NLRB v. Philamon Laboratories, Inc.

Citation298 F.2d 176
Decision Date17 January 1962
Docket NumberNo. 122,Docket 27028.,122
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. PHILAMON LABORATORIES, INC., Respondent.
CourtU.S. Court of Appeals — Second Circuit

William J. Avrutis, Attorney, National Labor Relations Board (Stuart Rothman, General Counsel, Dominick L. Manoli, Asso. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel and Samuel M. Singer, Attorney, National Labor Relations Board, on the brief), for petitioner.

Sanford H. Markham, New York City, for respondent.

Before MEDINA, SMITH and MARSHALL, Circuit Judges.

MARSHALL, Circuit Judge.

The National Labor Relations Board found respondent violated § 8(a) (1), (2) and (5)1 of the National Labor Relations Act, as amended, and now petitions for enforcement of its order pursuant to § 10(e).2 Having reviewed the record, including that portion which "fairly detracts" from the findings of the Board, we hold the findings are supported by substantial evidence and conclusive upon us. § 10(e); Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Because the remedy sought is appropriate, we grant the petition.

Respondent maintains a plant in Westbury, New York, and is engaged in the manufacture, sale and distribution of electronic products. The parties have stipulated as to the appropriate bargaining unit. As a result of dissatisfaction arising primarily from respondent's indifference to employee grievances, the operation of the existing profit-sharing plan, wages, and the lack of sick-leave provisions, some sixteen employees signed applications and bargaining authorizations for Local 868, International Brotherhood of Teamsters by August 5, 1959. There were then twenty-nine employees in the unit. On Thursday, August 6, respondent received a telegram from the union claiming to represent "the majority of your employees" and requesting an early appointment for purposes of negotiating a collective agreement. Respondent made no reply. On August 7, Bruckner, Local 868's business representative, telephoned respondent and asked to speak to its president, Grib. After being informed Grib could not be disturbed at that time, Bruckner left his name and requested that Grib call back. Grib failed to do so. On Monday, August 10, Bruckner and another representative of Local 868 went to the plant and asked to see Grib. They were informed that Grib had gone on vacation. Shinerer, the plant manager, told them Grib was expected back on Thursday or Friday. Shinerer said he would be in touch with Grib during the week and if they would call him, Shinerer, on Wednesday, the 12th, an appointment would be arranged for later in the week.

The same day, August 10, the union received two more authorizations, making a total of eighteen, and filed an election petition with the Board. Respondent received a letter from the Board's Regional Director concerning this before 3:00 P. M., on Thursday, August 13. On Wednesday, the 12th, Bruckner called Shinerer at the plant and was told he was gone for the day but would be in the next morning. Bruckner called the next morning, Thursday, and was told Shinerer was not in but was expected about 10:00 A.M. Bruckner asked that Shinerer return the call. Not having received a return call, Bruckner called the plant again at 4:00 P.M. He was told Shinerer was in conference and could not be disturbed, but would call Bruckner back. He did not.

Bruckner and the other representative went to the plant again the next morning, August 14, at 9:30 A.M. They asked to see Grib and, after being informed he was not in, talked to Shinerer. The latter told them to call back at noon. When asked what time he went to lunch, Shinerer replied, "I never go out." Bruckner expressed a desire for a negotiated recognition without an election and offered to show the authorization cards to an impartial person such as the neighborhood rabbi, priest or minister. Shinerer stated the decision was for Grib to make. Between 1 and 1:30, Bruckner called the plant and was told everyone was in conference but that he should call back in an hour. Between 2:15 and 2:20 p. m., he called back, asking for Shinerer or Grib and was told they were out to lunch. Having been assured by the operator that they were receiving his messages Bruckner asked that they call him back. They never did.

Although Grib had been indifferent to the employees' grievances for many months, he underwent a marked change of attitude upon his return to the plant on August 13. Anne Dee, a vigorously anti-union employee, requested that he call a meeting of all employees to discuss the union situation. Although Grib was wholly inaccessible to the union and doggedly avoided any contact with it, he immediately adopted Dee's suggestion. The meeting, which lasted an hour, was held that day on company time. Grib told the employees of the Teamsters' claims and of the election petition. He then asked for comments, and several employees spoke. As for the wage issue, Grig stated there had been a raise "in the fire" for a few months which would be granted whether or not there was a union. He made no comment upon the profit-sharing plan but said he was against sick leave. He further stated that his lieutenants had let him down in not letting grievances get through to him.

The next day, Friday, August 14, a committee of employees, apparently led by Anne Dee and purporting to speak for those not present, asked to see Grib. They were admitted to his office within ten minutes. Grib repeated his earlier statement as to a pay raise and assured them they were going to get it. He also stated he was willing to do away with the profit-sharing plan and increase regular wages by a corresponding amount. The committee suggested a particular sick leave plan, and Grib indicated he would look favorably upon it although he desired time to think it over. He also told the employees they "would get a better deal if they * * * passed the union by." At one or both of these meetings, Grib suggested the employees form their own committee to present such issues and indicated his willingness to deal with such a group. Immediately after this conference, the employees held a meeting of their own, and one Cotrufo related what had occurred in Grib's office and suggested the formation of a committee to negotiate with Grib.3 Ultimately, this occurred, but the committee has since been inactive. At all times, Grib assured the employees they could have the Teamsters if they so desired. After work that day, two employees, representing the rest, went to Bruckner and asked the union to hold off for sixty days to see if Grib lived up to his promises.

On Monday, August 17, Shinerer polled the employees as to whether they wished to abolish the profit-sharing plan. A majority said they did. Beginning with the wages of that week, each employee received an increase of ten cents an hour and were told the additional amount represented the conversion of the profit-sharing plan to cash payments. Grib also questioned employee Trockel on the 17th. After describing what had occurred on Friday when Trockel was absent, Grib asked him what he thought about it. Trockel indicated he would go along with the majority, and Grib said he and another employee who had been union adherents did not have to worry about a "witch-hunt." On September 25, respondent instituted a sick-leave plan in accordance with the employees' proposal. On November 1, the general wage increase promised was instituted.

The union's charge was filed on August 21, and the regional director approved the withdrawal of the election petition on August 24. On the basis of the findings above, the Board concluded respondent had violated §§ 8(a) (1), (2) and (5) of the Act. The order directs respondent to recognize and bargain in good faith with Local 868, and to cease and desist from engaging in certain other unlawful conduct.

The § 8(a) (5) Violation4

The act imposes a duty to bargain in good faith upon request whenever a labor organization has been designated by a majority of employees in an appropriate bargaining unit. The employer must recognize and bargain with such an organization whether or not it has been certified by the Labor Board. United Mine Workers of America v. Arkansas Oak Flooring Co., 351 U.S. 62, 76 S.Ct. 559, 100 L.Ed. 941 (1956); N. L. R. B. v. Sunrise Lumber & Trim Corp., 241 F.2d 620 (2 Cir., 1957), cert. denied 355 U.S. 818, 78 S.Ct. 22, 2 L.Ed.2d 34 (1957). To be sure, an employer laboring under a good faith doubt as to a union's majority status need not extend recognition. Nevertheless, in the absence of such a doubt, the employer has no vested right to an election. N. L. R. B. v. Trimfit of California, 211 F.2d 206 (9 Cir., 1954).

Respondent contends the union in fact did not have a majority because three designation cards were either invalid or not proven genuine. These contentions are baseless. Employee LaDisa testified he was told he would have no friends in the shop if he told his aunt, Anne Dee, that he had signed a card. This is hardly sufficient to indicate his bargaining authorization was coerced. Employee Manno was told on August 4 that a majority of the employees "wanted" a union, even though a majority had not signed designation cards by that date. Manno's testimony indicates he agreed with that estimate of the situation, and there is no evidence to show such was not the case. No representation was made that a majority had actually signed up. These circumstances distinguish the present case from N. L. R. B. v. H. Rohtstein & Co., 266 F.2d 407 (1 Cir., 1959) where a representation that a majority had signed up was shown to be false. The third card, allegedly signed by employee King, was admitted into evidence without testimony as to its authenticity. The trial examiner found, however, the signature matched a concededly genuine signature of King. In the absence of any...

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