# Petition for Writ of Certiorari — Atlas Engine Works, Inc. v. NLRB > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1313%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1969 - **Citation:** 395 U.S. 828 ## Text 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 ee ee Av) a et eee a ee ess ees . — ee oe - 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: | . + ?- : + ; . ee. 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 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 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 ee + a lia re, Decisions qnd Orders of the National Labor Relations Board and Trial Examiner « | ’ 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. = 7— 12a Decisions and Orders of the National Labor Relations Board and Trial Examiner ‘ 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. 13a 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. PO PTT ee yee anes peg: Monte NEQUE RA Sa MEP Rey PRS 14a Decisions and Orders of the National Labor Relations Board and Tréal Examiner 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 lia Decisions and Orders of the National Labor Relations Board and Trial Examiner 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, cere 16a Decisions and Orders of the. National Labor Relations Board and Trial Examiner. 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; .. . 17a Decisions and Orders of the National Labor Relations Board and Trial Examiner 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 18a Decisions and Orders of the National Labor Relations Board and Trial Examiner 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. 19a Decisions and Orders of the National Labor Relations Board and Trial Examiner 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. a eee ne os ot otal 20a Decisions and Orders of the National Labor : Relations Board and Trial Examiner 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). « 2la ‘ 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. moe heee aR - ve al ed i fae UT HD cae hl eel hailed : 1 EN aces SRR NN oe et te Saten Rm gear. Ne 22a Decisions and Orders of the National Labor y Relations Board and Trial Examiner 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 23a Decisions and Orders of the National Labor Relations Board and Trial Examiner - 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 . cm 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 Relations Board and Trial Examiner 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 = 26a Decisions and Orders of the National Labor Relations Board and Trial Examiner 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 27a 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 > . 28a Decisions and Orders of the National Labor Relations Board and Trial Examiner 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 . ma © — - ‘ , ‘ sal — Sua OEE begat NOra? tb pcos Bsn na ROS AaB . + « e : - 29a Decisions and Orders of the National Labor 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 30a 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 3la 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. a PYRENEES RG ena D Fm ery + Sa at, ee ROO Oreo Oe ee ee ee 32a Decisions and Orders of the National Labor _ Relations Board and Trial Examiner 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 33a 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 _ . TROP Mat or peomean: ESSN RAY Ny oP NNN ee ATT T Ree eer tet te AE OT OL rr PRADA IE ne BA NES oS 8S od Set Oe I Re LS cee 34a ' 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 * wv Z g OPEL IL TLE (OW ET SA NE BE A FOE fy eld alae itaie hae a ea te pe Ay Sonera pee PINE New + a ° : . . 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. . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1313%3A02. Public record. Not legal advice.