NLRB v. ARKANSAS GRAIN CORPORATION

• Decision Date: 24 April 1968
• Docket Number: No. 18849.,18849.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, and International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO, Intervenor, v. ARKANSAS GRAIN CORPORATION, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

390 F.2d 824 (1968)

NATIONAL LABOR RELATIONS BOARD, Petitioner, and International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO, Intervenor, v. ARKANSAS GRAIN CORPORATION, Respondent.

No. 18849.

United States Court of Appeals Eighth Circuit.

March 12, 1968.

Rehearing Denied April 24, 1968.

Harold B. Shore, Attorney, National Labor Relations Board, Washington, D. C., for petitioner; Arnold Ordman, General Counsel, N.L.R.B., Dominick L. Manoli, Associate General Counsel, N.L. R.B., Marcel Mallet-Prevost, Asst. General Counsel, N.L.R.B., and Glen Bendixsen, Attorney, N.L.R.B., on the brief.

B. S. Clark, of Smith, Williams, Friday & Bowen, Little Rock, Ark., for respondent.

James C. Paradise and Herbert M. Berman, Cincinnati, Ohio, for intervenor, International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO.

Before VAN OOSTERHOUT, Chief Judge, MATTHES, Circuit Judge and HARRIS, Chief District Judge.

MATTHES, Circuit Judge.

This case is before the Court on the petition of the National Labor Relations Board, pursuant to Section 10(e) of the National Labor Relations Act, as amended, 29 U.S.C. §§ 151-168, for enforcement of its order issued March 28, 1967 against Respondent Arkansas Grain Corporation. The Board's order and decision are reported at 163 N.L.R.B. No. 192 (1967). No jurisdictional issue is presented. Upon motion, the Court permitted the International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America (Union) to intervene. Intervenor has filed a brief in support of the petition for enforcement.

The Board, in adopting the findings, conclusions and recommendations of the trial examiner, found that Respondent had violated Sections 8(a) (1) and 8(a) (5) of the National Labor Relations Act. We grant the Board's petition for enforcement of its order with respect to the Section 8(a) (1) violation and deny the same with respect to the Section 8(a) (5) violation.

The asserted unfair labor practices stem from an attempt on the part of the Union to organize the employees of Respondent in its plant at Stuttgart, Arkansas, where it is engaged in the business of producing and selling soybean oil and meal. Respondent, through its plant superintendent and other supervisory personnel, manifested its opposition to the Union in a campaign designed to discourage Union affiliation on the part of individual employees.

The campaign was commenced in November, 1965. Pursuant to Section 9(c) of the Act, the Union filed a petition with the Board on January 26, 1966 requesting a representation election and certification. At the representation hearing on February 11, 1966 the parties stipulated for a consent election on February 16th. The Union lost the election by a vote of 42 to 30. Thereafter the Union filed timely objections alleging that the Respondent had coercively interfered with its employees' freedom of choice in the election by interrogation of employees concerning Union meetings and voting intentions and by threats of reduced earnings, reduced working force and the general futility of selecting the Union. The Regional Director sustained these objections and recommended that the election be set aside. Since no exceptions were taken to the Regional Director's report, the Board on April 8, 1966 ordered the election set aside and directed a second election. Contemporaneously with the filing of the objections to the election the Union filed the unfair labor practices charge underlying this case.

SECTION 8(a) (1) VIOLATION

We find no compelling need to recite in detail the evidence upon which the Board predicates its finding of a Section 8(a) (1) violation. The examiner's report exhaustively reviews the pertinent incidents of Respondent's coercive activity. Several employees testified in effect that during the organizational campaign the superintendent of Respondent's plant and other supervisory personnel informed them that the ringleaders of the Union movement would be singled out and fired; that if the Union were designated as the bargaining agent there would be a reduction in the number of employees and working hours; that Respondent would never sign a contract with the Union and thus the employees would have to strike to secure their demands with resultant loss of work for many of them. Although Respondent's officials in general denied the coercive statements attributed to them, the examiner credited the testimony of the employees. Coercive interrogation, threats of reprisal and other acts of interference, such as occurred here, are sufficient to constitute a violation of Section 8(a) (1). N.L. R.B. v. Ralph Printing & Lithographing Company, 379 F.2d 687 (8th Cir. 1967); N.L.R.B. v. Louisiana Manufacturing Company, 374 F.2d 696 (8th Cir. 1967); N.L.R.B. v. Byrds Manufacturing Corporation, 324 F.2d 329 (8th Cir. 1963); Marshfield Steel Company v. N.L.R.B., 324 F.2d 333 (8th Cir. 1963).

We disagree with the Board's suggestion that this is a case of flagrant unfair labor practices. Out of the thirty employees who testified at the hearing, only four or five related events of sufficient gravity to demonstrate the proscribed conduct.¹ Nevertheless on the whole record we hold that the Board's finding is supported by substantial evidence.

SECTION 8(a) (5) VIOLATION

Respondent's refusal to bargain with the Union is predicated upon a rather unique factual situation concerning which there is no real controversy.

On January 26, 1966, after the inception of the Union's organizational drive, Louis J. Woodall, Special International Representative for the Union, advised Respondent by letter that "a majority of your employees in the production and maintenance department have authorized this organization to represent them for the purpose of collective bargaining in wages, hours and working conditions * * *." Woodall suggested a February 1st or 2nd meeting date for the purpose of recognition and bargaining. This letter was received by Respondent on January 27th. On the next day, January 28th, Respondent also received a copy of the Union's petition for a representation election and certification filed with the Board. On the same date Respondent replied to Union's letter of January 26th and stated in substance that since the Union had petitioned for an election the Respondent assumed that Union desired to have the question of majority representation resolved through that channel. On January 31st C. H. Lindberg, Region Director of the Union, advised Respondent that a majority of its production and maintenance employees had selected the Union as their bargaining agent, that the Union was prepared to demonstrate its majority representation through a check of authorization cards, and that the request for recognition and bargaining should be treated as a continuing demand. In its reply on February 3rd to the Union's second demand the Respondent declined the offer to demonstrate the Union's majority by means of a card check on the basis that such an offer was inconsistent with the pending petition for an election.

It stands undisputed that on January 27th and February 1st, the respective dates on which Respondent received the two requests for recognition, the Union had not in fact secured authorization cards from a majority of employees in the appropriate unit. Apart from three laboratory employees and a traffic clerk, whom the trial examiner excluded,² there were seventy-three employees in the appropriate bargaining unit. On January 27th and February 1st the Union held thirty-five and thirty-six authorization cards, respectively. Two days thereafter, on February 3rd, the Union received its 37th authorization card, giving it a bare majority of one. By February 7th three more employees had signed authorization cards, bringing the total authorization to forty. Notwithstanding the lack of majority representation on the crucial dates the examiner and the Board concluded that Respondent was obligated, on the theory of a continuing demand for recognition, to bargain with the Union and that its failure to do so justified the finding of a violation of Section 8(a) (5).³

Preliminarily, we again recognize: (1) although representative status may be determined in a Board conducted election pursuant to Section 9(c) of the Act, such an election is not the only method by which a union may demonstrate that it has been designated by a majority of the employees as their representative in an appropriate bargaining unit. United Mine Workers of America v. Arkansas Oak Flooring Company, 351 U.S. 62, 72 n. 8, 76 S.Ct. 559, 100 L.Ed. 941 (1956); N.L.R.B. v. Ralph Printing & Lithographing Company, supra, 379 F.2d at 692-693; Colson Corporation v. N.L.R.B., 347 F.2d 128, 135 (8th Cir. 1965), cert. denied, 382 U.S. 904, 86 S.Ct. 240, 15 L.Ed.2d 157 (1965); N.L.R.B. v. Philamon Laboratories, Inc., 298 F.2d 176, 179 (2d Cir. 1962), cert. denied, 370 U.S. 919, 82 S.Ct. 1555, 8 L.Ed.2d 498 (1962); (2) where a union has obtained valid authorization cards from a majority of the employees in an appropriate unit, the employer is vulnerable to a Section 8(a) (5) violation if, absent a good faith doubt as to its majority status, he refuses to recognize and bargain with the union. N.L.R.B. v. Ralph Printing & Lithographing Company, supra, 379 F.2d at 693; N.L.R.B. v. Comfort, Inc., 365 F.2d 867, 876 (8th Cir. 1966).

This background material brings into focus two basic issues at hand: (1) Does an employer commit an unfair labor practice by refusing to recognize and bargain with a union upon request when the union admittedly did not represent a majority of the employees in the appropriate unit at the time it asserted its majority status and demanded recognition and bargaining? (2) Where the union, although representing only a minority of the employees at the time of the request for recognition and bargaining, nonetheless expresses its...