Petition for Writ of Certiorari — Reeves & Sons v. Labor Board

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. | SUBJECTS nase PAGE .

OPINION BELOW © « }

JURISDICTION |. " 2.

QUESTIONS PRESENTED. R . 2

STATEMENT 2 a ea ihe av nclget

REASONS FOR GRANTING THE WRIT 8 .

CONCLUSION — is : “37

APPENDIX A, Order Adjudging Contempt se . 21

APPENDIX B, Decision and Or¢er of N.L.R.B. -

APPENDIX C, Opinion Granting Enforcement 28

‘APPENDIX D, Enforcement Pecree 37

. . Ae 4

. CHEATIONS :

- v

= '.° CASES. ;

Cone v. N.L.R.B., 235 F.2d @7 (C.A. 4th, 1956) a

~ssex Rubber Co., 50 N.L.R.B. 283 -

General Electric Co. v. Porter, 208 F.2d S805 (C:A. 9th, 1953) 16

Libby, McNeil & Libby, 65 N.L.R.B. 873 13

_ NLRB. ¥. Algoma, ete., Co, 121 F.2d 602 (C.A. 7th, 1941) 9.

N.L.R.B. v. Cleveland Trust Co., 2u F.2d (95 -(C.A. 6th,

1954) 11,17,

N.L.R.B. v. Little Rock Furniture Co: 12: } F.2d 868 (C.C.A.

"8th, ee 2:5 : . 17

N.L.RB.B. v. Newton Co., 236 F.2d 438 (C.A. Sth, 1956) ui

N.L.R.B. vy. Neri, etc., Corp.. 195 F.2d 632 (C.A. 4th,

1952) , 9,11, 12

NLRB. v. moran ae Trouser Co.. 162 F.2d 1012 (C.C.A. °

4th, 1947) 9,11,.17

N.L.R.B. v. Taormina, 241 F.2d 197 (C.A. 5th, 1957) * 14.

_ ‘STATUTES

— G6) Stat 136: ye &

72 Stat. 945 / : 8

281 S.C.A., See. 1251° (1) ; - 2

29 USCA. See. 151 et, seq. "8

IN THE NA

Supreme Court of the United States.

. October cae 1960

ar

= M. REEVES AND ache INC, Pe titioner :

Vv. ;

NATIONAL LABOR RELATIONS BOARD, Re Pear

PETITION OF F. M. REEVES AND SONS, INC.,

FOR A ‘WRIT OF CERTIORARI TO THE UNITED :

STATES COURT OF APPEALS FOR THE sian dain

CIRCUIT

F. M. Reeves and Sons, Inc., a corporation, Respondent

in the court below, hereinafter referred to as Petitioner,

prays that ‘a writ of certiorari issue to review the judg-

ment, of the United States Court of Appeals for the Tenth

~ Circuit entered in the above- entitled | cause on January

19, 1961.

OPINION BELOW

The Court of Appeals rendered no memorandum opin-

ion, but its Order adjudging Petitioner in civil contempt

may be found at page 60 of the Transcript of Record

of this contempt proceeding, and a copy of said Order

is: included herein as “Appendix A, p. 21,

. : is 2

JURISDICTION

The judgment of the Court of Appeals was entered on

January 19, 1961. Jurisdiction of this Court. is invoked .

under 28 U.S.C.A., Sec. 1254 °(1).

QUESTIONS PRESENTED

.1. Whether the Court of Appeals cma’ reversible

crror in adjudging Petitioner guilty of civil contempt ~

and in violation of that part of Respondent’s enforced

order which directed Petitioner to cease and desist” fpem;

!

“(a) Refusing. to bargain with ‘the Union as the ex-

clusive representative of all of its employees in ,the

unit found to be appropriate . . . with respect to

rates of pay, wages,” .. .. -

when the uncontradicted facts show .that it was the Union

that refused to bargain for and agree upon a general wage

_ increase, unless Petitioner would agree to the Union’s de-

mands for a “Union shop” and other concessions, which

demands the Union then knew Petitioner would not ac-

* cede to. 4

2. Whether the Court of Appeals committed reversible

error in adjudging Petitioner guilty of civil contempt and

in ‘violation of that part of Respor dent’s enforced order

which directed Petitioner to cease and desist from:

“<b)- Refusing to bargain with the Union by offering.

wage increases and other employment benefits in *

derogation of the Union’s stafus as bargaining repre-

sentative and in an attempt to win employee allegiance

from the Union, or using any other unlawful device to

_ interfere with, restrain or coerce its employees in the

exercise of their right to self-organization,”

whi the etevniitedbined facts show that such wage in-

- Greasés as were granted by Petitioner, to less than half of its

employees; were given by reason of compelling business.

and economic necessity since the Union was refusing to

bargain for and agree upon a necessary general Wage in-

crease, unless granted a “Union shop”, and that ‘suth

creases were not given in derogation of the Unign’s stacus

as bargaining representative and in an attempt to win em:

ployee allegiance from the Union, or as an unlawful de-

vice to interfere with, restrain or coerce its. employes in

the exercise of their right of self-organization.

3. Whether the Court of Appeals committed feversible

error in holding that as a matter of law the proposal alleged. Z

to have been made by Petitioner in the course of negotia- “

tions with the Union that a performance bond or other

security be furnished by the Union, amounted to bargain-

ing not in good faith, and hence constituted contempt.

4. Whether the Court’ of Appeals committed -reversible

error in not holding that the Union and the National

‘Labor Relations Board had ratified and approved the limited

wage increases set up by Petitioner, so that they are now

barred: from claiming that the-same were unilaterally given.

STATEMENT

This is a civil.contempt proceeding brought by the Na--

* tional Labor Relations Board (referred to herein as Re-

spdndent), against F. M. Reeves and Sons, Inc., a eorpora-

tion (referred to herein as Petitioner) , seeking to have

Petitioner adjudged -guilty of contempt in violating certain

prov isions of- Respondent’s enforced cease and desist order,

the material parts of which order are hereinbefore quoted

as set out in the Petition for Adjudication. In Civil Con-

tempt filed by Respondent in’ the Court below. (R. 16-23).

4

snide? s Decision and Order appear on pages 21 to 26

of the Transcript of Record of the enforcement proceed-

ing, nine copies of which Record were sent up with the .

Record: herein. A copy of said Decision and Order is in-

cluded herein as Appendix B, p. 23.”

The facts alleged by Respondent as constituting such

violation and contempt are that in August, 1960, while

the parties were engaged in collective bargaining negotia-

tions, Petitioner refused to bargain in good faith, by-passed -

the Union, and granted unilateral wage increases to 22 of

its §2 employees in the bargaining unit. (R. 17-18).

By a later, unsworn motion for leave to amend, tele-

graphed from Washington directly to the Court in Denver,

‘Colorado, Respondent sought to add the further charge that

Petitioner had been guilty of not bargaining in good faith,

in that in the course of bargaining negatiations Petitioner .

had insisted that the Union secure performance of its ob-

ligations under any contract entered into, by providing

security therefor. (R. 35). Petitioner resisted said. motion

to amend. (R. 36-37). The Record contains no showing

that said motion to amend was ever allowed, but the judg-

‘ment of the lower court -refers to said additional charge .

_of bad faith bargaining as if it were in the Record. (R. 61).

By its sworn Answer (R. 25-34), supported: by the

Affidavit of its Personnel Manager, G. E. Pike (R. 55-59),

Petitioner emphatically denied that it had in anywise vio-.

lated the-enforcement decree entered by the lower court ,

on January 18, 1960, or that it was in contempt. Said An-

swer and Affidavit set forth in detail the facts and circum:

stances connected: with Petitioner’s negotiations with the .

Union in 1960, and ‘the granting by it of. wage increases

to less than half of its employeés, all of which are sum-

marized as follows:

m —<) | ate:

——eEeEeEeEeEEEEEEEE————EE

: 7

. Negotiations between the parties began in March, 1960,

and were still in progress at the time of the filing of this

contempt proceeding on November 10, 1960; in June; 1960,

the United States Government let a large contract involv-

ing a proposed expenditure, of some $22,000,000.00 for the

construction of a National Defense Project including 12

missile launching sites in the area. around Roswell, New

Mexico, at which place Petitioner has one of its, plants: for

handling sand and gravel, and for producing ready-mixed

_concrete;.in July, 1960, Petitioner. Was awarded a purchase

order for furnishing all the ready-mixéd concrete for said

‘Defense Projéci at a cost of about $2,000,000.00; this large

construction project greatly increased activity in the area

and caused a. sharp rise in wages, particularly among con-_

struction workers, truck drivers,. and other types of em-

ployees generally hired by Petitioner;- from the time the

" present owners acquired control and management of Peti-

tioner in December, 4958, up to August, 1960, there had

been no general wage increases at Petitioner’ s Roswell plant;

Petitioner realized the necessity in 1960 for such wage

increases because it was constantly losing its employees to

"competitors and others who were and are paying much

higher wages than Petitioner pays: accordingly, in. the |

course:of said 1960 negotiations, Petitioner sought. to get

the Union tb agree to a general wage increase in order that

it might be able to maintain an adequate labor force, but

the Union ‘steadfastly refused so to agree, unless Petitioner

would first agree to the: Union’s demand for a “Union

shop” and other concessions, which demands the Union

then knew Petitioner would not accede to; such demand os

by the Union for a “Union shop’? as a price for allowing »

a general wage increase was persisted in by the Union up

until after the institution of: this contempt proceeding on

6 om 8 Safe

November 10, 1960; confronted by the absolute necessity

cf maintaining an adequate labor: force to enable it to”

meet its obligations under its purchase order for delivery

of material for said- National Defense Project, and with

the Union’s refusal to consent to a general wage increase -

without a “Union shop”, Petitioner, in early August, 1960,

was compelled out of. business necessity to set up certain

wage increases, the same being granted in perfect. good

faith and affecting less than half of Petitioner’s employees;

at the next bargaining session, on August 16-17,.1960, Peti-

tioner fully | explained to the.Union’s representatives just

what had been done in respect to the granting of said

limited wage increases and the compelling necessity that

caused them to be put into effect; not a word of dissent

or objection was voiced at said meeting by the Union's

representatives over the granting of said limited wage in-

creases, and Petitiener reasonably was led to believe that

they .were agreeable to the Union, until receipt of notice

on September 10, 1960, of the filing of the “Charge”

that led to this contempt procecding.

It was further shown in Petitioner’s Answer ‘that Re-

spondent through its Assistant General Counsel had noti-

fied Petitioner before the hearing that the wage increases

granted by Petitioner and made the baSis of this contempt

proceeding would be left in effect. (R. 33).

_ Under“the foregoing facts, which are undisputed, Peti-

tioner defended against the charge of contempt upon the

following grounds: (1).-Petitioner had not refused to bar-

gain with the Union with respect ‘to rates’ of pay. and

wages, but such refusal was by .the Union itself in declin-

ing to bargain for and agree upon a general wage increase

without a “Union shop”; (2). the wage increases granted °

by Petitioner to less than half of: its employees were not

tn titi

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cffered in derogation of the Union’s status as* bargaining

representative and in an attempt to win employce allegiance

$

- from the Union, but were given in good faith, solely as the

result of economic and business necessity, since the Union

would not bargain for and ‘agreé upon a general wage in-

crease without a “Union shop”; (3) while there is no

showing in ®his Record that Petitioner ever demanded of

the. Union an indemnity bond or other sgcurity as a con-

dition precedent to the execution of 1 negotiated contract,

nevertheless a proposal that:a performance bond or security.

‘be given by the Union could not amount, as a matter of

law, to bad faith bargaining on the part of Petitioner;

(4) the Union and Respondent had ratified and approved

said limited wage increases given by Petitioner, which fact

should bar them from seckirig to have Petitioner punished

for putting such .increases into effect.

The lower court allowed none of said defenses: ignored

the fact that it was the Union itself that had refused’ to

bi ons for and agree upon a‘general wage-increase without

“Union shop”; treated the enforced order as forbidding

any and all unilateral wage increases, despite the express

language thereof which forbade only those given in deroga-

tion of the Union’s status amd: in an attempt to win em-

ployee Allegiance from the Union; held as a matter of law.

that the bare proposal by Petitioner for a performance

bond from the Union constituted. bad faith bargaining

and contempt; and took no notice of the fact that the

Union. and Respondent had ratified and- approved the

limited wage increases set up by Petitioner and now made

the basis of this contempt proceeding. (R. 60-61).

Having thus thrown out or ignored Petitioner's defenses,

the lower court. proceeded to impose ‘against Petitioner a

8

fine of One Thousand Dollars ($1,000.00) as punishment

for contempt. (R. 61; App. A, p. 21).

The Court of Appeals -for the Tenth Circuit had juris-

diction of the parties hereto by reason of the filing in

said Court on March 17, 1959, of a petition styled Na-

tional Labor Relations Board, Petitioner, v. F. M. Reeves

and Sons, Inc., Respondent, No. 6125, wherein said Board

“sought a decree enforcing its cease and desist order there-

tofore issued against F. M. Reeves and Sons, Inc., pursuant

to 61 Stat. 136, 29 U.S.C.A@ Secs. 151 et seq., particularly

e

Sec. 160 (e), as amended by 72 Stat. 945. Said Petition

for Enforcement Decree appears at pages 1-3'in the Tran- |

script of Record of said enforcement proceeding, nine

copies of which Record were. sent up with this Record.

“The opinion of the lower court in said enforcement pro-

ceeding appears at pages 3-14 in the Transcript- of Record

of this contempt proceeding, and is published in 273 F. 2d

710 (C.A. 10th, 1959). ‘A copy of said Opinion 1s in-

cluded herein as Appendix C, p. 28. The Enforcement

Decree entered thereon by the lower court, and-with the

violation of which Petitioner is now. charged, appears at

‘page 15 of the Transcript of Record of this’ contempt

proceeding. A copy. of said Enforcement Decree is in-

cluded herein’ as Appendix, D, p. 37.

REASONS FOR GRANTING THE WRIT

1. The judgment of the lower court sought to be re-

viewed herein, is clearly erroneous in failing to sustain

‘Petitioner’s defense based on the undisputed facts showing

_ it was the Union itself, and not Petitioner, which had

wrongfully refused to bargain‘and agree with fespect to

wages.

*

,

2 t

(a) As shown in Petitioner’s sworn aaswer (R. x1),

and in the supporting afhdavit of G. E. Pike (R. 58), the

Union refused to bargain fot and agree upon a general

wage increase unless Petition.r would agree to a-““Union

shop” and other Union demands which it was notifed

Petitioner would net consent to. Not a word in this Record

_ gontroverts this plain fact, for Respondent offered no evi-

dence whatsoever. Under such showing it was error to hold

that Petitioner had refused to bargain on wages and had

_ thus violated the enforcement decree. ,

(b) Said judgment of the lower court is in direct con-

flict on-this point with decisions by other courts of appeal.

Thus, where a union persisted in a demand for a union

shop as a condition precedent to a contract, to which des

mand the employer would fot accede, it was held that such

position did “not justify the conclusion of a refusal to bar-

gain”, N. L. R. B. v. Algomz, etc., Co., 121 F.g2d 602,

606 (C.C.A. 7th, 1941). Agzin, where a union would not

agree to.any, wage-increases without a contract containing |

‘a maintenance of union membership clause, contempt pro-

ceedings qgought ky the N-tional Labor Relations Board

charging’ she employer with refusing to bargain. and with

unilaterally granting wage .intreases, were thrown out,

ONS LL. R. B.-v. Standard Trouser Co., 162 F. 2d 1012

(C.C.A: 4th, 1947). Likewisc, where a union‘ refused to

consider wage increases unless further concessions were

made by the Respondent employer, and “it became increas-

insly difficult for Respondent under the existing wage scaie,

either to obtain new employees, or to retain those already

in his employ”, it was held that unilateral wage increases”

should be upheld, and contempt proceedings brought by

the Board should be dismissed, N. L. R. B. v. Norfolk, ete..

’ Corp., 195 F. 24.632. 637 (C.A. 4th, 1952).

fa*

10

2. Said judgment of the lower court is further clearly

erroneous in holding Petitioner’s “gran- ing of the uni-

lateral wage increate « without consent of the “Union con--

stituted contempt” of court, when the Board’s order, en-

forced by the lower court’s decree, sliows on its face that

not all unilateral wage increases were forbidden: thereby,

but only those offered “in derogation of .the Union's status

as bargaining representative and in an attempt to win em-

ployee allegiance from the. Union.” (R. ~~ (Emphasis

supplied). |

(a) The undisputed facts set cut in Petitioner’s sworn

Answer, (R. 31),.and in the st pporting Affidavit of G. I.

. Pike, (R. 58), show that the limited wage increases “here

involved had to be given out of business and economic

necessity, to enable Petitioner to maintain an adequate

labor force whereby it could meet its obligations under its

purchase order for the supply of ready-mixed concrete for

a large and important National Defense Project. With the

Union refusing to consider a necessary general wage in-

erease except on terms Petitioner could not accept, no

other course. was open to Petitioner. These facts show af- ,

firmatively that such wage increases were not granted “in

-derogation of the Union’s status as bargaining representa-

tive and in an attempt to win employee allegiance from

the Union.” The lower court mistakenly assumed that the

_° enforced Order forbade every. unilateral wage.increase re-

gardless of motive., As above shown, such is not the plain

languagé of the enforced Order, and it is the language of

‘that Order which must control. Petitioner cannot be held

guilty under other or different language not in the Order.

(b) Said judgment of the dower court is in’ direct con-

flict on this point with decisions by other courts of appeal,’

J

i. ae: | a

which hold that the motive and circumstances «connected

with, the granting of unilateral wage increases must be

looked to in determining the legality thereof. This is shown

by the cases ercinbefote cited from the Court of Appeals

for the Fourth Circuit, wherein unilateral wage increases:

were upheld, and contempt proceedings lismissed, when it

appeared that the wage increases involved were not granted

for the purpose of undermining the Union, but for other

and entirely legitimate reasons. N. L. Rv B. v. Standard

Trouser Co., supra; N. L. R. B. v. Norfolk, etc., Co., supra.

« Not only does this rule apply to unilateral wage increases

and contempt proceedings brought therefor, but to the

determination of. unfair labor practices as well.. Thus, in

“ leading case of N.L.R.B. . Cleveland Trust Co., 214

. 2d 95 (C.A. 6th, 1954), chi Court of Appeals for the

i Circuit directly held that .unless the wage increase.

is given’ for the purpose of undermining union. power,

‘then there is no unfair labor. practice.. Said the court:

“There ‘is no evidence in the record hat the vacation

increases were determined in order to influence employees

to vote against the Union ... :, No evidence’ was adduced

controverting Respondent’s sworn statement that this in-

crease was made to correct inequalities ‘by. the increase in

the cost of living.” p. 99. Accordingly, enforcement of

the Board’s order was denied. ae

The Cleveland case, supra, was cited and followed i

N.L.R.B. v. Newton Co., 236 F. 2d 438 (C.A. Sth, ates.

wherein the Court of Appeals for the Fifth Circuit over-

ruled the ‘Board’s finding that wage increases had there

been given to discourage unten participation, since it ap-

peared that “there were valid reasons othet. than an effort

to discourage -union organization” for,such increases. Ac=—

a . RL

: >

cordingly, as. to this part of the Board’s order enforcement

was.denied. :

In N.L.R.B: v. Norfolk ete. Corb.s ., supra, the Court af

Appeals for the Fourth Cifcuit, in upholding unilateral

wage increases and | dismissing’ contempt proceedings

brought therefor, said: “There is ground for the view that

the notices were posted not for thé purpose of undercut-

ting the union or impairing its usefulness, but rather in

the belief that the employees . . : might remain in Re-|

spondent’s employ, even in the face of higher wages else-

where.” p. 637.

- The ‘recent case of Cone’ v. N.L®&.B., 235 F. 2d 37 (C.

A. 4th, 1956; cert. den., 352 U.S. 916, 77 Sup. Ct.

214, 1 L.Ed. 2d- 122.), squarely holds that motive for-a

unilateral wage’ increase -is a determinative factor on the

issue of its legality. In sustaining the, unilateral wage in-

creases there involved and denyings enforcement ot the

Board’s order with respect thereto, the Court quoted with

approval from .the Examiner’s report, as follows: “the

Examiner does not find that the raise was given with the

destruction of the Union’s majority as its premeditated

goal... . the factors pointing to a business necessity for

granting the raise-puts the matter of actual motive in:

sufficient doubt for Respondent to be entitled to the bene-

fits thereof”. As here shown, if a real doubt exists as to

the motive for the granting of’a unilateral wage increase,

then the employer is entitléd.to the benefit of that doubt,

In the case at bar there is not even a doubt as to the

motive for the granting of the limited unilateral wage

increases here involved, for the undisputed fact: affirma-

tively show them to aave been given in geod faith, out

of “business necessity”, and with no puzpose of under-

mining. fhe union. .

~~

%.

" 13

To the same effect ae at least two decisions by the

National Labor Relations Board itself. In Libby, McNeil .&

__—4ibby,65 N.L.R.B.- 873, the Board held that the uni-

lateral inauguration by an employer of an incentive plan

was not per se illegal, unless there was proof ‘that the inx,

“creases were part of a plan to undermine the union, in:

Fssex Rubber Co., 50 N.L.R.B. 283,-the Board held that

Wage increases granted by an employer to induce its-em-

ployees to stop resigning and .taking jobs elsewhere with

competitors, should be sustained. - . -

3. Said judgment of the lower court is further clearly

erroneous in holding as a matter of law that the alleged .

proposal by Peticioner that the. Union furnish a perform-

ance bond, whether made,in the form of a request or a

demand, “amounted to a bee to negotiating im good faith

‘and, thereby constituted contempt of this court.” .

(a) As hereinbefore shown, this additional charge of

bad faith bargaining was embodied. in an unsworn motion

for leave to amend telegraphed from Washington directly

to the Court in Denver a-short time before: the hearing.

(R. 35). Petitioner answered said motion and’ resisted the

allowance thereof. (R.- 36-37). No action by the court

‘on this motion is shown in the Transcript though in its

Order the court treated the additional charge as being in

the ‘Record..(R. 61). No order to answer ‘said charge. was

ever issued or served: on Petitioner. Had Petitioner ‘been

_ affofded proper opportunity to file a sworn answer to said

_ allegation after the motion for leave to amend had been

acted upon and allowed, it wo d have been a categorical —

denial of. the contents of this last-minute, anomalous,

telegraphed, Wnsworn pleading, for never at any time did -

Pevitioner insjst upon the Union’S furnishing security for

a

‘a

14

its performance under any contract to be entered into.

Even if the terms used by the lower court in its judgment

" (R. 61) be adopted, it must be seen that submitting a

“proposal” is not “insisting”, nor does making a “request”

constitute “insisting”. Wet the lower court finds no dif-

ficulty in holding in effect that regardless of how the

subject was presented, the bare mention of a performance

vond from’ the Union constituted, as a matter of law, bad

faith bargaining and gontempt of court. Such, it is re-

spectfully submitted, cannot be the law. Congress has never

written into the National Labor Relations Act any. such

provision making it pér se bad, faith or illegal to mention

or submit a proposal for a performance bond from 4 union —

at’a bargaining session, whether ‘by way of demand or :e-

quest. °

(b) Said judgment ‘of the lower court is in direct, con-

flict with a decision rendered in the Fifth Circuit: N.L.R.B. '

v. Taormina, 244 F, 2d 197 (C.A. 5th, 1957), was a con-

tempt proceeding instituted by the Board against an em-

ployer whom.it cMarged with having irisisted on a per-

formance ‘bond or other security as a condition to the

enteriig into a contract with the Union. The recora in

the case and the court’s opinion above cited show that

such a proposal, together with another, had in“ fact been

made, even if it had/not been insisted upon as a condition

“precedent to a contract. Nothwithstanding this fact, the

Court of Appeals for the Fifth Circuit disallowed’ and

dismissed the contempt proceeding. Thus, the court de-

clined to rule as a matter of law that mentioning or sub-

mitting a proposal for a performance bond from the union

constituted bad faith bargaining.

15.

4. Said judgment. of the lower court is further clearly

erroncous in not holding that both Respondent and the

Union had accepted, ratified’ and approved said wage in-

creases granted by Petitioner, and. hence that they are ndw

barred from claiming thevsame to have been unilaterally

given. a

(a), As hereinbefore stated, the undisputed facts -set

forth in Petitioner’s sworn Answer, (R. 31), show that

"at a meeting-of Petitioner’s representatives with represen- .

tatives-of the Union as: bargaining agent for all erfployees,

on August 16; 1960, Petitioner fully explained to the

Union just what had been done with respect to the wage

increases granted: to a part of its employees on August 9,

“1960, and further explained the reasons and_ necessity

therefor. No’ dissent or objection whatever was offered

or raised ‘by the Union's representatives to the granting

of said limited wage increases} so that Petitioner reasonably

was led to believe that the. same were accepted by the

Union, and continued payment thereof. Petitioner con-

‘tinued in this belief until receipt, on or about September

10, 1960, of ‘a copy of the “Charge” filed against it which

‘led to the institution of this contempt proceeding. What

brought ‘about this change of a | on the part of the

Union is nut revealed. | ‘

(b) While the specific question appears not to have

heretofore arisen, it must be the law that:where a union,

"as bargaining agent fo: employees, agrees to a wage in-

crease, it cannot later withdraw that acceptance, claim

‘that the increase: was. unilaterally given by the employer,

and: procure prosecution of the emplover onthe ground

of his having granted a unilateral. wage increase.

It must also be the law that such acceptancé can be

given by a union either before or after the setting up

‘

2

ates bs

16

.

of. the wage increase by the employer. If the union’s assent

comes before the wage increase is given, then surely such

increase is.not unilateral’ or subject to later objection on

such ground. If the union’s assent comes after the wage

increase, by way of acceptance, ratification or approval,,

it must equally be“trie that. stich wage increase is not

unilateral or subject to later objection on such ground.

- There is nothing in the National Labor Relations Act or

‘in the case law thereunder that nullifies the basic rules of

_ the law of ratification or of the acceptance of offers.

Such assent can be and here was, signified by silence

and failure to object, when the parties were assembled

for the very purpose of negotiating on wages, and wer?

under duty to communicate with each other fairly, freely

° ; . . *

and honestly with respect to the subject of wezes then

under consideration. Such assent was further manifested

by the conduct of the employees and their Union in ac-

cepting and collecting continued payment of such increased

wages, without protest or objection. It has been specificall ;

held that .where an employer makes a unilateral wag?

modification, and employees show assent ‘by. conduct, such

action ceases to be unilateral action by the employer, for

it has thus become bilateral. General Electric \Co. v. Porter,

208 F. 2d 805, 813 (Headnote 7) (C.A. 9th, 1953; cert.

den. 347 U.S. 951, 975: 74 S. Ct. 676,.787; 98 L. Ed.

1097, 1115). Paty.

The scene here presented ic nothing short of shocking

to one’s innate sense of justice, which shows a Union

leading an erhployer reasonably to believe at a bargaining

session that limited wage increases granted shortly there-

tofore were acceptable to the Union, as bargaining. agent

for all employees, only to have such increases used weeks

o

ae

later as a basis for contempt proceedings instigated by

the Union. against the empleyer. The sceng is rendered

doubly shocking when it appears that the National Labor

Relations Board, which acts as prosecutor’on behalf of the

Union -in the contempt proceeding, has notified the em-

- ployer that although it is to be punished for granting the

wage increases in question, nevertheless the same are to —

remain unrevoked. (R. 33). The plain legal effect of such

notification is ratification by the Board of the wage in-

creases as granged, but neverthele®s Petitioner is to be

punished. This f indeed a strange spectacle in the adminis-

_ tration of justice. Petitioner respectfully submits it is one

‘that ought not to be allowed to stand.

CONCLUSION

. Burden of Proof.

In a contempt proceeding the burden of proof rests

= the Board to establish the -alleged offense. N.L.R.B.

. Cleveland Trust Co., supra, at p. 99, citing numerous

cases; N.L.R.B. v. Little Rock Furniture Co., 123 F. 2d

868 (C.C.A. 8th, 1941).

This burden is a heavy .one and calls for “clear and

convincing proof” to meet it. N.L.R.B. v. Standard

Trouser Co., supra, at p. 1014.

This .heavy burden is imposed: doubtless because “con-

tempt of court is indeed a very grave thing and we are

not disposed to make strained and extreme construction

of May De partment Stores Co. v. N.L.R.B., 326 U.S. 376,

66 S. Ct. 203, 90 L. Ed. 145, in order to spell out some °

theoretical and abstract violation of the Court’s order, with

facts such as are before us”. N.L.R.B. v. Standard Trouser

Co., supra, at p. 1015. |

°

of

ids

Not only did Respondent in the case at bar fail to meet

the burden resting upon it, but the undisputed facts. af-

firmatively show no violation of the lower court’s decree.

2. Importance Of. This Case.

This is an important case, not alone to Petitioner which

has been held in contempt of court and fined a substantial

sum, but to the general public as well. It is impossible to

‘read this Record without being impressed with the fact

_ that here a Union has been playing a crafty game against

an employer caught. in a vicious situation where the Union

would not allow a general wage increase, and without such.

wage increase the employer could not maintain an adequate

labor force. Having the upper hand, the Union determined

to exact its price, in the form of a “Union shop”, even

though it meant fighting increased wages, for labor. Since

the employer continued to resist, the:game was played by

the Union until it felt the time ripe for springing the

trap, which was done by filing a “Charge” that would

bring on 2 contempt.proceeding, and at the last moment

- injecting-into the record an allegation of. bad faith bargain-

ing: based on facts which, if they existed, must have been -

Known to the Union all along, but were withheld for use

as a last-minute surprise tactic. For the protection of ©

employers, laborers‘ and ‘the public at large, such abuse

of the bargaining process, it is respectfully submitted,

ought not to be tolerated. .

For all of the foregoing reasons Petitioner respectfully

submits that (1) writ of certiorari should issue to bring

up for review the judgment kerein of the Court of Ap- |

peals; (2) the judgment of the Court of Appeals should

be reversed and ‘set aside; (3) this contempt proceeding

should. be dismissed: and (4) the fine of $1,000.00 assessed

;

19

against it should be ordered repaid to it; for all of: which

relief Petitioner prays.

Respectfully submitted,

9

Scott TOOTHAKER

1630 North Tenth Street

McAllen. Texas

Attorney for Petitioner

Of Counsel:

_Ewers, Tootmaken, FAveERs,

Ekicx, JONEs & ABBOTT _

1630 North Tenth Street

McAllen, Texas

Matcotm McDerMotTr

801, Quince Avenue

McAllen, Texas

PROOF OF SERYICE

I, Scott Toothaker, attorney for F. M. Reeves and Sons,

Inc., Petitioner herein, and a member of the Bar of the

Supreme Court of the United States, hereby certify that

on the___.._day of March, 1961, I served copies of the

foregoing Petition For A Writ of Certiorari on the several

parties in interest, as follows: 7

1. On the United States, by mai'ing a copy in.a duly

addressed envelope, with air mail postage prepaid, to The

Solicitor General, Department of Justice, Washington 25,

D.C.

2. On the Nisin Labor Relation: Board, by mailing

a copy in a duly addressed envelope, with air mail postage

prepaid, to Stuart Rothman, Esq., its Chief Counsel, at

the office of said Board, Washington. 73, DA

20 ;

3. On the attorney of record for the National Labor

Relations Board in the court below, by mailing a copy in

a duly addressed envelope, with air mail postage prepaid,

to Marcel Mallet-Prevost, Esq., Assistant General Counsel,

at the office of said Board, Washington 25, D.C. |

Scott TOOTH'AKER

Attorney for F. M. Reeves

and Sons, Inc..

Address:

r 1630 North Tenth Street

ois McAllen, Texas

|

21

“pe.

APPENDIX A «©

Order “Ad judging Contempt

PILE D

United States Court of Abou

“Tenth Circuit

January 19, 1961

Robert B. Cartwright, Clerk

‘UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT’

Before. SAM G. BRATTON and JOHN: C. PICKETT,

United States Circuit Judges, and CARL A. HATCH,

United States District Judge, assigned.

v-

Number 6125

NATIONAL LABOR RELATIONS BOARD, Petitioner

im

F. M. REEVES AND SONS, INC., Respondent

ORDER

This cause came on to be heard on petition of the Na-

tional Labor Relations Board for an adjudication in civil

contempt and for other relief. Allison W. Brown, Jr,

appeared for the Petitioner, and Scott Toothaker appeared

for Respondent, and was argued to the court.

ON CONSIDERATION WHEREOF: It is the onder

of the court based upon the record in the above- entitled. ;

cause and the statements gf counsel; that the ‘granting *

of the unilateral wage increase without consent of the

22.

Union constituted contempt of this court; and that the —

performance bond: proposal submitted on two occasions,

whether characterized by counsel as a request or demand,

amounted to a bar to negotiating in geod faith and, there-

_ by, constituted contempt of this court.

IT IS FURTHER ORDERED: That the punishment.

of Respondent, F. M. Reeves and Sons, Inc., for the above

contempt which the court considers under the circum-

stancés as a minimum is a fine of $1,000 for past of

contempt. = 4 i ry

IT IS FURTHER ORDERED:. That the National Labor

Relations Board’s prayer for costs and for attorneys’ fees

in this cause be and the same is hereby denied.

Approved as to form:

/s/ ALLISON W. Brown, JR. 17 Sam G. BRATTON

Allison W. Brown, Jr. © © Sam G. Bratton

For Petitioner, a U. S. Circuit Judge

/s/ Scott TOOTHAKER /s/ JoHN C. Pk&KETT &

Scott -Toothaker John C. Pickett |

For Respondent United States Circuit

| . Jud ge

9 /s/ Cart A. Hatcu

Carl A. Hatch

U. §. District Judge

23

° APPENDIX B

Decision and Order of N. L. R. B.

On February 28, 1958, Trial Examiner Wallace E.

Royster issued his Intermediate Report in’ the above-entitled

proceeding, finding that the Respondent had engaged and

was engaging in unfair labor practices within: the meaning

of Section 8 (a) (5), and (1) of the Act, and recom-

mending that it cease and desist theggfrom and take certasn

affirmative action, as set forth in the copy of the Inter-

mediate Report attached. hereto. Thereafter, Respondent

filed exceptions to the Intermediate Report and a support

ing brief. ; jo

Pursuant to the proyisions of Section 3 (b) of the Act, .

the Board has delegated its pewers in connection with this

case to a. three-member panel. | 7

The Board has reviewed the rulings made by the Trial

Examiner at the hearing and finds that no prejudicial error

was committed. The rulings are hereby afhirmed. The

Board las-considered the Intermediate Report, the excep-

tions and brief, and the entire record in the case, ' and

hereby adopts the findings, conclusions, and recommenda-

tions of the Trial Examiner with the following additions

and modifications. a a

We agree with the Trial Examiner that the Respondent

violated Sections 8 (a) (5) and (1) of the Act. In our

_ opinion, the entire pattern of the Respondent’s conduct

demonstrates that the Respondent was not motivated by.

a good faith doubt of the Umion’s majority representative.

“status in an appropriate unit when it declined to recognize

and bargain with the Union and insisted on a -Board- .

conducted election as condition precedent to bargaining

with the Union. Thus, while it sought to defend its action

on the grounds‘of lack of majority, we note that it did not

Respondent’s request for oral argument ts hereby denied as

the record and brief adequately set forth the facts and positions

of the parties

24

question the Union’s majority at the time of request, but -

waited instead to raise the question for the ‘figst time at

the hearing, and when. it did so, it sought to bolster the

alleged doubts with such untenable grounds * as: (1) the

Union may have lacked a majority because 4 card signers

were temporary employees; (2) the presence of representa-

tives of the Operating Engineers at the meeting wherein

‘the Union requestedegecognition raised the possibility that

recognition might result¢in 8 (a) (2) charges; and (3)

in any event, the Board would not assert jurisdiction over

the Respondent. Further, in the interim and shortly after

the request to bargain, in total disregard of the majority’

claim of the Union, the Respondent unilaterally granted

a wage increase and other benefits.

From all this, we conclude that the refusal was merel?

a delaying tactic to gain time and. take action to dissipate

the. Union’s: majority and. win employee allegiance from

the Union. Such conduct ‘has heretofore been heid to con-

stitute-a refusal to bargain in good. faith. * We so find here.

Apart’ from the foregoing, we find; as did the Trial

Examiner, that the Respondent violated Section 8 (a) (5)

and (1) of the Act by unilaterally instituting wage in- °

creases and other employment benefits on September 5.

‘ORDER .

Upon the entire record in the case and pursuant to

Section 10 (c) of the National Labor Relations Act, as

amended, the National Labor Relations Board -ltereby

2 As to these grounds, it appears that the questioned employees

were not temporary, except possibly one, ‘and, therefore, even is:

suming one temporary employee, the Union still had a majority:

the Operating Engineers made clear that,they were not a rival’

union to the Teamsters: and she Board had asserted jurisdiction ~

in F. M. Reeves and Sons, Inc., 1i2 NLRB 295 and the Responden’

stipulated as to jurisdiction in the instant matter.

a A. © Gilbert Company, 110 NLRB °2067, 2069) Harrisburg

Building Units Co.. Inc.. 116 NURB 33%, and Traders Oi) Company

of Houston, 119 NILRB No. 109. ag

25

‘ } ‘ & °

orders that Respondent, F. ™M. Reeves and Sons, Inc., Ros-

well, New Mexico, its officers, mene, successors and as-

signs, shall:

’

1. Cease and desist from::

(a) Refusing t& bargin with the Union-as the exclusivé

representative of all of its employees in the unit found to

be appropriate and set. forth in the Intermediate Report

with respect to rates of pay, wages; hours of employment,

or other conditions of employment.

(b) Refusing to bargain with the Union, offering wage ~

increases and other employment benejits in derogation of

the Union’s status as bargaining representative and in an

attempt to win employee allegiance. from the Union, or

using any other unlawful device to interfere with, restrain”

or cserce its employees in’ the exercise of their right to

self-organization, to form; join, or assist labor organiza-

tions, to bargain collectively through representatives of

their-own chéosing, and to engage in concerted activities

for the purpose of collective bargaining or other mutual

aid or protecxion, as guaranteed in Section 7- of the Act,:

or to refrain from any or ‘all such activities, except to

the extent that such right may be affected by an agreement

requiring membership in a labor organitation as a condi-

tion of employment as authorized by Section 8 (a) (3)

of the Act, ©

2. Take the following affirmative action, which the

Board finds wili effectuate the policies of the Act:

(a) Upon request, bargain collectively with the Union

as the exclusive representative ofthe employees in the unit

found appropriate, with respect to rates of pay, wages,

hours ‘of work, and other conditions of employment, and if

an understanding is reached, emhody.sush understanding |

in a wtitten agreement. oe (

(b) Upon, unconditional request, rettrn any striker to

his employment, discharging, if .necessary, any -replace-

ment hired on or since September 5,.1957.

a ‘

26 ©

¢c) Post at its plant in Roswell, New Mexico, copies

of the notice attached hereto marked “Appendix”. ‘ Copics

of the notice, to be. furnished by the Regional Director

for the Sixteenth Region, ‘shall, after being duly signed

by the Respondent’s representative, be posted by the Re-

spondent immediately upon receipt thereof, and maintained

by it for a period of at least sixty (60) consecuttve days

thereafter in conspicuous places, including all places where

» notices to employees are customarily posted. Reasonable

steps shall be taken by the Respondent to insure that said

notices are not altered, defaced, or covered by any other

material, | ons

- (d) Notify the Regional Director for the Sixteenth

Region in writing, within ten (10)<days from the date

of this Order, what steps the Respondent has taken to

comply therewith.

Dated, Washington, D.C., Oct. 13, 1958 .

Boyd Leedom, Chairman

Stephen S. Bean, Member

_ John H? Fanning, Member

. National Labor Relations Boar

[Seal ] . .

ye ORDER CORRECTING DECISION AND ORDER

On October 13, 1958, the Board issued & Decision and

Order in the above-entitled proceeding in; which there ~

were inadvertent omissions.

At Is Hereby*Ordered that the said Decision and Order

~ be, and it hereby is, corrected as follows:

4 In the event that this Order is enforced by decree of a United

States Court of Appeals there skall be substituted for the word-

“Pursuant:-To A Decision Arid Greer” dhe words “Pursnant To A

Decree Of. The United. States Court of Appeals Enforcing An”

Order.”

8

27

1. By ‘inserting the word “by’ ‘between . the words

“union,” and “offering” in the first line of -paragraph 1.

(b) on page 3; and

2. By inserting the word “or” berween. the words

“Unton” and “in” in line 3 ef the second full paragraph

of the Appendix.

‘Ie Is Further Ordered that the said Decision and -Order, °

as printed, shall appear as hereby. corrected.

Dated, Washington, D.C., February §, 1959.

By direction of the Board: © ° ._

' Frank: M. Kleiler . ’

Executive Secretary

28

APPENDIX C

- Opinion Granting Enforcement of N: L. R. B.-Order

UNITED STATES COURT OF APPEALS

, TENTH GRCUIT

No. 6125 ~~ November ‘Term, 1959

NATIONAL LABOR RELATIONS BOARD,

Petitioner

\r.

rE M. REEVES AND SONS, INC., Responde nt

On Petition for Enforcement

— of:an Order of the.

National Labor Relations Board

(December 17, 1959),

Fannie M. Boyls, Attorney,- -NLRB (Stuart ee ene Gi.

Counsel, Thomas J. McDermott, Assoc, Gen. Counsel,

Marcel Mallet- Prevost, Ass’t Gen. Counsel, and Arthur C.

Katims, Attorney, NLRB, with.her on the brief), for -

~ Petitioner.

Scott Toothaker, McAllen, Texas, (Ewers, Toothaker,

Ewers, Elick, Jones & Abbott, of counsel), for Respondent.

a BRATTON, PICKETT 4nd BREITENSTEIN,

Circuit Judges. + . :

PICKETT, Circuit Judge.

In this procéeding the National Labor Relations. Board

seeks enforcement of its order requiring F. M. Reeves and

Sons, Inc., herein referred to as “respondent,” to bargain

ba A

29

: x .

with Local Union No. 492 of .the International Brother-

hood of Teamsters, Chauffeurs, Warehousemen and Helpers

of America, as the exclusive bargaining representative of

its employees in an appropriate unit, to cease and desist

from unilaterally offering wage increases or other em-

ployee benefits, and also upon unconditional request to

return any striking employee to his employment, “The

“order was based on the Board's conclusion that respondent

had committed an unfair labor practices proscribed by

Sections § (a) (1). and (5) of the National Labor Rela-

tions Act, 29 U.S.C.A. §158 (a) (1) and (5).’ |

. At the outset, it is necessary to consider respondent's

contention that the Board's set -limiting jurisdictional

standards made the assertion of jurisdiction improper in

this case. To better effectuate the purposes 6f the Act and

to promote the prompt disposition of major cases, the

Board has from tinge to time established these standards in

' The Trial.Examiner found:

“Respondent is a Texas corporation with+its principal ottice

and place of business at Heban, Texas. In Roswell, New Mexico,

it is engaged in the business of mining and supplying sand, gravel,

concrete aggregate, and’ ready-mixed concrete to building contri

tors. In the. 12-month period preceding the issuance of the com-

plaint. the Respondent sold goods and materials valued in’ excess

of $100,000 to certain wéntractors performing sergices at Walker

Air Force Base, Roswell, New Mexico. A!l of these sales appear

to have been made to subcontractors performing work on | the

base. About $73,000 was billed to them as a Yesuit of materials

<upplied under formal éontract’ anc about $39.000 on purchases ar

ranged less formally. Considering, that the Respondent int the

period mentioned supplied goods and ‘services having @ value in

excess af $100,000 to organizations performing work on a National

Defense installation, I conclude tha: the Board's jurtsdictional

criterion in that respect is) satestied, Although the assertion Was

made that the period here considered is not a representative one,

no substant’al evidence to support that positi®n was otfered.”

o(Footnotes omitted). With some additions, the Board adopted the

’ Examiner's findings, conclusions and recommendations.

of

.

“ 30

order to reflect its policy of handling only cases having

significant, impact gn interstate commerce. See Guss i.

Utah Labor Board” 353 U.S. 1; Maytag Aircraft Corp.,

110 N.L.R.B. 594. Although the Board had held in West-

port Moving and Storage Co., 91 N.L.R.B. 902, that juris-

diction would be asserted over “enterprises which sub- ~

stantially affect the natienal defense,” that principle was

restricted in Maytag Aircraft Corp., supra, wherein it was;

announced that thereafter jurisdiction -would be asserted _

“over enterprises of this type. only if they are engaged

in providing goods or services directly related to national

defense pursuant to Government contracts, including sub-

contracts, in the amount of $100, 000 or more a year.” The

latter standard was in effect when the complained-of prac-

tices were committed. * The Trial Examiner concluded

that this standard was satisfed by respondent’s activity

which included furnishing approximately $112,000 worth |

of goods and services during the year preceding the issuance

of the. complaint to organizations performing work on

the Walker Air Force Base. When the activities of the.

employer have sufficient impact on- interstate commerce

to invoke the jurisdiction of the Board, it has, in most’

cases, discretionary-.authority in deciding the extent to

eer it will exercise its jurisdictional power. N.L.R.B.

_ Denver Building & Construction Trades Council, 34)

U. S. 675; Guss v. Utah Labor Board, supra. But see Office ,

Employees International Union v. N. L. R. B., 353 U.S

313. We find no merit to respondent’; contention chen

sales which constitute the $112,000 amount were not such

as to bring respondent within the criteria established by

the Maytag case. The evidence is clear that al! the ‘material

2 On October 2. 1958 the Board readopted the standard an

nounced in the Westport case. 42 LR IRM. 96-97,

: oe ,

in question was furnished to and was. used by contractors

for construction required by government contracts in con-

nection with a National defense project at Walker Air

Force Base. It is immaterial that some of the material may

have been used. to construct recreational facilities .on the

base. The Board was satisfied that the jurisdictional - ‘require-

ments were present, and we agree.

Respondent relies on N.L.R.B. v. Guy F. Atkinson Co.,

9 Cir., 195-F. 2d 141, in support of its contention that

the Board abused its discretion by asserting jurisdiction

under conditions. which did not meet the Maytag standard.

- This reliance is misplaced. In the Atkinson’ case the Board

had refused, for many years, to assert jurisdiction over

~ the operations of the emplover. The Board then changed

its policy and assumed jurisdiction over various unfair

labor practices which had occurred before the policy

change. The court refused to enforce that part of the

» Board’s order that referred to conduct completed before

the later policy was in effect. Here there was no Basis for

such reliance by the respondent. In a 1955 representation

case, jurisdiction was asserted over this same organization,

the Board having concluded that the -jurisdictional facts

almost identical to those in. this case a ere the Maytag

standard. It was there said:

“The Employer contends the Board should not as- |

sert jurisdiction over its Roswell operation in the light ~

of F. M. Reeves and Sans, Inc., 111 N.L.R.B. 186,

wherein the Board dismissed a representation petition

because the Employer's operations did not meet its

- jurisdiction standards. The’ record now before, the -

Board’ shows the-Employer’s Roswell operation sold,

under contract, materials valued at about $110,000 to

contractors performing work at a military installation,

the Walker Air Force Base * * *” F. M. Reeves and

Sons, Inc.,’112 N.L.R.B., footnote 1.

~~

32

Under the particular facts of this case the Board. did not:

act unfairly or in abuse of its discretion by asserting juris-

diction over respondent. See N. L. R. B. v. Jones Lumber

Co., 9 Cir., 245 F. 2d 388; N. L. R. B. v. Parran, 4 Civ.

237 F. 2d 373; Optical. Workers’ Union v. N. L. R.-B.

§ Cir., 229 F. 2d 170, cert. denied 351 U.S. 963; N. L. R. B.

v. Stoller, 9 Cir., 207 F. 24 305, cert. denied 347 U.S. 919.

» With respect to the merits of the petition for enforce-

ment, the only question is whether substantial evidence ©

appears in the record, considered as a whole, to support

the aig that unfair labor practices were committed.

N. L. R. B. v. Hamilton, 10 Cir., 220 F. 2d 492; Allas

gs Ins. me v.N. L. R. B.,.10 Cir, 195 F. 2d 136;

_L. R. B. v. Stewart, 5 Cir., 207 F. 2d 8. The record

pare that respondent, 1 Texas corporation, operates a

ready mixed concrete, rock, sand and gravel business in

Roswell, New Mexico. On August 27, 1957 a meeting was

held between management representatives Morris Trent

and ‘. T. Sanders. and labor representatives Faro Caudill .

of a Teamsters, James Price of the New Mexico Building

and Construction Trades Council; and two other men

representing the ‘Internationa! Union. of Operating En-

gineers, Local 953. Caudill requested respondent’s recogni-

tion of the Teamsters Local, stating that a majority of

respondent’s employees had designated that union to be

their ‘bargaining representative. Although Caudill had in

his possession the signed membership cards, neither Sanders

nor Trent inquired as to the exact number. of cards or

asked to examine them. While there was a conflict iri the

evidence as to whether the cards were actually physic ally

offered to Sanders and Trent, it is abundantly clear that

Caudill proposed that the cards be turned.over to a neutral

party. who could then determine by referring to respond-

33

ent’s payroll whether a majority of: the employees had

signed cards, This proposal was rejected. During the course

of the- meeting there was some discussion concerning the

fact that several of the employees were ‘emporary and it

apparently was agreed that the number of employees in

the appropriate. bargaining unit would have to be deter-

mined without reference to those temporary employees.

Because the meeting was held for the purpose of con-

sidering the Teamsters’ request for recognitior, some doubt

was expressed by Sanders and Trent as to the reason for

the ptesence of two representatives of the Operating En-

gineers Union. There was substantial evidence to the effect

that the Operating Engineers Union was only interested

in advancing the Teamsters’ bid for recognition and that

it was not a rival union. The evidence convincingly shows

that the decision not to, recognize or bargain with the

Teamsters Union was in a large part made because of the

expectancy that the Board would not assert jurisdiction

over the dispute. rather than because of a doubt as to the.

majority status of the union. On September 5, 1957, several

days after the meeting, eleven of respondent’s employees

staged a strike protesting their employer’: refusal to recog-

nize their representative. On the first day of the strike,

Trent informed the employees not. participating in the

strike that a 25¢ per hour wage increase was to be put into

effect immediately and, in. addition, promised increased

Vacation time and the —— of more regular working

hours.

It was stipulated. by the parties that twelve employees

had signed cards by August 27. In addition; the Trial Ex-

aminer found that there were twenty-four employees.

working for respondent on that date but that only twenty-

one of them performed the ty pe of work that would make

{

'

|

\ 34

their inclusion in the’ bargaining unif appropriate.’ On

these record facts it was*concluded that Sections 8(a) (5)

and (1) of the National Labor Relations Act were violated

botfi by respondent’s refusal to recognize and bargain with

the union and by the unilateral grant of employee benefits.

An emplover’s refusal to bargain i is an unfair labor prac-

tice when it appears that a union has been designated by

a majority of employees in an appropriate. unit and that

the refusal is without good faith. N..L. R. B. t. Hamilton,

supra; N. L. R. B. v, oo Cheese Co., 3 Cit.. 213

F. 2d 70; N. L. R. B. uv; Lunder Shoe Corp., 1 Cir., 21

F. 2d 284. There is letle room for argument as to the evi-

dentiary support for .the first requirement. Conc edly

twelve employees had signed cards. Althdugh the Trial Ex-

aminer concluded that one of the card-signers who ordi- -

narily would have been included in the unit was a tem-

porary ‘employee and. therefore not to be recognized in

deterrhining whether a majority existed. the proper calcu-

lation still was eleven union members out of the twenty-

employee baragining unit. But respondent contends that

an additional three card-signers were temporary employees.

Although these’ three: had initially worked on a temporary

project for respondent, they were employed on August 27

in the performance of duties incident to the regular con-

duct of respondent’s business. Substantial evidence shows

that the required majority existed at the time’ when re-

spevdent refused to recognize the union.

Neither is there merit | respondent’s contention that

its ‘refusal to bargain was made in good faith. There is

-nothing to indicate that either Trent or. Sanders enter-

% The test for determining which of the emnplovees were to he

included in the unit was established by the Board in 1055. FM

g

Reeves and Sons, Inc.. 112 Nui..RB. 205

35

_ tained a doubt as to the existence of a majority. To the

contrary, there is evidence that Sanders expressed the view

that he did not doubt the truth of the assertion that a

majority of the employees had designated the union. It jis

also argued that the knowledge that possibly four of the

employees were temporary and therefore not to be con-

sidered in determining the existence of a majority furnished

a basis for a good-faith doubt by respondent’s: representa-

tives, This suggestion is untenable for the reason that the

record fails to disclose that either Trent or Sanders knew

that these four employees had -signed cards or that a ma-

jority would not exist without their inclusion. The re-

~. spondent also attempts.to excuse itself for its failure to

recegnize the union and bargain with it because there. were

present at the meeting representatives of another union.

Iti urged that because of this, respondent's representatives

were put in a position of not knowing which of the two

‘unions to deal with. But whatever the relation between the

two unions may have been, it ir certain that the representa-

tives of the Operating Engineers Union were making no

attempt to interfere with the Teamsters’ ‘id. for recogni-

tion, and that the respondent’s representatives must have.

known from what was said at the meeting that recognition

was sought by only one union.'

% In connection with these contentions, the Roard concluded:

“We agree with the Trial Examiner that the Respondent vio-

lated Sections S¢a)yi5) and (1) of the Act. In our opinion, the en-

tire pattern of the Respondent's conduct demonstrates that) the

Respondent was not motivated by a good faith doubt of the

Union's majority representative stayue in oan appropriate unit

When it declined to recognize und bargain with the Union and

ao Istesf on a. Board conducted election as condition precedent. to

bargaining with the Union. Phos wirile it) sought to defend. its

action on the grounds of lack of majority! We sete that it did not

question the Union's majority, at the time of request. but waited

instead to raise the question for the first time at the hearing, and

When it did so. it ‘sought to bolster the alleged dowbts with such

36,

The Board also concluded that the unilateral offering of

Wage increases and other empleyee bene‘its constituted .

violation of the same two sections, and part of the Beard’s

order is directed specifically to this phase of respondent's

conduct. Of course the, granting of the employee benefits

appears to have constituted a violation of Section 8(a) (1),

and coming as it did ag a time when respondent was refus-

img to-bargain with the union, it also would-seem clear that

‘Section 8(a)(5) was thereby violated. But respondent con-

tends that the decision to grant the benefits, or at least the

wage increases, was arrived at during the preceding spring

when union pressures were not being felt. However, there _

is adequate support. from the record, considered as a whole,

for the Boara’s inference that the announcement on the

opening day of the strike that there would be increased

benefits violated the two unfair labor practice sections.

N. L. R. B. v. Crompton-Highland Mills, Inc., 337 US.

217; May Department Stores Co. v. N. L. R. B., 326 USS.

376; N. L. R. B. v. Burton-Dixie Corp., 10 Cir., 210 F.

2d199; N. LL. R. B. v. Valley Broadcasting Co., 6 Cir.

189 F. 2d 582; and see N. LR. B. v. Browning, 0 Cir..

268 F.2d 938. |

The order will be enforced:

‘ @

untenable grounds a=: (1) the Union muy have lacked a majority

because 4 card signers were temporary employees: (2) the presenc:

of representatives of the Operating Engineers at the meeting

wherein the Union requested recognition raised the possibility

that recognition might result in S(as¢2) charges: and (3) in ans

event, the Board would not assert jurisdiction over the Pespond

ent. Further. in’ the interim and shorly after the request to bur

gain, in toto! disregard of the majority claim, of the Union. the

Respondent unilaterally granted a wage increase and other ben:

fits. ‘

Krom all this. we conclude that the refusal was merely “a dé

laying factic to gain time and take action to dissipate: the Union's

majoriiv and win employee allegiance from the Union. Sch con-

duct has heretofore been held to constitute a refusal to bargain

in good faith. We so find here.” (Footnotes omitied).

37

APPENDIX D_ | :

Enforcement Decree

UNITED STATES COURT OF APPEALS

- FOR THE TENTH.CIRCUIT

FILED

United “States Court of

Appeals - Tenth Circuit

Jan 18 1960

Robert B Cartwright

‘Clerk °

~ Number 6125

NATIONAL LABOR RELATIONS

BOARD, Petitioner;

v. :

F. M. REEVES AND SONS, INC.,

Respondent.

DECREE ”

Before: Bratton, Pickett and Breitenstein, Circuit Judges.

_ FHIS CAUSE came on to be heard upon the petition

of the Nation§? Labor Relations Board for the enforcement

of a certain order issued by it against t!c Respondent F. M.

Reeves and Sons, Inc., on October 13, 1958.-The’ Court

heard argument of respective counsel on September 11,

1959, and has considered the briefs.and transcript of record

filed in this cause. On December 17, 1959, the Court being

fully advised in the premises. handed down its “decision

granting enforcement of the Board’s order.

_ ON CONSIDERATION WHEREOF, it is ordered, ad-

“judged and decreed by the United States Court of Appeals

foi the Tenth Circuit that the said order of the National

Labor Relations Board in said proceeding be enforced, and

td

38

that F. M. Reeves and Sons, Inc., its officers, agents, succes-

sors, and assigns, abide by and perform the direction of

the Board in said order contained. |

/s/ Sam G. Bratton

; Judge, United States Court ot

Appeals for the Tenth Circuit

Dated: January 18, 1960.