National Labor Relations Board v. Mayer, 13765.

• Decision Date: 06 June 1952
• Docket Number: No. 13765.,13765.
• Parties: NATIONAL LABOR RELATIONS BOARD v. MAYER.
• Court: U.S. Court of Appeals — Fifth Circuit

196 F.2d 286 (1952)

NATIONAL LABOR RELATIONS BOARD v. MAYER.

No. 13765.

United States Court of Appeals Fifth Circuit.

May 2, 1952.

Rehearing Denied June 6, 1952.

Morgan C. Stanford, Atlanta, Ga., A. Norman Somers, Asst. Gen. Counsel, and D. P. Findling, Assoc. Gen. Counsel, Washington, D. C., for petitioner.

John Wesley Weekes, Decatur, Ga., Abit Nix, Howell C. Erwin, Jr., Athens, Ga., for respondent.

Before HOLMES, BORAH, and STRUM, Circuit Judges.

STRUM, Circuit Judge.

Upon findings that respondent was guilty of unfair labor practices, in violation of Sec. 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C.A. § 158(a)(1) and (5), as amended, the Board on March 2, 1951, ordered that respondent cease and desist; that he bargain with a designated union as the representative of his employees; and that he post notices of compliance, 29 U.S.C.A. § 160(c). The matter is here upon the Board's petition to enforce said order, and upon respondent's cross petition to set it aside, or in the alternative to deny enforcement, because respondent has complied with the order.

Respondent operated a small hosiery mill in Athens, Georgia, having about eleven employees. During October, 1949, nine of these signed cards designating American Federation of Hosiery Workers, an affiliate of C.I.O., as their bargaining representative. On October 26, 1949, respondent summoned to his office an employee named Ingram, who had signed one of the cards, and expressed to him respondent's strong opposition to unionization of his mill. A day or two thereafter, respondent stated to another employee, Gray, that he would not operate a union plant, but would move his machines out first.

A majority for the Union was reached on October 26, 1949. Respondent acquiesced in the designation, and on October 28, 1949, bargained with the Union at a conference lasting about five hours, but was unable to reach an agreement. The conference was recessed to October 31, 1949, when respondent's bookkeeper, who was more familiar than respondent with the financial affairs of the business, but who was then away from Athens, was expected to have returned. Respondent's knowledge of his business and financial matters was limited.

On October 31, 1949, the bookkeeper had not returned, but the bargaining conference was nevertheless resumed, respondent being accompanied at the conference by his friend Robert Noell, an Athens, Georgia, business man and member of the Junior Chamber of Commerce, who was familiar with respondent's financial affairs, but who had no connection whatever with respondent's business. The conference lasted about an hour, but again no agreement was reached, as respondent felt that he was economically unable to comply with the Union's demands. The Union requested another conference which was at that time refused by respondent because of the continued absence of his bookkeeper, whose advice he considered vital in considering the Union's demands. Whereupon the Union immediately "struck" the plant, and posted picket lines. On November 5, 1949, the Union requested a further bargaining conference, but respondent then declined, saying that he had turned the matter over to his attorney.

Between November 8 and 13, 1949, at the solicitation of Noell, respondent's friend, seven of the strikers signed a letter, dated November 8, 1949, addressed to the "Chairman" (Regional Director) of the Board at Atlanta, claiming that they constituted a majority of the employees, which at that time totaled only ten in number, and disclaimed the Union as their bargaining representative. This letter was received in the Board's Atlanta office, November 14, 1949. On the latter date, respondent and the seven signers of the letter traveled from Athens to Atlanta, Georgia, and discussed the letter with the Board's Regional Director. At the suggestion of the Regional Director, respondent then filed a petition for the holding of a representative election, pursuant to Sec. 9 (c)(1)(B) of the Act, as amended.

Two days later, on November 16, 1949, unfair labor practices charges were filed by the Union against respondent. Notwithstanding this, respondent further conferred with the Union representatives on November 21, and again on November 25, 1949, but the conferences were unsuccessful and negotiations ended. All but one of the employees who signed the letter of November 8, 1949, returned to work on December 7, 1949. The petition filed by respondent on November 14, 1949, for a representative election, based upon the above mentioned letter signed by the seven employees, was denied by the Regional Director on June 14, 1950.

The Board found that, in violation of Sec. 8(a)(1) of the Act, respondent committed unfair labor practices by his coercive statements to employees Ingram and Gray, by Noell's solicitation of the employees' signatures to the letter of November 8, 1949, repudiating the Union, and that respondent also committed unfair labor practices in violation of Sec. 8(a)(5) of the Act, by his failure to bargain in good faith with the Union, on and after November 5, 1949, as the representative of respondent's employees.

The Board ordered that respondent cease and desist: (1) from threatening his employees with economic reprisals because of their union activities or attitude; (2) from helping to prepare forms evidencing their withdrawal from representation by the Union; and (3) from in any other manner interfering with, or coercing, the employees in the exercise of their right to self-organization. Affirmatively, it ordered respondent to bargain collectively with the Union and to post the usual notices of compliance.

In N. L. R. B. v. Mexia Textile Mills, 338 U.S. 563, 70 S.Ct. 826, 94 L.Ed. 1067, the Supreme Court held that a Board order prohibiting unfair labor practices imposes a continuing duty, and that an employer's compliance with an order of the Board does not render the cause moot, nor deprive the Board of the right to secure from an appropriate court an enforcement order which would effectively bar a resumption of such practices.

In N. L. R. B. v. Sanson Hosiery Mills, 5 Cir., 195 F.2d 350 this court held that when the Board has duly certified a bargaining representative, such certification must be respected by the employer until set aside by the Board, even though the Union has meanwhile lost its majority support of the employees. When the Board has duly certified a Union, the employer may not thereafter decide for himself that the Union has lost its bargaining status and refuse to deal with it further. See also Franks Bros. v. N. L. R. B., 321 U.S. 702, 64 S.Ct. 817, 88 L.Ed. 1020; N. L. R. B. v. Mexia Textile Mills, supra.

But this is not a case, such as these just cited, in which an employer has become "doubtful" of the status of a duly certified bargaining representative, and acting upon his own initiative decides that the union is no longer entitled to represent the employees and therefore refuses to deal with it further. This Union has never been certified by the Board as the representative of these employees. The employer voluntarily recognized and bargained with it upon presentation to him on October 26, 1949, of cards signed by his employees showing that nine out of eleven then desired representation by the Union.

On November 14, 1949, however, the situation had changed. On that day the employer was confronted with a written request of seven of his then ten employees to discontinue the Union as their representative. They said: "We do not want the C.I.O. or any...