Iowa Beef Packers, Inc. v. NLRB

• Decision Date: 28 April 1964
• Docket Number: No. 17446.,17446.
• Citation: 331 F.2d 176
• Parties: IOWA BEEF PACKERS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

331 F.2d 176 (1964)

IOWA BEEF PACKERS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 17446.

United States Court of Appeals Eighth Circuit.

April 28, 1964.

COPYRIGHT MATERIAL OMITTED

Arthur H. Johnson, Fort Dodge, Iowa, made argument and filed brief for petitioner.

Lawrence Joseph, Atty., N. L. R. B., Washington, D. C. made argument for Labor Board (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Melvin J. Welles, Atty., N. L. R. B., Washington, D. C., were with him on brief).

Before VOGEL, MATTHES and BLACKMUN, Circuit Judges.

MATTHES, Circuit Judge.

In this review proceeding the broad question for our determination is whether Iowa Beef Packers, Inc. (hereinafter called "Company") violated §§ 8(a) (2) and 8(a) (4) of the National Labor Relations Act.¹

The activities and conduct of Company forming the basis for the unfair labor charges and the ultimate order of the Board finding violations of the Act stem in large part from Company's antagonism toward United Packinghouse, Food & Allied Workers Dist. No. 3, AFL-CIO (hereinafter called "International"), and from the efforts of International and Hawkeye Industrial Labor Union (hereinafter called "Independent"), a competing labor organization, to represent Company's employees as their bargaining agent.

A brief résumé of the evidence, largely uncontroverted, will be of assistance and helpful to an understanding of the issues before us.

The Fort Dodge Packing Company, whose employees had been represented by Local 607 of International, discontinued operations in November, 1961. Company purchased the Fort Dodge plant in February, 1962, and thereafter rebuilt it. When the rebuilding of the plant began, there were about 500 applicants for jobs. Company hired approximately 90 of these men with the understanding that those who worked on the construction would be accorded preference in filling the production jobs.

Of the 48 men whom the old Fort Dodge Packing Company had employed in its production unit, 29 applied for employment with Company. Eighteen of these men — all of whom were either members or former officers of Local 607 of International — were hired by Company. Of the 11 who were not employed, 5 were alleged discriminatees and the subject of 8(a) (3) charges.

Company began operations on October 2, 1962. In addition to the 500 men who applied for jobs before construction began, more than 1,000 applied during the course of construction. The total work force for Company's plant when it began production was about 160 employees, and its preannounced plan of hiring men who had worked on construction was carried out.

In early September, 1962, International began an organizational drive among the employees. Meetings were held regularly, and in late September, International handbilled the plant. Company's President A. D. Anderson and Company's supervisors were aware of International's activities. At approximately the same time that production began, a number of Company's employees formed the Independent Union, and then competed with International for support in an effort to become the bargaining agent.

Company also operated a packing plant in Denison, Iowa. At the time of the hearing on the charges filed in this case, the employees of that plant were represented by an independent union. Prior to formation of the independent union, Company — and Mr. Anderson in particular — had encountered difficulty with International during the period that one of its locals was the bargaining agent at the Denison plant.

Mr. Anderson was opposed to International representing his company's employees in the Fort Dodge plant, and he and his supervisors engaged actively in a campaign to discourage the employees from joining or supporting International. This conduct and activity constituted unfair labor practices, and resulted in the 8(a) (1) violations.

During the latter part of October, 1962, the competing labor organizations moved swiftly in their organizational efforts. On October 18, Independent filed with Company a petition containing the signatures of over 100 of the total work force of approximately 160 employees. At the same time, International claimed it represented a majority of the employees. On October 23, International filed a representation petition with the Board, to which were allegedly attached 47 union authorization cards. Nine additional cards were allegedly later filed with the Board of which 5 or 6 were signed subsequent to October 23. Company received notice of the filing of International's representation petition on October 24 or 25, but on October 26 Company recognized Independent as the exclusive bargaining agent. On December 17, 1962, Company and Independent executed a labor contract.

With this background information, we consider the unfair labor charges and subsequent Board proceedings.

Upon separate charges, one filed by a former Fort Dodge Packing Company employee, and one filed by International, the acting regional director of the National Labor Relations Board issued a complaint dated December 17, 1962, alleging that Company had committed unfair labor practices within the meaning of 8(a) (1), (a) (2), (a) (3) and (a) (4).² More precisely, the complaint alleged — (1) that Company had interfered with, restrained and coerced its employees, in the exercise of their § 7 rights, by threatening to close the plant if the employees selected International or any other international union to represent them, by creating the impression among employees that Company was engaging in surveillance of their activities on behalf of International, by threatening employees with discharge for joining International or engaging in activities on behalf of International, by interrogating employees concerning their union membership and activities, and that such conduct and activity was violative of 8(a) (1) of the Act; (2) that since on or about October 26, 1962, Company had rendered and was rendering unlawful aid, assistance and support to Independent in violation of 8(a) (1) and (2) of the Act, by recognizing Independent as the exclusive bargaining agent for all of the employees at Company's plant in Fort Dodge, Iowa, and by engaging in collective bargaining with Independent after International had requested recognition on or about October 17, 1962, and after International had filed a representation petition with the Board on October 23, 1962; (3) that Company had violated 8(a) (1) and (3) of the Act by refusing to hire and employ 5 individuals who were members of International, who had otherwise assisted and supported International, and who had held offices in Local 607 of International while they were employed by the Fort Dodge Packing Company; (4) that Company had violated 8(a) (1), (3) and (4) of the Act by refusing on or about September 28, 1962, to hire and employ one James Grove for the reason that he had filed charges against Company under the Act.

After an extensive hearing the trial examiner filed his intermediate report finding:

(1) Company had engaged in unfair labor practices within the meaning of 8(a) (1); (2) Company had not violated 8(a) (2) and (3) as charged in the complaint; (3) Company had violated 8(a) (4) by refusing to employ James Grove because he filed a charge with the Board. However, finding further that Grove had deliberately falsified one of the allegations in the charge. Accordingly, the examiner recommended an appropriate remedy for the 8(a) (1) violation, recommended that the 8(a) (2) and (3) charges be dismissed, and recommended that the usual 8(a) (4) remedy ordering Company to hire Grove be withheld.

Upon exceptions filed by the charging party and general counsel, the Board agreed with the examiner's finding that Company had engaged in conduct proscribed by 8(a) (1), and that Company had not violated 8(a) (3). However, contrary to the findings of the examiner, the Board found that by recognizing and executing a collective bargaining agreement with Independent in the face of an existing question concerning representation, Company had granted unlawful assistance and support to Independent in violation of 8(a) (2) and 8(a) (1). Furthermore, while agreeing with the examiner's finding that Company had violated 8(a) (4) in discriminatorily refusing to hire Grove, the Board — contrary to the examiner's recommendation — refused to withhold the usual 8(a) (4) remedy. The Board ordered Company to cease and desist from the alleged unlawful conduct, ordered that certain affirmative action be taken, and ordered that appropriate notices be posted. See 144 N.L.R.B. No. 64.

Inasmuch as Company did not before the Board and does not here challenge the finding that it committed an 8(a) (1) violation, we need not concern ourselves with this phase of the proceeding and will consider the unlawful conduct forming the basis for the 8(a) (1) violation only as such conduct bears upon and is related to the 8(a) (2) charge.³ Similarly, since the parties aggrieved by the Board's finding that Company did not violate 8(a) (3) do not seek a review of that portion of the order, we forego further consideration of that finding.

In resolving the issues before us, we are required to heed the mandate of the Act that, "The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive." § 10(e) of the Act; 29 U.S.C.A. § 160(e). In view of the urgent insistence of Company that the Board fell into error in refusing to adhere to and follow the recommendations of the trial examiner in toto, it may not be amiss to again call attention to the teachings of the landmark case, Universal Camera Corporation v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). There the Supreme Court considered the scope of judicial review of the Board's orders — including situations involving...