National Can Corporation v. NLRB

• Decision Date: 08 March 1967
• Docket Number: No. 15755.,15755.
• Parties: NATIONAL CAN CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

374 F.2d 796 (1967)

NATIONAL CAN CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 15755.

United States Court of Appeals Seventh Circuit.

March 8, 1967.

COPYRIGHT MATERIAL OMITTED

Earle K. Shawe, William J. Rosenthal, Baltimore, Md., Maurice S. Weigle, Chicago, Ill., Shawe & Rosenthal, Joseph K. Pokempner, Baltimore, Md., for petitioner, Goldberg, Weigle, Mallin & Rivkin, Michael L. Sklar, Chicago, Ill., of counsel.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Elliott Moore, Atty., N. L. R. B., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Leon M. Kestenbaum, Atty., N. L. R. B., for respondent.

Before HASTINGS, Chief Judge, MAJOR, Senior Circuit Judge, and FAIRCHILD, Circuit Judge.

MAJOR, Senior Circuit Judge.

This case is here on petition of National Can Corporation (Company) for review of an order of the National Labor Relations Board (Board), issued June 17, 1966, and reported at 159 NLRB No. 66. In its answer to the petition, the Board requests enforcement of its order. It is conceded by all parties that the Court has jurisdiction, and we so hold.

The Board, in agreement with the Trial Examiner, found that the Company violated Sec. 8(a) (1) of the National Labor Relations Act as amended (29 U.S.C.A. Sec. 151 et seq.), by encouraging the employees to engage in surveillance, by interrogating employees as to their Union¹ sympathies, by threatening employee Kufrovich with possible job elimination and by threatening employees with reduced benefits and stricter work rules if the Union won the election.

The Board found that the Company's conduct between the filing of the representation petition and the holding of the election constituted interference, and set the election aside. The Board further found that the Union had twice requested recognition and bargaining in an appropriate unit, that the Union represented a majority of the employees when these requests were made, and that the Company's refusal to bargain with the Union was not the result of a good-faith doubt of the Union majority but was motivated by a desire to gain time in which to destroy it. The Board accordingly found that the Company's refusal to bargain violated Sec. 8(a) (5) and (1) of the Act. The Board's order requires the Company to cease and desist from the unfair labor practices found, and affirmatively, the Company is required to bargain collectively with the Union upon request.

The Company is a Delaware corporation maintaining an office and place of business in Chicago, Illinois, identified in these proceedings as the Clearing Plant, where it has been at all times material engaged in the manufacture of metal cans and related products. While the Company operates some 24 plants, 3 of which are in the Chicago area, we are concerned here only with its Clearing Plant operation. The Union represents production and maintenance units in a number of the Company's plants, including such a unit at the Clearing Plant. Master agreements have been in existence between the Union and the Company since about 1955. A master agreement effective November 1, 1962, in effect at all times material herein, was applicable to units in 14 plants and is supplemented by local agreements covering variations in working conditions.

The record for review is voluminous. There were 9 days of hearing before the Trial Examiner. The transcript covers more than 2000 pages, reduced to some 500 pages by a joint appendix. The Examiner's decision and recommendations cover 62 pages, and the Company's exceptions thereto, 15 pages. In response to the latter, the Board (by a 3-member panel) in its order stated, "The Board has reviewed the rulings made by the Trial Examiner * * * and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner." In this Court, the Company favors us with the citation of 112 cases, and the Board does almost as well, with the citation of 89.

We shall first consider the Company's contention that there is no substantial support for the Board's finding that it violated Sec. 8(a) (5) of the Act by its failure to bargain with the Union. This phase of the case had its origin in a letter dated Friday, October 23, 1964, written to the Company by the Union's organizer, Anthony Graczyk, and received by the Clearing Plant manager on Monday, October 26, 1964, which demanded recognition of the Union. The letter stated that a majority of employees had signed Union cards designating the Union as the bargaining agent (Graczyk claimed to have cards signed by 24 employees), and expressed a willingness to present such cards to a neutral party for the purpose of establishing the claim. The letter stated, "The bargaining unit which we claim to represent are all office and factory clerical employees at the Clearing Plant of National Can Company, 5620 W. 51st Street, Chicago, Illinois, but excluding all production and maintenance employees, cafeteria employees, guards, personnel department employees and all supervisory employees as defined in the Act."

Without waiting for a response to this letter the Union, on October 26, 1964, the day the demand was received by the Company, filed an election petition with the Board, describing the same unit as that in the demand letter, in which the number of employees was estimated at 45. A copy of this petition was received by the Company on the following day.

At a pre-hearing conference held at the National Labor Relations Board regional office in Chicago on December 7, 1964, for the purpose of setting up the details for a Board-conducted secret ballot election, counsel for the Company informed the Union that the Company was unable to determine from the demand letter and the petition which employees the Union was seeking to represent. The Union was asked particularly whether it was seeking to represent the employees of the Corporate Engineering Department, the Corporate Industrial Engineering Department, the Area Quality Control Department and the District Sales Office.

During the course of the conference, the Company and the Union reached accord on the exclusion of the employees of the Corporate Engineering Department, the Corporate Industrial Engineering Department and the Area Quality Control Department. A "Stipulation for Certification Upon Consent Election" was then entered into in the following unit, "All office clerical employees and all plant clerical employees at the Employer's plant located at 5620 West 51st Street, Chicago, Illinois; excluding production and maintenance employees, cafeteria employees, Corporate Engineering Department, Corporate Industrial Engineering Department, Area Quality Control employees, professional employees, confidential employees having access to labor relations data, guards and supervisors as defined in the Act." It was agreed by the parties that this stipulated unit was composed of 40 employees.

The Company in its effort to justify its failure to recognize the Union, as demanded in the latter's letter of October 23, relies in the main upon two propositions, (1) the Company was under no obligation to recognize and bargain with the Union for want of a clear, unambiguous and unequivocal demand, and (2) the Union made no demand in a unit appropriate for collective bargaining.

The Board has often held that where a Union's request to bargain is ambiguous, equivocal or otherwise vague, an employer is under no duty to accede to such request, nor is the employer under any obligation to clarify or resolve such infirm demand. Among such cases are Sportswear Industries, Inc., 147 NLRB 758; Orkin Exterminating Co. of Kansas, Inc., 136 NLRB 630, 641-643, and Bailey Grocery Co., 100 NLRB 576, 579.

This Court in National Labor Relations Board v. Jackson Press, Inc., 201 F.2d 541, refused to affirm a Board finding that an employer had violated Sec. 8(a) (5) of the Act, holding that the Union's request to bargain was ambiguous. In so holding we quoted (page 544) from the Board's decision in Bailey Grocery Co., as follows:

"`* * * we do not believe it incumbent on an employer to resolve an ambiguity in a request to bargain. On the contrary we believe that a union representative, who is presumably versed in labor matters, should clearly define the unit for which recognition is sought. Such a requirement imposes on the union representative only the obligation to say what he means. Failing to do so, he cannot be considered as having made the sort of request to bargain which imposes upon an employer a legal obligation to comply.\'"

In Orkin, the Union by telegram and subsequent letter demanded a unit covering "all exterminating servicemen and plant workers excluding office, clerical and supervisory employees," and sent these demands to one of the Company's six operating locations in Kansas City. At no time in claiming recognition from the Company did the Union describe the unit in which it claimed to represent employees in the terms used in the subsequent complaint to describe the unit, nor did it describe the unit as the one found appropriate by the Trial Examiner. The Trial Examiner, with the Board affirming, examined in detail all of the various meanings that that demand would have in the context of the Company's operating situation, and stated (136 NLRB at 642):

"It is my opinion that the unit described by the Union in making its claim for recognition upon the Respondent was, at least, from the standpoint of General Counsel\'s position, an ambiguous unit on its face."

The Board has also enunciated the rule that a demand for recognition must be made in a unit appropriate for collective bargaining. In Sportswear Industries, the Board stated (147 NLRB 760):

"It may be that the unit now claimed by the General Counsel as appropriate, limited in effect to warehousing employees, and excluding servicemen because of a difference in interests, may also be appropriate. But whether such a unit would have been

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