National Labor Relations Board v. Scott & Scott, 15144.
| Decision Date | 15 May 1957 |
| Docket Number | No. 15144.,15144. |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SCOTT & SCOTT, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Theophil C. Kammholz, General Counsel. Stephen Leonard, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Samuel M. Singer, William J. Avrutis, Attorneys, N. L. R. B., Washington, D. C., for petitioner.
Doesburg, Goddess & Bowes, John H. Doesburg, Jr., Chicago, Ill., for respondent.
Before FEE and CHAMBERS, Circuit Judges, and YANKWICH, District Judge.
The National Labor Relations Board has filed a petition for enforcement of an order issued against Scott & Scott, a partnership operating a small printing plant at Santa Monica, California.
In its order the Board, after a review of the rulings made by the Trial Examiner, affirmed these and adopted his findings, conclusions and recommendations. They concluded that respondent neglected a valid claim by the Union of majority status among the employees of its bindery unit and that the Union, by its presentation of a contract for perusal and for discussion, had signified its desire to negotiate for these employees. It was further found that the refusal by respondent to bargain was not motivated by any good faith doubt of the majority of the Union, but rather by a desire to gain time in which to destroy that majority and defeat it in election.
The Board also found that the loss of majority by the Union was to be ascribed to the unfair labor practices of respondent. In this context, by its announcement of irrevocable opposition to the Union, respondent was found to have coerced its employees. The Board found therefore that from March 25, 1953, the Union had made a valid claim of majority status in the bindery unit and also, by its presentation of a proposed contract, it signified a continuing desire to negotiate for these employees. Thus it was found that the ultimate loss of majority by the Union was to be charged to the unfair labor practices of respondent. There was a strike at the plant following the refusal of respondent to bargain, and the Board concluded that this incident was caused by an unfair labor practice.
The Board ultimately found that respondent refused to bargain with the International Brotherhood of Bookbinders, Local 63, AFL, while the latter was the representative of a majority of the employees of respondent. This unit was found to be appropriate. It was also found that, by solicitation and by remarks and action of management, employees were interfered with and coerced in the exercise of their statutory rights in violation of Section 8(a) (1) and (5) of the Act.1
The order of the Board requires respondent to cease and desist from the unfair labor practices found. Respondent is further directed to bargain with the Union upon request and to reinstate and make whole all strikers who have not yet been reinstated and to post the customary notices.
The first matter for consideration is whether the Union made a proper bargaining request at a time when the employer was required to accede by law. The evidence was sufficient for the Board to make the finding. On March 25, 1953, Stansbury, a Union representative, told Wesley Scott, one of the members of the partnership, respondent here, that the Union represented a majority and, after requesting that Scott consent to a Board conducted election, presented him with two copies of an agreement between the Union and a number of other printing establishments in the vicinity. There is objection that the Union representative did not designate the bindery department as the unit to which the contract would apply. There was, it is true, some ambiguity in the report of the conversation, but the Board was justified in finding that no one was in doubt as to which unit was intended. At the time of this demand, the employees in the unit who had authorized bargaining by the Union were three out of seven, but during the day negotiations had been going on with another employee, and that evening she signed an application for membership containing a designation of the Union as her bargaining representative.
At the time of the demand, therefore, there was no legal necessity for the employer to bargain. The Union did not then represent a majority of the nonsupervisory employees. The question was consequently whether the request was ever effectually renewed after a majority had been attained by the Union. Our opinion in Zall v. National Labor Relations Board, 9 Cir., 202 F.2d 499, 502, teaches us that, if the Union failed to renew its request to bargain after receiving majority status, there would be no foundation for the order of the Board in this case.
This undoubtedly is a question of fact. In the elaborate and well considered report of the Trial Examiner, it was found as a fact that thereafter on two occasions the Union had renewed the demand after its majority status was unquestioned. The evidence shows that Wesley Scott called George Smith, a local representative, and invited him to a luncheon held on March 31, where there were four non-supervisory union employees in the unit as against one non-union. There was nothing apparently discussed at this meeting except the situation at the plant, and Smith said directly that Scott go ahead and sign the contract, as the latter knew that the Union had "a majority in your plant."
There is the suggestion that this was not sufficient, since Smith had told Scott, when first invited, that the matter was in the hands of Stansbury and that Smith had no authority to speak for the Union. We hold that the Board was justified in finding that this was a renewal of the request at a time when Scott was by law bound to accede.
Stansbury called again on April 9, when Scott told him that "there wasn't anything to be gained for the employees or for ourselves by signing that agreement or talking about the contract." Stansbury then asked if Scott would consent to an election, which the latter refused.
Accordingly, upon the next day the Union filed a petition for certification as representative of the bindery employees, and the Board duly notified respondent thereof. Afterward, Smith called upon Wesley Scott. Definitely at that time he asked Scott to recognize the Union and sign the contract. The latter refused on the ground that respondent would wait and see what the result of the election would be. Smith claimed to represent the bindery. Scott said he was not aware of that fact. Whereupon, Smith suggested this issue be resolved by a card check conducted by some impartial person, such as a clergyman or a lawyer. Scott refused. In this context, the Zall decision does not apply. The Board had excellent grounds for finding that the request was renewed. National Labor Relations Board v. W. T. Grant Co., 9 Cir., 199 F.2d 711, 712, certiorari denied 344 U.S. 928, 73 S.Ct. 497, 97 L.Ed. 714.
Unless the employer had a good faith doubt as to the claim of the Union that it had a majority, he has the duty to bargain and may not insist upon an election. National Labor Relations...
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