International Union, United A., A. & A. Imp. Wkrs. v. NLRB
| Decision Date | 14 November 1967 |
| Docket Number | 20185,20301.,No. 20137,20137 |
| Citation | 392 F.2d 801 |
| Parties | INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW-AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Preston Products Company, Inc., Intervenor. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PRESTON PRODUCTS COMPANY, Inc., Respondent. PRESTON PRODUCTS COMPANY, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW-AFL-CIO, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
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Mr. John Silard, Washington, D. C., with whom Messrs. Joseph L. Rauh, Jr., Stephen I. Schlossberg, Washington, D. C., and Bernard F. Ashe, Detroit, Mich., were on the brief, for petitioner in No. 20,137.
Mr. Eugene B. Granof, Attorney, National Labor Relations Board, of the bar of the Supreme Court of New York, pro hac vice, by special leave of court, with whom Messrs. Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and Elliott Moore, Attorney, National Labor Relations Board, were on the brief, for petitioner in No. 20,185 and respondent in Nos. 20,137 and 20,301.
Mr. James L. Stokes, Grand Rapids, Mich., of the bar of the Supreme Court of Michigan, pro hac vice, by special leave of court, with whom Mr. Stephen C. Bransdorfer, Grand Rapids, Mich., was on the brief, for petitioner in No. 20,301, respondent in No. 20,185 and intervenor in No. 20,137.
Before WILBUR K. MILLER, Senior Circuit Judge, and DANAHER and WRIGHT, Circuit Judges.
Petition for Rehearing En Banc Denied January 30, 1968.
Certiorari Denied June 10, 1968. See 88 S.Ct. 2058.
These consolidated cases relate to an order of the National Labor Relations Board issued on April 22, 1964, against Preston Products Company. The Board found that the company had violated Sections 8(a) (1) and 8(a) (5) of the National Labor Relations Act, as amended, 29 U.S.C. § 151 et seq. (1964), and ordered it to cease and desist from infringing upon the rights guaranteed to its employees by Section 7 of the Act and to bargain with the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, as the exclusive bargaining representative of the company's employees. The union's request that the Board grant appropriate relief to compensate the workers for the period during which the company had wrongfully refused to bargain was denied. Nos. 20,137 and 20,301 are petitions by the union and the company respectively to review the Board's order, and No. 20,185 is the Board's petition to enforce that order.
Preston Products Company, located in Grand Rapids, Michigan, is owned and managed by the Preston brothers, Anthony and Albert. In early March 1964 the union began organizational activities at the request of several employees at the plant. On March 18, the Preston brothers, who had been told that "there was a union movement on," convened meetings of the workers during paid overtime. They invited complaints from the employees, asking "just who it was that wanted the union in there" and "just what was it that * * * a union could do" that could not be done directly by the employees. The Prestons stated that the union had caused various companies to go out of business or move their plants, that the employees would not get anything more than they had now and might in fact lose such currently enjoyed benefits as bonuses, parties and turkeys, and finally that the brothers might simply "get disgusted" and then they "didn't know just what would happen."
Despite these meetings, by March 20 the union had accumulated valid authorization cards from 78 of the 144 employees in the appropriate bargaining unit. The union then requested the Preston brothers to bargain. This request was at first ignored and later denied. Neither would the Prestons agree to submit the cards to a neutral third party for verification. Subsequently, the union filed a petition with the Board, requesting that it be certified as the bargaining representative. At a formal Board hearing on April 7, the company and the union agreed on an appropriate bargaining unit, but since the company stated that it "needed as much time as possible for the campaign," the Board denied the union's request for an immediate election and scheduled the election for May 11, 1964.
Prior to the election, the company conferred various benefits upon the employees. In response to the complaints solicited from the employees at the March 18 meetings, the company reduced by 50 per cent the cost of work gloves which it sold to the employees in the racking department, increased the equipment in the lunch room and ladies room, changed the method of deducting the employees' share of a hospital insurance plan, and promoted one employee who had inquired about advancement. In addition, from March 18 to May 11, 184 separate pay increases were given, so that all employees received at least one pay increase and many received two within a period of less than two months. Moreover, the annual spring party was held two days before the election and at the party each employee was given a gold or silver watch (depending upon the length of service) and Anthony Preston announced (1) the adoption of an improved hospital insurance plan wholly paid for by the company; and (2) the fact that envelopes containing a slip upon which was written the amount of each person's bonus would be distributed the following Monday (election day).
At the same time the company was bestowing benefits, it was also bestowing advice. Circulars were delivered with the pay checks and additional ones were mailed to each employee's home. These circulars contained reminders of the possibility of the Prestons' becoming disgusted and of their putting all existing benefits up for negotiation and starting the bargaining from scratch; they also stated that "if you feel conditions are bad now, they may be worse later." Each circular ended with the warning: "Don't cut your own throat next Monday, Vote No."
The union ultimately received only 45 of the 135 votes cast. Thereafter, it filed with the Board objections to the election and unfair labor practice charges against the company which were later incorporated into the Regional Director's complaint. The Board then scheduled a consolidated hearing before a Trial Examiner. Prior to the hearing, a group of employees formed a committee to keep the union out of the plant and were referred by the company's attorney to Edmund Wolven, a local attorney to represent them. There is no evidence in the record as to the source of Wolven's attorney's fees. Wolven met with various employees, first at an employee's home and subsequently in the plant. The latter conferences were held during working hours and with the permission of the company's personnel manager and president. Wolven interrogated the employees as to their union support and requested that they complete questionnaires which he had prepared with respect to their signing of the union authorization cards.
At the hearing before the Trial Examiner, Wolven sought to intervene on behalf of the employees who were his clients, but the Trial Examiner limited Wolven's intervention to those employees who had signed the authorization cards and only as to issues raised by their specific cards. Subsequently, it was agreed that the company attorney would call those employees whom Wolven had interviewed but could not now represent. The company's attorney then interviewed these prospective witnesses, again at the plant and with the permission of the management. At no time did either Wolven or the company's attorney advise those employees with whom they spoke that the employees did not have to answer their questions and that there would not be any retaliation if they chose not to cooperate.
The Trial Examiner concluded from all of the evidence in the record that the company had violated Section 8 (a) (1) of the Act by threatening employees with loss of employment and other economic retaliations, by promising and granting employees benefits in order to discourage their interest in the union, by furnishing aid and assistance to a group of anti-union employees, and by coercively interrogating employees about their union affiliation. The Trial Examiner also concluded that the company had violated Section 8(a) (5) and (1) of the Act by refusing to recognize and bargain with the union and by making unilateral changes in wages and working conditions. He recommended that the company be ordered to cease and desist from its unfair labor practices and, affirmatively, to bargain with the union upon request. The Board adopted the findings of the Trial Examiner and entered the recommended orders.
These cases do not present any unique questions of law, but rather concern the reasonableness of the Board's findings and the appropriateness of its orders. Section 10(f) of the National Labor Relations Act provides that "the findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall * * * be conclusive." Since the Board is "one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess * * *," this court may not "displace the Board's choice between two fairly conflicting views, even though it would justifiably have made a different choice had the matter been before it de novo." Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951). The...
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