344 F.2d 617 (8th Cir. 1965), 17843, N. L. R. B. v. Johnnie's Poultry Co.

Docket Nº:17843.
Citation:344 F.2d 617
Party Name:NATIONAL LABOR RELATIONS BOARD, Petitioner, v. JOHNNIE'S POULTRY CO., and John Bishop Poultry Co., Successor, Respondent.
Case Date:April 29, 1965
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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344 F.2d 617 (8th Cir. 1965)

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.

JOHNNIE'S POULTRY CO., and John Bishop Poultry Co., Successor, Respondent.

No. 17843.

United States Court of Appeals, Eighth Circuit.

April 29, 1965

Laurence Gold, Atty., N.L.R.B., Washington, D.C., made argument for petitioner. Arnold Ordman, Gen. Counsel, N.L.R.B., Washington, D.C., Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Elliott Moore and Vivian Asplund, Attys., N.L.R.B., Washington, D.C., were on the brief.

Paul S. Kuelthau of Moller, Talent & Kuelthau, St. Louis, Mo., made argument for respondent and filed brief with Glenn L. Moller of Moller, Talent & Kuelthau, St. Louis, Mo.

Before VAN OOSTERHOUT and BLACKMUN, Circuit Judges, and YOUNG, district judge.

VAN OOSTERHOUT, Circuit Judge.

This case is before the court upon petition of the National Labor Relations Board pursuant to § 10(e) of the National Labor Relations Act as amended (29 U.S.C.A. § 151 et seq.), hereinafter referred to as the Act, for the enforcement of its order issued against respondent employer Johnnie's Poultry Co. on April 13, 1964, reported at 146 N.L.R.B. No. 98. This court has jurisdiction, the alleged unfair labor practices having occurred in Perryville, Missouri, within this circuit. The jurisdictional facts as determined by the Board are established.

The facts are set out in the trial examiner's intermediate report and the Board's decision. No purpose will be served in setting out the facts in detail here. This litigation arises out of the efforts of the District Union 99, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, hereinafter called the Union, to organize the employees of Johnnie's Poultry Co., of which John Bishop was the principal officer. On October 27, 1961, the Union lost a Board-conducted consent election by a vote of 41 to 27 after the Union had succeeded in obtaining some 55 authorization cards. The Union renewed its organizational activities on September 20, 1962. On December 6, 1962 the Union sent a letter to the employer enclosing photostats of 49 authorization cards signed by employees and requested recognition as the bargaining representative of 'your employees'. The payroll of the employer showed 98 employees. The Board ultimately determined that the appropriate unit consisted of 93 members.

On December 10, 1962, the employer responded to the Union's request, stating, 'we do not regard the copies of cards which you sent us as a reliable indication of the present desires of our employees. * * *' The employer expressed a willingness

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to cooperate in expediting the election.

The Union filed charges and amendments thereto against the employer which resulted in a complaint filed by the Regional Director. After hearing, the Trial Examiner made extensive findings and concluded that the employer was not guilty of the unfair labor practices charged and he recommended the dismissal of the complaint. Upon review, the Board, overruling the Examiner, found that the employer had violated 8(a)(1) of the Act by coercively interrogating employees as to protected activities, threatening to close part of the plant if unionized, and promising benefits for voting against the Union. The Board, with one member dissenting, in disagreement with the Trial Examiner, determined that upon receipt of the authorization cards the employer did not in good faith doubt the Union's majority status and hence, the employer violated 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union.

The Board urges that substantial evidence on the record as a...

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