BARTLEY COMPANY v. NLRB, 18739.

• Decision Date: 09 May 1969
• Docket Number: No. 18739.,18739.
• Citation: 410 F.2d 517
• Parties: The BARTLEY COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

410 F.2d 517 (1969)

The BARTLEY COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 18739.

United States Court of Appeals Sixth Circuit.

May 9, 1969.

Carl V. Bruggeman, Toledo, Ohio, for petitioner, Shumaker, Loop & Kendrick, Francis J. Gallagher, William R. Radford, Toledo, Ohio, on brief.

Joseph C. Thackery, N.L.R.B., Washington, D. C., for respondent, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Allison W. Brown, Jr., Atty., N.L.R.B., Washington, D. C., on brief.

Before WEICK, Chief Judge, and EDWARDS and PECK, Circuit Judges.

ORDER

This matter is before the Court upon a petition to review a decision and order of the National Labor Relations Board, and upon the Board's cross-petition for enforcement. The decision and order is reported at 170 NLRB No. 80. The Board found that petitioner violated Section 8(a) (5) and (1) of the National Labor Relations Act (29 U.S.C. § 151 et seq.) by refusing to recognize and bargain with the Union which represented a majority of its employees, and also violated Section 8(a) (1) of the Act by interfering with, restraining and coercing its employees in the exercise of their right of self-organization. The Board's order ordered petitioner to cease and desist from the unfair labor practices which it found, and further ordered petitioner to bargain collectively with the Union upon request.

The Board's finding of a Section 8(a) (1) violation is based upon a statement made by petitioner's store manager to certain employees during the period preceding a representation election to the effect that he had gotten wage increases for them^* and that if they were not accepted "the company will have to move elsewhere." The Trial Examiner also found a threatened reduction of working hours, but while the Board adopted his findings no further reference was made to this subject. The record establishes that these statements were made on the initiative of the manager and that immediately upon learning that the statements had been made petitioner caused them to be retracted; such retraction was effected on the same day that the statements were made, the manager admitted he had been in error, and the employees knew that he had been directed by higher officials to repudiate his statements. The Board's finding of a Section 8(a) (5) violation is based upon petitioner's refusal to recognize and bargain with the Union, which refusal was by letter advising that petitioner would consent to an election. In the consent election the Union got five votes, six were against it, and three ballots were challenged; based upon a card count, the Union had claimed a majority of eight out of thirteen.

It is here concluded that while had they been permitted to stand the volunteer remarks of petitioner's store manager would have been such a violation of the Act as would have tainted the election, their retraction was made in such a manner as to completely erase the effect they might otherwise have had, and it is further held that there is not substantial evidence in the record taken as a whole to support the Board's findings of a violation of the Act. Lane Drug Co. v. N. L.R.B., 391 F.2d 812 (6th Cir.), cert denied, 393 U.S. 837, 89 S.Ct. 114, 21 L. Ed.2d 108 (1968); Peoples Service Drug Stores, Inc. v. N.L.R.B., 375 F.2d 551 (6th Cir. 1967); Pizza Products Corp. v. N.L.R.B., 369 F.2d 431 (6th Cir. 1966). Accordingly,

It is ordered that enforcement of the order of the National Labor Relations Board be and it hereby is denied.

Entered by order of the Court.

EDWARDS, Circuit Judge (dissenting).

Again I express my disagreement with this court's assumption of the fact-finding responsibilities of the National Labor Relations Board. See, e. g., G.P.D., Inc. v. NLRB, 406 F.2d 26, 35 (6th Cir. 1969) (dissenting opinion).

The Retail Clerks Union undertook an organizing campaign at petitioner's Swanton, Ohio, grocery store. As of December 2, 1966, it had authorization cards from 8 of the 13 employees. The union made several demands for recognition and bargaining and tendered an impartial third-party card check. The company responded by refusing recognition and proposing a consent NLRB election.

During the period preceding the election, the store manager talked to a number of the employees, telling them that he had secured wage increases for them, and threatening that if the union won the election, the company would close the store. Some of the increases promised totaled $20 a month. There was also testimony which the Board credited that in this period he threatened an employee with loss of work in the event of unionization.

Immediately after the promises of wage increases had been made, however, the store manager talked with a company official who told him that to do this was against the...