National Labor Rel. Bd. v. Armco Drainage & Metal Prod.

• Decision Date: 18 February 1955
• Docket Number: No. 12110.,12110.
• Citation: 220 F.2d 573
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ARMCO DRAINAGE & METAL PRODUCTS, Inc., Fabricating Division, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

220 F.2d 573 (1955)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ARMCO DRAINAGE & METAL PRODUCTS, Inc., Fabricating Division, Respondent.

No. 12110.

United States Court of Appeals, Sixth Circuit.

February 18, 1955.

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Fannie M. Boyls, Washington, D. C. (George J. Bott, David P. Findling, A. Norman Somers and Nancy M. Sherman, Washington, D. C., on the brief), for petitioner.

Malcolm F. Halliday, Cincinnati, Ohio (George R. Cassidy, Charles A. Atwood of Frost & Jacobs, Cincinnati, Ohio, on the brief), for respondent.

Before ALLEN, McALLISTER and MILLER, Circuit Judges.

McALLISTER, Circuit Judge.

The National Labor Relations Board filed a petition for enforcement of its order requiring respondent to cease and desist from unfair labor practices in violation of Title 29 U.S.C.A. § 158(a) (1), (2), and (5), in interfering with and coercing its employees in the exercise of their rights of self-organization, and in refusing to bargain collectively with the representative of such employees, and further requiring respondent to post the appropriate and customary notices directed by the Board.

The controversy, as well as the inception of union organization among respondent's employees, began in 1951 when, under the law then prevailing, respondent was unable to increase wages without approval from the Wage Stabilization Board because of the fact that its plant had not been in operation on January 15, 1950, the so-called "base date" on which the Wage Stabilization Board's self-executing regulations were based. In order to increase wages, respondent, therefore, pursuant to the regulations, filed with that Board on September 4, 1951, a petition seeking permission to grant, effective as of that date, a ten-cent hourly increase to all of its employees, and an additional five-cent hourly increase to approximately one-sixth of its employees who were believed to be receiving a lower wage rate than other employees performing substantially the same work; and the petition set forth that the employees had no recognized or certified bargaining agent and that no representation petition was then pending. Proceedings dragged on, and although more than three months elapsed after respondent had petitioned for increased wages for its hourly manual workers, nothing was done. The workers, therefore, not receiving the wages to which they were entitled and which the respondent company wished to pay them, apparently became restive, and in December, 1951, one of the employees requested the UAW-CIO, hereinafter called the union, to organize the plant and assist the employees. After five months had passed with no sign of life on the part of the Wage Stabilization Board with respect to respondent's petition to increase the wages of its employees, the union, as of January 29, 1952, had obtained designation cards signed by 93 of the 144 employees of respondent company, forming a unit appropriate for collective bargaining purposes. By letter of that date, the union informed respondent of its majority status and requested respondent to meet and negotiate with it as the collective bargaining agent of respondent's employees. The letter asked for an immediate reply, and when, by February 5, no reply had been received, the union filed a representation petition with the National Labor Relations Board.

On March 18, 1952, pursuant to a stipulation between the union and respondent, a consent election was held, with the result that 75 votes were cast against the union, 63 for the union, and one vote was challenged. Thereafter, on objections filed by the union to the election, the Regional Director filed his report on such objections and recommended that a hearing be held thereon at the same time as a hearing on a complaint, filed as a result of charges by the union that respondent had been guilty of unfair labor practices, subsequent to the union's notification to it that a majority of the employees had designated it as their collective bargaining agent, and prior to the date of the election. The Board found that the election was not an expression of the employees' free choice and did not represent their uncoerced wishes as to collective bargaining representation, and that respondent had been guilty of the unfair labor practices heretofore mentioned.

It is submitted by respondent that genuine doubt, or doubt in good faith, on the part of an employer that a union represents the majority of the employees justifies refusal of bargaining with such a union until its majority representation is demonstrated, and that the Board has followed such a principle in the past. That principle, however, is irrelevant in this case as there is no evidence of any such doubt on the part of respondent. On January 29, 1952, the union informed respondent that a majority of its employees had designated it as their bargaining agent and that the union desired the respondent to recognize it and negotiate with it; the union stated that if respondent failed to comply with its request for recognition for bargaining, it would regard such conduct as a violation of the Act; and it requested an immediate reply to the bargaining request. Respondent never acknowledged the letter or any of the requests of the union. After waiting one week, the union filed a representation petition with the Board. At no time did respondent ask to see any proof that the union was designated as bargaining agent by a majority of the employees; nor was there any evidence that as of January 29, 1952, respondent disbelieved that the union had been designated by the majority of the employees. The most that respondent has to say in defense or explanation of its failure to answer the union's request for recognition and to enter into collective bargaining, as set forth in the union's letter of January 29, is that the union's letter came as a complete surprise to respondent; that it was written by the International Representative of the union who was a stranger to respondent; that great secrecy surrounded the union's organizational campaign; that the union cards were signed, for the most part, between January 14 and January 19, 1952, a considerable time before the union announced its majority status; that the card signers testified, without exception, that they signed secretively and without respondent's knowledge; and that the union did not come out into the open until its letter of January 29.

None of these considerations justifies a refusal to reply to the union's notification of its bargaining status or a refusal to recognize it, bargain with it, or, at least, to inquire as to the proof of its designation as bargaining agent for the majority of the employees. Before the representation election was agreed to be held, a new general manager had been appointed, on February 22, and in reply to a letter from the union dated March 11, again demanding recognition as the employees' bargaining agent and stating that 115 employees had signed cards designating it as their representative, the general manager stated that respondent would wait until the employees had the chance of voting for their bargaining agent in a secret election. At the time he wrote the letter, the general manager had learned, during the course of a friendly, somewhat confidential personal conversation with one of the employees he had known for some years, that the employee in question was the treasurer for the union, and had collected and had on hand at that time money representing the aggregate dues for 115 of respondent's employees. On the hearing, in answer to a question as to whether there was any doubt in his mind at the time he wrote the letter that the union represented a majority of respondent's employees, the general manager replied: "In the absence of any evidence, the doubt was not in my mind, it wasn't a matter of doubt." Respondent contends that it was incumbent upon the union to demonstrate to respondent that it was the choice of the majority of the employees, as bargaining agent.

The Board found that on January 29, 1952, 93 out of 144 employees had designated the union as their bargaining agent in a unit appropriate for collective bargaining; and this finding is sustained by substantial evidence on the record as a whole. The filing of the representation petition did not excuse the respondent from complying with the union's request after February 5. National Labor Relations Board v. Inter-City Advertising Co., 4 Cir., 190 F.2d 420, 421; National Labor Relations Board v. Model Mill Co., Inc., 6 Cir., 210 F.2d 829. The evidence likewise sustained the Board's finding that respondent was guilty of a violation of the Act in refusing to bargain with the union as the representative of respondent's employees. National Labor Relations Board v. Model Mill Co., Inc., supra; National Labor Relations Board v. Drummond, 6 Cir., 210 F.2d 828; Joy Silk Mills v. National Labor Relations Board, 87 U.S.App.D.C. 360, 185 F.2d 732. Counsel for respondent ably and persuasively discuss other cases from federal courts seemingly contra to the adjudications above referred to, but we are agreed in following the conclusions heretofore set forth. It may also be said that even though an employer be in doubt as to a union's authority, such doubt does not excuse it where it is plain that its position was not based upon any doubt but upon its unwillingness to treat with the representative of its employees. National Labor Relations Board v. Dahlstrom Metallic Door Co., 2 Cir., 112 F.2d 756. As hereafter appears, it is plain that in this case, respondent's failure to treat with the union was not because of its doubts of the union's authority to represent the employees, but because of its unwillingness and opposition to the union in question. When the refusal of an employer to bargain is due to a desire to gain time and to take action to dissipate the union's majority, the refusal is no longer justifiable and constitutes a violation of the...