Bauer Welding and Metal Fabricators, Inc. v. NLRB

• Citation: 358 F.2d 766
• Decision Date: 14 April 1966
• Docket Number: No. 18166.,18166.
• Parties: BAUER WELDING AND METAL FABRICATORS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

358 F.2d 766 (1966)

BAUER WELDING AND METAL FABRICATORS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 18166.

United States Court of Appeals Eighth Circuit.

April 14, 1966.

Thomas M. Vogt of Felhaber, Larson, Fenlon & Vogt, St. Paul, Minn., made argument for the petitioner and filed brief with John W. Edstrom, St. Paul, Minn.

George H. Cohen, Atty., N. L. R. B., Washington, D. C., made argument for the N. L. R. B. and filed brief with Arnold Ordman, Gen. Counsel, N. L. R. B., Dominick L. Manoli, Associate Gen. Counsel, N. L. R. B., and Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., Allison W. Brown, Jr., Atty., N. L. R. B., Washington, D. C.

Before VOGEL, Chief Judge, BLACKMUN, Circuit Judge, and STEPHENSON, District Judge.

VOGEL, Chief Judge.

We are concerned here with a petition to review and set aside an order of the National Labor Relations Board (hereafter Board), respondent herein, under § 10 (f) of the National Labor Relations Act (hereafter Act) as amended, 61 Stat. 136, 73 Stat. 519, 29 U.S.C.A. § 151 et seq. The Board makes cross-application for enforcement of its order, which is reported at 154 NLRB No. 82. The Board, substantially adopting the Trial Examiner's findings, conclusions and recommendations, has found petitioner to be in violation of § 8(a) (1), (2) and (5) of the Act.¹ No jurisdictional issues are involved.

Petitioner is a Minnesota corporation with its principal place of business in Minneapolis, Minnesota. It is engaged in the business of metal fabrication, specializing as a job shop doing commercial welding and tube bending.

In May of 1964 the Sheet Metal Workers Local Union No. 547 (hereafter Union), through its local business representative, Kenneth L. Johnson, began efforts to organize the employees of petitioner after having been contacted by Desmond Zahn, one of the employees. With the exception of the personal contact with Zahn, Johnson, having obtained from Zahn a list of most of the names of petitioner's employees and their addresses, conducted the Union's organizational campaign entirely by mail. On May 19, 1964, Johnson sent an authorization card, a covering letter and a pamphlet designed to demonstrate the benefits of union representation to 18 of the 23 employees of petitioner who eventually voted in the representation election. Because of the language used in the covering letter and its importance in the determination of this review, we set forth the letter in full as follows:

"SHEET METAL WORKERS' INTERNATIONAL ASSOCIATION Local Union Number 547 Offices: Room 302 — 117 S. E. 4th Street Minneapolis 14, Minn "To All Employees of Bauer Welding and Metal Fabricators Inc.:

"Dear Friends:

"YOU CAN HAVE A UNION IN YOUR PLANT IF YOU WANT ONE!

"Just fill out the enclosed authorization card and return it to us. The card will then be turned over to the National Labor Relations Board, a branch of the United States Government.

"This is your right under the law. The National Labor Relations Board will then conduct an election in your plant by secret ballot.

"However, the United States Government will conduct an election only if we show them that the employees have asked us to represent them. Your employer will never see these cards.

"If the majority of the employees vote to be represented by the Union, the United States Government will then certify the Union as the bargaining agent for the employees.

"The Sheet Metal Workers\' Union understands your problems and is standing by ready to help you. The sooner we get the cards back, the sooner Uncle Sam will conduct an election in your plant, and we will be able to help you.

"You will choose your shop stewards and negotiating committee. The Union will work with you to negotiate your own Union contract and wages and working conditions you will not be ashamed to work under.

"REMEMBER — Together we stand united — alone the Company owns you! BELONGING TO THE RIGHT UNION DOESN\'T COST — IT PAYS!

Yours fraternally kj w KENNETH L. JOHNSON oeiu#12 Business Representative enc. Local Union No. 547 5-19-64"

(Capitalization and emphasis in the original letter.)

By May 26, 1964, 15 of the eligible employees for the proposed bargaining unit had signed and returned the authorization cards to the Union. No other employees signed a card after that date. On that date a second letter was mailed to the employees notifying them that the Union would hold a special meeting at its headquarters on Tuesday, June 2, 1964, at 7:00 p. m. in order to "answer all your questions about this Union, collective bargaining and the process of a Union election conducted by the United States Government". The letter in its entirety is as follows:

(Letterhead omitted)

"May 26, 1964 "To Employees of Bauer Welding and Metal Fabricators, Inc.:

"Dear Friends:

"There will be a special meeting for employees interested in higher wages, better working conditions and other fringe benefits.

"These improvements can be attained through collective bargaining by your Union, the Sheet Metal Workers\' Union, Local No. 547.

"Meeting time — 7 P.M. — Tuesday, June 2, 1964

"Place — Room 302 — Minneapolis Labor Temple, 117 S. E. 4th St., Minneapolis

"Come to this special meeting and we will answer all your questions about this Union, collective bargaining and the process of a Union election conducted by the United States Government.

"If you haven\'t sent your authorization card back, do so now, so we can make it 100% for the Union. Do not engage in conversation about these matters at this time in your plant.

"See you at the meeting! Yours fraternally kj lw KENNETH L. JOHNSON oeiu#12 Business Representative Local Union No. 547"

Donald K. Bauer, president of petitioner, first learned of the Union's organizing activities on or about June 1, 1964, from an employee, Steve Swiderski. Swiderski had learned of the Union activity from a fellow employee. In the erroneous belief that Swiderski was a supervisor, the Union had not solicited him at the same time it contacted the other employees.

On Tuesday, June 2, 1964, Bauer called a mandatory meeting of his employees. The meeting was scheduled for 5:55 p.m. so as to include both shifts then operating at the plant. The employees were paid overtime for attending the meeting and food was served. The meeting was held behind locked doors, a procedure never before used. Bauer spoke to the employees, stating, inter alia, that he had "heard through the grapevine there was going to be this union meeting at the Labor Temple that night" and that he "did not want to keep the employees from it". He nevertheless detained all of his employees until 6:50 p.m., at which time it would have been inconvenient for them to attend the 7:00 p.m. meeting at the labor temple, located about 20 minutes away from the petitioner's plant. The result was that only three employees appeared at the Union meeting and they arrived late.

At the meeting at petitioner's plant Bauer spoke of "sweetheart contracts" — i. e., contracts not in the employees' best interest which are sometimes entered into between dishonest union officials and management — advising his employees that he, too, "could negotiate one just as well as anybody" and that when he did the employees would be none the wiser. In speaking of the Union business representative, Johnson, Bauer said he "could tell them a few things" about Johnson but that he would not do so. After asking his employees if they knew anything about Johnson, Bauer said, "Do you want to have this man represent you? * * * I do know of him but I will not mention anything about it." However, at the hearing before the Examiner, Bauer admitted on cross-examination that he did not know Johnson, saying, "I was wrong in that statement."

Bauer also talked to his employees about the benefits they already enjoyed without collective bargaining, referring to such things as a week's sick pay, holiday pay and coffee breaks. He told them that if they chose the Union to represent them, bargaining would have to "start from scratch" with respect to these benefits. He stated that if the Union came in, petitioner might discontinue the profit-sharing plan under which employees supplemented their regular hourly earnings by quarterly bonuses for completed jobs. He referred to petitioner's policy whereunder employees were transferred to other available work when their own particular work ran out and advised that if the Union came in the work would be "stratified" so that employees would be laid off instead of reassigned to other work. He emphasized that the Union could not secure any benefits for the employees and then asked, "How long could you people afford a strike?"

Commencing on Wednesday, June 3, 1964, and continuing sporadically throughout that week and thereafter, Bauer talked to employees individually and in groups at their work stations on company time. He reiterated the statements made at the mandatory June 2, 1964, meeting. Bauer showed some of the employees photostatic copies of payroll checks and told them that the signatures did not match those on the authorization cards held by the Union. Such charge had no factual basis as Bauer had at that time not seen the authorization cards.

On June 4, 1964, David Roe, a Minneapolis Union official, and Johnson came to petitioner's plant. Johnson introduced Roe and himself to Bauer. Johnson stated that the Union represented the employees and that he and Roe wished to discuss this with Bauer. Bauer stated that he was too busy and immediately took leave of his visitors. Johnson then sent out the following letter, making a demand that the Union be recognized as the bargaining agent of petitioner's employees, which Bauer received on the morning of June 5, 1964:

(Letterhead omitted) "SPECIAL DELIVERY CERTIFIED MAIL RETURN RECEIPT REQUESTED June 4, 1964 Mr. Donald Bauer Bauer Welding and Metal Fabricating Inc County Road C and Highway 8 St. Anthony Industrial Park...