NLRB v. WHITELIGHT PROD. DIV. OF WHITE MR & S. CORP., 5870

Citation298 F.2d 12
Decision Date15 January 1962
Docket Number5877.,No. 5870,5870
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. WHITELIGHT PRODUCTS DIVISION OF WHITE METAL ROLLING AND STAMPING CORPORATION, Respondent. UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Melvin J. Welles, Atty., Washington, D. C., with whom Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, and Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D. C., were on brief, for National Labor Relations Board.

Robert Abelow, New York City, with whom Marshall C. Berger, William J. Abelow and Weil, Gotshal & Manges, New York City, were on brief, for respondent in No. 5870.

Allan R. Rosenberg, Boston, Mass., for petitioner in No. 5877.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

ALDRICH, Circuit Judge.

These two matters were heard together. The first is a petition for enforcement of a Labor Board order against Whitelight Products Division of White Metal Rolling and Stamping Corp., a New York corporation, hereinafter employer, following a charge by the United Electrical, Radio & Machine Workers of America, hereinafter the union. The second is a petition by the union to review the dismissal of a portion of the complaint. All of the immediately significant events took place in North Walpole, New Hampshire, between Monday and Friday, August 15 to 19, 1960.

For many years employer had operated a mill in Brooklyn, New York. In 1959 it opened a plant in North Walpole to assemble various types of ladders from magnesium extrusions it produced in Brooklyn. Active operation commenced in March 1960. At this time the workers were inexperienced. By August 15 there were some twenty-four employees in the production and maintenance departments, having varying seniority. The morning of that day the largest of the three Brooklyn extrusion presses suffered a serious breakdown, forecasting a production shortage of several months. North Walpole was informed by telephone and advised to make plans for a reduction in personnel. Word of the breakdown spread through the plant. That afternoon one Belden, a production employee, telephoned the union, and on Tuesday and Wednesday morning eighteen of the employees signed authorization cards. Wednesday noon the union organizer and a committee of the employees, with Belden as chairman, called upon the plant manager and demanded recognition. The Board found that the organizer offered to show the cards, but that the manager's reply was that he would give an answer on Friday. He agreed to take no steps to interfere with the union in the meantime. That afternoon the manager summoned Belden to his office and made some legitimate inquiry about the union, and some that was illegitimate. He was informed that there would be a meeting of the committee at the home of one Smith that evening. That evening he twice drove by Smith's house. His testimony as to his reasons for doing so was not specifically contradicted or impeached.

On Thursday morning the manager engaged in what the trial examiner found to be highly improper vocal anti-union activity. Thursday afternoon he discharged Belden and Smith, and laid off four other employees. Five of these six were members of the committee. That same day the union filed a petition for certification. On Friday the manager stated that since the union had requested an election, this was its "answer," and that he would not recognize the union without the election. The union then filed the present charges, dismissing the certification proceedings.

After a three-day hearing the trial examiner found that the employer had discouraged membership in the union in violation of section 8(a) (3), 29 U.S. C.A. § 158(a) (3), had refused to bargain in accordance with 8(a) (5), and had engaged in unfair labor practices within the meaning of section 8(a) (1). He recommended an order compelling the employer to bargain with the union and to reinstate the two discharged and four laid-off employees with back pay. The Board affirmed all findings, except as to Belden. Before us the employer criticizes many of the findings and all of the conclusions, and particularly attacks the order that it should bargain with the union in the absence of any prior certification. The union complains because the trial examiner's finding in favor of Belden was rejected by the Board.

The underlying basis for the trial examiner's decision was his opinion that the plant manager's testimony was wholly unreliable. In large measure we are not unsympathetic with that determination, but we believe that the examiner allowed his not unnatural distaste to get the better of his judgment. This caused him to disregard what seem to us inescapable facts, and to make findings either not supported by the evidence or in some instances contrary thereto. However, we cannot at all accept the employer's contention that it engaged in no improper activities. To do so we would have to say that the Board, as matter of law, must treat statements such as there will be no merit raises if the union comes in, and instead of monthly raises a single raise once a year which will be five cents, and that the plant would operate only eight months instead of twelve, as benign observations of fact. There is no evidence that they had any factual basis. The employer overestimates our credulity.1

Furthermore, the Board was warranted in finding that the manager's refusal to recognize the union on Wednesday, when it offered the card check, was a violation of section 8(a) (5). N. L. R. B. v. Hamilton, 10 Cir., 1955, 220 F.2d 492; N. L. R. B. v. Scott & Scott, 9 Cir., 1957, 245 F.2d 926. It did not cease to become such by the union's filing a certification petition, or by its dismissing it. N. L. R. B. v. Kobritz, 1 Cir., 1951, 193 F.2d 8; N. L. R. B. v. Sunrise Lumber & Trim Corp., 2 Cir., 1957, 241 F.2d 620, cert. den. 355 U.S. 818, 78 S.Ct. 22, 2 L.Ed.2d 34. Even bona fide doubts by the employer, which the Board did not find, that this was a "true" majority, rather than the result of a "whirlwind campaign" which would not be the final, considered view of its employees, are not the sort of doubts that would permit a failure to deal in the meantime. N. L. R. B. v. Lovvorn, 5 Cir., 1949, 172 F.2d 293. This latter claim is particularly hollow coming from an employer who set up a whirlwind campaign of its own, comprised of substantial unfair labor practices.

In the face of a long history of decisions to the contrary, the employer takes the position that ordering it to bargain with a union which has not been certified or recognized, as matter of law thwarts, rather than effectuates, the policies of the Act. It is true that in International Ladies' Garment Workers' Union v. N. L. R. B., 1961, 366 U.S. 731, 81 S.Ct. 603, 6 L.Ed.2d 762, the court held that it was an unfair labor practice even in good faith to recognize and bargain with a union which proved not to represent the majority of the employees. In that case, as in this one, there was no competing union, but the court held that the actions of the union and the company deprived the employee majority of its right not to be represented. There is a substantial factual difference here where eighteen of the twenty-four employees had signed cards. The employer's seeming solicitude for those who wanted to "refrain" from unionization, based on an unproven suspicion that a majority would conclude to do so after they had realized their precipitancy, cannot change black into white. It has been held that even where the employer's suspicions afterward prove correct, in that the union lost its majority without any other inducement or activity on the part of the employer, the Board may still remedy the employer's unfair labor practice in initially refusing to bargain with the displaced union by an order to do so. N. L. R. B. v. Armco Drainage & Metal Products, Inc., 6 Cir., 1955, 220 F.2d 573, cert. den. 350 U.S. 838, 76 S.Ct. 76, 100 L.Ed. 748; N. L. R. B. v. Stow Mfg. Co., 2 Cir., 1954, 217 F.2d 900, cert. den. 348 U.S. 964, 75 S.Ct. 524, 99 L.Ed. 751; but cf. N. L. R. B. v. Adhesive Products Corp., 2 Cir., 1960, 281 F.2d 89; N. L. R. B. v. Superior Fireproof Door & Sash Co., 2 Cir., 1961, 289 F.2d 713. This is part and parcel of the doctrine that the employer must be governed by the situation as it exists at the moment. Cf. International Ladies' Garment Workers' Union v. N. L. R. B., supra. The employees' right to refrain from joining any union cannot be twisted into a...

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