National Labor Relations Board v. Brooks, 13502.

• Citation: 204 F.2d 899
• Decision Date: 14 May 1953
• Docket Number: No. 13502.,13502.
• Parties: NATIONAL LABOR RELATIONS BOARD v. BROOKS.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

204 F.2d 899 (1953)

NATIONAL LABOR RELATIONS BOARD v. BROOKS.

No. 13502.

United States Court of Appeals Ninth Circuit.

May 14, 1953.

George J. Bott, General Counsel, David P. Findling, Associate General Counsel, A. Norman Somers, Asst. General Counsel, Frederick U. Reel and William J. Avrutis, Attorneys, National Labor Relations Board, Washington, D. C., for petitioner.

Carter & Potruch, Erwin Lerten, Los Angeles, Cal., for respondent.

Before MATHEWS, STEPHENS and BONE, Circuit Judges.

BONE, Circuit Judge.

This is a petition by the National Labor Relations Board for enforcement of the Board's order directing, among other things, that respondent bargain collectively with International Association of Machinists, District No. 27 (hereinafter called "Union"). The order was issued after the usual proceedings under § 10 of the National Labor Relations Act, as amended, 29 U.S.C.A. § 141 et seq., in which the Board found that respondent had refused to bargain collectively with the Union, in violation of §§ 8(a) (1) and 8(a) (5) of the Act.¹

Respondent resists enforcement upon three grounds: (1) that the Board does not have jurisdiction over the unfair labor practices charged; (2) that the Board's finding that respondent refused to bargain is not supported by substantial evidence on the record considered as a whole; and (3) that the Board's finding that at the time of the alleged refusal to bargain the Union represented a majority of the employees in the appropriate bargaining unit is not supported by substantial evidence on the record considered as a whole.

Respondent, an individual, sells Chrysler and Plymouth automobiles at Van Nuys, California, as a dealer under franchise from the Chrysler Corporation, which operates in California and other states. During the calendar year 1950 respondent purchased automobiles of a value in excess of $400,000 from the Chrysler Corporation. All of these automobiles were assembled, purchased, and sold within the State of California. Approximately 50 per cent of the parts going into the automobiles were shipped into California from outside the state.

On the question whether respondent is engaged in commerce within the meaning of the National Labor Relations Act, our very recent case of National Labor Relations Board v. Howell Chevrolet Company, 9 Cir., 204 F.2d 79, in which on facts almost identical to those involved in the case at bar we upheld the jurisdiction of the Board, is controlling. See also National Labor Relations Board v. Townsend, 9 Cir., 185 F.2d 378, certiorari denied 341 U.S. 909, 71 S.Ct. 621, 95 L.Ed. 1346; National Labor Relations Board v. Ken Rose Motors, 1 Cir., 193 F.2d 769.

The facts as to the alleged refusal of respondent to bargain with the Union are as follows. On April 12, 1951, the Board conducted a consent election among respondent's employees to determine whether the employees desired the Union to represent them in collective bargaining. Of the 15 employees in the concededly appropriate bargaining unit, eight voted for the Union. No objection to the election was filed and on April 20, 1951, the Regional Director certified the Union as the employees' bargaining representative.

On April 19, 1951, one week after the election and the day before the certification was issued, respondent, the Union and the Board each received by mail a sheet reading:

"April 18, 1951

"We the undersigned majority of the employees of Ray Brooks, Chrysler-Plymouth Dealer, 6530 Van Nuys Blvd., Van Nuys, Calif., are not in favor of being represented by Union Local No. 727 as a bargaining agent. We respectfully submit this petition for your consideration."

The purported signatures of nine of the 15 employees in the bargaining unit were appended beneath.

On April 27 a Union representative asked respondent for a conference to negotiate a collective bargaining contract. Respondent, by his counsel, replied by letter on May 1. In the letter respondent declared that he had been "given to understand" that the majority of the employees had repudiated the Union and no longer wished to be represented by it. Respondent then called attention to a recent decision of the Court of Appeals for the Sixth Circuit, apparently N.L.R.B. v. Vulcan Forging Co., 6 Cir., 188 F.2d 927, holding that an employer could not be compelled to bargain with a union under such circumstances. Respondent concluded his letter:

"Under the circumstances wouldn\'t it be wiser to defer consideration of the proposed negotiations until such time as it might appear that the employees desire to have your union represent them?"

There is no evidence of any further communication between respondent and the Union.

Respondent contends that its letter of May 1 did not constitute a refusal to bargain, but only a request for the "Union's opinion as to the advisability of a meeting in view of the repudiation of the Union by the employees." The letter, written by respondent's counsel, refers to a favorable court decision, indicates its effect, and suggests, albeit in question form, that it would be "wiser" to put off any negotiation until it appeared that the Union had secured a majority of the employees in the bargaining unit. While clothed in polite and conciliatory language, the purport of the letter was that, unless and until the Union could prove its majority, the employer was under no legal obligation to bargain and was not inclined to do so. We cannot say that the Board was unjustified in construing this letter as a refusal to bargain.²

We think we must regard the purported communication of the employees repudiating the Union as authentic. At the same time that the employees' communication was sent to respondent, copies were also sent to the Union and to the Board. There is no evidence that the Union ever challenged its genuineness, although it would have been a simple task to check whether the nine purported signatories had in fact signed the document and it was clearly to the interest of the Union to make the fact known if they had not. It was proved that the names signed were names of employees in the bargaining unit. While respondent did not call the purported signers to verify their signatures, counsel supporting the complaint neither moved to strike the document for such failure nor made any attempt to impeach it. Under these circumstances we think it would be unreasonable to stamp the communication a possible forgery, and accordingly we take it as a fact that a majority of respondent's employees repudiated the Union on April 18, 1951.

The final question presented is whether respondent was obliged to bargain with the Union in light of the repudiation of the Union by a majority of respondent's employees within a week after the Union had been designated as bargaining representative in a Board-conducted election. This problem has given the courts some difficulty and the decisions are not harmonious. This court has not previously had occasion to pass upon the question.³

The Wagner Act, as the National Labor Relations Act was known prior to its amendment in 1947, contained provisions for Board-conducted elections but did not specify the intervals at which such elections should be held or the effect of a certification once issued.

The Board saw fit to adopt a rule that when a bargaining representative had been elected by a majority of the employees in an appropriate unit and certified by the Board, its representative status could not be disturbed for a reasonable period, normally about a year. Whittier Mills Company, 15 N.L.R.B. 457, enforced 5 Cir., 111 F.2d 474; Century Oxford Mfg. Corp., 47 N.L.R.B. 835, enforced 2 Cir., 140 F.2d 541; Lift Trucks, Inc., 75 N.L.R.B. 998; Majure Transport Company, 95 N.L.R.B. 311, enforced 5 Cir., 198 F.2d 735; see Celanese Corp. of America, 95 N.L.R.B. 664, 672, and the extended discussions of the Board's rule in National Labor Relations Board v. Globe Automatic Sprinkler Co., 3 Cir., 199 F.2d 64, 68, 69, and General Box Company, 82 N.L.R.B. 678. However, the rule was qualified by the proviso that the union's majority could be challenged within the certification year where "unusual circumstances" were present.⁴

While the Board's rule did violence to orthodox principles of agency and on first impression appeared inconsistent with the Wagner Act's guarantee of the right of employees to bargain through representatives of their own choosing, the rule was approved by most of the courts which passed upon it prior to the amendment of the Act in 1947. N.L.R.B. v. Century Oxford Mfg. Co., 2 Cir., 140 F.2d 541, certiorari denied 323 U.S. 714, 65 S.Ct. 40, 89 L.Ed. 574; N.L.R.B. v. Botany Worsted Mills, 3 Cir., 133 F.2d 876, certiorari denied 319 U.S. 751, 63 S.Ct. 1164, 87 L.Ed. 1705; N.L.R.B. v. Appalachian E. Power Co., 4 Cir., 140 F.2d 217; see N.L.R.B. v. Prudential Life Insurance Co., 6 Cir., 154 F.2d 385, 389; Wilson & Co., Inc., v. N.L.R.B., 8 Cir., 162 F. 2d 310; but cf. N.L.R.B. v. Inter-City Advertising Co., 4 Cir., 154 F.2d 244.

The courts found ample justification for the rule. The Board's election procedure, with its advantage of impartial supervision and its guarantee of anonymity to employees in expressing their choice by secret ballot, had been designed by Congress as the most effective and reliable means of ascertaining the employees' deliberate will. Thus, when the results of such election had been certified by the Board, it was felt that repudiation of the certified representative should be established only by an equally probative technique. N.L.R.B. v. Botany Worsted Mills, 3 Cir., 133 F.2d 876, 881, 882, certiorari denied 319 U.S. 751, 63 S.Ct. 1164, 87 L.Ed. 1705; N.L.R.B. v. Century Oxford Mfg. Co., 2 Cir., 140 F.2d 541, 542, 543, certiorari denied 323 U.S. 714, 65 S.Ct. 40, 89 L.Ed. 574; N.L.R.B. v. Appalachian E. Power Co., 4 Cir., 140 F.2d 217, 222; and see the Board's opinion in the Century Oxford Mfg. Corp. case, supra, 47 N.L.R.B. 835, 845.

It was...