General Engineering, Inc. v. NLRB

• Decision Date: 13 February 1963
• Docket Number: No. 17427.,17427.
• Citation: 311 F.2d 570
• Parties: GENERAL ENGINEERING, INC., and Harvey Aluminum (Incorporated), Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

311 F.2d 570 (1963)

GENERAL ENGINEERING, INC., and Harvey Aluminum (Incorporated), Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 17427.

United States Court of Appeals Ninth Circuit.

December 31, 1962.

Rehearing Denied February 13, 1963.

Rhoten, Rhoten & Speerstra, Sam F. Speerstra, William B. Wyllie and Maxwell H. Elliott, Salem, Or., for petitioners.

Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Melvin J. Welles, and Robert Sewell, Attys., N. L. R. B., Washington, D. C., for respondents.

Before ORR, HAMLEY and JERTBERG, Circuit Judges.

JERTBERG, Circuit Judge.

This case is before the Court on the amended petition of General Engineering, Inc., and Harvey Aluminum (Incorporated), (referred to individually as "General Engineering" and "Harvey Aluminum" and collectively as "petitioners"), to review and set aside an order of the National Labor Relations Board issued against them on May 19, 1961, corrected on May 29, 1961, and on the cross-petition of the National Labor Relations Board (hereinafter the "Board") for enforcement of its order.

This Court has jurisdiction of the proceedings under Section 10(e) and (f) of the National Labor Relations Act, as amended (29 U.S.C. § 151 et seq.), the unfair labor practices having occurred at petitioners' plant in The Dalles, Oregon.

Petitioners jointly operate an aluminum plant which employs approximately 500 production and maintenance workers.

On April 2, 1959, the Board issued a decision and direction of election in Case No. 36-RC-1376 ordering a representation election among production and maintenance personnel in the employ of petitioners. The election was held on April 27th and 28th, 1959. The participating labor organizations listed on the ballot were United Steel Workers of America, AFL-CIO, and Aluminum Workers Council of The Dalles, Oregon. A substantial majority of the ballots were cast against representation by either labor organization.

One of the labor organizations filed objections to the result of the election and after investigation, the Regional Director of the Board, under date of June 12, 1959, recommended to the Board that the election be set aside on various grounds. On June 24, 1959, the same labor organization filed two charges with the Board, one in Case No. 36-CA-953 and the other in Case No. 36-CA-954, each imputing to the petitioners violations of the National Labor Relations Act.

Petitioners filed objections to the report of the Regional Director and requested that a hearing be held to determine issues raised by the objections, and on July 30, 1959, the Board directed that a hearing be held.

On August 12, 1959, on the basis of the charges filed and amendments thereto, the General Counsel of the Board issued a complaint alleging that the petitioners had violated Section 8(a) (3) of the Act by discharging and refusing to reinstate two employees, Cavanaugh and Fowler, because of the Union membership and activities of such employees; that petitioners discharged Foreman Woodruff because of his refusal to discharge or otherwise discriminate against various of petitioners' employees including Cavanaugh, and failure to engage in other unfair labor practices; and that by reason of the discharge of Cavanaugh, Fowler and Woodruff, and other conduct, petitioners had interfered with, restrained and coerced respondent's employees in the exercise of rights guaranteed them by Section 7¹ of the Act, and had thereby violated Section 8(a) (1) of the Act.

The proceedings directed by the Board to resolve issues relating to the election were consolidated for hearing with the two cases in which charges were filed.

Following hearing on the consolidated cases and the intermediate report and recommended order of the Hearing Officer, the Board, on May 19, 1961, issued its decision and order which is now under review.

The order, among other matters, directed that the election held on April 27th and 28th, 1959, in Case No. 36-RC-1376 be set aside and that the case be remanded to the Regional Counsel for the purpose of conducting a new election "at such time as he deems the circumstances permit the free choice of a bargaining representative."

Pursuant to the order last mentioned, the Regional Director conducted a new representation election and, under date of September 1, 1961, the Board issued its certification of the results of that election in which it is stated that the new election was conducted; that no collective bargaining representative had been selected; that no objections were filed to the tally of ballots or to the conduct of the election and in which it was certified "that a majority of the valid ballots had not been cast for any labor organization appearing on the ballot, and that no such organization is the exclusive representative of all the employees, in the unit here involved, within the meaning of Section 9(a) of the National Labor Relations Act." No issue is raised on this review in respect to the validity of the re-run election and that proceeding is closed.

In summary, the Board found: (1) That petitioners' conduct prior to the first representation election of April 27th and 28th, 1959, interfered with the employees' free selection of bargaining representatives, in violation of Section 8(a) (1) of the Act;² (2) that the petitioners violated Section 8(a) (3) and (1) of the Act by discharging employees Cavanaugh and Fowler for resuming Union activities; and (3) violated Section 8(a) (1) of the Act by discharging Supervisor Woodruff for refusing to substantiate the pretextual "cause" for Cavanaugh's discharge.

We will first consider the problem before us relating to Case No. 36-RC-1376 wherein the Board ordered the representation election which was held on April 27th and 28th, 1959. In the decision and order under review, the Board found that prior to that election the petitioners, through circulars and speeches, promised higher wages and other economic benefits if the employees voted against Union representation in the election, and threatened reprisals if they chose to be so represented. The Board concluded that such conduct on the part of petitioners interfered with the employees' right to freely select a bargaining representative in violation of Section 8(a) (1) of the Act, and ordered that such election be set aside and that a new election be held. The petitioners do not question the propriety of such findings, conclusions and order as contained in the order under review. The new election was held subsequent to the Board's order and it is unquestioned that this election was properly held under circumstances which permitted the employees to freely choose their bargaining representative without restraint, coercion, threatened reprisals or interference by petitioners. In our view, such certificate makes moot all portions of the order under review which relate to the representation case. In National Labor Relations Board v. Jones & Laughlin Steel Corp., 331 U.S. 416, at p. 428, 67 S.Ct. 1274, at 1281, 91 L.Ed. 1575 (1947), it is stated:

"When circumstances do arise after the Board\'s order has been issued which may affect the propriety of enforcement of the order, the reviewing court has discretion to decide the matter itself or to remand it to the Board for further consideration. For example, where the order obviously has become moot, the court can deny enforcement without further ado; but where the matter is one involving complicated or disputed facts or questions of statutory policy, a remand to the Board is ordinarily in order."

The cease and desist order in this case is extremely broad and in some respects is based upon matters which have been mooted by the issuance of the certification of the results of the election held subsequent to the order under review. On remand, the Board should modify the order in respect to matters mooted by the new election.

We now turn to the Board's order as it relates to employees...