N.L.R.B. v. Hi-Temp, Inc.

• Decision Date: 10 October 1974
• Docket Number: INC,HI-TEM,Nos. 73-2022,s. 73-2022
• Parties: 87 L.R.R.M. (BNA) 2437, 75 Lab.Cas. P 10,370 NATIONAL LABOR RELATIONS BOARD, Petitioner, v., et al., Respondents. PRODUCTION WORKERS UNION LOCAL 10, etc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent., et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. to 73-2024.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 583

503 F.2d 583

87 L.R.R.M. (BNA) 2437, 75 Lab.Cas. P 10,370

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HI-TEMP, INC., et al., Respondents.

PRODUCTION WORKERS UNION LOCAL 10, etc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

HI-TEMP, INC., et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 73-2022 to 73-2024.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 9, 1974.

Decided Oct. 10, 1974.

Peter G. Nash, Gen. Counsel, Richard A. Cohen, Atty., N.L.R.B., Washington, D.C., Peter J. Hurtgen, Washington, D.C., for N.L.R.B.

Arnold E. Charnin, Chicago, Ill., for intervenor.

George E. Preonas, Chicago, Ill., Sherman M. Carmell and William A. Widmer, III, Chicago, Ill., for Hi-Temp and Production Workers Union Local 10.

Before SWYGERT, Chief Judge, CASTLE, Senior Circuit Judge, and CUMMINGS, Circuit Judge.

CASTLE, Senior Circuit Judge.

The National Labor Relations Board petitions this Court to enforce its order against Hi-Temp, Inc., Tru Temp, Inc., and Steel Treating, Inc. ('the Company'), and against the Production Workers Union, Local 10, AFL-CIO ('the Production Workers' or 'the Union') for violations of the National Labor Relations Act, 29 U.S.C. 151 et seq. (1970).

The Company is composed of three affiliated corporations comprising an integrated business enterprise. In December 1971, the Production Workers instituted a campaign to organize the Company's employees. Two of its organizers visited employees' homes and secured signatures on Production Workers authorization cards. The United Steelworkers of America, AFL-CIO ('the Steelworkers'), who previously had attempted to organize the Company's employees and failed, protested this encroachment on its 'territory,' and began another drive for employee support.

Subsequently, the Production Workers demanded recognition, and the Company agreed to a card check to determine if a majority of the Company's employees had signed Production Workers authorization cards. The card count established that forty-six of the eighty-six employees signed cards for the Production Workers. Although during the card count the Company received and read a letter from the Steelworkers expressing their contunuing organizational interest in the Company's employees, the Company, on the basis of the card check, recognized the Production Workers on January 19, 1972, and on February 25, 1972, agreed to a collective bargaining contract containing union-security and check-off clauses.

The NLRB determined, however, that the forty-six cards accepted as a basis for the Production Workers' majority status included cards signed by eight employees who had also signed authorization cards for the Steelworkers. The Board, therefore, excluded these eitht 'dual' cards from the Production Workers' total, and the remaining thirty-eight valid cards were insufficient to establish majority status. Accordingly, the Board found that the Company, by recognizing and contracting with a minority union, had violated Sections 8(a) (2) and 8(a)(3) of the Act, ¹ and that the Union had correspondingly violated Sections 8(b)(1)(A) and 8(b)(2). ²

The Company and the Production Workers contest the Board's conclusion that the Union was a minority union at the time of recognition on January 19. They argue that the evidence demonstrates that six of the eight employees who signed both Production Workers and Steelworkers cards signed their Steelworkers cards after the date of the recognition agreement. If those cards were in fact signed after January 19, then the Union had majority status at the time of recognition and the Act would not be violated. We are satisfied, however, that there is substantial evidence on the record considered as a whole to support the Board's conclusion. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

The Company and Union rely on testimony that Luis Torres, one of the eight signers of dual cards, signed his Steelworkers card at a Sunday meeting with Steelworkers' organizer Alicea, and that he signed his Production Workers card (dated January 17, a Monday) several days before the Steelworkers card. The Company and Union, therefore, assert that Torres actually signed his Steelworkers card on Sunday, January 23, four days after the recognition agreement was signed, and that his card and the cards which he subsequently passed out to his fellow employees were backdated.

It is true that Torres and Alicea testified that the signing took place on a Sunday, and it is apparently uncontested that Torres signed his Production Workers card on January 17. Torres also testified, however, that he signed both the Steelworkers card and the Production Workers card on the same day-- Monday, January 17. In addition, employees Portillo, Samano, Marquina, and Castrejon, who also signed dual cards, testified that Torres gave them Steelworkers cards at work on Monday evening, January 17. ³ Portillo, Samano, and Marquina also testified that they signed their cards that same night, while Castrejon stated that he took his home and signed it the following day. Since it is undisputed that Torres did not distribute the other Steelworkers cards until after he had signed his own, the testimony of Torres and his fellow employees amply supports the Board's finding that Torres and his co-workers signed their Steelworkers cards prior to January 19, and that on that date the Production Workers were a minority union.

The Company and the Union next claim that even if the eight employees executed both authorization cards prior to recognition, the Board erred in excluding the dual cards in determining the majority status of the Production Workers. They argue that the cards should be counted because the Company acted in good faith and had no knowledge of the Steelworkers' organizational activities. We cannot agree.

In NLRB v. Fishermen's & Allied Workers' Union, Local 33, 483 F.2d 952 (9th Cir. 1973) and Intalco Aluminum Corp. v. NLRB, 417 F.2d 36 (9th Cir. 1969), authorization cards of employees who had signed cards both for the union seeking recognition and for a competing union were excluded in ascertaining majority status, the underlying rationale being that such cards do not reflect a clear and unambiguous selection of a collective bargaining representative. In Playskool, Inc. v. NLRB, 477 F.2d 66, 71 (7th Cir. 1973), we did not question the applicability of that procedure.

Although in those cases there may have been knowledge of organizational activities which would cast doubt on the employer's good faith recognition of the union asserting a card majority, we find an employer's good faith to have no effect on the exclusion of the dual cards, because it is employer support of a minority union that the Act condemns. International Ladies' Garment Workers' Union, AFL-CIO v. NLRB, 366 U.S. 731, 81 S.Ct. 1603, 6 L.Ed.2d 762 (1961). The Supreme Court held in International Ladies' Garment Workers' Union, supra, at 738-739, 81 S.Ct. at 1608, that:

To countenance such an excuse (of good faith) would place in permissibly careless employer and union hands the power to completely frustrate employee realization of the premise of the Act-- that its prohibitions will go far to assure freedom of choice and majority rule in employee selection...