Snow v. NLRB

• Decision Date: 28 September 1962
• Docket Number: No. 17681.,17681.
• Parties: Fred SNOW, Harold Snow and Tom Snow, d/b/a Snow & Sons, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

308 F.2d 687 (1962)

Fred SNOW, Harold Snow and Tom Snow, d/b/a Snow & Sons, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 17681.

United States Court of Appeals Ninth Circuit.

September 28, 1962.

Halverson, Applegate, McDonald & Weeks, and C. W. Halverson, Yakima, Wash., for appellant.

Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Samuel M. Singer and James Paras, Attys., N. L. R. B., Washington, D. C., Thomas P. Graham, Regional Director N. L. R. B., Seattle, Wash., for appellee.

Before ORR, HAMLEY and HAMLIN, Circuit Judges.

HAMLEY, Circuit Judge.

This matter is before us on a petition to review and set aside an order of the National Labor Relations Board, and upon the Board's cross-petition for enforcement of that order. The petitioners are Fred Snow, Harold Snow and Tom Snow, d/b/a Snow & Sons, vegetable packers of Outlook, Washington.

The complaint initiating the Board proceedings was based on charges filed by Fruit and Vegetable Packers and Warehousemen Union Local 760, affiliated with the International Brotherhood of Teamsters (Union). Specifically, the company was charged with refusing to bargain collectively with the union, and interfering with, restraining and coercing its employees in the exercise of their rights under section 7 of the National Labor Relations Act, as amended, 29 U.S.C.A. § 157. These asserted activities were alleged to constitute unfair labor practices within the meaning of sections 8(a) (1), (3) and (5) and sections 2 (6) and (7) of the Act, 29 U.S.C.A. §§ 158(a) (1), (3) and (5), and 152(6) and (7).

The company packs asparagus from April through June of each year, and sweet corn from July to September. On the evening of June 6, 1960, twelve company employees signed cards containing a declaration that the signer was applying for membership in the union and was authorizing the union to be his bargaining representative. Early on the morning of June 7, nineteen more employees signed such cards as they arrived at the Snow parking lot to begin the day's work. The thirty-one employees who signed these cards constituted a majority of the forty-nine sorters, packers and other workmen then employed by the company.

About 9 A.M., June 7, 1960, after obtaining all of these applications, officials of the union called upon Fred, Harold and Tom Snow, at the company office, and asked the latter to enter into negotiations for a contract. One of the union officials stated that a majority of the crew were dissatisfied with conditions and had signed cards designating the union as their collective bargaining representative. The Snows expressed doubt that there was so much dissatisfaction and asked for an election supervised by the Board. Because of the time which this might require the union representatives demurred. There was then some discussion of the possibility of an expedited Board election, or an informal election.¹

No agreement could be reached with regard to the holding of an election. An official of the union then suggested that a disinterested party check the signatures on the cards which the union held. This suggestion was accepted by the Snows and it was agreed that the check would be made by Rev. Arnold Pederson. At 11:30 A.M. on that day the union gave its signed cards to Rev. Pederson and Harold Snow delivered to him the signed W-2 income tax forms for each of its employees. The minister compared the two sets of signatures and a short time later reported in writing that of forty-nine employees, thirty-one were applicants for membership in the union.²

The parties then met from 1 to 3 P.M. that afternoon, at which time the union officials asked for immediate bargaining. The Snows refused to bargain, however, until it was first established by a Board-supervised election that the union represented a majority of their employees. While the union officials declared that an election was unnecessary in view of the card count, they expressed a willingness to have an immediate informal election. They would not, however, agree to a Board election because of the delay involved. An impasse having been reached, the union representatives departed. Shortly thereafter, on the afternoon of June 7, 1960, twelve employees walked out of the packing shed in protest against the company's refusal to bargain.

The union representatives, at their request, had another meeting with petitioners at 10 P.M. that night, the petitioners for the first time having their attorney in attendance. These conversations proved fruitless and the meeting broke up at midnight. On the morning of June 8, 1960, the union established a picket line with the twelve employees who had struck the previous day. Another seven employees refused to cross the picket line.

The strike continued until August 15, 1960, but the company continued operations. The union then notified petitioners that the strike had been terminated because the Board had decided to issue a complaint against Snow. Eleven strikers immediately made unconditional application for reinstatement.

The company offered to reinstate two strikers, Corrine Morrow and Alice Rowland, but refused to reinstate the other nine during the then-current corn season. Petitioners explained that these nine lacked experience as corn sorters and packers and could not be trained in mid-season. They were promised jobs in the asparagus season the following year. Morrow and Rowland, in protest against petitioners' refusal to reinstate the other nine strikers who had applied for reëmployment, declined to return to work.

At the hearing thereafter held before the Board's trial examiner, three issues were presented, namely: (1) did the union represent a majority of the employees on June 7, 1960?; (2) if the union represented a majority on that date, did the Snows nevertheless in good faith doubt the majority status of the union on that date?; (3) if the majority status of the union was established, and if the company did not in good faith doubt such status and wrongfully insisted on a Board election, were the striking employees who applied therefor entitled to reinstatement?

In his intermediate report and recommended order the trial examiner found with respect to the first of these issues that it had not been adequately established that the union actually represented a majority of Snow's employees. Concerning the second issue, the trial examiner found that assuming that the union did in fact represent a majority, the Snows nevertheless acted in good faith in refusing to negotiate with the union until this fact was established by a Board-supervised election.³

In view of these findings the trial examiner believed that it was not necessary for him to decide whether the striking employees were entitled to reinstatement, and he made no findings thereon. It was his conclusion that the company did not violate sections 8(a) (1), (3) or (5) of the Act.

Upon its review of the intermediate report and recommended order, the five-member Board, in its unanimous decision and order, reported at 134 N.L.R.B. No. 57, found contrary to the trial examiner's findings on the first two issues. It also found and concluded on the third issue, that Snow unlawfully refused to rehire nine of the eleven strikers who had offered to return to work, and is obligated to rehire, upon application, the other two strikers who had applied for reinstatement.

Snow was ordered to cease and desist from discouraging membership in the union by refusing immediate reinstatement to the strikers upon their unconditional request. The company was also ordered to cease and desist from refusing to bargain collectively with the union as the exclusive representative of its employees. Affirmatively, the company was ordered to bargain collectively with the union upon request; to offer immediate reinstatement to the nine strikers who had applied for reëmployment and had been refused; to make them whole for any loss of pay they may have suffered because of such refusal; to reinstate, upon request, the two strikers the Snows had offered to reëmploy; and to post notices containing the usual recitals required by the Board as part of such a remedy.

In this court petitioners do not challenge the Board finding and conclusion that on June 7, 1960 the union actually represented a majority of the employees.⁴ They do question the Board's findings and conclusions on the other two issues referred to above. We turn to the first of these — whether on June 7, 1960, Snow in good faith doubted the majority status of the union.

If petitioners in good faith doubted that the union represented a majority of their employees on that date, they were warranted in refusing to recognize the union until the claim was established by a Board election, even though the union in fact had majority status at that time. If, on the other hand, petitioners did not have a genuine doubt at that time concerning the union's majority status, but had some other reason for requiring a Board election as a prerequisite to collective bargaining, insistence upon a Board election was unwarranted and the refusal to bargain without first having an election was an unfair labor practice. See N.L.R.B. v. Trimfit of California, Inc., 9 Cir., 211 F.2d 206, 209.

The issue under discussion thus turns upon a question of fact: Were the petitioners motivated by a good faith doubt as to the union's status in demanding a Board election before they would negotiate with the union? The findings of the Board with respect to this question of fact, if supported by substantial evidence on the record considered as a whole, are conclusive. Section 10(e) of the Act, 29 U.S.C.A. § 160(e). But unlike the rule which obtains on the review of the sufficiency of the evidence to support a jury verdict, the substantiality of the evidence in support of Board findings "must take into account whatever in the record fairly detracts...