National Labor Relations Board v. WT Grant Co., 13133.
| Decision Date | 10 November 1952 |
| Docket Number | No. 13133.,13133. |
| Parties | NATIONAL LABOR RELATIONS BOARD v. W. T. GRANT CO. |
| Court | U.S. Court of Appeals — Ninth Circuit |
George J. Bott, Gen. Counsel, NLRB, David P. Findling, Asst., A. Norman Somers, Asst. Gen. Coun., Marcel Mallet-Prevost and Irving M. Herman, Attys., NLRB, Washington, D. C., for petitioner.
Eugene M. Foley, New York City, for respondent.
Before HEALY and POPE, Circuit Judges, and HARRISON, District Judge.
This matter is here on petition of the National Labor Relations Board for enforcement of an order issued against respondent, the operator of a store at San Jose.1
In ruling on the case the Board adopted the findings of the trial examiner and approved of his report and recommendations. It concluded that respondent had engaged in practices violative of § 8(a)(1) and (5) of the Act, 29 U.S.C.A. § 158(a)(1, 5). In summary, these practices comprehended the interrogation of certain employees concerning union membership; a unilateral grant of wage and other benefits with intent to discourage union affiliation; respondent's insistence upon a Board election prior to bargaining, an insistence found to be motivated by a desire to gain time in which to undermine the union; and finally an anticipatory threat to close the store rather than accede to a union shop.
It is not disputed that the appropriate bargaining unit in this case consisted of all employees at the San Jose store, exclusive of supervisors. On January 5, 1950 an agent of the Retail Clerk's Union wrote respondent's manager requesting a bargaining conference, the letter being received on January 6. As of January 5 there were 40 employees in the unit. On or prior to that date 18 of them had signed cards designating as their bargaining representative Local 428 of the Retail Clerks. Three other employees, making 21, or a majority of the whole, signed like designations on January 6. Respondent argues that the written request for bargaining was nugatory inasmuch as on the day it was mailed the union did not represent a majority. The argument is specious, particularly as it appears that the union representative called personally on the manager a few days later and again requested bargaining.
The Board found, and there is no evidence to the contrary, that the majority representation continued through the work week ending January 25, 1950. On the latter date a meeting was held between representatives of the union on the one hand and respondent's manager and its labor counsel on the other. At that time the union representatives proposed that respondent check the authorization cards or employ any other quick procedure for ascertaining the union's majority status, but respondent's spokesmen insisted upon a Board election before bargaining. They suggested that the union file with the Board a representation petition, which it did on January 31. Respondent insisted on a formal hearing on the petition and refused a request that it consent to an immediate election, although there appears to have been no issue other than the one which the election itself would determine. The hearing on the union's petition occurred on March 3, and on April 4 the Board ordered the holding of an election, scheduled for May 3. Having in mind respondent's activities following the meeting of January 25, we think the Board was not in error in finding that the insistence upon an election was not motivated by a good faith doubt of the union's majority, but by a purpose to gain time in which to undermine the union and vitiate its majority. Compare Joy Silk Mills v. NLRB, 87 U.S. App.D.C. 360, 185 F.2d 732, 741, certiorari denied 341 U.S. 914, 71 S.Ct. 734, 95 L.Ed. 1350.
Early in February the manager, without notice to the union, called a meeting of the...
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