National Labor Relations Board v. Epstein

• Decision Date: 15 April 1953
• Docket Number: No. 10888.,10888.
• Citation: 203 F.2d 482
• Parties: NATIONAL LABOR RELATIONS BOARD v. EPSTEIN et al.
• Court: U.S. Court of Appeals — Third Circuit

203 F.2d 482 (1953)

NATIONAL LABOR RELATIONS BOARD v. EPSTEIN et al.

No. 10888.

United States Court of Appeals Third Circuit.

Argued January 23, 1953.

Decided April 15, 1953.

Rehearing Denied May 7, 1953.

Harvey B. Diamond, Washington, D. C. (George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, Bernard Dunau, Atty., National Labor Relations Board, Washington, D. C., on the brief), for petitioner.

James M. Quigley, Harrisburg, Pa. (Samuel A. Schreckengaust, Jr., McNees, Wallace & Nurick, Harrisburg, Pa., on the brief), for respondents.

Before GOODRICH, STALEY and HASTIE, Circuit Judges.

STALEY, Circuit Judge.

The Board seeks enforcement of its order of January 29, 1952, requiring respondents, Harry Epstein, Irving Epstein, and Lena Epstein, co-partners, d/b/a Top Mode Manufacturing Company, to bargain with Local 108 of the International Ladies' Garment Workers' Union and granting other related relief.¹

After an unpleasant experience with a Philadelphia local of the same International Union, which resulted in the respondents' discontinuance of their operations there, the firm opened a plant for the manufacturing of women's dresses at Dauphin, Pa., about August 1, 1949. Within three weeks the union began organizing the employees. On August 29, the union agent, by letter, advised respondents that the union had achieved majority status and requested contract negotiations with the union. On September 6, the firm's attorney replied that he had advised Harry Epstein, manager of the company, to insist upon proper certification as the collective bargaining agent before agreeing to negotiate. Thereupon, the following day, Johnson, the union organizer, filed a petition for certification with the Board. The union sought an early date for a consent election, while Epstein sought delay; however, October 17 was finally fixed. Shortly after the date had been agreed to, the union became aware of certain conduct of Epstein which caused it to withdraw the petition for certification and to file on September 28 an unfair labor practice charge, alleging violation of Section 8(a) (5) by refusal to bargain and of Section 8(a) (1) by engaging in interrogation, threats, and other similar improper conduct.² On April 2, 1951, an amended charge was filed which repeated the allegations of the original charge and extended them to that date.

The respondent's chief complaint is that the Board predicated its finding of a refusal to bargain upon the attorney's letter³ of September 6. Counsel in the brief and at the oral argument made the point that by so doing there is an implication of either bad faith or a lack of professional competence on his part. A study of the record reveals that the Board considered the letter as but one of the props which Epstein used in setting the stage for his play of dissipating the union's majority. It was, however, merely the first one, and at that time undoubtedly properly supplied and unrecognizable. It acquired its character by his subsequent conduct which made it abundantly clear that at the time it was written for him Epstein entertained no reasonable doubt as to the union's majority. It was this latter finding on which the Board bottomed its conclusion that there was a refusal to bargain and that Epstein caused the letter to be written for delay.

Of course, an employer may rightly withhold recognition from a union possessed of majority status and request an election to confirm its accreditation if there is a bona fide doubt of a majority. Where the refusal is merely to afford time to take action to dissipate the majority, it constitutes a violation of the duty to bargain set forth in Section 8(a) (5) of the Act. National Labor Relations Board v. W. T. Grant Co., 9 Cir., 1952, 199 F.2d 711, certiorari denied, 1953, 344 U.S. 928, 73 S.Ct. 497; Joy Silk Mills, Inc. v. National Labor Relations Board, 1950, 87 U.S.App.D.C. 360, 185 F.2d 732, certiorari denied, 1951, 341 U.S. 914, 71 S.Ct. 734, 95 L.Ed. 1350. The record here is replete with substantial evidence to support the finding of a lack of a bona fide doubt. The time gained by the insistence upon an election was immediately put to use by Epstein to undermine the union. Employees were threatened with economic reprisals, interrogated concerning the union activity, solicited to report union affairs and sentiments, importuned to induce other employees to abandon the union, and promised and granted economic benefits. After the unfair labor practice charge was filed, the conduct was continued: promising an employee that he would be rewarded if he remained loyal, interrogating employees concerning union activity, participating in the preparation of an anti-union petition, and informing the employees that if they had not done something to stop the union the plant would have been closed. In addition, the respondents unilaterally changed their method of compensation from hourly rates to piece-work rates, likewise installed a noncontributory sick-benefit plan, a program of paid vacations and a general wage increase. Such conduct clearly violated Section 8(a) (1) of the Act. May Department Stores Co. v. National Labor Relations Board, 1945, 326 U.S. 376, 66 S.Ct. 203, 90 L.Ed. 145.

The respondents counter with the assertion that since most of this conduct occurred after the filing of the first charge and more than six months before the filing of the second charge, i.e., between September 28, 1949, and October 2, 1950, the Board is precluded under the provisions of Section 10(b) of the Act as amended⁴ from making any findings based on that conduct. Clearly, the Board here acted properly.⁵

The amended charge alleged acts and conduct similar to those complained of in the original charge, and it averred violations of the same sections of the Act. In fact, the amended charge was practically a verbatim restatement of the original charge; it simply extended "to the date hereof" the allegations of the original charge. Although the charge is a condition precedent to the Board's power to issue a complaint, National Labor Relations Board v. Kobritz, 1 Cir., 1951, 193 F.2d 8; National Labor Relations Board v. Westex Boot & Shoe Co., 5 Cir., 1951, 190 F.2d 12, it is not a pleading. National Labor Relations Board v. Indiana & Michigan Electric Co., 1943, 318 U.S. 9, 18, 63 S.Ct. 394, 87 L.Ed. 579; National Labor Relations Board v. Kingston Cake Co., 3 Cir., 1951, 191 F.2d 563; Cusano v. National Labor Relations Board, 3 Cir., 1951, 190 F.2d 898; Kansas Milling Co. v. National Labor Relations Board, 10 Cir., 1950, 185 F.2d 413. It merely sets the Board's investigatory powers in motion. National...