Lincoln Manufacturing Co. v. NLRB
| Citation | 382 F.2d 411 |
| Decision Date | 04 December 1967 |
| Docket Number | No. 15914.,15914. |
| Parties | LINCOLN MANUFACTURING CO., Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Madison P. Neilson, Chicago, Ill., Arnstein, Gluck, Weitzenfeld & Minow, Chicago, Ill., of counsel, for petitioner.
Marcel Mallet-Prevost, Asst. Gen. Counsel, Harold B. Zanoff, Atty., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Gary Green, Atty., N. L. R. B., Washington, D. C., for respondent.
Before SCHNACKENBERG, KNOCH and KILEY, Circuit Judges.
Certiorari Denied December 4, 1967. See 88 S.Ct. 470.
The petitioner, Lincoln Manufacturing Company, Inc., hereinafter called "Lincoln," pursuant to § 10(f) of the National Labor Relations Act, as amended, Title 29 U.S.C. § 151 et seq., § 160(f), seeks to set aside an Order of the National Labor Relations Board issued October 12, 1966, reported at 160 NLRB No. 146, 1966 CCH NLRB ¶ 20,784, p. 26,744. The Board has cross-petitioned under § 10(e) of the Act for enforcement of its Order to cease and desist from unfair labor practices or other infringement on employees' rights, to bargain collectively with Local Union 503, Sheet Metal Workers' International Association, AFL-CIO (hereinafter called the "Union") on request, and to post appropriate notices.
The Board found that Lincoln violated § 8(a) (5) and (1) of the Act by refusing to bargain with the Union, and had independently violated § 8(a) (1) by acts of interference, restraint and coercion to undermine the Union, dissipate its majority status and avoid the duty to bargain.
Union organizer Frank Elbrink testified that, after he had addressed a meeting of 22 Lincoln employees late in March, 1965 on the benefits of union representation, explaining that the Union as employee representative could negotiate for a contract with Lincoln on wages, seniority, job security, holidays, vacations, etc., the employees present unanimously voted to be represented by the Union. He said he told the employees of his then opinion that Lincoln's President D. Dean Rhoads would recognize the Union without an election.
Under date of May 13, 1965, on the basis of authorization cards from 21 of the 29 employees in the unit, Mr. Elbrink wrote Lincoln defining the unit and asking for recognition and bargaining. Lincoln stipulated that this letter was received on or about May 17, 1965, the same day the Union filed a Representation Petition seeking an election.
A consent election was held on July 8, 1965, at which 11 of the 28 then eligibles voted for and 16 against the Union. One employee did not vote.
On the basis of the Union's objections, the Board set this election aside.
The cards signed by the 21 employees read:
After hearing testimony as to the statements made in connection with the cards, the Trial Examiner found no support for Lincoln's objections that 11 of the cards were signed on representations that despite the clear wording of the card its sole purpose was to secure an election. There were some conflicts and inconsistencies in the testimony of the various witnesses. Granting that resolution of certain issues of credibility had to be made by the Trial Examiner who heard the witnesses, we agree that the record supports his conclusion, as affirmed by the Board, that on May 17, 1965, when Lincoln received the Union's request for recognition, a majority of the employees in the unit had authorized the Union to act as their collective bargaining representative.
Lincoln argues that the May 13, 1965, letter was defective in that it made no claim to majority status. The letter read:
Awaiting your reply, I remain Yours truly /s/ Frank Elbrink International Organizer FE:jo Certified Mail
Unlike the communication in Sheboygan Sausage Co., Inc., 156 NLRB #130, p. 1490 (1966), on which Lincoln relies, the letter did request bargaining, contained the Union's name and address so that a reply could have been made, and described the bargaining unit. As the Trial Examiner concluded, a claim to majority status was inherent in the explicit request for recognition and bargaining. Even in Sheboygan, it was noted (p. 1501) that the mere filing of an election petition did not bar the operative effect of a simultaneous demand for recognition and bargaining and that in other contexts a claim to represent employees might reasonably be understood as a claim to majority representation.
On or about the same day that Lincoln agreed orally to a consent election, May 20, 1965, it mailed announcements of its 1965 vacation plans to the employees, in disregard of the policies and rules set out in Lincoln's "Handbook" which had been distributed to all employees, under which none of the employees would have been entitled to a vacation in 1965. Each employee was told how many days of paid vacation he was entitled to receive and asked to indicate the days he desired to take. Some employees were offered the choice of working on vacation days to receive additional wages. One such letter read:
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