Retail Clerks Union, Local 1401, RCIA v. NLRB, 24704

• Citation: 463 F.2d 316
• Decision Date: 30 March 1972
• Docket Number: No. 24704,No. 71-1082.,24704,71-1082.
• Parties: RETAIL CLERKS UNION, LOCAL 1401, RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Zinke's Foods, Inc., Intervenor. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ZINKE'S FOODS, INC., Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

463 F.2d 316 (1972)

RETAIL CLERKS UNION, LOCAL 1401, RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Zinke's Foods, Inc., Intervenor.

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ZINKE'S FOODS, INC., Respondent.

No. 24704, No. 71-1082.

United States Court of Appeals, District of Columbia Circuit.

Argued October 22, 1971.

Decided March 30, 1972.

COPYRIGHT MATERIAL OMITTED

Mr. Carl L. Taylor, Washington, D. C., with whom Mr. Robert G. Sewell, Washington, D. C., was on the brief, for petitioner in No. 24704.

Mr. Warren M. Davison, Deputy Gen. Counsel, N. L. R. B., with whom Messrs. Arnold Ordman, Gen. Counsel at the time the brief was filed, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Stanley R. Zirkin, Atty., N. L. R. B., were on the brief, for petitioner in No. 71-1082 and respondent in No. 24704.

Mr. Russ R. Mueller, Milwaukee, Wis., for intervenor in No. 24704 and respondent in No. 71-1082.

Before BAZELON, Chief Judge, and LEVENTHAL and ROBINSON, Circuit Judges.

LEVENTHAL, Circuit Judge:

In these proceedings, the National Labor Relations Board defends and seeks enforcement of its decision and order¹ requiring Zinke's Foods, Inc. (Company) to cease and desist from certain unfair labor practices and from interfering "in any other manner" with its employees' rights under § 7 of the National Labor Relations Act;² to recognize and bargain collectively with the Retail Clerks Union, Local 1401 (Union) upon request; to make employee Edward Kallas whole for loss of earnings caused by his "constructive discharge;" and to post notices to its employees of the contents of the Board's order.

In No. 24704, the Union challenges the Board's failure to consider the availability of a "compensatory" remedy.³ We deny its petition. In No. 71-1082, the Board's petition for enforcement, the Company challenges the Board's refusal-to-bargain findings and bargaining order, claiming its alleged refusal to bargain was justified by the Union's loss of its representation election at Zinke's store, and subsequent failure to file timely objections to the election. The Board held that the Company had itself failed to make a timely presentation of its procedural claim that the Board should not have held a hearing on the Union's objections. The opinion of this court is principally addressed to this procedural question. It requires consideration of the detailed procedural background, as well as the applicable law. On reflection, we approve this procedural ruling of the Board, and therefore enforce its order against the Company based on the evidence adduced.

I. BACKGROUND FACTS AND PROCEDURE

On February 14, 1966, the Union by letter sought recognition and bargaining as representative of the bulk of employees in Zinke's Beloit, Wisconsin food store.⁴ The Union offered to prove that on that date the Union held valid bargaining authorization cards executed by 17 employees in an appropriate unit of 26. The Company's counsel notified the Union that the Company would not recognize the Union as bargaining agent. On February 21, the Union filed a petition for a representation election with the Board's Regional Director for the Thirtieth Region. On March 4, the Regional Director approved a Stipulation for Certification Upon Consent Election executed between the parties calling for an election at the Beloit store on March 16, 1966.

The Trial Examiner found as a fact that, following the March 4 Stipulation, Zinke's "embarked on an anti-union campaign which continued until about March 15." The Examiner found § 8(a)(1) violations, including a refusal to permit on-premises employee discussion of the Union, even during non-work periods in non-public areas of the store, and threats of retaliation if the Union won the election, and found a § 8(a)(3) violation in the "constructive discharge" of employee Edward Kallas, the Union's "leading employee organizer." The Company concedes that it is bound under § 10(e) of the Act by the Examiner's findings in this regard since it did not except to them at the administrative level.

As to the § 8(a)(5) violation, the first critical fact is that the Union was defeated in the March 16 election— ten votes for, fifteen against. As the Board notes in its brief: "A union that loses an election may nevertheless seek a bargaining order under Section 8(a)(5) of the Act where the employer has engaged in conduct warranting the setting aside of the election. But the Board will not issue a bargaining order in such a case `unless the election be set aside upon meritorious objections filed in the representation case.'"⁵

On March 21, the Union's attorney set the "election" case in motion by sending the following telegraphic notice of objection:

GENTLEMEN:/PLEASE BE ADVISED THAT THE UNION OBJECTS TO THE ELECTION CONDUCTED IN THE ABOVE MANNER ON WEDNESDAY MARCH 15. DURING THE COURSE OF THE ELECTION CAMPAIGN THE COMPANY ENGAGED IN A COURSE OF CONDUCT WHICH BOTH COERCED THE EMPLOYEES IN THE EXERCISE OF THEIR FREE CHOICE IN VIOLATION OF SECTION 8A1 AND ADDITIONALLY THIS CONDUCT UPSET THE "LABORATORY CONDITIONS" SURROUNDING THE ELECTION. A DETAILED STATEMENT OF POSITION WILL FOLLOW/

The same day, the Regional Director wrote to the Union requesting "evidence in support of your objections" within 7 days. On March 28, the Regional Director received a letter from the Union, dated March 24, detailing six specific objections to the election, based on the Company's pre-election conduct. On April 1, the Union filed an unfair labor practice charge, alleging the same pre-election conduct as a violation of § 8(a)(1), adding a charge that the Company's continuing refusal to accede to the February 16 demand for recognition constituted an unlawful refusal to bargain in good faith, violative of § 8(a) (5).

On April 11, the Company filed a Motion to Overrule Petitioner's Objections to Conduct Affecting the Results of Election, which contended that the Union's March 21 telegram was not sufficiently specific under the Board's own rules, 29 CFR § 102.69(a); and that the March 24 letter, received after expiration of the five-day period for filing election objections, came too late. On April 13, the Union amended its April 1 unfair labor practice charge to include the constructive discharge of employee Kallas.

On May 16, the Regional Director issued his Complaint and Notice of Hearing in the unfair labor practices case, docketed as No. 30-CA-372, charging violations of §§ 8(a) (1), (3) and (5), and scheduling a hearing before a Trial Examiner in Beloit for July 6, 1966. On May 18 he issued, in the representation case No. 30-RC-400, his Report and Recommendations on Objections to Conduct Affecting the Results of the Election. Therein he ruled adversely to the Company's claim that the Union had not filed adequate objections timely:

In view of the filing of the telegram on March 21, 1966, followed by the detailed statement of position of the objections filed on March 28, 1966, both of which were served on the Employer, I find that the objections were timely filed, and contained the necessary form and substance to comply with Section 102.69 of the Board\'s Rules and Regulations. Furthermore, the investigation of the objections was not initiated until well after the service of the detailed statement of March 28th. In view of this and also of the fact that a hearing to resolve the objections is being recommended herein, it does not appear that the Employer was prejudiced by the manner of the filing of the objections. The Employer\'s motion to dismiss is accordingly denied.

The Regional Director recommended that a hearing be ordered in the representation case, since the investigation disclosed "substantial issues of credibility." Moreover, since the allegations of objectionable conduct were substantially the same as the allegation of unfair labor practices in Case No. 30-CA-372, already scheduled to be heard before a Trial Examiner, he recommended "for the purpose of avoiding undue costs and delay" that the representation case, No. 30-RC-400, be consolidated with No. 30-CA-372.

On June 2 the Board issued an Order Directing Hearing, stating: "No exceptions to the Regional Director's report having been filed by either party within the time provided therefor, the Board hereby adopts the Regional Director's recommendations as contained in his report." The Board ordered that a hearing be held in the representation case to resolve the issues raised by the objections of the Union petitioner. It further provided (a) the hearing may be consolidated with any hearing held in 30-CA-372 before a Trial Examiner designated by the Chief Trial Examiner, and (b) in the event the unfair labor practice proceeding is disposed of prior to such hearing, the Regional Director may designate a Hearing Officer to hear the representation matter. On June 6, the Regional Director issued an Order Consolidating Cases and Notice of Hearing.

The provisions of the Board order relating to violations of §§ 8(a) (1) and (3) are not challenged here. Our order will provide for their enforcement.⁶

On the refusal to bargain charge, Trial Examiner Josephine Klein made findings as follows: The Company could have had no good faith doubt as to the Union's majority status on February 16, because of the Union's undisputed possession of bargaining authorization cards from a majority of the Company's Beloit store employees. Had the Company refused to bargain solely because of a genuine doubt as to the Union's majority, it would have permitted its employees to express their desires freely. Instead it began a continuing anti-union campaign shortly after the Union demand; intensified it, committing unfair labor practices; and maintained it until a few days before the election held March 16. The Company "produced no witnesses to rebut the inference of bad faith arising from the undisputed...