NLRB v. Canton Sign Company

• Decision Date: 30 March 1972
• Docket Number: No. 71-1284.,71-1284.
• Citation: 457 F.2d 832
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, and Sign Display and Pictorial Artists and Allied Workers, Local 639, Brotherhood of Painters and Allied Trades, AFL-CIO, Intervenor, v. CANTON SIGN COMPANY, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

457 F.2d 832 (1972)

NATIONAL LABOR RELATIONS BOARD, Petitioner, and Sign Display and Pictorial Artists and Allied Workers, Local 639, Brotherhood of Painters and Allied Trades, AFL-CIO, Intervenor, v. CANTON SIGN COMPANY, Respondent.

No. 71-1284.

United States Court of Appeals, Sixth Circuit.

March 30, 1972.

COPYRIGHT MATERIAL OMITTED

Robert A. Ginnasi, N. L. R. B., Washington, D. C., Eugene G. Goslee, Acting Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Allison W. Brown, Jr., Howard C. Hay, Attys., N. L. R. B., Washington, D. C., on brief, for petitioner.

Roy E. Browne, Akron, Ohio, Hershey, Browne, Wilson, Steel, Cook & Wolfe, Akron, Ohio, on brief, for respondent.

Lawrence M. Oberdank, Cleveland, Ohio, Riemer & Oberdank, Cleveland, Ohio, of counsel, for intervenor.

Before WEICK and CELEBREZZE, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.

O'SULLIVAN, Senior Circuit Judge.

National Labor Relations Board seeks enforcement, and respondent Canton Sign Company (Canton) resists enforcement, of an Order of the Board entered February 28, 1969, directing respondent to bargain with intervenor, Sign Display and Pictorial Artists and Allied Workers, Local 639, Brotherhood of Painters and Allied Trades, AFL-CIO (the Union), as representative of Canton's employees. The Board's Order and its Trial Examiner's Decision are reported as 174 N.L.R.B. No. 133.

We deny enforcement.

At the times here involved, Canton Sign Company of Canton, Ohio, had five employees eligible for membership in Local 639. But neither Local 639 nor a predecessor, Local 89, had ever been certified as bargaining agent for Canton's employees; neither is there evidence that any of them had ever chosen to become a member of either of such Locals. A Regional Director and the Trial Examiner who made the decision before us, took the position that Canton had recognized Local 89 and Local 639 as representatives of its employees and was thereby obligated to continue to deal and bargain with Local 639 or be guilty of an unfair labor practice. The immediate background to the order before us was a strike, called by Intervenor Local 639 on April 8, 1968. It covered respondent's plant as well as the plants of two other Canton enterprises engaged in activities similar to those of respondent. The record before us is unclear as to just why the strike was called or why it ended. It was short lived. Except for one Thomas Franta, none of respondent's employees who participated in it ever asked for reinstatement, nor did they ever return to the employ of respondent. Thomas Franta, a brother of Edward A. Franta, respondent's president, was himself its vice-president. Because he did some work of like kind to that done by respondent's four other employees, he paid dues to Local 89 and Local 639, and was apparently considered a member. Except for Thomas Franta, who returned to work one day after the strike was called, the other employees of Canton, at a date not shown by the record, all went to work for other employers. Local 639 found new jobs for them.

Prior to and during the strike, meetings were had between representatives of the Union and respondent during which the Union sought to have the Company recognize it, and enter into a contract with it, as bargaining agent for Canton's employees. While the strike was in progress, the Company filed an unfair labor practice charge against the Union claiming that the picketing was a violation of Section 8(b) (7) (c), 29 U.S.C. § 158(b) (7) (c) as an illegal effort to force the Company to recognize and bargain with Local 639. The Regional Director, however, refused to issue a complaint, asserting that Canton had already recognized Local 639 as bargaining agent for Canton employees. Upon the Company's appeal to the General Counsel, the Regional Director's decision was affirmed. No representation election, no card count, nor any other mechanism had ever been employed or directed for the purpose of making a reliable determination as to whether Local 639 was, in fact, the chosen representative of Canton's employees.

Returning to the background of this litigation, we recite that on March 31, 1964, Canton Sign Company entered into an agreement with Local 89 of Sign Display and Pictorial Artists and Allied Workers, Brotherhood of Painters and Allied Trades, AFL-CIO. It was there provided that each employee of Canton, after the first 30 days of his employment, or after 30 days duration of the contract, was required,

"As a condition of employment become and remain members of the Union, to the extent of tendering or paying the amount of the uniform dues and initiation fees required by the Union of its members." (Emphasis supplied.)

The record is silent as to what negotiations led to this "union-shop" contract and as to whether any of Canton's employees had a part in whatever negotiations led to it.

The making of such a contract by a union and an employer without a majority of the involved employees having chosen the union as its bargaining agent would be illegal, and confers no right on the union. Section 8(a) (3) of the Act, 29 U.S.C. § 158(a) (3). International Ladies' Garment Workers' Union v. National Labor Relations Board, 366 U.S. 731, 81 S.Ct. 1603, 6 L.Ed.2d 762 (1961); Lane Drug Co. v. NLRB, 391 F.2d 812, 820 (6th Cir. 1968); NLRB v. Pepsi Cola Bottling Co., 454 F.2d 5 (6th Cir. 1972).

The contract was to run to April 1, 1967, with annual renewals unless terminated by a 90 day advance notice. No contract had ever been made between Canton and Local 639, the charging party. The trial examiner, however, found that Local 639 had become the bargaining representative of Canton's people by reason of a merger between Local 89 and Local 639. In February, 1966, Local 639 sought to take over Local 89. Local 89 was a small organization covering three sign companies of Canton, Ohio, having a total of about 35 employees, five of whom worked for respondent. Local 639 was a large union covering eligible employees of sign companies throughout the entire State of Ohio and parts of Kentucky. On February 2, 1966, pursuant to notice to the members of Local 89, a meeting was held at which fifteen of the thirty-five members of Local 89 were present. A vote by secret ballot was taken and thirteen of the fifteen who were present voted for the merger. There was no evidence that any employee of Canton voted for the merger or was even present at this meeting. No notice was given to respondent Canton of such a plan, nor was it ever consulted as to whether it would be willing to substitute Local 639 for Local 89 as bargaining representative of its people. It learned of the merger later. It would be well at this point to emphasize that the burden of proving charged illegal conduct is on the General Counsel. NLRB v. Murray Ohio Mfg. Co., 326 F.2d 509, 513 (6th Cir. 1964); Sears, Roebuck & Company v. NLRB, 450 F.2d 56, 61-62 (6th Cir. 1971).

There is no evidence of any trouble between Canton and its employees over membership in Local 89, Local 639, or in any other union, nor as to who was to bargain for them. After the 1966 merger, Canton's employees paid their union dues to Local 639 which had taken over the assets and records of Local 89. It is a fair inference that this was a routine affair, obedient to the requirement of the 1964 contract and to the direction of the business agent of Local 639. There was no occasion for Canton to deal with Local 639 until, on January 17, 1967, it received a letter from Local 639 advising that it wished to discuss termination of the existing contract (with Local 89) "which will expire by its terms on April 1, 1967," and asked the company to meet with Local 639 to discuss "a replacement agreement which will become effective April 1, 1967." Canton replied that in view of the fact that neither the company nor the union had given notice of intention to terminate or change the existing contract with Local 89 "90 days prior to April 1, 1967" the existing contract would continue for one year until April 1, 1968. The company's response, however, concluded:

"However, if there is any specific problem or proposal which you wish us to consider with you, or any suggestion which is likely to improve our business prospects or increase employment, we shall be glad to hear further from you, looking to arrangements for a joint discussion."

Thereafter, on December 27, 1967, more than 90 days prior to April 1, 1968, the expiration date of the existing contract, Local 639—its letterhead identified its office as being in Cleveland, Ohio—asked that Canton meet with its representatives to discuss "a replacement agreement." The company responded that,

"In order to expedite things, please present your proposal to us in writing at your earliest convenience."

Subsequently, negotiations were had looking to an eventual making of a contract between Canton and Local 639. During these negotiations, respondent company in no way sought to dissuade its employees from remaining, or becoming, members of Local 639. Meetings were held at which the union submitted proposed contracts. These proposals contained the same "union security" provision which had been in the expiring contract with Local 89. Notes appearing on such draft proposals indicate that respondent would likely have gone along with such a provision if total agreement was reached. There obviously were areas of disagreement, however, and respondent's employees, as well as the employees of the other two sign companies of Canton, Ohio, went on strike as hereinabove set out.

The order which the Board here asks us to enforce is bottomed on the union's charge that in April, 1968, after the strike had commenced, the respondent Company refused to continue bargaining with Local 639 as the representative of Canton's employees. In February, 1969, the Board found the respondent guilty of the charge and ordered Canton to bargain with...