Happach v. NLRB, 15079.
| Decision Date | 22 December 1965 |
| Docket Number | No. 15079.,15079. |
| Parties | Bernard S. HAPPACH, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Donald A. Morgan, Peoria, Ill., for petitioner.
Marcel Mallet-Prevost, Asst. Gen. Counsel, Melvin H. Reifin, Atty., N. L. R. B., Washington, D. C., for respondent.
Before HASTINGS, Chief Judge, and CASTLE and KILEY, Circuit Judges.
Bernard S. Happach, an individual proprietor of a self-service supermarket in Pekin, Illinois, petitions this court to review and set aside an order of the National Labor Relations Board.
On December 24, 1963, the Board issued a complaint alleging that Happach, through his store manager, Thomas S. Hancock, violated Section 8(a) (1) of the National Labor Relations Act by threatening his employees for their union activity with discharge or cuts in working hours; that Happach violated Section 8 (a) (3) by the discriminatory discharge of Richard Pollock, a stock boy; and that Happach violated Section 8(a) (5) by refusal to bargain with a majority union.
After a hearing in which Happach did not offer any evidence, the trial examiner recommended dismissal of the 8(a) (1) violation charge, but found that Happach had violated Sections 8(a) (3) and 8(a) (5). As for the order, the examiner recommended that Happach cease and desist from discouraging membership in the union and from refusing to bargain collectively with the union. He further recommended that Happach be directed to bargain with the union as the exclusive representative of his grocery clerk employees and that Happach offer Pollock, the discharged stock boy, full reinstatement with back pay.
Happach filed exceptions to the trial examiner's decision, but the Board adopted the findings, conclusions, and recommendations of the trial examiner.
In his petition to review, Happach contends that the Board's findings are not supported by substantial evidence on the record as a whole. Specifically, he claims that the union authorization cards which evidenced the majority status of the union among Happach's grocery clerk employees were signed by employees who were told that the cards would be used to obtain an election and would not be used directly to obtain recognition of the union from Happach without an election. With respect to the discriminatory discharge, Happach claims that Pollock's dismissal was a legitimate discharge for cause.
The trial examiner made the following findings of fact. In September, 1963, Marvin T. Dixon, employed by Happach as a stock boy, contacted Retail Clerks Union, Local 536 and obtained a supply of authorization cards. The relevant portion of the card reads as follows:
In addition to his own signature, Dixon obtained the signatures of nine other employees. The signed authorization cards were returned to the union, and, shortly thereafter, union representatives visited Happach's store and spoke with manager Thomas S. Hancock, telling him that the union represented a majority of the store's grocery clerks and offering to prove this claim by a card check. Hancock stated he had no authority in the matter and offered to advise Happach, who was not in the store, and have him contact the union.
Happach did not contact the union. Approximately a week later, a union representative was able to contact Happach personally. At this meeting, Happach was informed that the union represented a majority of his grocery clerks and that it wanted recognition as their bargaining representative. The union offered a card check to show its majority. Happach expressed no doubt as to the union majority, but stated that he wished to consult with his attorney before making his decision.
About a week later, the union representative returned. Happach then told him that after consultation with his lawyer, he had decided not to recognize the union.
In the following week, the union again attempted to secure recognition. Happach repeated his refusal and also refused to supply the union with the name of his attorney.
At no time in any of the meetings did Happach express any doubt as to the union's majority, ask for proof...
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