Dierks Forests, Inc. v. NLRB, No. 18713.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtVAN OOSTERHOUT and MATTHES, Circuit , and HARPER
Citation385 F.2d 48
Decision Date16 November 1967
Docket NumberNo. 18713.
PartiesDIERKS FORESTS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

385 F.2d 48 (1967)

DIERKS FORESTS, INC., Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 18713.

United States Court of Appeals Eighth Circuit.

November 16, 1967.


Landon H. Rowland, of Watson, Ess, Marshall & Enggas, Kansas City, Mo., for petitioner; Carl E. Enggas and Charles K. Thompson, Kansas City, Mo., and Elbert Cook, DeQueen, Ark., were with Landon H. Rowland, Kansas City, Mo., on the brief.

William J. Avrutis, Atty., N.L.R.B., for respondent; Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Elliott Moore, Atty., N.L.R.B., were with William J. Avrutis, Washington, D. C., on the brief.

Before VAN OOSTERHOUT and MATTHES, Circuit Judges, and HARPER, District Judge.

MATTHES, Circuit Judge.

This case is before the Court on the petition of Dierks Forests, Inc. to review and set aside, and on the cross petition of the National Labor Relations Board to enforce, an order issued against Petitioner on July 20, 1966, pursuant to Section 10(c) of the National Labor Relations Act. The Board's decision and order are reported at 160 N.L.R.B. No. 18. No jurisdictional problems are presented. We grant Dierks' petition to set aside the order of the Board and deny the Board's cross petition for enforcement.

The unfair labor practice charge in the present case had its genesis in the organizational efforts of the United Paper Makers and Paper Workers, AFL-CIO (Union) to secure representation of Petitioner's employees at its fiberboard plant located at Craig, Oklahoma, sometimes referred to as the Broken Bow Plant.1

385 F.2d 49

Pursuant to a stipulation for certification upon a consent election to be held under Board supervision, an election was conducted among Petitioner's production and maintenance employees on November 3, 1965. Out of approximately 167 eligible voters, sixty-five voted in favor of the Union while ninety-one voted against the Union.

On November 8, 1965 the Union filed timely objections to pre-election conduct on the part of the Petitioner allegedly affecting the results of the election. After investigation the regional director recommended in his report filed on January 27, 1966 that all but two of Petitioner's objections be overruled and that a hearing be directed with respect to these two objections in consolidation with proceedings emanating from an unfair labor practice charge filed against Petitioner on November 17, 1965.2

The unfair labor practice charge alleged that Petitioner (a) had discharged one of its employees because of his membership and activities in behalf of the Union, in violation of Section 8(a) (3) of the Act; (b) had interfered with, restrained and coerced its employees in the exercise of their rights guaranteed under Section 7 of the Act, in violation of Section 8(a) (1). The Board declined to entertain the Section 8(a) (3) charge, but issued a complaint on January 27, 1966 alleging that Petitioner had violated Section 8(a) (1) by coercively interrogating and threatening its employees on various occasions between September 21, 1965 and October 29, 1965. Following the hearing on the consolidated proceedings the Board adopted the report and recommendations of the Trial Examiner, and found that Petitioner had violated Section 8(a) (1) through coercive interrogations of its employees, and that such conduct interfered with their exercise of a free and untrammeled choice in the election. The Board issued a cease and desist order, set aside the election held on November 3, 1965 and ordered another election to be conducted under the supervision of the regional director.

This labor case is typical of many others in that the unfair labor practice charge and related objections to the election emanate from an organizational campaign sponsored by the Union to gain the support of the employees. During the campaign most of Petitioner's employees discussed the respective advantages and disadvantages of Union representation. Petitioner, through its operating personnel, attempted within permissive limits to counter Union propaganda. In opposition to the campaign staged by the Union adherents, thirty-four employees had signed and sent to Petitioner's other employees a letter setting forth in detail their reasons for opposing representation by the Union. The inference is clear that the organizational campaign permeated the entire plant. Viewing the record as a whole, however, we find no substantial evidence of impropriety or unlawful conduct on the part of the Petitioner. Indeed the regional director's dismissal of the majority of the post-election objections filed by the Union would seem to refute the allegation of high-pressure campaign tactics on the part of the Petitioner.

The evidence offered by the general counsel consisted of the testimony of six employees, one of whom was thoroughly discredited. The testimony of two other employees was so irrelevant and innocuous that the Trial Examiner gave it no consideration.

The Trial Examiner predicated his decision on the testimony of three employees, Jimmy O'Donnell, Edward Leonard and James...

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8 practice notes
  • N.L.R.B. v. Big Three Indus. Gas & Equipment Co., No. 77-2592
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 24, 1978
    ...by Big Three supervisors was not isolated. We do not face a single conversation such as that immunized in Dierks Forests, Inc. v. NLRB, 385 F.2d 48, 50 (8th Cir. 1967), or Pioneer Drilling Co. v. NLRB, 391 F.2d 961, 964 (10th Cir. 1968). Nor were acts of interference thinly spread among 500......
  • Chevron Oil Co., Standard Oil Co. of Tex. Div. v. NLRB, No. 29789.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 4, 1971
    ...336 F. 2d 590. See also Acme Products, Inc. v. N.L.R.B., 8th Cir. 1968, 389 F.2d 104; Dierks Forests, Inc. v. N.L.R.B., 8th Cir. 1967, 385 F.2d 48; N.L.R.B. v. Murray Ohio Mfg. Co., (b) Chevron's delay in furnishing information to and commencing negotiations with the Union. Local 826 was ce......
  • Merrill Farms v. Agricultural Labor Relations Bd., AFL-CI
    • United States
    • California Court of Appeals
    • December 12, 1980
    ...575, 89 S.Ct. 1918, 23 L.Ed.2d 547, involving an identical provision of the NLRA.) In Dierks Forests, Inc. v. N. L. R. B. (8th Cir. 1967) 385 F.2d 48, 50, the court acknowledged that "We have held on prior occasions that it is an unfair labor practice for a Company to threaten its employees......
  • NLRB v. Hart Beverage Co., No. 19453.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 30, 1971
    ...8 Cir., 403 F.2d 959 (1968); Acme Products, Inc. v. N. L. R. B., 8 Cir., 389 F.2d 104 (1968); Dierks Forests, Inc. v. N. L. R. B., 8 Cir., 385 F.2d 48 (1967). However, we are not to abdicate our judicial function and become a mere rubber stamp for administrative action. N. L. R. B. v. Brown......
  • Request a trial to view additional results
8 cases
  • N.L.R.B. v. Big Three Indus. Gas & Equipment Co., No. 77-2592
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 24, 1978
    ...by Big Three supervisors was not isolated. We do not face a single conversation such as that immunized in Dierks Forests, Inc. v. NLRB, 385 F.2d 48, 50 (8th Cir. 1967), or Pioneer Drilling Co. v. NLRB, 391 F.2d 961, 964 (10th Cir. 1968). Nor were acts of interference thinly spread among 500......
  • Chevron Oil Co., Standard Oil Co. of Tex. Div. v. NLRB, No. 29789.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 4, 1971
    ...336 F. 2d 590. See also Acme Products, Inc. v. N.L.R.B., 8th Cir. 1968, 389 F.2d 104; Dierks Forests, Inc. v. N.L.R.B., 8th Cir. 1967, 385 F.2d 48; N.L.R.B. v. Murray Ohio Mfg. Co., (b) Chevron's delay in furnishing information to and commencing negotiations with the Union. Local 826 was ce......
  • Merrill Farms v. Agricultural Labor Relations Bd., AFL-CI
    • United States
    • California Court of Appeals
    • December 12, 1980
    ...575, 89 S.Ct. 1918, 23 L.Ed.2d 547, involving an identical provision of the NLRA.) In Dierks Forests, Inc. v. N. L. R. B. (8th Cir. 1967) 385 F.2d 48, 50, the court acknowledged that "We have held on prior occasions that it is an unfair labor practice for a Company to threaten its employees......
  • NLRB v. Hart Beverage Co., No. 19453.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 30, 1971
    ...8 Cir., 403 F.2d 959 (1968); Acme Products, Inc. v. N. L. R. B., 8 Cir., 389 F.2d 104 (1968); Dierks Forests, Inc. v. N. L. R. B., 8 Cir., 385 F.2d 48 (1967). However, we are not to abdicate our judicial function and become a mere rubber stamp for administrative action. N. L. R. B. v. Brown......
  • Request a trial to view additional results

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