NLRB v. Boyer Brothers, Inc.

• Decision Date: 09 September 1971
• Docket Number: No. 17843.,17843.
• Citation: 448 F.2d 555
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BOYER BROTHERS, INC., Respondent.
• Court: U.S. Court of Appeals — Third Circuit

448 F.2d 555 (1971)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BOYER BROTHERS, INC., Respondent.

No. 17843.

United States Court of Appeals, Third Circuit.

Argued June 11, 1971.

Decided September 9, 1971.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Corinna Metcalf, Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, William F. Wachter, Jack H. Weiner, Attys., N.L.R.B., Washington, D. C., on the brief), for petitioner.

George V. Gardner, Asa Ambrister, Gardner & Ambrister, Washington, D. C., for respondent.

Before STALEY and ADAMS, Circuit Judges, and GARTH, District Judge.

OPINION OF THE COURT

GARTH, District Judge.

The question before the Court in this proceeding is the validity in various sets of circumstances of cards signed by employees which purport to authorize a union to represent these employees vis-à-vis their employer. The N.L.R.B. found that a majority of the employees of Boyer Brothers, Inc. (hereinafter referred to as the Company) validly authorized The Bakery and Confectionery Workers' International Union of America, Local No. 12 (hereinafter referred to as the Union) to represent them. The Board petitions this Court¹ for enforcement of an N.L.R.B. order which prohibits the Company from engaging in specified unfair labor practices designed to prevent unionization of its employees and which compels the Company to bargain with the Union.

In May, 1966 the Union began a drive to organize the employees of the Company and on July 7, 1966 requested the Company to engage in collective bargaining. The Union claimed it possessed at that time authorization cards from a majority of the employees in the appropriate unit. The Company, however, refused to recognize the Union. On August 17, 1966 an election was held to determine the status of the Union. The Union was defeated by a substantial margin.

The Union filed a charge with the N.L.R.B. shortly after the election. On April 3, 1967 hearings began before the trial examiner at which many of the employees of the Company testified and were subject to cross-examination. After the issuance of the trial examiner's decision on October 26, 1967, the Company moved on December 13, 1967 to reopen the record to present newly discovered evidence. On April 5, 1968 the N.L.R.B. denied the Company's motion and adopted the findings and affirmed the rulings of the trial examiner. On that date the N.L.R.B. ordered that the representation election be set aside because of specified unfair labor practices,² and that the Company be required to bargain with the Union on the basis of the Union's designation on a majority of valid cards signed by the employees.

The N.L.R.B. petitioned this Court for enforcement of its order of April 5, 1968. On August 18, 1969 this Court remanded the entire case for reconsideration by the Board in the light of the landmark case of N. L. R. B. v. Gissel Packing Co., et al., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547, reh. denied, 396 U.S. 869, 90 S.Ct. 35, 24 L.Ed.2d 123 (1969). In its Supplemental Decision and Order of March 3, 1970, the N.L.R.B. reaffirmed its initial decision, stating that "the unambiguous cards validly executed by a majority of the employees in the unit represent a more reliable measure of employee desires on the issue of representation than would a rerun election." The Board ruled that the Company's unfair labor practices were so substantial and pervasive and had so damaging an impact upon election processes that a rerun election would have been ineffective and unreliable.

In its Statement of the Issues before this Court, respondent concedes that substantial evidence supports the N.L.R.B.'s findings that the Company committed unfair labor practices in violation of 29 U.S.C. § 158(a) (1) in all the respects found by the Board. Consequently these finding are deemed conclusive in this proceeding. That part of the order of the N.L.R.B. which prohibits specified unfair labor practices will be enforced.

The remaining determination for this Court is the validity of the provision of the N.L.R.B. order which compels the Company to bargain with the Union. Section 159(a) of Title 29, U.S.C., provides in pertinent part that:

"Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment. * * *"

Whether a majority of the employees in the appropriate unit designated the Union as their representative is the chief contested issue. It is agreed that the bargaining unit at respondent's factory included 207 employees at the time of the Union's demand for recognition. Hence 104 employees must have designated the Union to represent them in bargaining in order to constitute a majority.

The N.L.R.B. found that authorization cards had been validly executed by 106 of the Company's employees. The Company contends that a majority was not obtained by the Union and specifically attacks the Board's inclusion in its count of the cards of 9 employees among those who authorized Union representation.

We find that only two authorization cards were improperly counted (those of employees Burns and Rinker) and conclude that substantial evidence supports the N.L.R.B.'s finding that a majority of the employees in the appropriate unit designated the Union as their representative.

Card of Harry Burns

The card executed by Harry Burns should not have been counted. Before signing, Burns altered the statement printed on the card. Originally that statement was printed as follows: "I hereby apply for membership in The Bakery and Confectionery Workers International Union of America, Local No. ..........., and I authorize and designate that Union to represent me for collective bargaining with my employer." Burns lined through the word "membership," substituting another phrase for that word, and thereby caused the card to state: "I hereby apply for information of what you can do for me."

The Board counted Burns' card in accordance with a finding that in leaving intact the entire last clause of the card's statement, Burns knowingly differentiated between union membership, which he did not request, and authorization of the Union as his representative. The record does not present substantial evidence to support this finding.

Effect is to be given to words inserted in the body of an existing form, even if to do so requires a rejection of uncancelled provisions of the original draft. Marine Insurance Company v. M'Lanahan, 290 F. 685 (4th Cir. 1923). On the other hand, a correct construction of an instrument may be obtained by drawing the negative inference that if only one word or phrase of a sentence is stricken, the drafter intended that the others should retain their effect. But this latter proposition assumes that the draftsman has carefully read the sentence and deliberately concluded that the unstricken words express his intention.

Here, however, Burns when asked why he struck one phrase and not the other, stated to the N.L.R.B. trial examiner that "I really didn't give it that much thought I guess." Moreover, Burns' lack of meticulousness is further evidenced by the fact that he struck only the word "membership" and not the remainder of the first clause ("* * * in the Bakery and Confectionery Workers International Union of America, Local No. * * *"). To the extent Burns may have actually thought about the editing of his card, we feel the only realistic interpretation is that offered by Burns: "Well, I thought membership, I thought if you were a member or something they represented you. If you wasn't sic a member they didn't."

Card of Margaret Ebling

Margaret Ebling testified that in signing a card she relied upon a representation that her authorization would remain confidential but stated that this representation was subsequently violated. The fact that the representation as to confidentiality was breached is irrelevant to the reliability, and hence validity, of a union authorization card. N. L. R. B. v. Consolidated Rendering Co., 386 F.2d 699, 702 (2d Cir. 1967); N. L. R. B. v. Southbridge Sheet Metal Works, Inc., 380 F.2d 851, 856 (1st Cir. 1967). The Ebling card was properly counted.

Card of Gary Runk

The Company asserts as a basis for exclusion that although Gary Runk may have signed a valid authorization card, he did not deliver the card to the Union. Runk's brother testified that he witnessed the signing of the card and that he heard Runk state his intention to mail the card. Runk himself stated that he mailed the card but was unsure of the addressee. The Runk card was properly counted regardless of the conflicting evidence as to receipt by the Union. Cf. N. L. R. B. v. International Metal Specialties, Inc., 433 F.2d 870, 872 (2d Cir. 1970), cert. denied, 402 U.S. 907, 91 S.Ct. 1378, 28 L.Ed.2d 647 (U.S. April 19, 1971) (held includible a card signed and given to another employee to turn in but never received).

Card of Sandra Nedimeyer Duffield

The Company contends that it was denied an opportunity to cross-examine Sandra Nedimeyer Duffield, and therefore that her card was not properly authenticated. In an affidavit submitted in support of the Company's motion to reopen, Duffield asserted that she was subpoenaed to appear at the N.L.R.B. hearing but was sent home without testifying by a representative of the General Counsel of the N.L.R.B. The General Counsel's office could not recall such an action on its part. Without resolving this factual issue, we believe this card was nevertheless properly counted. In her affidavit this employee made no averment which would call into question the reliability of her signature. We conclude that it was not...