Crawford Manufacturing Co. v. NLRB

Decision Date27 October 1967
Docket NumberNo. 11040.,11040.
Citation386 F.2d 367
PartiesCRAWFORD MANUFACTURING CO., Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Amalgamated Clothing Workers of America, AFL-CIO, Intervenor.
CourtU.S. Court of Appeals — Fourth Circuit

Clifton L. Elliott and Harry L. Browne, Kansas City, Mo. (Spencer, Fane, Britt & Browne, Kansas City, Mo., Marion A. Prowell, Constangy & Prowell, Atlanta, Ga., M. Wallace Moncure, Jr., and Moncure & Cabell, Richmond, Va., on brief) for petitioner.

Burton L. Raimi, Atty., N. L. R. B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Lawrence M. Joseph, Atty., N. L. R. B., on brief), for respondent.

John E. Philbin, Chicago, Ill. (Jacob Sheinkman and Clifford D. Reznicek, New York City, on brief) for intervenor.

Before SOBELOFF, BRYAN and WINTER, Circuit Judges.

ALBERT V. BRYAN, Circuit Judge:

The National Labor Relations Act, 29 U.S.C. § 151 et seq., was breached, the Board has found, by the Crawford Manufacturing Company, Inc. at its plant in Emporia, Kansas, in this conduct: interfering with employees in the exercise of their right to organize; discouraging membership in a union by discriminatory lay-offs; and inexcusably refusing to bargain collectively with Amalgamated Clothing Workers of America, AFL-CIO, as the exclusive representative of the Crawford employees.1 These acts were laid, respectively, as offending Sections 8(a) (1), 8(a) (3) and 8(a) (5) of the Act.2

To effectuate these findings, the Board ordered the employer to desist from further interference and discrimination; to make reparation for the layoffs; and to bargain with the union. On the parties' cross-petitions, we must say whether substantial evidence on the whole record sustains the Board's condemnation of the employer on all counts. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). The interference is adequately proved, we think, but not the discrimination in the lay-offs. Nor do we think Crawford should have been ordered to bargain with the union, for it was not substantially proved to be the employees' representative.

A drive to bring into the ACWA the 172 production and maintenance employees of Crawford at Emporia was opened in December 1964. On January 7, 1965 Jay Dee Patrick, a national representative of the AFL-CIO, distributed folders, each including an application to join, as the workers entered the plant parking lot. The following day General Manager Jones addressed employees from a prepared text, listing the benefits they were receiving from the company and expressing opposition to any unionization.

On January 12 the employees met for the first time for a discussion of the ACWA, with about 75 present. Patrick and Edward Bonitt, a national representative of ACWA, addressed them, explained the structure of the local and national organizations, and at the same time noted a number of advantages of a union. Membership application cards were distributed; an organizing committee was appointed and met with Patrick and Bonitt after adjournment. At the committee meeting questions and answers about the ensuing campaign were exchanged.

By January 18 the union had obtained more than 100 signed cards. On that day Patrick wrote the company stating that a majority of the production, shipping, receiving and maintenance employees had designated ACWA as their collective bargaining agent. He requested an opportunity to demonstrate this authorization and to negotiate a contract on behalf of the employees. The company replied, in a letter dated January 20, that the matters submitted by the union should be "processed through the National Labor Relations Board." During the two days before this reply, the company sent a letter to each employee and issued releases, reiterating the perquisites provided by the company and questioning the advisability of bringing in a union.

The union was busy too. On January 19 Patrick told a gathering of some 72 employees that with authorization cards in hand he had demanded union recognition from the company. At the same time he had lodged with the National Labor Relations Board a petition for an election, anticipating the company's denial of his demand. On the later hearing of the union's petition the company assented to a Board-conducted election for March 26. A spirited campaign followed, with arguments and solicitations presented in letters and leaflets. On the final tally the union lost, 69 to 86, with 8 votes challenged.

The complaint in this case, issued on June 18, 1965, charged the company with unfair labor practices in the campaign, consisting of coercive threats and interrogation sufficient to invalidate the election, and indicted the company for refusing to recognize the union as the employees' representative on the basis of the signed cards.

Section 8(a) (1) Infractions

Confirming its examiner, the Board found that Supervisor Drumwright questioned certain employees about the union meetings and made anti-union remarks. It found also that Superintendent Jenks called two of the organizing committeemen into his office in the early part of March 1965 and impressed upon them the possibility of the loss of current benefits should the union succeed in the election. He engaged other employees in similar conversations. These instances are illustrative of the conduct disapproved by the Board and warranted, we think, the Board's findings of interference and coercion transgressive of Section 8(a) (1).

Section 8(a) (3) Infractions

On February 19, 1965, the day after the consent election had been arranged for March 26, 8 employees from various plant departments were laid off. The reason given by the company was a slack period of work. It said, too, that these employees held the lowest seniority and would be recalled as soon as practicable. All but one had signed a union card, and all were called back soon after the election. Three of the 7 returned; the others did not, one because he had entered military service.

The Board rejects the justification offered by the company, particularly in view of the union sympathies of the men and the anti-union disposition of the employer. However, we see no acceptable basis for this discredit of the company. Its officers testified to the business slump and cited company records in corroboration. We discern no falsification here. Even if mistaken, it was a managerial judgment not impeached as mala fide. None of the suspended employees were replaced by male substitutes, although some additional female workers were taken on during the lay-off. Those released had not been hired for more than four months before, and indisputably their seniority was lower than that of any other workers.

Section 8(a) (5) Infraction — Refusal to Recognize the Union

Acknowledgment of its representation, the union forcefully argues, was required of the company when at least 100 and possibly 105 of the total of 172 employees had on or before January 20, 1965 signed membership applications, and the company advised of this majority. Each of the cards reads as follows:

APPLICATION FOR MEMBERSHIP in the Amalgamated Clothing Workers of America, AFL-CIO 1627 LOCUST ST. ST. LOUIS, (3), MO. CEntral 1-9329

I, the undersigned, hereby apply for membership in the Amalgamated Clothing Workers of America, and do hereby appoint and authorize the officers thereof, to represent and negotiate for me in all matters, pertaining to wages, hours and other conditions of employment.
Name (Please sign): ..............
Address: .........................
Telephone Number: ...... Date: ...
Company: .........................
Department: ......Operation: ....

The company contends that these cards did not count because they were signed under a misrepresentation of the union: that the purpose of the card was only to have an election to determine whether the employees desired the union to become their bargaining representative. It was not understood by the employees, the company urges, as an immediate authorization to the union to act as their collective agent. The Board has in the past quite frankly conceded that a card signed under the representation that its sole purpose was to obtain an election should not be accepted as an appointment of the union. Bauer Welding and Metal Fabricator's, Inc. v. NL RB, 358 F.2d 766, 775-776 (8 Cir. 1967).

The company's position is supported by the findings of the Board's examiner. From an experienced feel of the evidence in the case, he sensed that the employees misunderstood the meaning of the cards. Adverting to the first meeting of the employees, January 12, he said:

"In answering questions Patrick assumed that the Company was going to insist upon an election and consequently made frequent references to the election. These references to the election which Patrick anticipated would be held and his explanation that in the election, no one would know how he voted, neither the Union, the Company, nor their fellow employees would know, I find, were interpreted by some of the employees at the meeting as indicating that the cards would be used only for the purpose of obtaining an election. There is much testimony concerning whether Patrick did or did not make such statements at this meeting. * * *" (Accent added.)

Again, to the organizing committee Patrick's statements were to the following effect, the examiner noted:

"Patrick answered, I find, that the cards would be used first to obtain an election, that the signers of the cards would not be joining the Union at this time, that this would be deferred until after the Union had won the election and had succeeded in negotiating a contract satisfactory to the employees. * * *" (Accent added.)

Still again he observed:

"As indicated above, I further find accordance with the testimony to which I have referred, that when at the subsequent meeting of the
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