NLRB v. Blades Manufacturing Corporation

• Decision Date: 10 May 1965
• Docket Number: No. 17662.,17662.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BLADES MANUFACTURING CORPORATION, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

344 F.2d 998 (1965)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BLADES MANUFACTURING CORPORATION, Respondent.

No. 17662.

United States Court of Appeals Eighth Circuit.

May 10, 1965.

Joseph C. Thackery, Atty., N.L.R.B., Washington, D. C., made argument for petitioner and filed brief with Arnold Ordman, Gen. Counsel, N.L.R.B., Washington, D. C., Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel and Solomon I. Hirsh, Atty., N.L.R.B., Washington, D. C.

Bernard A. Barken, St. Louis, Mo., made argument for respondent and filed brief.

Before VAN OOSTERHOUT and MEHAFFY, Circuit Judges, and DELEHANT District Judge.

MEHAFFY, Circuit Judge.

The National Labor Relations Board has petitioned this Court pursuant to Section 10(e) of the National Labor Relations Act, 29 U.S.C.A. §§ 141-166, for enforcement of its order (144 NLRB No. 54) against Blades Manufacturing Corporation, an Arkansas company engaged in the interstate production of airplane parts. The Board found, contrary to its Trial Examiner, that the Company refused to recognize and bargain with the International Association of Machinists, AFL-CIO, the duly certified collective bargaining representative of the Company's employees at its Rector, Arkansas plant; refused to adjust employee grievances with this Union; and unilaterally granted its employees an insurance plan without consulting the Union, all in violation of § 8(a) (5) and § 8(a) (1). It also found that the Company violated § 8(a) (3) and § 8 (a) (1) in discharging thirty-one employees who struck assertedly in protest of the Company's refusal to adjust grievances.

On January 13, 1961, the Union and the Company had entered into a Board-approved Stipulation for Certification upon Consent Election. In the subsequent election on January 20, the Union lost its bid to represent the Company's production and maintenance employees by a vote of 44 to 38. The Union timely filed objections with the Board's Regional Director who had conducted the election, complaining of specific acts of misconduct by the Company during the campaign and on the day of the voting. After an investigation, the Regional Director overruled the Union's specific objections, but found evidence that two Company supervisors had threatened several employees with plant closure if the Union won the election. These threats occurred during the then critical pre-election period beginning on the date the consent agreement was signed. He concluded these threats interfered with the employees' voting freedom and recommended that the election be set aside and a second election ordered.

The Company excepted to the findings and recommendation of the Regional Director, and the Board ordered a hearing on the objections. The hearing officer credited the testimony of employees Brady, Gossett, Wortham and Mobley to the effect that during the critical week before the election, Superintendent Davis and Plant Manager Mauldin told them individually that the Company would close or move the plant if the Union came in. He discredited denials of such statements by Davis and Mauldin, and further found that these two supervisors had repeatedly made coercive antiunion statements to individual employees during the non-critical period preceding the execution of the consent election agreement. Accordingly, he concluded this antiunion background prevented the threats of plant closure during the critical week before the election from being disregarded as isolated, and, like the Regional Director, also recommended a new election be held.

In this proceeding the Company was denied, for purposes of cross-examination, the affidavits of employees Brady, Gossett and Wortham which were given the Regional Director during the course of his ex parte investigation of the objections.

The Board adopted the recommendation of the hearing officer, ordered another election which the Union won 55 to 33, and certified the Union on October 25, 1961.

Thereafter, the Company refused the Union's request for bargaining information, whereupon the Union filed charges. The Company admitted its refusal to bargain, but insisted it was not obliged to recognize the Union because the first election was erroneously set aside and thus the second election was void, having been held within twelve months of the first in contravention of Section 9(c) (3) of the Act, 29 U.S.C.A. § 159(c) (3).

In the unfair labor practice hearing, the Trial Examiner granted a motion for judgment on the pleadings against the Company. The Company's unsuccessful defense had been a lack of due process of law in the prior representation hearing on objections to the election for failure to furnish it certain witnesses' pre-hearing affidavits. The Company excepted to the Examiner's findings based on credibility resolutions contained in the hearing officer's report and his ruling that Board policy forbade the right of respondent to pre-hearing affidavits in a representation case.

On review, the Board issued an order reopening the record in the representation hearing and remanded the proceedings with directions that the Company be furnished the previously requested affidavits for purposes of cross-examination. It was further ordered that:

"At such hearing, the Trial Examiner shall consider and resolve credibility issues raised by counsel for Respondent in his exceptions to the Hearing Officer\'s Report in Case No. 26-RC-1553 representation case, and at the conclusion of such hearing shall prepare and serve upon the parties a Supplemental Intermediate Report containing findings of fact, conclusions of law, and recommendations relating to the unfair labor practices alleged in this proceeding."

The Trial Examiner interpreted the remand order as requiring him to determine whether Company representatives made threats to close or move the plant in the event the Union won the election during the critical pre-election period. And, if so, were such threats sufficiently objectionable to warrant setting the election aside. He concluded that these determinations required a reassessment of the credibility of the three witnesses whose further cross-examination was authorized and who had testified to the Company misconduct during the critical period. Since the two Company supervisors were also witnesses before him in a related, consolidated, unfair labor practice case, he regarded it necessary to rule on their testimony generally, even though their denials of the threats in the prior representation case had been discredited by the hearing officer.

In the meantime, the Company had steadfastly refused to recognize and bargain with the Union and subsequently established an insurance program for its employees without conferring with the Union. In a letter dated November 18, 1961, an organizer for the Union warned that if the Company continued its refusal to bargain and adjust grievances of the employees with the Union, it could "expect future concerted moves and activities by its employees, in protest of the company's total disregard of the Act" which had been the basis for their "past concerted action." Following the second election, the Company had complained of production slowdowns by Union adherents aimed at forcing its recognition of the Union.

Thereafter, some of the employees met with the Union's organizer who advised them that if the Company continued to refuse to adjust grievances, they could "walk out for a day." These employees formed a grievance committee, and a vote was taken to walk out the next time the Company declined to meet with their Union spokesmen over a grievance.

Subsequently, on February 15 an employee received a written reprimand for insufficient production. Thereupon the Union members in the plant met and decided that if the Company refused to discuss grievances with their shop steward, they would walk out "for approximately one day at a time." When Plant Manager Mauldin refused to take up the reprimand with the shop steward but agreed only to discuss the grievance individually with the employee involved, thirty-one employees punched out before the shift had ended and did not report back to work until the following day.

Within a week the same employees staged a similar one-day walkout in protest of the Company's refusal to adjust an aggrieved employee's disciplinary layoff despite a warning from the Company against such walkouts during the interim. The Company warned these employees also by letter that their work stoppages were disrupting the Company's business and any repetition of such temporary cessations of work would result in discharge.

On February 27, the third walkout occurred after the Company refused to discuss with the shop steward the grievance of an employee given a three-day layoff for admittedly slowing down his production to get the Company to recognize the Union.

On March 1, thirty-one employees participating in the walkout were notified by letter from the Company of their discharge for engaging in unprotected activity despite previous warnings.

In his supplemental intermediate report, the Trial Examiner discredited the testimony of witnesses Brady, Gossett and Wortham that they had been threatened during the critical pre-election period by supervisors Mauldin and Davis. Therefore, he concluded that the single threat to Mobley by Davis on the eve of the election that the plant would be moved if the Union were victorious was insufficient standing alone to justify setting the first election aside. Thus, he ruled the second election within twelve months invalid, held, therefore, the Company was under no duty to recognize and bargain with the Union, and dismissed all § 8(a) (5) and derivative § 8(a) (1) charges.

He further held that the Company had not discriminatorily discharged the thirty-one strikers because their prearranged walkouts for a short duration was a form of concerted activity unprotected by Section 7 of the Act. 29 U.S. C.A. § 157.

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