NLRB v. American Cable Systems, Inc.

• Decision Date: 18 July 1969
• Docket Number: No. 25358.,25358.
• Citation: 414 F.2d 661
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AMERICAN CABLE SYSTEMS, INC., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

414 F.2d 661 (1969)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AMERICAN CABLE SYSTEMS, INC., Respondent.

No. 25358.

United States Court of Appeals Fifth Circuit.

July 18, 1969.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Glen M. Bendixsen, Peter Ames Eveleth, Attys., N.L.R.B., Washington, D. C., for petitioner.

Robert Wachs, Bernard Chanin, Philadelphia, Pa., for respondent; Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pa., of counsel.

Before GOLDBERG and AINSWORTH, Circuit Judges, and SPEARS, District Judge.

GOLDBERG, Circuit Judge:

We once again encounter the question of what an employer may do and must not do when confronted with a union recognition demand based on authorization cards rather than votes. In determining whether the company has transgressed the bounds of the permissible, we must re-examine our prior rulings in his area in the light of the Supreme Court's recent decision in NLRB v. Gissel Packing Co., 1969, 395 U.S. 575, 89 S.Ct. 1918, 23 L. Ed.2d 547.

In its petition to this Court the National Labor Relations Board seeks enforcement of its order directing the respondent, American Cable Systems, Inc., to recognize and bargain collectively with the Communications Workers of America. The Board found that the company had attemped to discourage union membership by coercive interrogations, promises of benefits, and discriminatory discharges, and that it had thereby violated §§ 8(a) (1) and (3) of the National Labor Relations Act. Reasoning that these unfair labor practices showed that the company's refusal to bargain was not motivated by a "good faith doubt" as to the union's majority status, the Board held that the company had violated its § 8(a) (5) duty to bargain collectively with the representative of its employees. The Board then concluded that these unfair labor practices could best be remedied by a bargaining order.

American Cable admits its guilt with respect to the §§ 8(a) (1) and (3) violations. The company, however, vigorously denies any violation of the § 8(a) (5) duty to bargain and argues that the bargaining order was therefore unwarranted. It asserts that cards essential to the union's majority were fatally tainted because there were misrepresentations in their solicitation and because the solicitor was a supervisor. Postulating that the union did not have a majority of valid authorization cards, the company contends that it did not have a duty to bargain and therefore that it did not violate § 8(a) (5). It further argues that, even assuming a valid card majority, the independent unfair labor practices were not flagrant enough either to warrant the Board's inference that the refusal to bargain was not in "good faith" or to justify the issuance of a bargaining order.

Since the Board's findings with respect to the §§ 8(a) (1) and (3) violations are uncontested, we enforce this part of the Board's order without further ado. We also agree with the Board's determination that the union had a majority of valid authorization cards at the time of its demand for recognition. As to the § 8(a) (5) issue and the propriety of the Board's bargaining order, however, we must, in the light of the new standards announced by the Supreme Court in NLRB v. Gissel Packing Co., supra, deny enforcement and remand for further findings.

I.

American Cable, which is in the CATV (community antenna television) business, operates in the area of Tupelo, Mississippi. At all material times the company had seven employees plus a general manager.

On July 12, 1965, the union wrote to the company, requesting recognition as the exclusive bargaining agent for the company's seven employees. The union stated that it was prepared to prove its majority status by a show of authorization cards and that it wanted to meet and bargain with the company. At this time the union had in its possession signed authorization cards from four of the company's seven employees.

Upon receipt of the union's letter, the general manager summoned two of the card signers and asked whether they "were part of it." When the two replied that they were, the general manager promptly gave them two weeks notice. Shortly thereafter he interrogated a third employee who saved his job by lying about his union activities.

The general manager then called an attorney, presented him with the foregoing facts, and requested advice. The attorney advised that the discharges were unlawful and should be rescinded immediately. On the basis of this advice and within minutes of the discharges, the discharged employees were reinstated. The general manager told the two employees in the presence of the other interrogated employee that he "had made a mistake, that everything was as it was, and we could continue to work." Thus the company asserts that when shown how it had violated the Act, it "did all it could to cure its original sin."

The difficulty with American Cable's assertion is that the company subsequently backed away from its righteous position and took another bite of the forbidden fruit. On July 16 the union filed a representation petition and, after the customary hearing, an election was scheduled for October 15. Between the time of the union's petition and election day, the company engaged in additional unfair labor practices. The general manager in conversations with at least five employees asked questions about the union's activities and inquired of the questionees what they thought of the union. He then suggested that the employees should form a "company union" promising future benefits to one employee while suggesting to others that, if the union were selected, the company would withhold benefits that they would otherwise receive.

When the election was held on October 15, the vote was 2-1 against the union. Immediately thereafter, the union filed objections to the election and unfair labor practice charges against the company. Proceedings culminating in this Court were then initiated before the Board.

II.

American Cable's first argument is that it did not violate § 8(a) (5) because the union did not have a majority of valid authorization cards at the time of its demand for recognition and bargaining. The company does not argue that the language on the face of the cards is ambiguous or misleading.¹ Rather, the company contends that the invalidity of the cards arises because (a) they were solicited by a "supervisor" and (b) the solicitor misrepresented the purpose of the cards to the signers. Since the union had only four authorization cards from a bargaining unit of seven employees, the vitiation of one card will destroy the union's majority.

Solicitations by alleged supervisor. It is well established that cards solicited by supervisory personnel may not be considered in determining a union's majority status. NLRB v. Hecks, Inc., 4 Cir. 1967, 386 F.2d 317, 322. The rationale for this rule is that a supervisor, through his power over the economic well-being of his charges, is in a position to exert undue and intrinsically coercive influence over their decisions as to whether or not to sign a card. For this rule to apply, however, the record must show either that the solicitor was in fact a supervisor within the contemplation of § 2(11) of the Act,² or that the employees solicited had good reason for believing him to be a supervisor and that the circumstances of the solicitation were inherently coercive. Cf. Plastic Workers Union Local 18 Intern. Union Doll and Toy Workers, A.F.L.-C.I.O. v. NLRB, 7 Cir. 1966, 369 F.2d 226, 230.

The alleged supervisor was a trusted employee who was appointed by the general manager to oversee several projects and to train new employees. He was, however, given no authority to hire, fire, promote, or discharge employees. Nor did he "1) have authority 2) to use independent judgment 3) in performing such supervisory functions 4) in the interest of management." NLRB v. Security Guard Service, Inc., 5 Cir. 1967, 384 F.2d 143, 147. Under these circumstances we find that the record supports the Board's finding that he was not a supervisor within the meaning of the Act. See NLRB v. American Mfg. Co. of Texas, 5 Cir. 1968, 405 F.2d 473. He was no more than a senior employee, leadman, or straw boss. As we said in Security Guard, supra, 384 F.2d at 151:

"If any authority over someone else, no matter how insignificant or infrequent, made an employee a supervisor, our industrial composite would be predominately supervisory. Every order-giver is not a supervisor. Even the traffic director tells the president of a company where to park his car."

Moreover, the record does not reflect that the leadman improperly used his position in soliciting cards or that the circumstances of the solicitation warrant any inference of threats or coercion.

Misrepresentations as to the purpose of the cards. American Cable asserts that at least one authorization card should be invalidated because it was solicited under the misrepresentation that its only purpose was to secure a representation election and because the signer did not really understand the full consequences of his act. Since the record does not support the company's assertion that the signer was told that the sole, only and singular purpose of the cards was to petition for an election, we turn to the second and more significant prong of the company's misrepresentation argument. American Cable argues that there is not substantial evidence in this record to show that the General Counsel has met his burden of proving that each signer subjectively intended to authorize the union to represent him and that he was aware that he might not be able to resolve any remaining doubts in the protected isolation of the polling booth. In making this argument the company relies primarily upon a line of Fifth Circuit cases holding that the General Counsel, when trying to prove the validity of a card majority, cannot...