National Labor Relations Bd. v. Trimfit of California
| Decision Date | 25 February 1954 |
| Docket Number | No. 13827.,13827. |
| Citation | 211 F.2d 206 |
| Parties | NATIONAL LABOR RELATIONS BOARD v. TRIMFIT OF CALIFORNIA, Inc. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, Fannie Boyls, Norton J. Come, Thomas F. Maher, Attys., NLRB, Washington, D. C., for petitioner.
Knight, Gitelson, Ashton & Hagenbaugh, Max Goldenberg, Los Angeles, Cal., for respondent.
Before STEPHENS, ORR and POPE, Circuit Judges.
We have for consideration a petition of the National Labor Relations Board, hereafter the Board, asking enforcement of its order issued against respondent, a hosiery knitting mill located in Anaheim, California.
The Board found that respondent violated § 8(a) (5) and (1) of the Labor Management Relations Act, 29 U.S.C.A. § 158(a) (1, 5), hereafter the Act, by refusing to bargain with Local 43-B, American Federation of Hosiery Workers, the duly designated representative of the majority of respondent's employees, and violated § 8(a) (3) and (1) by discriminatorily refusing to rehire four employees upon reopening of the mill after a shutdown.
Respondent does not challenge the validity of the Board's order relating to the § 8(a) (3) violation. It contends that the order should be modified by striking the provision requiring reinstatement of four named employees discriminated against because reinstatement has heretofore been offered said employees.
Compliance with provisions of a Board order is no defense to a petition for its enforcement. N. L. R. B. v. Mexia Textile Mills, 1950, 339 U.S. 563, 70 S.Ct. 826, 833, 94 L.Ed. 1067. The alleged offers of reinstatement are no defense here. N. L. R. B. v. L. Ronney & Sons Furniture Mfg. Co., 9 Cir., 1953, 206 F.2d 730.
A reading of the whole record reveals substantial evidence in support of the Board's findings that respondent refused to bargain with the union in violation of § 8(a) (5) of the Act. The Board found, and it is not disputed, that the union on and after January 22, 1951, represented a majority of respondent's production and maintenance employees, an appropriate unit for collective bargaining. On three separate occasions, January 30, February 6 and April 7, 1951, the union advised respondent that it represented a majority of the employees and demanded that respondent bargain collectively. On each of these occasions respondent refused to recognize the union or deal with it. At the January 30 meeting, respondent represented that its plant was too small to be organized and advised them to come back in a year or two when the plant was larger. It is contended that the union waived or withdrew its demand for recognition by asking respondent to agree to a consent election. We find no merit in this position. The union suggested an election after it became apparent that respondent would not recognize the union. The union's demand to bargain was unequivocal and respondent's refusal equally so.
The February 6 meeting between respondent and the union at the Board's Regional Office was subsequent to the filing, by the union, of a petition for a representation election. At this meeting the union repeated its claim of majority status and its demand for recognition. This time respondent based its refusal to bargain on the ground that the union's petition for an election was poorly timed because the plant was then shut down and only two or three persons were in respondent's employ. Respondent stated that as soon as the plant reopened and the employees returned to work it would consent to an election. However, it did not disclose that it had already started notifying its employees that the plant was about to reopen and they could apply for reemployment beginning February 8. On the basis of statements made by respondent, the Field Examiner suggested that the union withdraw its petition, which it did.1
Upon reopening the mill, respondent offered reemployment to all but four of its former employees. On March 7, 1951, the union filed unfair labor practice charges against respondent. The Board found and respondent concedes that the four employees were discriminatorily refused reemployment because of their union activities.
On April 7, 1951, the union wrote to respondent making a third claim of majority status and requesting respondent to meet for collective bargaining. On April 12, the parties met at the Board's Regional Office. Respondent still refused to recognize the union but said that it would agree to a consent election if the union would file a petition for certification. This the union refused to do because of its policy against holding an election while an unfair labor practices charge is pending.2 The union, as was its privilege, rejected respondent's suggestion that it withdraw its pending charge or request the Board to withhold processing it until after an election could be held.
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