N.L.R.B. v. North American Mfg. Co.

• Citation: 563 F.2d 894
• Decision Date: 12 October 1977
• Docket Number: No. 76-1987,76-1987
• Parties: 96 L.R.R.M. (BNA) 2635, 82 Lab.Cas. P 10,163 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NORTH AMERICAN MANUFACTURING COMPANY, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 894

563 F.2d 894

96 L.R.R.M. (BNA) 2635, 82 Lab.Cas. P 10,163

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NORTH AMERICAN MANUFACTURING COMPANY, Respondent.

No. 76-1987.

United States Court of Appeals,

Eighth Circuit.

Submitted June 15, 1977.

Decided Oct. 12, 1977.

W. Christian Schumann, Atty., N.L.R.B., Washington, D. C. (argued), John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Marion Griffin and John N. Phillips, Attys., N.L.R.B., Washington, D. C., on brief, for petitioner.

Soren S. Jensen, Swarr, May, Smith & Andersen, Omaha, Neb. (argued), and George C. Rozmarin, Omaha, Neb., on brief, for respondent.

Before GIBSON, Chief Judge, and HEANEY and STEPHENSON, Circuit Judges.

GIBSON, Chief Judge.

The National Labor Relations Board (Board) petitions for enforcement of its order of June 18, 1976, against respondent North American Manufacturing Company. North American (Company) maintains a plant in Sioux City, Iowa, for the manufacture, sale and distribution of industrial trucks, farm equipment and related products. On May 16, 1973, following a Board-conducted election, District No. 12, International Association of Machinists and Aerospace Workers, AFL-CIO (Union) was certified as the exclusive collective bargaining representative of the production and maintenance employees at the Company's Sioux City plant. The Company and Union subsequently executed a collective bargaining agreement for the period from September 10, 1973, until September 9, 1975.

In late May 1975, a Company supervisor asked an employee whether he had attended a union meeting, whether the meeting had been heavily attended and whether he was a union member. Similar questioning occurred in July or August 1975. In a letter dated June 23, 1975, the Union requested negotiations for a collective bargaining agreement to succeed the contract expiring on September 10, 1975. The Company responded by letter dated July 2, 1975, that it would not enter negotiations because it did "not believe it would be proper or legal for us to consider you as the majority representative of our employees at this time." The Company informed employees of its refusal to bargain in a bulletin issued on the same date, which also asserted the Company's "opinions" that no more than 25% of its employees supported the Union and that "we all would be better off without this Union." A slightly more elaborate and emphatic bulletin, which urged employees to manifest their nonsupport of the Union by staying away from an impending union meeting, was issued on July 15, 1975.

Since July 2, 1975, the Company has refused to bargain with the Union. Relying upon its opinion that the Union does not represent a majority of employees, it has refused to accede to a Union request for information on unit employees. The Company has also granted unilateral benefits to its employees without bargaining with the Union.

On the basis of the foregoing facts, the Board found that the Company had violated § 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 151 et seq. (1970), by interrogating several employees about their own or other employees' union activities. ¹ The Board further found that the Company had violated §§ 8(a)(5) and 8(a)(1) of the Act by refusing to recognize and negotiate with the Union, by refusing to furnish information to the Union that was relevant and necessary to the performance of its functions as a bargaining representative and by instituting wage increases or economic betterments unilaterally and without bargaining with the Union.

Interrogation of employees

In May 1975 and again in July or August 1975, employees were interrogated by representatives of the Company concerning their union membership and attendance by employees at union meetings. The Company has failed to show a legitimate purpose for these interrogations, which were not accompanied by assurances that there would be no reprisals for engaging in union activities. The May interrogation occurred shortly before the Company withdrew recognition of the Union. The later interrogation took place after the Company had, inter alia, denigrated the Union, refused to bargain with the Union and promised unilateral benefits to its employees. Thus, the Company harbored anti-union sentiments during the period in which these interrogations took place. Interrogation of employees is not unlawful per se, but where questioning occurs in the context of anti-union animus, without assurances of non-reprisal and without a legitimate purpose, it is coercive and violative of § 8(a)(1) of the Act. NLRB v. Spotlight Co., 440 F.2d 928, 930 n.6 (8th Cir. 1971); NLRB v. Little Rock, Downtowner, Inc., 414 F.2d 1084, 1093 (8th Cir. 1969). Our review of the record as a whole convinces us that there is substantial evidence to support the Board's findings that the Company's interrogations of employees were coercive and in violation of § 8(a)(1).

Refusal to bargain

Board certification of a union as a unit bargaining representative creates a rebuttable presumption of continuing majority status after expiration of the certification year. National Cash Register Co. v. NLRB, 494 F.2d 189, 194 (8th Cir. 1974). This presumption does not preclude an employer from questioning the level of union support. An employer who believes that a union no longer possesses majority support may poll his employees by secret ballot, provided he complies with the safeguards of Struksnes Construction Co., 165 N.L.R.B. No. 102 (1967), approved in NLRB v. Harry F. Berggren & Sons, Inc., 406 F.2d 239, 244 (8th Cir.), cert. denied, 396 U.S. 823, 90 S.Ct. 64, 24 L.Ed.2d 74 (1969), or he may file a petition for a representative election with the Board. NLRB v. Little Rock Downtowner, supra at 1090 n.2. He may also simply refuse to bargain with the union and undertake to justify this refusal by rebutting the presumption of continuing majority support. To rebut this presumption, an employer must show that the union actually lacked majority support on the date in question or that the refusal to bargain was based upon a reasonably grounded good faith doubt of majority support. Orion Corp. v. NLRB, 515 F.2d 81, 84-85 (7th Cir. 1975). An employer's good faith doubt of majority status must be more than a self-serving assertion. NLRB v. Little Rock Downtowner, supra at 1091.

Because it withdrew recognition and refused to bargain with the Union after the expiration of the certification year, the Company must rebut the presumption of continuing majority status in order to establish a defense to the § 8(a)(5) violation with which it was charged. The administrative law judge found that the Company had failed to establish either a lack of majority status or the existence of a good faith doubt, and the Board adopted his decision. The Company contends that the administrative law judge ignored its attempt to establish both good faith doubt as to majority status and the Union's actual lack of majority status, and that he improperly commingled these separate defenses into one impossible defensive burden. A reading of the administrative law judge's decision belies this contention and convinces us that he distinguished the two alternative defenses clearly, and considered the Company's evidence inadequate to establish either. Furthermore, our own review of the record persuades us that the administrative law judge's findings are supported by substantial evidence on the record as a whole.

The Company attempted to justify its refusal to bargain on several grounds. First, it cited a lack of "formal" union organization, which was allegedly manifested by low attendance at union meetings and a low level of grievance...