court of Appeals for the Sixth Circuit
for bargaining rights was that of an employer determined
‘to defeat unionization regardless of the wishes of the em- :
ployees and completely without regard to the law. The vio-
lation of the NLRA found in this case can by. no means be
characterized as “borderline” section 8(a)(1) violations as
in NLRB v. Ben Duthler, Inc., 395 F.2d 28-(6th Cir. 1968),
or as 8(a)(1) violations “without more” as in Lane. Drug |
Co. v: NLRB, 391 F.2d 812 (6th Cir. 1968). Indeed, it seems |
remarkable on this record that the union lost the election ed
by the close vote of seven votes for the union to eight |
against.. The Trial. Examiner and the Board had ample :
reason to conclude that petitioner’s course of conduct rep-
resented rejection of collective bargaining rather than a .
good faith doubt of the union’s majority status. |
Under the factual circumstances of this case, we believe
_ that the findings and conclusions of the Board have sub-
stantial support in this whole record. Universal Camera
Corp. v. NLRB, 340 U.S. 474 (1951).
Enforcement of the bargaining order may well be the
only way. to remedy the illegal course of conduct deliber- -
ately chosen by petitioner. NLRB v. Winn-Diaie Stores,
_ Inc., 341 F.2d 750 (6th Cir.), cert. denied, 382 U.S. 830
(1965); NLRB v. Cumberland Shoe .Corp., 351 F.2d 917
_ (6th Cir. 1965); NLRB v. Delight Bakery, Inc., 353 F.2d
344 (6th Cir. 1965).
Appellant cites and relies on the Fourth Circuit view on
NLEB bargaining orders expressed in NV LRB v. 8.8. Logan
Packing Co., 386 F.2d 562 (4th Cir. 1967). This court has,
_ however, considered and: rejected the Logan holding.
NLRB vy. Atco-Surgical Supports, Inc., 394 F.2d 659 (6th
Cir. 1968).
- Enforcement of the Board’s order is granted.
6
Sm,
mA ae dnt ES RS ae Le ee gS se ee SD RAT RAAB
7a
APPENDIX B °
Decisions and Orders of the National Rahae *
Relations Board and Trial Examiner
DECISION OF THE NATIONAL LABOR
RELATIONS BOARD
On May 24, 1967, Trial Examiner Milton. Janus issued
his Decision in the above-entitled proceedings, finding that
the Respondent had engaged in and was engaging in cer-
tain unfair labor practices and recommending that. it cease
and desist ‘therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner’s Decision.
He also found that the Respondent’ had not engaged -in
certain other unfair labor practices alleged in the com-
plaint and recommended that such allegations be dismissed.
The Trial Examiner further. recommended that the elec-
tion: held in Case No. 30-RC-508 be. set aside and the peti-
tion filed therein be dismissed. Thereafter, the Respondent
and the Charging Party filed exceptions to the Trial Ex-
aminer’s Decision and supporting briefs; the Respondent
- filed an answering brief to the exceptions of the Charging
Party, and the General ‘Counsel filed a reply brief.
Pursuant to, the provisions of Section 3(b) of the Na-
- tional Labor. Relations Act, as amended, the National Labor
_ Relations Board has delegated its powers in connection
with these cases to a three-member panel.
The Board has reviewed the rulings of the Trial Exam-
iner made at the hearing and finds that no prejudicial error
was committed. The rulings are herby affirmed. The Board
has considered the Trial Examiner’s Decision, the excep-
tions and briefs, and the entire record in these cases, and
hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner. —
A Sab rot taaci ae Basan: |
® .
Nelle FiO HA PINE AA, sethory: VEAL ah tee po ONS
Decisions and Orders of the National Labor
Relations Board and Trial Examiner
“ORDER
Pursuant to Section 10(c) of the National tole Rela-
tions Act, as amended, the National Labor Relations Board
adopts as its Order the Recommended Order of the Trial
Examiner, and hereby orders that the Respondent, Thrift
Drug Company of Pennsylvania, Kenosha, Wisconsin, its |
officers, agents, successors, and assigns, shall take the action
set forth in the Trial Examiner’s Recommended Order.’
Dated, Washington, D.C. September 15, 1967.
Frank W. McCulloch, Chairman -
By ; ~ John H. Fanning, Member
ad
Sam Zagoria; Member
-Natronat Lasor Retations Boarp
(SEAL)
1 Delete from paragraph 2(b). of the Trial Examiner’s Recommended
Order that part thereof which reads “to be furnished” and substitute |
therefor “on ie provided. .
9a
_ Decisions and Orders of the National Labor .
Relations Board and Trial Examiner
‘TRIAL EXAMINER’S DECISION
; Statement of the ee ae
MILTON JANUS, Trial Examiner: These-Cases, involv-
ing unfair labor practice charges and objections to conduct
affecting the results of an election, were heard at-Kenosha,
‘Wisconsin, on December 12 and 13, 1966, pursuant to a
complaint issued on November 15, 1966, and upon a report
on objections issued the same date. The two cases were
consolidated for hearing. The complaint, against Thrift
Drug Company of Pennsylvania,. herein called the Respon- _
dent or the Company, alleges violations of Section 8(a) (1)
and (5) of the National Labor Relations Act, as amended.
Briefs were filed after the close of ‘the hearing by the
Respondent and the Charging Union.
Upon the entire record and my observation of the wit-
nesses, I make the following:
4 = ; = =~ we
Findings of Fact
I. The Business of the Respondent
The Respondent is a Pennsylvania corporation, engaged -
in operating retail drug stores in several states. The store
involved in these proceedings is located in Kenosha, Wis-
consin. During the past calendar year, a representative
‘ period, Respondent’s sales through -all its .retail stores,
-exceeded $500,000. During the same period, it pufchased
goods and material from points outside the State of Wis-
_consin in an amount in excess of $50,000, which were
shipped, ‘in interstate commerce, to the Kenosha store. I
find that the Respondent is engaged in commerce. within
the meaning of the Act, and that it will effectuate the
policies of the Act to assert jurisdiction herein.
ae
PERSP, AEs "
’
.
gr kieran Tey Chem nent mm
°
PRM RR INE ENTE DMT IPI CONEY SERB Ra me Sey em th
AUT CNY
a _ geist iL A Thee Se Sid ainlPale ails tps A Be ee
10a
"Decisions and Orders of the National Labor
Relations Board and Trial Examiner
* © TT, The Labor Organization Involved
~ Retail Clerks Union Local 526, Retail Clerks Interna-
tional Association, AFL-CIO, is a labor organization with-
in the meaning of Section 2(5) of the Act.
III. The Unfair Labor Practices
A. Sequence of Events'
The Union’s campaign to organize the employees at Re-
spondent’s drug store at Kenosha, Wisconsin, began in
May 1966 when it obtained three authorization cards and —
continued into, or was resumed, in August when it ob-—
tained another seven cards. With a total of 10 cards in its
possession, the. Union mailed Ahree separate communica-
tions on August 24 to the Respondeht’s president at the
home office in Pittsburgh, Pennsylvania. They were (1) a ©
- recognition letter, in which it claimed that it represented
a majority of the employees in the Kenosha store, re-
quested a meeting at a specified time and place to discuss
contract terms, and offered to prove its majority in an
appropriate unit at that time by submitting its cards to
an impartial third party for authentication of its claim;
(2) a so-called Warning Notice in which the Union in-
_ formed the Company that it was organizing its employees
and already represented a “substantial number” of them,
gave what it called official notice of its campaign and in-
terest in a storewide unit, and cautioned the Company
against intimidating its employees; and (3) a letter in
_which it enclosed a copy of a representation petition to. —
the Board. The original petition was received sid the Board
the next day.
1 All dates herein refer to the year 1966.
a
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’ The three letters were received by the Company on
Friday, August 26. The following Monday, August 29, the
Respondent’s attorney wrote the Union acknowledging re-
ceipt of the letters, stated’ that he considered the one
requesting recognition and the one informing the Company
of its organizational activity as “inconsistent and confus- :
ing,” that the Company had advised him of its doubts
=
whether the Union represented an uncoerced and informed
majority of its employees in an appropriate unit, and that
‘it doubted the appropriateness of ‘a single store unit. It
also rejected the offer of a cardcheck because of the possi-
bility of coercion or misrepresentation as to the purpose
of the cards, and agreed io-resolve the questions raised
by the union letters “in a secret ballot election ely
employees of the Company.”
A stipulation for certification upon consent election was
approved by the Regional Director on September 20; in,
which the appropriate unit was defined as all employees
at the Kenosha store, excluding store manager, assistant
. store manager, lunch counter manager, professional em-
ployees, guards and supervisors as defined in the Act. A
few days later, the Union filed its ofainsh charge in this
case, alleging that the Company had committed violations
of Section 8(a)(1). The next day, it requested the Board
to proceed with the stipulated election, notwithstanding
its charges. The election was held on October 12, and the
employees rejected the Union by a vote of eight to seven.
On October 18, the Union filed timely objections to. conduct _
| affecting the election, and on the same day it filed an
amended charge alleging that the Company had unlawfully
refused to bargain with it.
=
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Decisions and Orders of the National Labor
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‘ B. The Issues
The basic issue is whether the General Counsel has
established that the Company’s refusal to recognize and
bargain with the Union was undertaken in bad faith, for
the purpose of dissipating the Union’s majority, or in
rejection of the collective-bargaining principle. Resolu-
tion of that issue necessarily requires examination and de-
termination of other questions; whether there was a proper
request for recognition; the me ’s majority status, which ~
involves the composition of the-appropriate unit and the
validity of certain- authorization cards; and whether the
Company’s total conduct was sufficiently grave to warrant
setting aside the election and to direct a second election
_ or order the Company to wegen despite the Union’s loss
of the first election.
C. Adequacy of the Request for
Recognition and Bargaining
As noted above, on August 24, in separate letters the
_ Union advised the Company that it represented a major-
ity of the employees at the Kenosha store, that it was:
engaged in organizing and. already represented a substan-
tial number of the employees, and that it was filing a
petition. The Company argues that the Union’s demand
for. recognition Was defective and invalid because its com-
munications with the Company were inconsistent and con-
' fusing; it thereafter failed to clarify its position although
invited to do so; and its, offer to substantiate its majority
showing by a card check was meaningless since the cards °
were no longer in its possession, having Yeen submitted
to the Regional Director as its showing of interest to
accompany the petition.
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Decisions and Orders of the National Labor |
Relations Board and Trial Examiner
i
Standing alone, the Union’s letter requesting recognition
for all employees at the Kenosha store and offering to
negotiate the terms of a bargaining contract upon proof
of its majority through examination of cards (General
Counsel’s Exhibit 2) is unambiguous and unequivocal, and/
satisfies the Board’s requirements in that regard. Nor
does the filing of a representation petition simultaneously
with a request for recognition and bargaining constitute
a withdrawal or qualification of the Union’s right to be
recognized if, in fact, the Employer has no good-faith’
doubt of the Union’s majority.”
The issue of the Company’s asserted good- faith doubt
wi!l be discussed later, in connection with the violations of
Section 8(a)(1) alleged in the complaint, and I limit my-
self for now to the Company’s assertion that the separate
communications of ‘August 24 were, taken together, so
inconsistent as to leave the Company in doubt as to how
to proceed. Its confusion seems to be self-engendered: and
without any rational basis in fact. There was surely no
real inconsistency between the claim in the recognition
letter that it already represented a majority of the store
employees, and the warning letter in which it called atten-
tion to its organizing campaign and claimed to represent
a substantial number of employees. In effect, the Union
was noting, perhaps superftuously but harmlessly, that it
intended to cgntinue its organizing drive’ in order to hold
on to, and to expand, the answer of its adherents. Nor
was the Union required to answer the attorney’s letter of
August 29 and thereby forego its claim to be the exclusive
representative of the employees, simply because it had
2 Midwestern Nuictdiuins Cope, Inc., 158 NLRB No. 144, and
cases cited in footnote 3 thereof.
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also filed a petition, and was willing to rely on an election
as one of several appropriate means by which its paeny
status could be tested.
Finally, Respondent’s claim that the Union could not
establish its majority by means of cards because it no
longer. had them in its possession is without merit. If
Respondent had oii ered to examine the cards, instead of
rejecting that procedure in its letter of August 29, it would
have been in a better position to complain if the Union
. was unable to produce the cards which it had turned over
to the Regional Director. In any event, a bonafide offer
on the Company’s part to negotiate an agreement ifja |
ecard check substantiated the Union’s majority claim, would
‘have enabled the Union to withdraw the petition and to
reclaim its cards from the Regional Director.
D. The Union’s Majority Status
The unit: The only variation between the unit stipulated
as appropriate by the parties for purposes of the consent
election, and that described in the demand letter and peti-
tion, is that the. former specifically excluded professional
employees while the latter did not. There were three
pharmacists employed at the store at all times during the
relevant period who, the parties agree, were professional
employees within the meaning of Section 2(12) of the Act.
, . ‘ 2 a . oon
Two of these, were the manager and the assistant manager
of the store, who were therefore also excluded as super-
visory employees. The third pharmacist, Divjak, was a
regular part-time nonsupervisory employee.
Phe parties agreed on the names of 14 employees who
were employed on August 26, when the demand letter was
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Decisions and Orders of the National Labor
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received by Respondent. The Respondent also urges. that
Divjak, the nonsupervisory pharmacist, and Petersen,
classified as a merchandiser, must also be included in the .
count of employees against which the Union’s majority
status must be measured.
I am satisfied that Petersen must be included. Although
he may have had some additional responsibilities for a
short time between May 1966, when he came to work and
July, when a pharmacist was hired to act as store manager,
his duties in August and up to.the date of this leaving, .
around September 15, were clearly nonsupervisory. Al-
though he was not actually present at the store during parts
of these months because of an accident and service in an
Armed Forces Reserve camp, he was paid for those periods
of absence. ,
His duties as a merchandiser were ‘to display sundries,
. Such as toys, pet supplies, etc., in the selling areas of the.
store, to requisition- merchandise from the Company’s cen-
tral warehouse, take inventory, help unload trucks and put
orders away. His duties as to ordering, inventorying, and
stocking were no different in kind from those performed by
the women employees in the cosmetics, tobacco, or drug’
‘departments. The testimony of the Company’s personnel
director that Petersen exercised no supervisory functions
was not rebutted. Furthermore, his replacement after he
left about September 15, was.included on the eligibility list
for the October election. I find that Petersen was the 15th
employee in the unit described by the Union’s demand letter.
Divjak presents a more’ difficult problem, because it re-
quires a statutory interpretation which, to my knowledge,
has not heretofore been squarely decided. The question ig
whether the Board may issue a bargaining order encom-
.
SEA" SPR Ate Ape,
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passing a unit in which a professional employee is included,
thereby depriving him of the right prescribed by the proviso
to Section 9(b)(1), of voting on whether he wishes to be
included in a unit with nonprofessional employees.’ Pre-
| —b—
liminarily, I call attention to the fact that my discussion
and holding on this issue will be dictum, since“f also hold
later on in this Decision, that the Union had 10° valid au-
thorization cards, sufficient to establish its majority whether
the appr /priate unit consists of 16 or 15 employees, that is,
whether Divjak is to be included or excluded. However, 2
cards, those of Hix and McClelland, are included in. that
majority of 10, and if I am wrong in counting them; the
resulting total of 8 is sufficient to prove majority only if
Divjak is excluded, and the unit is confined to 15 employees.
3 The relevant statutory provisions to which I will refer are set out
here. The italics in all cases is, of course, mine, for emphasizing par-
ticularly pertinent language.
See. 8. (a) It shall be an unfair labor practice for an employer—
(5) to refuse to bargain collectively with the representatives of
his employees, subject to the provisions of section 9(a).
° .* « & ° ’ ;
Sec. 9. (a) Representatives designated ox selected for the purpose
of collective bargaining by the majority of jthe employees in a unit
appropriate for such purposes, shall be the ‘exclusive representatives
of all the ee in such unit for the sails f° collective
bargaining. . P
. (b) The Board shall decide in each case whether, Yin order to
assure to employees the fullest freedom in exercising the rights
guaranteed by this Act, the unit appropriate for the purposes of
collective bargaining shall be the employer unit, craft unit, plant
unit, or subdivision thereof: , Provided, that the Board shall not
(1) decide that any unit is appropriate for such purposes if such
unit includes both professional employees and employees who are
not professional employees unless a majority of such professional
employees vote for inclusion m such unit; .. .
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The Respondent argues that the Union’s demand letter of
August 24, by claiming to represent all employees at the
Kenosha store, excluding only. supervisors, implicitly re-
quested that Divjak be included in the unit as a regular
part-time professional employee, and that it act as his
representative. It is true, as Respondent ‘points out, that
Section 9(b)(1) does not prohibit the establishment of
bargaining units composed of both professiotial and non-
_ professional employees, but requires only that the former —
be given a self-determination election on whether they wish
to be included in such a mixed unit.
‘ - —
The Respondent also points out, that if it had voluntarily -
) recognized the Union as the exclusive representative of the
employees claimed to be the appropriate unit in the Union’s
demand letter, the Union would have become Divjak’s bar-
gaining agent, and if an agreement had been entered into,
he would have been bound thereby, even though he had not
been given a choice between exclusion or inclusion. The case
cited by Respondent for this proposition, Retail- Clerks
Union Local No. 324 (Vincent Drugs), 144 NLRB 1247, as
well as the later International Telephone & Telegraph Cor-
poration (ITT Federal Laboratories), 159 NLRB No. 145,
hold that the Board will not strfke down a relationship,
voluntarily and consensually agreed to by the parties, in
which professional employees have been joined without
their prior consent, in a mixed unit with nonprofessional
employees.
There is, in each of those cases, language to the effect
that the Board is precluded by Section 9(b)(1) from es-
tablishing such a mixed unit,.without self-determination by
the professional employees, in a representation proceeding,
or from certifying such a unit, thereby giving rise to a pos-
THANE RII I MELT tO LAINE IPOS COINS UNS EN DEIN ey ma
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Decisions and Orders of the National Labor
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sible inference that the Board may do otherwise in proceed- .
ings where a Board-directed election under Section 9(c) is
not invoked. Such an inference is not warranted because
the Act, in my opinion, precludes the Board from establish-
ing a ‘mixed unit of professional and nonprofessional em- ~
ployees, without self-determination for the former, as pre-
scribed by Section 9(b)(1) either in a representation pro-
ceeding under Section 9(¢), or in an unfair labor practice
proceeding under Section 8(a) (5) or 8(a) (1). |
A union may achieve the status of exclusive bargaining
representative for an appropriate unit, under Section 9(a),
without first winning a representation election under Sec-
tion 9(c).* The Board recognizes and validates the status
thus obtained under Section 9(a), by’a proceeding pursuant
to Section 8(a) (5), or under certain circumstances, pursuant
to Section 8(a)(1). But whichever paragraph of Section
8(a) is invoked, the Board must find that the unit in which
the Union has achieved majority status is appropriate, and
+t must follow the applicable mandates of Section 9(b). The
Board’ validation of .a unit as appropriate under Section
9(a) and (b) is necessarily quite different from a Board
holding that parties who have consensually agreed to bar-
gain with respect to an inappropriate unit may be permitted
(or required) to continue their past course of action. In the
former situation, the Board must affirmatively find a par-
ticular unit to be appropriate in all regards; in the latter
it simply allows the parties to resume their extended his-
‘tory of bargaining for an inappropriate unit, without con-
doning their action but without declaring their conduct to
be void ab initio? - al ,
4 United Mine Workers of America v. Arkansas Oak: Flooring Co., 351
U.S. 62, 71-72; Ray Brooks.v. N.L.R.B., 348 U.S. 96, 100-101.
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Decisions and Orders of the National Labor
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I hold, therefore, that’ I am precluded from finding the
unit sought by the Union in its recognition letter to be ap-
propriate, because: the Board may not, under Section
9(b) (1), include a professional employee in any unit if he
| —§—
has not had the opportunity to decide whether he wishes
to be joined with nonprofessional employees.®
The unit for whith the Union requested recognition was
not inherently inappropriate, as I have mentioned above,
if the Company had voluntarily accorded recognition upon
being satisfied that the Union had valid authorization cards
from a majority of its employees, Since the Company re-
fused to do so, the Regional Director approved a stipula-.
tion for a consent election for a unit from which profes-
sional employees were excluded. The basic character of the
unit originally requested (all.store employees excluding
supervisors) was unchanged by the exclusion of a single _
nonsupervisory professional pharmacist, and the variation |
between the units defined in the original request and in the }
stipulation, is insubstantial.* I find, therefore, that the unit ‘
agreed to in the stipulation for certification upon consent
election is a unit appropriate for the purposes of collective
bargaining. |
Authentication of signatures: Ten dated and signed au-
thorization cards were offered and received in evidence.
ORE ROT ANT rt
. °
° The distinction between a Board finding and a Board certification of
an appropriate unit is explicitly drawn in Section 9(b)(3) with respect
to. the two separate standards for labor organizations which represent
- guards. See The William J. Burns International Detective Agency, Inc.,
134 NLRB 451, where the distinction between the two is discussed and
- specifically relied upon,
° Heck’s Inc., 156 NLRB 760, 765-767; Ottenheimer and Company,
_ Inc., 144 NLRB 38, 46; Galloway Manufacturing Corporation, 136 NLRB
405, 408; and The. Hamilton Plastic Molding Company, 135 NLRB 371,
373.
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Four matinee (Alberta Story, Lana Pfeiffer, Wacol
Zellen, and Sophie Zebrowski) personally identified their -
own signatures, and no-question is raised as to the authen-
ticity of those cards. |
Paul Whiteside, JY., a: representative of Retail Clerks
' International Association, District: Council No. 14, testified
that he had witnessed the signing of four additional cards.
They are those of Evelyn Massie, Louis Vena, Lois Wasiu-
lewski, and Teresa Witt. In its brief, the Respondent urged
- that the four cards which Whiteside said had been signed’
in his presence, but which were not personally authenticated
by their signers should not be counted towards the Union’s
majority, because the General Counsel failed to eall tlie
four signers to identify their signatures or to establish that
they were unavailable to testify. The contention has been
uniformly held to be without merit. A card may be’ prop-
‘erly authenticated by a witness who testifies that he ob-
served its signing.’ Since Whiteside’s testimony was com-
ue ea
petent and probative, it is immaterial that the General
Counsel may have relied on other methods of proving the
authenticity of the cards. os
The last of the 10 cards are those purporting to be signed
by Hazel Hix and Nancy McClelland (General Counsel’s
Exhibits 9 and 10). The General Counsel called Beverly
. Crowe as his witness to vouch for the genuineness of Hix’s
and McClelland’s signatures on these two cards. Crowe is
not employed by the Respondent, and at her place of em-
‘7 Don the Beachcomber, 163 NLRB No. 36, footnote 2; Lifetime Door
Company, 158 NLRB No. 3; Colson Corporation v. N.L.R.B., 347 F.2d
128, 134 (C.A. 7); N.L.R.B. v. Economy Food Center, Inc., 333 F.2d
468, 471 (C.A. 7).
«
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‘ Dedlélons and Orders of the National Labor
Relations Board and Trial Examiner
ployment she serves as a steward for the Charging Union.
After preliminary questions as to her name and employ-
‘ment, Crowe testified as follows, in response to the ques-
tions of Mr. Selby, counsel for the General Counsel.
Q. I hand you what has been marked General Coun-.
sel’s Exhibit 9, for identification, and ask you if you
recognize the signature.
A. Yes.
Q. Whose is it?
A. Hazel Hix.
; *¢ *¢ © * «*
Q. When was that card signed? '
A.*May 26th, 1966.
~ Q. Ihand you what has been marked General: Coun-
sel’s Exhibit 10, for identification, which purports to be
an authorization for representation. Do you recognize
the signature on that card?
A. Yes. |
Q. Whose is it?
A. Nancy McClelland’s. |
Q. When was that card signed?
A. August 19th, 1966.
I admitted these two. cards over the objection of Respond-
_ ent’s counsel that they had not been properly identified.
He was afforded the opportunity to examine the witness on
voir dire and to cross-examine her, but chose not to do so. -
This was the extent of General Counsel’s efforts to es-_
tablish the genuineness of the signatures on\these cards. I
merely restate the obvious, for emphasis, by pointing out
that Crowe did not testify that the cards were signed in her
presence, or that they had come into her possession in con-
nection with her duties as a steward for the Union. On the
BRB.
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Decisions and Orders of the National Labor y
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other hand, the Company did not question her claim that
she recognized the eee and: McClelland. It
chose to forego examining her on her\basis for comparing »
these signatures with other signatures of Hix and McClel-
land which she kifew to be genuine. For all that appears
here, Crowe’s claim that she recognized the signatures might
_ have been supported by exact and detailed knowledge based
, on her prior examination of many known genuine signatures
of Hix and McClelland, or it might be an outright false-
‘hood, or else based on ridiculously inadequate opinion. But
neither the General Counsel nor the Company wished to ©
inquire further, for reasons best known to themselves.
Each was willing to rest his case on the barest minimum.
For example, neither party claimed that Hix or McClelland
was unavailable to testify, nor did Respondent attempt to
prove the falsity of the signatures by comparing them with.
samples of authentic signatures from tax withholding
forms, payroll records, ete., which tt, might have in its pos-
session. Of course, it was unnecessary for the Respondent
‘to put forth any effort to help the General Counsel prove his
case, and the question as. to whether I was right in receiv-
ing General Counsel’s Exhibits 9 and 10 is whether the il
General Counsel’s submission, through Crowe’s testimony,
established a prima.facte case. ,
Respondent’s brief states that “The Board and the
Courts have consistently held that, if authentication by
other than the signer is to be permitted, the party authenti-
‘eating must have been a witness to the execution.” The
statement is incorrect. The cases do not so hold, nor do the
three cases which Respondent cites in his brief for the
propdsition i in fact support his argument. The-Board will
accept as authentic, for example, authorization cards which
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Decisions and Orders of the National Labor
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-
were returned to the person soliciting them even though the
‘solicitor did not witness the act of signing.
Turning to the three cases cited by Respondent as sup-
‘porting the contention set out above, in The Colson Corpo-
ration, 148 NLRB 827, the Trial Examiner rejected Stimel’s
card because he did not believe Crayne’s testimony that
Stimel had returned a signed card to him, rather than be-
cause Crayne had not seen Stimel sign the card. See foot-
~ - note 5 of the Trial Examiner’s Decision at page 840. In the
second case, Winn-Dixie Stores, lic., 153 NLRB 273, 306,
the Trial Examiner rejected Mobley’s card because the
' testimony of Johnson, the solicitor, as to when the card
was signed was not persuasive, rather than because he had
not seen Mobley sign.
Nor does Henry Colder Company, 163 NLRB No. 13, .
support Respondent’s argument that authentication of a
signature may be established only through the testimony
of the signer or of someone who witnessed the signing. It
may be that Colder casts doubt on the precedental value of —
‘the holding in I. Taitel and Sow, 119 NLRB 910, enfd. 211
F.2d 1 (C.A. 7), that cards may 4 authenticated by a union
were obtained in the course of the union’s organization
campaign from key employees who secured them and (b)
‘where opportunity is given the employer before or at the
trial to check their authenticity. But whatever maybe in-
ferred from the Board’s remand to the-Trial Examiner in
Colder, as to the Taitel holding, it Hoes not have the scope
which Respondent attributes to it, since in Colder itself the
8 Texas Electric Cooperatives, Inc., 160 NLRB No. 33 (ecards of
Christian, Whinery, and others); Gordon Manufacturing Company, 158
NLRB No. 131 (Oliver); and Lifetime Door Company, 158 NLRB No. 3
(Holmes). — .
. representative (a) where his testimony shows that they .
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Decistons and Orders of the .ational Labor
Relations Board and Trial Examiner
Board approved the genuineness of the cards signed by
Arlene E. Locke whose authenticity was established through
. the comparison of the signature on the card with an ad-
mittedly genuine sample of the’ same person’s handwriting.
_In the Colder case, the comparison of Locke’s signature
with other samples of her- signature was made by a hand- .
writing expert, and the use ef .such experts has been ap-
proved. by the Board in other cases.° Furthermore, the
Board has ——— a comparison of signatures even by
nonexperts.”°
There is thus no reason te believe that signatures must
be authenticated in a more restrictive manner in Board pro-
ceedings than in other administratiye’ or in judicial pro-
ceedings. Wigmore’s treatise on EK idence (3d .ed. 1940)
supplies overwhelming precedent that the genuineness of.
signatures may be proved by the testimony of those who
did not witness the actual signing. Handwriting experts
may state-their opinion as-to whether A signed a particular
- dosument, by comparing A’s purported signature. thereon
with his known genuine signatures; and nonexperts may
state their opinions based on their: familiarity with A’s
handwriting. The competency of a nonexpert witness to
state an opinion as to the genuineness of A’s signature may
be. tested by examining him on his claim that he is familiar
with A’s handwriting. But if the party who contests the
; genuineness of A’s signature does not impugn the witness’
claim.of familiarity, the document is admissible in evidence,
; * Aero Corporation, 149 NLRB 1283, and Benson Vencer Company,
Inc., 156 NLRB 781, :792.
10 Philamon Laboratories, Inc., 131 NLRB 80, footnote 1 of I. R. enfa.
298 F.2d 176, 180; Tom’s Supermarket, Inc., 157: — No. 106
( Tweedie’s card). °
j 7 25a
Decisions and Orders of the National Labor
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and the question of genuineness is then left for the trier of
fact." | :
—12—
To return to the specifie evidence in the instant case,
Crowe testified that she recognized Hix’s and McClelland’s
signatures. Her assertion of recognition -was in effect a
‘claim that she was familiar with their signatures and had
made a mental comparison of the .purported examples
_ shown to her with other examples which she knew to be’
genuine, and that in her opinion, the signatures on General
-Counsel’s Exhibits 9 and 10 were indeed those of Hix and
_McClelland. If Respondent believed that Crowe was not
competent to express an opinion because of her lack of
familiarity with the signatures of Hix and McClelland, it
need only have asked her on what she based her elaim of
being able to recognize these signatures. Its failure to do
‘so was a calculated gamble, not an oversight, since it had
already examined Whiteside on his claim of recognizing
11 See 7 Wigmore, Evidence § 2131 (3d ed. 1940). .
Modes of Authenticating Documents. Some of the various possible
modes of evidencing a document's genuineness are, of course, never
questioned to be sufficient ta entitle it to go to the jury. Those
about which question has arisen are only certain kinds of circum-
stantial evidence.
It will be necessary therefore to eliminate at the outset the kinds
of evidence as to which there is no dispute from the present point
of view.
o es s .
‘ (3) Circumstantial evidence is of various sorts; and first, of those
not here involved:
(a) Style of handwriting, i.c., similarity between that of the docu-
ment and that of the person alleged as its maker, is a sort of cir-
cumstantial evidence (ante, § 383) undisputed in its sufficiency; the
controversies have arisen over the proper modes of proving the fact
of similarity.‘
* The type of handwriting may be evidenced by persons familiar
with it (ante §§ 693, 2008); . . . (Underscoring in original.)
RL OE EER TOGO ¢ EE TE See PORTER AOL GLEE ALSO CRE RET PF SOE C2 FEES VE Ree =
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Decisions and Orders of the National Labor
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the signatures on the cards which had been signed in his
presence, and was able to show the insubstantiality of his
opinion. Respondent might have been able to do the same
with. Crowe if it had tried, but it chose not to.
On the basis of the thin and barely adequate identification
by Crowe that she recognized the signatures on General
Counsel’s Exhibits 9 and 10 as being those of Hix and Me-
Clelland, I affirm my ruling admitting those exhibits in
evidence, and find that the purported signatures are genu-
ine, and the authorization cards valid. »
The a misrepresentations: The signed cards which
the Union obtained in its organizational campaign: are —
headed “Authorization for Representation.” The substan-
tive provisions of the cards authorize the Union to repre-
sent the employee signing it for the purposes of collective
bargaining in accordance with applicable law. Respondent’s
brief argues*that the Union made material misrepresenta-
tions to most of the employees who signed.
It argues that Lana Pfeiffer’s card should not be counted
because Zellen told her that the “only” purpose of the card
was to obtain an election, and that the Union needed cards
from a majority of the employees to insure an election.
Respondent’s contention loses, much of its force since its
inquiries were based on its understanding at that tyme that
Pfeiffer had signed a card on Zellen’s solicitation. Heiter s
- later testimony showed that this was not so. Pfeiffer said
_ghe had complained to Jackie Zellen that her wages were.
low, and Zellen had said the wages would be higher if they
hada union. Zellen then said they needed so many girls to
have a union, that she herself had signed up, and if Pfeiffer
wanted to sign up she could be a member to help the ma-
— Zellen did not have an authorization card with her
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Decisions and Orders of the National Labor
Relations Board and Trial Examiner
and did not solicit Pfeiffer’s signature. A few weeks later,
on her own initiative, Pfeiffer asked Nancy McClelland: to
bring her a card when McClelland went to get-hers. Pfeif-
fer’s answer to Respondent’s question as to whether Zellen .
had told her that the only purpose of the card was for an
election was, “for a union, yes, for higher wages.” The
_ answer, as well as Pfeiffer’s entire testimony, shows clearly
that Zellen nor anyone else misrepresented the purpose or
effect of the card. ~°
. —13—
Zellen testified at one point that Crowe had told her that
in order for the Union to obtain an election it needed cards
of two-thirds of the employees. Respondent alleges that
this is a material misrepresentation which should invali-
‘ date Zellen’s card. This is apparently a claim that Zellen
was misled into signing a card, but I fail to see why. Crowe
told Zellen, according to the latter’s testimony, that if the
Company did not recognize the Union voluntarily they
would then have an election if two-thirds of the employees
had signed cards. The misstatement, or Zellen’s misunder-
standing of what Crowe told her, was not material since
Zellen’s testimony also clearly shows that she was told that
an election would only be necessary if the Company re-
fused to recognize the Union on the basis of a card check.
Respondent also contends that the five cards solicited by ._
Union Representative Whiteside are invalid because “the
obvious intent and effect of Whiteside’s statements is that
the only purpose of the card is to obtain an election.” What
Whiteside actually said was that the authorization cards
would be used for a card check and if that failed, for an
election. He also told the employees who signed the cards
that companies usually do not agree to card checks, and if
their employer, did not, they could vote as they pleased in
©
saab ee vein ! 7
: ‘ tC > .
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the election. He did not tell them, as Respondent contends
he should have, that their authorization cards might be used
to support a bargaining order or might supersede their
vote. It is this omission, Respondent contends, which
amounts to a representation that the only purpose of the
card was to obtain an election. It is obvious that Whiteside
was only soliciting cards, and not attempting to give a
quick course in labor law. What he said was accurate and
correct, and his basic point, that the cards could be used
to establish the Union’ s majority without an election, is an
accurate summary of what the cards themselves say.
In summary, I find that the Union had obtained 10 valid
authorization cards when it requested recognition, and that
this constituted a majority of the 15 employees in the unit
of all store employees, excluding professional employees,
. guards and supervisors, which I have found appropriate.
E. Alleged Violations of Section 8(a)(1)
| 1. Before the election
The Company’s supervisors immediately picninandiile for
- day-to-day operations at the Kenosha store during August
and September were Donald Schneider, store mauager ;
Charles Wearing, assistant store manager; and Dolores
Davis, fountain manager. E. A. Montini, food service direc- |
tor, and Donald Bell; the personnel director, were manage-
- ment and supervisory officials with the duties and respon-
sibilities indicated. by their titles, for operations at all
stores. Montini and Bell both visited the Kenosha store
during September and spoke to various employees there.
Schneider, Wearing, Davis, and Montini were not called
to testify, and their various conversations with store em-
Ae 8
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Relations Board and Trial Examiner -
ployees, as testified to by witnesses for the General Coun-
sel, are in effect uncontradicted. Story, Zebrowski, and .
—14—
Zellen testified that Store Manager Schneider had spoken
_ta each of them individually on many occasions between
August 26 and October 12, the date of the election, telling
them that the store would close down if the Union came in.
Pfeiffer also testified that Schneider had told her several {
times, in effect, that there was no need to worry about
little things because. if the Union got in, the store would
close down.
‘Story also testified that she participated in a conversa-
tion. with Schneider, Sophie Zebrowski and her husband,
and employee Evelyn Massie about September 10, when
Schneider said he was planning to. give everyone a raise
to $1.50 per hour. Mrs. Zebrowski then asked him what
guarantee they had that they would not be fired after the
election, and that Schneider had promised that none of ‘the
girls would be fired if the Union did not come in. On an- 7
other occasion, according to Story, Schneider asked her and 7
Pfeiffer if there wasn’t to be a union meeting the next day |
and when she said, “We know you’ve got your spies,” he
answered “Yes, I know everything that’s one on with the
union business.”
FET
A few days after the consent election was agreed to,
Schneider asked Story if she would like to come in to work
for a couple of hours on the day of the election, even though :
she was not scheduled to work that day. Story said she
would be in to vote election day, to which Schneider ‘said, © :
“I thought you’d like to get some time in before the 12th,
because if the Union = in, you’re not going to get any
time in after. the 13th.
Oeste n ctu
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Decisions and Orders of the National Labor
Relations Board /and Tfial Examiner
Zellen testified that she had gone to the store on Sep-
tember 15 to meet Lana Pfeiffer and go with her to a union
meeting. Schneider said to them that he did not know why
‘they bothered going to a union meeting, it was not going
to do them any good anyway, but that he could get a job
anywhere.
Although Assistant Manager Wearing does not seem .
have been as active as Schneider during this period, Zeb-
rowski did testify that whenever she met him in the stock-
room he also said that if the Union got in, the store would
-close. ,
Based on their uncontradicted testimony and ‘their de-
meanor while testifying, I credit Story, Pfeiffer, Zellen, and
Zebrowski and find that Schneider and Wearing made the
statements recited above. I find that their remarks that
the store would be closed if the Union came in, Schneider’s -
offer to let Story work on a nonscheduled day, his state-
ment that he was planning to raise everyone to $1.50 per
hour, the threat implicit in his remark that none of the
girls would be fired if the Union did not come in, and his
statement implying that he knew what was going on with
_the union business, and that it would not do them any good
to go to a union meeting, all constituted illegal interfer- —
ence, SRR, and coercion within the meaning of Section
seaiatae
—)o—
Pfeiffer testified that Davis, the fountain manager, asked
her on two occasions in mid-September how she was going
to vote in the union election. During this period, Davis
also asked her if she had gone to a union meeting which
had been held the evening before.
Pfeiffer and Zellen testified that in separate conversa-
.tions with each of them Davis had told them that if any
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Decisions and Orders of the National Labor
Relations Board and Trial Examiner
‘applicants for employment appeared in response to a help-
wanted advertisement which the Company had just run,
_-that they were to find out whether the applicant was for
a union, and if she was, to tell her that the job had already
been filled or that the manager was not in to take the
application.
Zellen also testified that a week or so before that con-
versation, Davis had told her, while Nancy McClelland was
also present, that she, Davis, was to find out how they were
going to vote.
Based on their uncontradicted testimony and their de-
meanor while testifying, I' credit Pfeiffer and Zellen, and
find that Davis made the statement reeited above. In-
quiries as to-how an employee is going to vote, and whether
she had gone to a union- meeting, and orders to turn-away
applicants who are favorable to a union reasonably tend
to intimidate employees in the exercise of their right to
support a union and are thereby violative of Section 8(a)
(1). I so find here.
Pfeiffer Testified as to ares conversations in September
with Montini, the food service director. In the first such
conversation, Montini asked her if she had been to union
meetings and if she had a personal gripe, since anyone who
wanted ‘the Union must have a personal gripe. He also said -
that the fountain employees would not necessarily get a
raise even though the other employees might, that they
might lose their separate store and food discounts, and
in the long run would loge more than they would gain if
the Union got in. She algo testified that Montini had said
in the same conversation, that the fountain was a separate
department in the ‘store, that it was not making as much
money as it should, and that he could close it any time.
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Decisions and Orders of the National Labor
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In their second conversation, Montini told her he knew
that.she, Alberta (Story) and Jackie (Zellen) had been to —
a union meeting and asked her if she knew what wage rate
the Union was offering. She said she did not, and Montini
then said that if the Employer and Union decided on wages,
it would not be more than $1.15 per hour and that the
employees would lose their food and store discounts. Again
he asked her what her gripes were and she told him that
‘the employées. were interested in the Union because they
thought it could get them higher wages, to which he replied
that he was not allowed to make any promises then, be- |
cause it might look like a bribe but that in October the
Company would decide which employees were deserving of
a raise.
In! their third conversation; a few weeks later but before —
the election, Montini repeated some of the points he had
previously made, such as the loss of food discounts if the
Union got in. |
, —16---
Zellen’s testimony as to her conversations with Montini
substantially corroborates that of Pfeiffer. Zellen said that
Montini told her he was there because of the union activi-
ties, that the fountain employees were overpaid at $1.10
per hour because employees at other stores were not given
a store discount or a food allowancey and that if the em-
ployees obtained a union they would lose their discounts.
Based on their uncontradicted testimony and on their
demeanor while testifying, I-find, that Pfeiffer and Zellen
testified credibly as to what Montini said to them. I find
that Montini threatened them with loss of their store and
food discounts, and threatened Pfeiffer with closing down
the fountain department if the Union won. His statement
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Decisions and Orders of the National Labor
_ Relations Board and Trial Examiner
that the employees would not get more than $1.15 per hour
if the Union got in, accompanied by his statement that in
October the Company would decide on raises would reason-
ably tend to impress on Pfeiffer and the other employees
that their chances for wage raises would be improved if
they defeated the Union. Respondent violated Section 8(a)
(1) by Montini’s threats and promises of benefits detailed
above. —
Ini connection with lis duties as persoanel director, Bell
visited the Kenosha store about September 8 and:9 and
spoke to all the employees individually. He testified that
he did so because Kenosha was a fairly new operation and
he wanted to inform himself about the personal background
of the store employees, to explain the company benefits,
and to find out what’ problems the employees might be
having. Only Story and Zebrowski were called by the Gen-
eral Counsel to testify as to their interviews with Bell.
During Bell’s inquiry as to®*thkeir problems, both Story and
Zebrowski brought up thef® desire for more money. Bell
took advantage of the opening thus presented him by tell-
ing them in effect that his hands were tied while the union
business was unfinished, but that the Company was aware
of the problem. Story amplified this by testifying that Bell
also said everyone could count on a substantial raise in
October, while Zebrowski said. that Bell had told her the
-Company was in the process of talking about giving: raises
to the girls, but that their hands were tied now that the :
Union was talking about coming in. Bell testified that he
said only that. the Company reviewed wages in October.
E think it more likely that Bell limited himself to the re-
marks he testified to—that the Company reviewed wages
in October. Although Story and Zebrowski forthrightly
_
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' Decisions and Orders ‘of the National Labor
r Relations Board and Trial Examiner
told him in their interviews that they wanted more money,
and thereby gave him a favorable opportunity to let them
know that raises might be forthcoming next month, neither
Story’s nor Zebrowski’s testimony indicates that the pos-
sibility or expectancy of a raise was conditioned on the.
Union’s defeat. I am satisfied that the Company’s annual
wage review for employees at all its stores did oecur in
October. I find that Bell’s implicit prémise that their com-
plaints about wages: would be considered was made pursu-
ant to the Company’s regular practice of reviewing em-
ployee wages every October, and was not conditioned on
their rejection of the Union. I therefore find no violation
_of Section 8(a)(1) 1 in, any of Bell’s remarks to wari and
Zebrowski.
} = =
2. After the election
About 2 weeks after the election, and while the Union’s
objections were pending before the Regional Director, the
Company granted wage increases to its employees. The
complaint alleges that the grant of increases at that time
was an independent violation of Section 8(a)(1), as well
as a violation of Section 8(a){5).
Within a week or so after the election, about_half the
employees at the store quit voluntarily. Some of these had
been earning less that $1.40 per hour. Their replacements
were hired at $1.40, and those old employees who remained
and who were not above that minimum were given raises
so that their new rates matched or exceeded the newly
established ‘ minimum. |
The Company argues that the erent of wage increases:
after the election was prompted by its normal policy of
reviewing all wages throughout its chain of more than 100
«
Decisions and Orders of. the National Labor
eee Board and Trial Examiner
stores each October ; that it had evade established a $1 .40
minimum at the stores it was currently opening, because
‘that was to be the new statutory minimum as of February,
1967, under the Federal Wage-Hour Laws, and because
many of the employees who had recently quit had been
dissatisfied with their low wages. .
I consider these to be legitimate business considerations
warranting the grant of wage increases at that time despite
the pendency of the objections to the election. I any aware
of those cases in which the Board has held that wage in-
creases or benefits granfed after an election while objec-
tions are pending, are in violation of Section 8(a)(1) as
being calculated to influence the employees’ choice of a bar-
gaining representative if-a second election were directed,
and as a reward for having rejected the Union.* These
were, howev€r, cases in which the benefits granted would:
have been illegal, under the rationale of N.L.R.B. v. Ex-
change Parts Company, 375 U.S..405, if they had been. be-
stowed before the election. In the instant case, on the
contrary, the evidence shows no deviation from the Com-
pany’s normal and regular practice of reviewing “wages
throughout its entire chain of stores in October, and to
make such adjustments as were called for by legitimate
business, considerations."*
On the basis of the~ evidence presented in this case, I
believe that the mee increases granted late in October
12 Amboz, a 146 NLRB 1520, 1521, enforcemerit denied on
this point, 357 F.2d. 138, 141 (C.A. 5); Northwest Engineering Company, —
- 148 NLRB 1136, 1144, enfd. 64 LRRM 2650 (C.A.D.C.) March 24, 1967;
Gal Tex Hotel Corporation, d/b/a Admiral Semmes Hotel and Motor
Hotel, 154 NLRB 338, 342; and Reiph Printing & Lithographing Co.,
158 NLRB No.. 128.
18 See Sheboygan Sausage Company, Inc., 156 NLRB 1490, 1497, and
True Temper Corporation, 127 NLRB 839, 842.
sway
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.
4
Decisions and Orders of the National Labor
Relations Board and Trial Examiner
were justified by the approaching ‘February 1967 deadline
for raising the minimum under the Wage-Hour Laws, and
eh were not, therefore, either premature or excessive. I find .
» cilia
no independent violation of Section 8(a) (1) thereby, but in.
. view of my intention to fiiid a. violation of Section 8(a) (5)
in the Company’s refusal te recognize and bargain . with |
. .the Union as the authorized representative of majority
of its employees i in an appropriate unit, I nevertheless find
that the. unilateral institution of these wage adjustments
. was a violation of the Respondent{’s obligation to bargain .
with the Union. | ae
F. Alleged Violation of ‘Section a a)(5 a
I have found that the Union represented a majority of
the employees in an appropriate unit at the Company’s
Kenosha store when. it requested recognition and: bargain- .
ing. The General Counsel, however, is also obligated, as
part of his case, to establish that the Respondent refused
in bad faith to recognize and bargain with the Union after
it attained its majority status or, as the principle is fre-~
quently. stated in expanded terms, because it rejected te.
ime
concept of collective bargaining or sought to use th
thus gained to undercut and destroy the. support of its
employees for ‘their chosen representative. The: indepen-
dent violations of Section 8(a)(1) which I found have
occurred were pervasive and substantial. They consisted
of threats by every one of the three supervisors in actual
charge of the store’s operations, and by Montini, who be-
cause he represented a higher level of management would
tend to impress upon the employees the concern which top
officials of the Company felt about their activities. Four
employees, out of a total of 16 nonsupervisory employees, :
7m. — ————E” ee ee eee
‘ 37a
Decisions and Orders of the National Labor
Relations Board and Trial Examiner
4
' testified credibly to the month-long effort of the Respond-
ent to convince them of the dire consequences likely to
result from their continued support of the Union, through
their threats and coercive interrogations.’ In circumstances
such as these, the Respondent’s reliance on cases in which
the Board found no: causal reldtionship between isolated
violations of Section 8(a)(1) and the loss of the Union’s
majority is misplaced."
Affirmatively, Respondent contends that it had a sad i
faith doubt as to the Union’s claim of majority representa-
tion.. Its argument tliat the Union’s conduct on August 24
in sending it three separate communications was ambiguous
and inconsistent, has already been considered and rejected.
It ‘also relies on the fact that the Kenosha store has been
in operation only 8 or 9 months, that it had had a high -
rate of employee turnoger, and that it had always at-
= a
: tempted to keep in close contact with its employees and
was therefore dubious of the Union’s claim on the extent
‘ of the support it had won at the store. It also urges, as
evidence of its good-faith doubts, that it was willing to
proceed with a consent- election to test the Union’s claims.
These assertians might, in other circumstances, have estab-
lished a good-faith doubt, but here their force has been
effectively blunted its aggravated conduct in coercing.
14 Compare Aaron BrotMcs Company of California, 158 NLRB No.
108, Hammond ¢ Irving, Wncorporated, 154 NLRB 1071, and Cameo
Lingerie, Inc., 148 NLRB 535, which the Respondent relies on, .with the
following cases in which the Board, with- court approval, held that the
employer had rejected the union’s request to bargain, in bad faith:
Elliott-Williams Co. Inc., 143 NLRB-811, enfd. 345 F.2d 460 (C.A. 7),
Boot-Ster Manufacturing Company, Inc., 149 NLRB 933, enfd. 361 F.2d
325 (C.A. 6), Gotham Shoe Manufacturing Co., Inc., 149 NLRB 862,
enfd 359 F.2d: 684 (C.A. 2), and Frank C. Varney Co. Inc., 151 NLRB
280, enfd. 359 F.2d 774 ae. 7. é
38a .
Decisions and Orders of the National Labor.
. Relations Board and Trial Examiner
and intimidating its employees, thereby making impossible
a fair test of the oe claims. |
‘The Respondent also conténds ‘that a Lersuininn order
against it would not be warranted: because the Union has
in the meantime lost the effective support of its former
adherents, and because the doctrine of the Bernel Foam.
case, 146 NLRB 1277, is not applicable here. I will con-
sider the contentions in that order.
Respondent expresses concern that its present employees
will be deprived of their right to refrain from self-organiz-
ing activities if a bargaining order is issued here. It is true
that seven employees left almost immediately after the
election, and that apparently none of them claimed that
the Union’s loss of the election was the reason for their
quitting. It is worthy of note, however,that-all-seven_had-
signed authorization cards. In any event, the Respondent
argues that the Union would have lost its majority without
regard to whether Respondent had committed some unfair |
labor practices. In effect, -it seeks to. benefit-from its own
illegal actions in thwarting. its former employees’ -desire.
for representation by advocating the right of its present
employees to refrain from such activities. The Supreme
Court’s decision in Franks Brothers Company v. N.L.R.B.,
321 U.S. 702, exposes the untenability of Respondent’s
argument.
_ Since the facts in no two cases are ever exactly: alike,
the Respondent is able to point out certain-factual differ-
ences between this case and Bernel Foam Products Co., I ne.
146 NLRB 1277." In Bernel, the petition was filed after a
15 In Bernel, the Board reverted to its former doctrine that a union may
"be entitled to a bargaiuing order based on its majority status even though
it had lost an election in =hizh it participated with knowledge of the em-
ployer’s commission of unfair le'sor practices. ;
39a
Decisions and Orders of the National Labor a
Relations Board and Trial Examiner
request for recognition was refused; here, it was filed imul-
taneously with the request. Respondent argues that. ‘nel
does not govern this case since here the refusal to’ bargain
-did not induce the filing of the petition, ‘and consequently
that the Union had a genuine choice of remedies here, un-
like the union in’ Bernel. I think the factual differences
between: the two cases are immaterial. Before Bernel, a
union, knowing of an employet’s unfair labor practices, had
a one-time choice between proceeding with an election or - ’
seeking a bargaining order. The reversal of that doctrine
was intended to abolish the necessity of making that choice,
and to permit a union to go forward with the election and
thereafter, if it lost; to prove its preexisting majority in
' an unfair labor practice proveeding.. Respondent’s distinc-
tion based on which came first, the petition or the request,
would merely impose an illogical limitation on what the
Board clearly intended to accomplish. ie
Respondent also relies on another factual distinetion be-
tween this case and Bernel to argue that the Union should
be limited to a choice between an eleetion or an 8(a)(5)
proceeding. It-points out that here the Union filed charges
of 8(a)(1) violations after it filed’ its petition but .before —
. the election was held. In conformity with Board regula-
‘ tions, it also requested the Regional Director to proceed
with the election despite its pending charges. After the
election, it filed objections and an unfair labor. practice |
charge alleging a wrongful refusal to bargain. Respond-
ent contends that this gave the Union an even greater
advantage than it was entitled to under.the Bernel doctrine,
16 Midwestern Manufacturing Company, Inc., 158 NLRB No. 144, and
gases cited in footnote 3 thereof.
ait A MD
eT
40a
Decisions ‘and Ordéys of the National Labor
Relations our and Trial Examiner
in allowing it to keep its 3( ) (1). charges ‘in semanas until,
it knew whether it had won or lost the election, and then
‘to rely on those as the basis for its 8(a)(5). charge. This
is said to permit the Union to harass the Respondent and
to’ abuse Board processes. Like the previous argument, ~ ne
Respondent’s concern that the Union may act only ina .
fixed step-by-step fashion, is misplaced. That the Union —
filed 8(a) (1) charegs before, instead of after the election,
does not affect the Board’s .reasons for allowing a union
to participate in an election arid then prosecute a-tefusal-
to-bargain charge. The Respondent believes the Bernel
doctrine is unfair, and it is entitled to urge the Board to
overturn it, but its- attempt to pay. lip. service to it while
distinguishing this case from it factually, is no more =e
a roundabout attack on Bernel itself.
IV. Objections to the Election
The Union filed timely objections to the conduct of the
election. The Regional Director’s report on the objections
_ refers to evidence tending to s show that “between the filing _
of the-petition and the election, supervisors and agents of
the Respondent coercively interrogated employees concern-
ing their union activities, threatened them with the closing
of the Kenosha store and other reprisals, and, promised
them increases in wages and other benefits if they rejected.
the Union. I see no reason to consider other conduct which
was alleged in the objections as grounds for setting the
election aside since, in my opinion, the evidence at the con-
- solidated hearing before me amply supports the conclusion —
I have reached that the election should be set aside, and
that the Respondent should be required to bargain with
the Union as the exclusive representative of its employees
at the Kenosha store, based on its maperty status as of |
August 26, 1966.
-
* £148
Decisions and’ Orders of the National Labor |
Relations Board and Trial Examiner
ro
It is also immaterial that the objections did not ‘apedity
all the conduct which I have found to be grounds for setting
the election aside. The decision as to whether an election
should be set aside is properly made on the basis of the .
‘ ella
investigation or hearing, and not on the allegations speci-
fied in the objections to the election.” Here, moreover, the
complaint alleged in what respects Section 8(a) (1) had
been violated before the election, and such violations, if |
proved, are a fortiert grounds for setting the election aside,
so long as timely objections were filed.
; Conclusions
Accordingly, for the reasons stated above, I conclude that
Respondent, by rejecting the. Union’s request on August 26, -
for recognition and bargaining, and thereafter engaging |
in-unfair labor practices designed to destroy the Union’s
majority, refused to bargain with the Union in violation of-
Section 8(a)(5) of the Act.’* I also find that by unilaterall
when the Union was entitled to exclusive recognition as
bargaining agent, Respondent violated the same section.’*
Furthermore, even if I were to assume that the Com-
pany acted in good faith in insisting. upon an election, a
17 International Shoe Company, 123 NLRB. 682.
8 NLRB. v. Joy Silk Mills, Inc., 185 F.2d 732 (C.A.D.C.).
19 V.L.R.B. v. Benne am, etc., d/b/a Williamsburg Steel Products Co.,
369 U.S. 736.
20 NLRB. v. Stow Manufacturing Co., or7 F.2d. 900 (C.A. bes and
irving. Air Chute Company, Inc., 350 F.2d 176 (C.A. 2).
raising the wages of its employees in October at a time
-. bargaining order is nonetheless appropriate in order to .
undo the effects ofits subsequent unfair labor practiées.2°
42a
Decisions and Orders of the National Labor
Relations Board and Trial Examiner
‘Finally, the Board and the courts have also held in a num-'
_ ber of cases, that where an employer’s violations of Section —
8(a)(1) have dissipated a‘union’s majority and prevented
the employees from freely exercising their choice of repre-
sentatives, the Board may, in order to remedy the unfair
‘labor practices, issue an order directing the employer. to
bargain with the union on request, provided that the union
had a majority at all relevant times.*! Under the doctrine
of these cases also, a bargaining order is appropriate in
this case. .
Conclusions of Law
1. All employees at Respondent’s Kenosha, Wisconsin,
store, excluding the store manager, assistant store mana-
ger, lunch counter manager, professional employees,
_- guards, and supervisors as defined in the Act, constitute an .
appropriate unit for the purposes of. collective bargaining
within the meaning of Section 9(b) of the Act. |
2. At all times since August 24, 1966, the Union has
‘been the duly designated bargaining representative: of the
employees in the aforesaid collective-bargaining unit. a
3. The Respondent has interfered with, restrained, dea
coerced its employees in the exercise of their rights guar-
anteed in Section 7 of the Act, in violation of Section
8(a)(1), by threatening them that the Kenosha:store or its
fountain department would be closed down or that they
would.lose their store or food discounts, by promising them
wage inftreases and other benefits, by coercively interrogat-
21 Pditorial “El henna Ine. v. N.L.R.B., 278 F.2d 184, 187 (C.A.1), |
and .B. v. Delight Bakery Inc., 353 F.2d 344 (C.A. 6).
43a
Deéisions and Orders of the National Labor
Relations Board qnd Trial Examiner
ing them as to.how they were going to vote, or if they had
‘attended union meetings, by intimidating them through its
orders to’ reject applications for, employment from pro-
union applicants, and by telling them that their attendance
_at union meetings had been observed and noted.
4.. By failing and refusing on August 26, 1966, and’at all —
times thereafter, to recognize and bargain with the Union
as the collective-bargaining representative of the employ-
- ees in the aforesaid unit, and by unilaterally changing the
wages of employees in October’ 1966; without notice to or
- eonsultation with the Union, the Respondent has engaged
in unfair labor practices in violation of Section 8(a) (5) of .
the Act.
: ~ 5. The.aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
The Remedy
Having found that the Respondent has engaged ‘in un-
fair labor practices in violation of Section 8(a) (1) and (5)
of the Act, my Recommended Order will provide that it
cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act.
As indicated. above, an order to bargain collectively with
the Union is appropriate to remedy the Company’s viola-
tions of the Act. Even in the absence of a refusal to bar- |
gain, I would find this remedy appropriate in the circum- -
stances of this case in view of the. Company’s extensive
' violations of Section 8(a)(1), which prevented -the em-
ployees from exercising a free choice in the election. In_ -
view of these conclusions, my Recommended Order will pro-
WALT) PT TIED Me pee OF
er
.
2) dawned
& te -
44a
‘ Decisions and Ordets of. the National Labor
Relations Board and Trial Examiner
vide for dismissal of the pending representation seat oe
ings, Case 30—RC—508. pasos "ai Pe.
The unfair labor practices, found here are such as to
indicate an attitude of opposition to the purposes of the
Act generally. I find therefore that a broad cease-and-desist
provision is necessary to effectuate the policies of the Act.
In its brief, the Union has asked me to: recommend addi-
— tional remedial provisions to enable it to retrieve the losses
it sustained through the Company’s unfair labor practicee
which effectively denied it the support of the unit employ-
ees it had previously enjoyed. It asks for provisions giving
anal cat
it access to the Company’s bulletin boards and premises
under appropriate conditions, the opportunity to address
unit employees on Company time and property during the
compliance period, for additional relief of an unspecified
nature to restore its economic strength to what it was when
the Company refused to bargain with it, and to compensate —
it for its organizational expenses if the-parties are unable |
to reach an agreement under the bargaining order. As an
alternative,.the Union suggests a remedial provision re-
cently recommended by another Trial Examiner in a simi-
lar case, to make the employees whole by paying them the
difference between the compensation they actually received
and the rates received by employees in ‘comparable units
under union contracts for the period of the refusal to
bargain.
Although I appreciate the Union’s position that its bar- ~
gaining strength has been seriously eroded by. the Com-
pany’s unfair labor practives, and that it is entitled toa .
restoration of the situation as it would have been, absent
the unfair labor. practices, -it is nevertheless a question of —
~
a
45a
. " Decisions and Orders of the National Labor
Relations Board and Trial Examiner .
judgment whether the remedy I si prescribed above is
in fact inadequate, Trial Examiners have, in the first in-
stance, a respoisibility to exercise their judgment in fitting
. the remedy to the violation, but with a proper regard. for
long-establistied Board practices in these matters. Since
some, if not all of the proposals suggested by the Union,
have been advanced in other cases now penditff before the
Board, I believe it would be a gratuitous gesture on my
part to order such novel remedies until the Board has
established guidelines in similar eases. I therefore deny
the Union’s request.
RECOMMEN DED ORDER
Upon the foregoing finding: and conclusions and the
entire record, and pursuant to Section 10(c) of the Act, it
is recommended that the National: Labor Relations Board
order that Thrift Drug Company of Pennsylvania, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees that its Kenosha store or its
fountain department would be. closed down or that théy
would lose their store pr food discounts because of their
union activitie otal
(b) Promisigg employees wage incyeases and other bene-
fits in order to interfere with their free > choice of representa-
tives.
(c) Coercively interrogating them as to how they were
going to vote or if they had attended union meetings, in- .
timidating them by. ordering the rejection of applications.
for employment from prounion applicants, and telling them
_ that their attendance at union meetings had been observed
and noted.
46a |
‘ Decisions and Orders: of the National Labor
Relations Board and Trial Examixer '
ec —24--
_ (d) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their right to
join, or assist Retail Clerks Union Local 526, Retail Clerks
International- Association, AFL-CIO, or any other labor
organization, to bargain collectively through . representa-
tives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any
‘or all such activities.
(e) Refusing to sane and bargain collectively with _
Retail Clerks Union Local 526, Retail Clerks International
_ Association, AFL-C1IO;‘as the exclusive bargaining repre- -.
sentative of the employees in the appropriate unit set forth
in the conclusions of law above.
(f) Instituting changes in the wages, hours or other
conditions of employment .of its employees without notice —
_ to, or consultation with, Retail Clerks Union. Local 526, Re-
‘tail Clerks International Association, AFL-CIO, as their
exclusive bargaining representative.
2. Take the following affirmative action which is deemed
_ necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with Retail Clerks .
Union Local 526, Retail Clerks International Association,
_ AFL-CIO, as the collective-bargaining representative of
all its employees in the appropriate unit sef forth in the
conclusions of law above, with respect to rates of pay,
wages, hours of employment, or other terms of employ-
ment, and if an understanding is reached, embody such
understanding i in a signed agreement. | '
47a
Decisions and Orders of the National Labor
Relations Board and.Trial Examiner
(b) Post, at its store at Kenosha, Wisconsin, copies of
the attached notice marked “Appendix.”’*? Copies of said
notice, to be furnished by the Regional Director for Region
30, after being duly signed by Respondent’s representative,
shall be posted by Respondent immediately upon reéeipt
thereof, arid be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where.
notices to employees are customarily posted. Reasonable
steps shall be taken. by Respondent to insure that such
notices are not altered, defaced, or covered by any other —
material.
- (e) Notify the Regional Director for Region 30, in writ-
ing, within 20 days from the date of the receipt of this De-
essogps what steps Respondent has taken to comply here-
with. ; ;
The petition for certification of representatives j in Case
—30—RC—508 is hereby dismissed.
Dated at Washington, D.C. | *
Certiriep TruE Copy ~ aoe
O. W. Fievps | -
Executive Secretary NLRB
Date May 24 1967
22 In the event that this Recommended Order is een by the Board,
* the words “a Decision and Order” shall be substituted for the words “the
Recommended Order of a Trial Examiner” in the notice. In the further
event that the Board’s Order is enforced by a decree of a United States
Court of Appeals, the words “a Decree of the United States Court of
Appeals Enforcing an-Order” shall be substituted: for the words “a Deci-
-sion and Order.” ;
/ *%In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: “Notify the Regional Director for
Region 30, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith.” .
Ee eee eee tee ee ee
PPE SPI ENE
- . 48a
Decisions and Orders of the National Labor —
Relations Board and Trial Examiner
APPENDIX.
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner
of the National Labor Relations Board, and in order to -
effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify our employees that:
WE wi nor threaten employees that our Kenosha
store or its fountain department will be closed down
‘or that they will lose their store or food discounts be-
cause of their union activities.
WE WILL Nor promise wage increases or other benefits
in order to-interfere with a free choice of representa-
tives by our employees.
WE WILL NOT coercively interrogate our employees as
to how they are going to vote or if they have attended
union meetings, nor will we intimidate them by order-
ing: them to reject applications for employment from
prounion applicants, nor tell them that their attend-
ance at union meetings has been observed and noted.
We wit nor in any other manner interfere with, re-
strain, or coerce our employees in the exercise of their
right to join or assist Retail Clerks Union Local 526,
Retail Clerks International Association, AFL-CIO, or
any other labor organization, to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purpose
of collective bargaining pr other mutual aid or protec- -
tion, or to refrain from any or all such activities. —
WE wiLL nor institute changes in the wages, hours or
other conditions of employment of our employees with-
out notice to, or consultation ‘with, Retail Clerks Union
49a
Decisions and Orders of the National Labor 2
- Relations Board and Trial Examiner
Local 526, Betail Clerks International Association,
AFL-CIO, as their exclusive bargaining representative.
WE WILL bargain, upon request, with the above-named
labor organization as the exclusive bargaining repre-
sentative of all employees irf the unit described below,
with respect to wages, rates of pay, hours of employ-
ment, or other terms of employment, and, if an under-
standing is reached, embody such understanding i in a
‘signed agreement. The bargaining unit is:
All employees at our store in Kenosha, Wisconsin,
excluding the store manager, assistant store qana-
ger, lunch counter manager, professional embloy- -
ees, guards and = as defined in the Act.
. AN our employees are free to become or reftain from -
becoming members of the above-named labor organization
or any other labor organization. ;
a
r
i
5 es Turirt Druc Company or .PENNSYLVANIA
l (Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or cavered by any other material.
If employees have any queston concerning this notice or
compliance with its provisions; they may communicate
directly with the Board’s Regional Office, Second Floor,
Commerce Building, 744 North Fourth Str eet, Milwaukee,
Wisconsin, 53203, Telephone 272-3861. |
ee bidahie’
7 OLE Oe xe
Wor eee see
50a”
APPENDIX C .
Excerpt From Petitioner’s Brief Filed With the
Court of Appeals for the Sixth Circuit
) In THE J
UNITED STATES COURT OF APPEALS
° For THE SixtH Circuit
6 " No. 18216
ae
J , . 7 .
~~ Turrt Druc Company oF PENNSYLVANIA,
~— ao Petitioner,
—_—V.——
Nationan Lasor Revarions BoArp,
_ Respondent.
ON PETITION FOR REVIEW AND SETTING ASIDE AN ORDER OF
THE NATIONAL LABOR RELATIONS BOARD IN CASE NOS. —
30-CA-458 anp 30-CA-508
‘
_ Brier on Bewatr OF PETITIONER
Pornt VII
A Barcarntnc Orver Is an Improper AND INAPPROPRIATE
‘REMEDY. ;
A. The Board Is Restricted to the Use of Secret Ballots
for the Resolution of Representation Questions.
The legislative history of the National Labor Relations
Act, as amended, clearly establishes that it was the intent’
Sla
Excerpt From Petitioncr’s Brief Filed With the
‘ Court of Appeals for the Siath Circuit
~ of Congress to limit the methods used for the selection of .
a collective bargaining representative to the secret ballot
election and none other.’
The Board in support of its request for a bargaining -
order cites as authority cases decided prior to the Act’s
1947 amendments or decisions which themselves cite pre-
1947 decisions as coftrolling authority.‘ These amend-
ments radically changed the Board’s ° powers and responsi-
bilities under Section 9(c).“° Until recently a critical exam-
ination of the Beard’s powers under the Act, both before
and after the 1947 amendments, had never been made by
either the Courts or the Board.‘ An examination of the
policy changes. expressed i in the Taft-Hartley Amendments
reveals that the Board was stripped of its power to issue
a bargaining order where a question of representation has
‘been raised.
The relevant portions of Section 9(c) state:
“(1) Whenever a petition shall have been filed, in ac-
cordance with such regulations as may be prescribed
by the Board .. . the Board shall investigate such
petition... .If the Board finds upon the record of such
hearing that such a question of representation exists,
it shall direct an election by secret ballot and shall
certify the results thereof.” (Emphasis: added.)
This section requires that “Whenever a etition shall
have been filed” and the Board “finds ...a question of
43 NLRB v. -Logan Packing Co., supra.
‘4 See the analysis of cases, supra, pp. 69-71.
4561 Stat. 136 (1947), 29 U.S.C. §§151-168 (1964).
48 Logan Packing Co., supra, 66 LRRM at 2602.
il ati
52a, |
Excerpt From Petitioner’s Brief Filed With the
Court of Appeals for the Sixth Circuit
representation exists”, the Board “shall direct an “election
* by secret ballot and shall certify the results thereof.” The
c Board is without authority to determine representation
by other means once a petition has been filed and it has
found a question of representation exists.
1. The law prior to 1947.
Section 7 of the Wagner Act rrr the right of em-
ployees to belong to unions, but gave no protection to those
employees who wanted to refr ain from union activities..
Furthermore, under the Wagner Act, the Board had far
greater latitude in the methods it could use to determine
representation. The Wagner. Act stated that the Board
could determine representation by either “a secret. ballot .
of employees, or... any other suitable method.” Section
9(c) of the Wagner Act provided:
“Whenever a question affecting commerce arises con-
cerning the representation of employees, the Board
may investigate sucli controversy and certify to the
parties . . . the name or names of the representatives
that have been designated or selected. In any such
investigation, the Board shall provide for an appro-
priate hearing upon due notice, either in conjunction
with a proceeding under Section 10 or otherwise, and
may take a secret ballot of employees, ar utilize any
other suitable method to ascertain such pean
tives. ” (Emphasis added.)
Accordingly, under that Act, the Board used as alterna-
tives to elections, two informal non-election procedures:
the “recognition agreement” and the “consent cross-check”,
both of which it codified in its rules and regulations and
53a
Excerpt From Petitioner's Brief Filed With the
Court of Appeals for the Siath Circuit
statements of ‘procedures. In its last Wagner Act State-
ments of Procedure (29 C.F.R.—NLRB Statements of Pro-
cedure §§202.1-28, 11 Fed. Reg. 177A-619, eff. Aug. 28,
1946) Section 202.17 described the nop-election methods of
. determining representaffn as follows:
“(a) The recognition agreement.is used in a situation
in which the employer is satisfied that the claims of
the petitioner to representation rights are valid... .
“(b) In the consent cross-check agréément procedure,
the parties agree that a Board agent may determine
whether or not the union represents the majority by.
comparing the number of valid signed cards submitted
by the union with an appropriate payroll furnished
by: the employer. The agreement also describes the -
appropriate unit of employees involved and sets forth
--the understanding of the parties.”
After some years of experience the Board began to ques-
tion the conclusiveness of card checks*’ and found “that an
election is generally the most effective and satisfactory
method of resolving representation disputes.” ‘* Accord-
ingly, “the election was .the method almost invariably
*7 See Joe Hearin, Lumber, 66 NLRB 1276 (1946), where the Board
stated: “We do not feel, however, that a card check reflects employees’
true desires with the same degree of certainty as . . . an election.” (at 1283)
Electro Metallurgical Company, 69 NLRB 772 (1946), where the
Board stated, that it “will not consider the card check as satisfactory as
the election method of ascertaining the true desires of employees.” (at 774)
And, National Waste Material Corp., 93 NLRB 477 (1951), where the
Board observed: “We have heretofore held that a card check is nof en-
titled to the conclusive effect normally given to a certification of, repre-
sentatives based on a Board-directed election.” (at 478)
‘8§ NLRB Ann. Rep. 52 (1943).
in
Baa
Excerpt From Petitioner’s Brief Filed With the
Court of aco for the Sixth Circuit
utilized by the Board in contested [representation] cases
ever since 1939.” *° In The Cudahy Packing Company, 13
NLRB 526 (1939), the Board explained its change of policy
by pointing out that its certification “looks to the initiation
of collective bargaining between the Company. and its em-
ploy ees... [and]... the bargaining relations which result
will be.more satisfactory from the beginning if the donbt
and disagreement of the parties regarding the wishes of
the employees is, as far as possible, eliminated. Although
‘in the past we have certified representatives without an —
election . . . we are persuaded by our experience that the
policies. of the Act will best be effectuated if the question.
of representation which has arisen is resolved in an election
by secret ballot.” (at 531-32) (Emphasis added. )
With the law giving no protection to employees who did
- not want union representation, and specifically authorizing
the NLRB to- resolve questions concerning representation: '
by any method it considered “suitable”, the Board and the
courts, in their decisions which preceded the 1947 Amend-
ments construed Section 8(a) (5) and Section 9(a) as giving
rise t a duty to bargain before election and before cer-
tification of the union. ,
It fWwas during this pre- 1947 asihie that the cornerstone
case of Franks Bros. Co. v. NLRB, 321 U.S. 702, (1944),
was decided. Pursuant to the policy considerations then
manifest in the Act, the Board issued a bargaining order
after the withdrawal of an election petition and the. filing
of a. refusal to bargain charge. The Board deemed a bar-
gaining: | provision “necessary to effectuate the policies of
the Act” (at 704).
4913 NLRB Ann. Rep. 21, n..7 (1948).
= a 50a
| Excerpt From Petitioner's Brief Filed With the
Court of Appeals for the Sixth Circuit
4 1947, the policies set forth by the Act changed.
2. Changes wrought by the Taft-Hartley Amendments.
' The policy considerations manifest in the amendments
_to the Act in 1947 were in direct opposition to the policies
then existing. Section 7, the employees’ bill of rights, was
amended to protect the right of an employee “to refrain
from any or all” representation or activity. -
Iz addition, Congress. while leaving wnchanged Section
8(a)(5) and 9(a), eliminated from Section 9(c) the lan-
guage which had theretofore authorized the Board to re-
solve questions concerning representation by any “suitable
method”. This same deletion was made in Section 10. In
. place of these sections, Congress authorized “an election
by secret ballot” as the only method of resolving a } question
of representation.
The Taft-Hartley Act’s legislative history or be-
yond doubt that this was the specific Congressional intent.
The Hartley bill (H.R. 3020, 80th Cong. 1st Sess. (1947))
(Section 9 (c)(1) & 9 (c)(4)) eliminated the- ‘Wagner Act’
option to “utilize any other suitable method to ascertain .
representatives”. The House Committee Report on the
Hartley Bill (H.R. Rep. No. 245, 80th Cong. 1st Sess. 39
(1947)) had these comments on what was later adopted
verbatim as Section 9 (c) (4) of the-present Act:
“Section 9(h)—The present act does not, by its terms,
provide for so-called ‘consent elections’ but the Board
frequently holds them. The bill permits parties to
waive hearings before the Board (providing no other
5° Swigert, The Duty To Bargain In The Absence Of Certifeation Pro-
ceeding, 19 Ann. Conf. On Labor, N.Y.U. 61 (1967).
56a
Excerpt From Petitioner's Brief Filed With the
Court of Appeals for the Sixth Circuit -
interested pevson intervenes and objects), but when
‘the parties waive a hearing, the Administrator must
conduct a secret ballot, not ‘check membership cards
as the Board sometimes has done in the scees , al
_~Phasis added.)
~The Senate Minority eek: on the Taft bill (. Rep.
No. 105, Part 2, 80th Cong. 1st Sess. 34 (1947)) confirms
that both proponents and opponents of the change agreéd
on its effect. It had these comments.on what was later
substantially adopted as present Section _ and
9(c) (4):
“Section 9(c)(4) provides that nothing in the section
shall be construed to prohibit ‘the. waiving of hearings
by stipulations for the purpose of a consent election
in conformity with the regulations and rules of deci-
sion of the Board. 4
“The effect of this“provision read senile with the
provisions of Section 9(c)(1)(B) would be to prohibit
the Board from determining an issue concerning rep-
resentatives by means of a consent card check. This
procedure is utilized only where the parties consent
and consists of a check of the union’s membership |
cards — the names appearing on the employer’s
bees
. the bill in this respect would paren the Board of
a proved and useful technique which the Board has
been able to utilize in over 20 per cent of the adjusted
_Fepresentation cases... .” (Emphasis added. )
Noting the changes in the basic policy of the Act, the
House Conference Report stated that:
. 57a
Excerpt From Petitioner's Brief Filed With the
Court of Appeals for the Sixth Circuit .
“Both the House Bill and the Senate Amendment pro-
vided that if the Board found upon the hearing that
a question of representation existed, a secret ballot
should be held and the results thereof certified.” (H.R.
_ Rep. No. 510, 80th Cong., Ist Sess. 50 (1947))”
The Board agreed that its power had been changed,
stating in 13 NLRB Ann. Rep. (1948) : |
. “Section 9(c) of the Act, as amended nrasanihes ithe
5 election by secret ballot as the sole method of resolving
- a quesfion concerning representation, and leaves the
Board without the discretion it formerly possessed
(but rarely exercised) to utilize other ‘suitable means’
of ascertaining representatives.” (at 32) (Emphasis
added.)**
And, in General Box Co., 82 NLRB 678 (1949), the Board
explicitly rejected the concept of certification without an
election in the following language: =
“The concurring opinions of our colleagues propose that
_ the Board certify the Petitioner here without an elec-
tion, apparently after some other type of investigation
of its majority status. Aside from the fact:that such. :
a procedure might well stimulate collusion and raise
more problems than it would solve, we must point |
51 See also, 14 NLRB Ann. Rep, 26 (1949): “The Act as amended’
no longer leaves the Board with discretion to utilize any other suitable
method than the secret ballot election to resolve a question concerning
representation found to exist within the meaning of Section 9(c¢),” The
Board subsequently deleted all references to “recognition agreement” and
consent cross-check methods from its Statements of Procedure and its
Rules and Regulations. NLRB Statements of Procedure, 29 C.F.R.
§§202.1.36, Series 5; NLRB Rules and Regulations, 29 C.F-R. $§203.1-
97, 12 Fed. Reg. 5656 (eff., August 22, 1947). |
=<
OP
.
NATE A I WLR 8 erm
Poot : 58a
Excerpt From Petitioner's Brief Filed With the
Court of Appeals for the Sizth Circuit
out that the 1947 amendments deprived the Board of
the power to ‘certify without an election.” (at 683)
(Emphasis added.)
In addition to the foregoing amendments, Congress. in
1947 amended Section 7 of the Act by Specifically adding
7” to the right to bargain collectively, theéqual and specific
right to not bargain collectively as the employees may. |
freely choose. The 1947 amendments also resulted in the
a’ enactment of Section 9(c) (1)(B) in which Congress specifi-
-- eally granted to an employer the right to request an election
whenever a union “presented to him a claim to be recog}
nized as the representative defined in Section 9(a).”
This legislative history abundantly proves the depth of
Congressional intent to establish as paramount federal pol-
icy the fact that employee rights ‘to bargain collectively
and to not bargain collectively are equal under the Act, and
that these rights would be protected to the maxinyum pos-
sible degree by making a secret ballot. election the sole
method of representation determination.** It would follow
that the law should have changed with respect to the _—
to bargain before election and certification.
. 3. Failure of the Board and the Courts to nr en to
new policy. .
After the mandate from Congress in 1947, questions eon-
cerning representation should have been decided by the
Board only by ‘secret ballot election, the determination
of majorities by card checks or by any device other than
secret ballot election should have ended. This seems partic-
51a Requiring elections before snes in all eases wo.ld preclude
the possibility of “sweetheart” contracts.
.
\
2 0 SAAT ci tt ged Wg NUS ACLREE,
59a
Excerpt From Petitioner’s Brief Filed With the
Court of Appeals for the-Sixth Circuit
ularly true in view of the new requirement in Section 7 that
the Board give equal protection to the non-union em- 2
ployees.** To give full scope to this right, a secret ballot §
would appear to be uniquely appropriate. In the leading.
case after 1947, Joy Silk Mills v. NLRB,* the Court of |
Appeals for the District Af Columbia followed Franks
~Bros., supra, ignoring apeiiem changes of 1947.. In
Joy Silk Mills, supré, the Court held that the “decision
in Franks Bros. Co. v. NLRB .. . appears controlling, and
the order of the Board is entitled to be enforced in the
respect just discussed.” ™
RE Te ee en ee ee
~ Despite the clear change in policy manifest in the Act,
in virtually every authorization card case the Courts rely
on Franks Bros., supra, for the-propriety of the compulsory |
bargaining remedy, permitting a union to become an exclu-
FI aa So a
f
sive representative without a 9(c) election. The endorse- f
ment of this remedy in Franks Bros., supra; may have — =
effectuated the policies ef the Act in 1944, but in 1947 the g
policies changed. Nevertheless, pre-1947 precedent that .
secret ballot elections were not the exclusive method of
' determining representation has unjustifiably survived, un-
examined,’ screened by a myriad of inapplicable cross-
citations * thee
52 Swigert, supra, at 64. . fae?
53185 F. 2d. 732 (D.C. Cir. 1950) cert. den. 341 U.S. 914 (1951).
°* Joy Silk Mills, supra, at 745.
65-A clear acknowledgment of this lack of analysis in the past on the _ :
part of the various appeals courts in card decisions, is set forth in Logan —
Packing Co., supra. The Court stated: ‘
. “... with no reference to the change wrought by Taft-Hartley, bar-
gaining orders have been enforced in recent years on the authority
60a
Excerpt From Petitioner’s Brief Filed With the
Court of Appeals for the Siath Circuit
The authorities relied: upon in Joy Silk Mills, supra, were
four pre-1947 decisions. The decisions-cited in United Mine
Workers of America et al. v. Arkansas Oak Flooring Co.,
351 U.S. 62, 71,°72 (1956), another leading case, are either
pre-1947 cases or decision by Courts of Appeals which
similarly are supported by rote citation of old cases.
4. The Board’s legal authority does not support its case.
The Board supports its bargaining order by legal author-
ity which builds on the foundation of Franks Bros. Co. v.
NLRB, supra, which is the ultimate authority relied on
by all the other courts which have dismissed challenges to _
the Board’s power to obtain a bargaining order. Subse-
quent court decisions cite Joy Silk Mills Inc., supra, other
pre-1947 decisions, such as Franks Bros., supra, or NLRB
vy. P. Lorillard Co., 314 U.S. 512 (1941), or other court
decisions which rely on these cases.
All of the court cases which the Board consistently cites
as upholding its right-to utilize bargaining orders under
_ of cases decided under the Wagner Act before the 1947 amendments.
Those which are not supportable on the basis of the absence of any
litigible factual quéstion concerning representation should, at the very
least; have taken note of the 1947 amendment, but oddly, none of them
have. Cases holding that a refusal to bargain is a violation of 8(a) (5)
. when there is no question of representation have been lumped with
cases construing the original Wagner Act 9(c) to enforce bargain-
ing orders without regard to the essential predication of the earlier
decisions. ie
° e .
“Without reference to the current statutory provisions, however,
such decisions lack persuasive impact. Congressional enactments may
not be ignored by judges... .” (66 LLRM at 2602) (Emphasis
added.) Dare
6la
Excerpt From Petitioner’s Brief Filed With the
Court of Appeals for the Sixth Circuit .
Berzel Foam Products Co. Inc.,** such as the instant matter,
share the common defect of depending on Franks Bros. Co.,
supra, or cases relying-on it, or on other pre-1947 decisions =
(1) Amalgmated Clothing Workers of America (Edro
Corp.) v. NLRB, 345 F. 2d 264 (2 Cir. 1965), cites
Joy Silk Mills, supra. — | |
» (2) L.U.E.R.M.W. (S.N.C.Mfg. Co.) v. NLRB, 352 F. 2d
361 (DC Cir 1965) cert. den. 382 U.S. 902 (1965)
cites Joy Silk Mills, supra, as “controlling here on
most aspects of the case.”
(3) Colson Corp. NLRB, 347 F. 2d 128 (8 Cir., 1965),
cited United Mine Workers v. Arkansas Oak Floor-
ing Co., supra, as upholding bargaining orders, but
the footnote in that decision dealing with the issue
primarily relies on NLRB v. Bradford Dyeing Ass’n.,
310 U.S. 318 (1940), which was before the Taft-
Hartley amendments. | aide
| (4) Irving Air Chute Co. v. NLRB, 350 F. 24 176 (2 Cir.,
1965), relied upon the pre-1947 P. Lorillard Co.,
supra. ; }
(5) NLRB v. Delight Bakery, Inc., 353 F. 2d 344 (6 Cir.,
1965), also relies on P. Lorillard Co., supra and
Franks Bros. Co., supra. es
Vee ee See eee mee ee ene
Se OO OR eT ee ee eee
_ Similarly, other cases frequently cited by the Board 3
have the common thread of reliance upon Franks, Bros. Co.,
' supra, other pre-1947 decisions, or each other:
:
°° 146 NLRB 1277 (1964). The Board there held that proceeding to an 4
election with knowledge of the employer’s unlawful refusal to bargain
does not preclude the union from seeking a bargaining order after the
election loss.
62a
_ Excerpt From Petitioner’s Brief Filed With the
Court of Appeals for the Siath Circuit
(1) Texarkana, Bus Co., Inc., et al. v. NLRB, 119 F. 2d
- 480 (8 Cir.; 1941), was decided prior to the 1947
amendments and did not review the Board’s power
to issue a bargaining order. ae
(2) D. H. Holmes Co. Ltd. v. NLRB, 179 F. 2d 876 (5
Cir., 1950) relies on Franks Bros. Co., supra.
(3) NLRB v. Calderera, 209 F. 2d 265 (8 Cir., 1954),
rélies on Texarkana Bus, supra. —
(4) Summit Mining Corp. v. NLRB, 260 F. 2d 894 (3
Cir., 1958) relies on Texarkana, supra, D. H. Holmes
Co: Ltd., supra,.and Calderera, supra.
(5) NLRB v. Epstein, 203 F. 2d 482 (3 Cir., 1953), relies
on Joy Silk Mills, supra, and another decision which
itself relied on Joy Silk Mills, supra.
In the instant case, the Board, in arriving ‘at its decision,
relied upon Bernel Foam, supra. Petitioner submits that
Bernel Foam; supra, resting as it does on the authority’ of
. Joy Silk Mills, supra, and Franks Bros. Co., supra is not
controlling, as those’ decisions “lack persuasive impact”,
having been decided “without reference to the current.
‘ statutory. provisions.” *”
Obviously, neither Franks Bros. Co., supra, nor the other
pre-1947 decisions are apposite here for they were decided
- before the Taft-Hartley amendments establishing the pre-
eminence of employee voting choice as determinative of
union representation.
Nor can the Board claim its expertise and adminis-
trative discretion deprive this Court of power to review
57 Logan Packing Co., supra, 66 LRRM at 2602.
63a |
Excerpt From Petitioner’s Brief Filed With the
‘Court of Appeals for the Sixth Circuit
_ its conclusion that a bargaining order is the only remedy
for ‘Petitioner’s unfair labor practice. Since administrative ©
discretion is limited to the precise statutory language by
which Congress empowered the agency to act, the remedy
deemed appropriate must be consistent with the statutory:
policy; and this‘Court is empowered to keep the Board’s
_-. remedy within that policy.
Any Board argument to the contrary must be rejected on
the basis of the recent Supreme Court decision in NLRB v.
Brown, -380 U.S. 278, 85 S. Ct. 980 (1965) affirming the
Tenth Circuit’s refusal to enforce a Board order. “The
Board argued that. its “decision is within the area of its
expert judgment” and the Court of Appeals therefore “ex-
ceeded the authorized scope of judicial review.” The Su-
preme Court answered as follows: ;
“Reviewing courts are not obliged to stand aside,. and
rubber stamp their affirmance of administrative deci-
sions that they deem inconsistent with a statutory
mandate or that frustrate the congressional policy
underlying a statute. Such review is always properly
within the judicial province, and courts would abdicate _
their responsibility if.they did not fully review such
administrative décisions: Of course due deference is
_ to be rendered to agency determinations of fact, so
long as there is substantial evidence to be found in the
record as a whole. But where, as here, the review is
not a question of fact, but of a judgment as to the
proper balance to be struck between conflicting inter-
ests, ‘[t]he deference owed to an expert tribunal can-
not be allowed to slip into a judicial inertia which re-
sults in the unantherized assumption by an agency of
Po
64a
"Excerpt From Petitioner’s Brief Filed With the
_ Court of Appeals for the Sixth Circuit —
major policy decisions properly made by Congress’.”
- (Citations omitted) (at 291)
The language of the Court could not be more in point,
and the*compelling requirements of the statutory policy
require the same result herein: rejection of the Board
bargaining order. .
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.