Bryant Chucking Grinder Company v. NLRB

• Decision Date: 12 December 1967
• Docket Number: No. 25,Docket 30844.,25
• Citation: 389 F.2d 565
• Parties: BRYANT CHUCKING GRINDER COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

389 F.2d 565 (1967)

BRYANT CHUCKING GRINDER COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 25, Docket 30844.

United States Court of Appeals Second Circuit.

Argued October 2, 1967.

Decided December 12, 1967.

Kenneth C. McGuiness, Washington, D. C. (Vedder, Price, Kaufman, Kammholz & McGuiness, Washington, D. C., on the brief), for petitioner.

George B. Driesen, Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Peter Ames Eveleth, Washington, D. C., Atty., on the brief), for respondent.

Before FRIENDLY, HAYS and ANDERSON, Circuit Judges.

HAYS, Circuit Judge:

Petitioner asks us to review and set aside an order of the National Labor Relations Board based upon a finding that petitioner violated Section 8(a) (1) and 8(a) (5) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1) and (a) (5).¹ The Board seeks enforcement. We deny the petition and enforce the order.

The Board held that petitioner violated Section 8(a) (1) of the Act by threatening employees, by granting benefits to discourage joining the union, by coercive interrogation and by encouraging employees not to cooperate with the Board in the investigation of unfair labor practices. The Board held that petitioner violated Section 8(a) (5) and (1) by refusing to recognize and bargain with the union.

The union involved is the United Electrical, Radio and Machine Workers of America (UE) Local 218. The plant of the employer at which the unfair labor practices occurred is located in Springfield, Vermont.

In May 1962 the union undertook a campaign to organize petitioner's employees. By August 14 the union had authorization cards from 198 of petitioner's 337 bargaining unit employees. On that date the union notified the employer by letter that it represented a majority of the employees and asked for a bargaining meeting. The petitioner replied to the union's letter declining to meet with the union and stating the company's "very definite policy" of refusing recognition in the absence of Board certification. The employer then began a campaign of vigorous opposition to the union, carried on largely by letters and notices to the employees. In the meantime the union had filed a representation petition with the Board.

Interrogation

A number of employees were questioned by supervisory officials as to their attitude toward the union. The Board could properly find that this interrogation was coercive since it took place in an atmosphere of active opposition to the union, Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964), without explanation to the employees of the purpose of the questioning and under circumstances indicating that it had no legitimate purpose, Edward Fields, Inc. v. NLRB, 325 F.2d 754, 758-759 (2d Cir. 1963) and was unaccompanied by any assurance against reprisals, see NLRB v. Lorben Corporation, 345 F.2d 346, 348 (2d Cir. 1965). Numerous instances of questioning involved particularly threatening connotations because employees were interrogated in connection with interviews concerning eligibility for merit increases.

Threats

There was substantial evidence to support the Board's finding that the employer threatened employees with reprisals. Questioning of employees as to union activity in connection with discussion of merit increases, referred to above under "Interrogation" could well have been considered by the employees to carry with it the implication that those who favored the union would not receive an increase. One of the supervisors, when he learned that an employee was a member of the union organizing committee asked him, "Do you like your job?" On another occasion a supervisor told an employee that if the union won he could not be transferred from one job to another when work was slack but would be sent home.

Benefits

During the period prior to the representation election the employer announced an increase in pension benefits. The announcement was coupled in an advertisement published in the local newspaper and in a notice sent to employees with material urging employees to vote against the union. The Board could properly hold that this promise of benefit was a violation of Section 8(a) (1). NLRB v. Exchange Parts Co., 375 U.S. 405, 409, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964); NLRB v. D'Armigene, Inc., 353 F.2d 406, 408 (2d Cir. 1965).

Dissuading employees from cooperation with the Board

We are agreed that the Board could properly find that the employer violated the Act by posting a notice to employees stating that they were under no obligation to assist the Board in connection with its investigation of unfair labor practice charges, and that they did not "have to talk with these people." This notice accompanied by the employer's assurance that it would resist the Board's efforts "with every force available to free men," constituted an unjustified obstruction of the Board's processes. See Henry I. Siegel Co. v. NLRB, 328 F.2d 25, 27 (2d Cir. 1964).

A majority of the court believes that the Board's finding of violation in the employer's reinterviewing the employees who testified at the Labor Board hearing between their direct and cross-examination was unjustified. This determination requires no modification of the Board's order.

Refusal to Bargain

The Board's finding that on August 14, 1962 when the union wrote to the employer to request bargaining, the union had a majority of the employees is supported by substantial evidence in the record. See NLRB v. Gotham Shoe Mfg. Co., 359 F.2d 684 (2d Cir. 1966).

The authorization cards signed by the employees were free from ambiguity.² The evidence credited by the Board, and therefore accepted by us, see NLRB v. Warrensburg Board & Paper Corporation, 340 F.2d 920, 922 (2d Cir. 1965), established that the union's organizers made no misrepresentations to the employees as to the purpose of the cards and the effect of their signatures. Indeed the record shows that a representative of the union correctly explained to the employees at the first organizational meeting the methods by which recognition could be attained and at no time were the employees told that the sole purpose of signing the cards was to secure an election. See NLRB v. Gotham Shoe Mfg. Co., supra; NLRB v. S. E. Nichols Company, 380 F.2d 438, 444-445 (2d Cir. 1967).

There is also adequate support for the Board's conclusion that the employer did not have a good faith doubt of the union's majority status. Not only did the employer not suggest a card check but it rejected the possibility that such a verification would be acceptable by announcing its "very definite policy" of refusing any evidence of representational rights other than a Board certification.

The history of violations of Section 8(a) (1) is sufficient to establish that the employer deliberately destroyed the union's majority and the Board's order to bargain is an appropriate method of correcting this default. Franks Bros. Co. v. NLRB, 321 U.S. 702, 64 S.Ct. 817, 88 L.Ed. 1020 (1944); NLRB v. International Union, Progressive Mine Workers, 375 U.S. 396, 84 S.Ct. 453, 11 L.Ed.2d 412 (1964) (reversing per curiam 319 F.2d 428 (7th Cir. 1963) which directed an election because such a long period of time had passed since the union had attained its majority status).

The General Counsel's Delay in Issuing the Complaint

The General Counsel delayed issuing the complaint for about 15 months while awaiting a Board decision clarifying the rule as to sustaining Section 8(a) (5) charges where the union has participated in an election and lost. Mere delay in the issuance of the complaint is insufficient ground for the denial of relief.

"The company urges that, because of the lapse of time between the occurrence of the unfair labor practices and the Board\'s final decision and order, and because the union was repudiated by the employees subsequently to the events recounted in this opinion, enforcement should be either denied altogether or conditioned on the holding of a new election to determine whether the union is still the employees\' choice as a bargaining representative. The argument has no merit. Franks Bros. Co. v. National Labor Relations Board, 321 U.S. 702 64 S.Ct. 817, 88 L.Ed. 1020; National Labor Relations Board v. P. Lorillard Co., 314 U.S. 512 62 S.Ct. 397, 86 L.Ed. 380; National Labor Relations Board v. Mexia Textile Mills, Inc., 339 U.S. 563, 568 70 S.Ct. 826, 829, 833, 94 L.Ed. 1067. Inordinate delay in any case is regrettable, but Congress has introduced no time limitation into the Act except that in § 10(b)." NLRB v. Katz, 369 U.S. 736, 748 n. 16, 82 S.Ct. 1107, 1114, 8 L.Ed.2d 230(1962).

We have examined the other points made by the petitioner and find them to be without merit.

Petition denied. Order enforced.

FRIENDLY, Circuit Judge (concurring in the result):

This case does not have the simplicity for me that it does for my brother Hays. Being asked to enforce an order requiring recognition of a union more than five years after the organizing campaign is enough in itself to arouse serious qualms. These are compounded by the circumstances that the inordinate delay was almost wholly attributable to the Board — more than 15 months of it a deliberate one by the General Counsel; that the union's card-count majority was small and doubtful on any view; that there has been a considerable turnover in the employees; and that nothing now stands in the way of a fair election. If we were free to decide the case in accordance with our own notions of good sense, I would unhesitatingly join my brother Anderson in denying enforcement of the bargaining order. But I cannot find sufficient legal basis for refusing to grant enforcement, distasteful though that is.

The two most important objections to enforcement of the bargaining order are the arguments that the union lacked a valid majority¹ and that even if it did, the order is an inappropriate remedy...