National Labor Relations Board v. Hamilton

• Citation: 220 F.2d 492
• Decision Date: 05 May 1955
• Docket Number: No. 4953.,4953.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. J. C. HAMILTON, J. C. Hamilton, Jr., Ed. L. Hamilton, Agnes Hamilton, Sara Lee Mann, Co-Partners D/B/A The J. C. Hamilton Company, Respondents.
• Court: U.S. Court of Appeals — Tenth Circuit

220 F.2d 492 (1955)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. J. C. HAMILTON, J. C. Hamilton, Jr., Ed. L. Hamilton, Agnes Hamilton, Sara Lee Mann, Co-Partners D/B/A The J. C. Hamilton Company, Respondents.

No. 4953.

United States Court of Appeals, Tenth Circuit.

March 22, 1955.

Rehearing Denied May 5, 1955.

Nancy M. Sherman, Washington, D. C. (Elizabeth W. Weston, George J. Bott, General Counsel, David P. Findling, Associate General Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D. C., on the brief), for petitioner.

Edward E. Soule, Oklahoma City, Okl. (Lytle, Johnson & Soule, Oklahoma City, Okl., on the brief), for respondents.

Lee B. Thompson, Oklahoma City, Okl. (Roy L. Sullivan and McInnis, Cantrell, Thompson & Sullivan, Oklahoma City, Okl., on the brief), for intervenors.

Before PHILLIPS, Chief Judge, PICKETT, Circuit Judge, and VAUGHT, District Judge.

PICKETT, Circuit Judge.

The National Labor Relations Board instituted this proceeding for the enforcement of its order issued against the respondents who were engaged as a co-partnership in the wholesale distribution of automotive parts and accessories in Oklahoma City, Oklahoma. The Board found that the respondents had unjustifiably refused to recognize and bargain collectively with the International Association of Machinists, AFL, herein referred to as the Union, as the exclusive representative of their employees in an appropriate unit in violation of Section 8(a) (5) of the Act, and that they had interfered with their employees' right to self-organization in violation of Section 8(a) (1) of the Act. 29 U.S.C.A. § 158(a) (5) and (1). Fourteen of the sixteen employees of the respondents seek to intervene in this proceeding and to oppose the enforcement of the order. The respondents have applied to this court for leave to amend their answer to the Board's petition.

The evidence established that on June 18 and 19, 1952, ten of the respondent's seventeen employees signed cards and authorized the Union to act as their collective bargaining representative. The Union mailed a letter to the partnership and stated that it represented a majority of the employees. Two representatives of the Union came to the plant of the respondents and offered to establish the Union's majority through a card check and requested the respondents to recognize and bargain with it as the representative of the employees in that unit.¹

It is quite evident that the respondents displayed great hostility toward the Union. Members of the partnership made it clear to the Union representatives that they would not tolerate a union within their plant and they refused to examine the proof of the majority status of the Union. Four days later, the Union filed a representation petition with the Board in which it sought certification as the collective bargaining representative of the employees. The Board was then notified that the partnership would not consent to an election. Thereupon the Union withdrew its certification petition and filed a charge alleging that the respondents were guilty of unfair labor practices.

On October 3, 1952, the complaint in the instant case was filed by the Acting Regional Director as authorized by the General Counsel of the Board. After hearings, the Board sustained the trial examiner's findings that the partnership's refusal to recognize the Union was motivated by a desire to gain time to undermine the Union's majority, and that its actions violated Section 8(a) (5) and (1) of the Act. These findings were based principally upon threats by the respondents to close the plant or turn it into a warehouse if the Union organized the employees; veiled threats to discharge employees for union activities; orders prohibiting discussions about the Union at any time; and interrogation of employees concerning their union sympathies and activities. The Board also held that under the circumstances the Union's subsequent loss of majority did not extinguish the partnership's duty to bargain. The order now sought to be enforced was entered May 6, 1953. The partnership undertook to comply with the order by posting the required notices and entering into bargaining negotiations with the Union. Without discussion of the evidence in detail, it suffices to say that we have examined the record and find that there is substantial evidence to support the material findings made by the Board.

An employer may withhold recognition from a union which claims to represent a majority of his employees only if he in good faith doubts the union's claims. If the refusal to bargain is the result of a good faith doubt and not a defense to unionization, the employer has the right to have those doubts settled by an election. But when the refusal is motivated by a desire to gain time for the purpose of dissipating the union's majority by coercive tactics, the refusal to bargain is no longer justifiable and constitutes a violation of Section 8(a) (5) of the Act. N.L.R.B. v. Poultry Enterprises, Inc., 5 Cir., 207 F.2d 522; N.L.R.B. v. Stewart, 5 Cir., 207 F.2d 8; N.L.R.B. v. W. T. Grant Co., 9 Cir., 199 F.2d 711, certiorari denied 344 U.S. 928, 73 S.Ct. 497, 97 L.Ed. 712; N.L.R.B. v. Kobritz, 1 Cir., 193 F.2d 8; Joy Silk Mills, Inc. v. N.L.R.B., 87 U.S.App.D.C. 360, 185 F.2d 732, certiorari denied 341 U.S. 914, 71 S.Ct. 734, 95 L.Ed. 1350; N.L.R.B. v. Crown Can Co., 8 Cir., 138 F.2d 263, certiorari denied 321 U.S. 769, 64 S.Ct. 527, 88 L.Ed. 1065. Where the employer wrongfully refuses to bargain with a union which represents his employees, the duty remains to recognize the union and bargain with it even if the union has lost its majority. The employer may not profit by his own wrong. Brooks v. N.L.R.B., 348 U.S. 96, 75 S.Ct. 176; Franks Bros. Co. v. N.L.R.B., 321 U.S. 702, 64 S.Ct. 817, 88 L.Ed. 1020; International Association of Machinists, Tool and Die Makers Lodge No. 35 v. N.L.R.B., 311 U.S. 72, 61 S.Ct. 83, 85 L.Ed. 50; Colorado Fuel & Iron Corp. v. N.L.R.B., 10 Cir., 121 F.2d 165. It is the function of the Board, not the...