NLRB v. Colvert Dairy Products Company, 7090.

• Decision Date: 12 June 1963
• Docket Number: No. 7090.,7090.
• Citation: 317 F.2d 44
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. COLVERT DAIRY PRODUCTS COMPANY, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

317 F.2d 44 (1963)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. COLVERT DAIRY PRODUCTS COMPANY, Respondent.

No. 7090.

United States Court of Appeals Tenth Circuit.

May 7, 1963.

Rehearing Denied June 12, 1963.

Melvin J. Welles, Washington, D. C. (Stuart Rothman, Dominick L. Manoli, Marcel Mallet-Prevost, James C. Paras and Glen M. Bendixsen, Washington, D. C., were with him on the brief), for petitioner.

Edward E. Soule, Oklahoma City (Louis A. Fischl, Ardmore, Okl., was with him on the brief), for respondent.

Before BRATTON, LEWIS and HILL, Circuit Judges.

LEWIS, Circuit Judge.

The National Labor Relations Board petitions this court under Sec. 10(e) of the National Labor Relations Act, 29 U.S.C.A. 160(e), for enforcement of its order of April 25, 1962, directing respondent to cease and desist from certain designated activities and requiring the usual affirmative requirements of posting. The order also carries a provision setting aside an election held August 2, 1961, and a remand of this aspect of the proceeding to Regional Director for the purpose of conducting a new election.

In issuing its order the Board adopted the findings and recommendations of the trial examiner who concluded that respondent had illegally affected the result of an election in violation of Sec. 8(a) (1) of the Act by coercive questioning of its employees and by the prohibited use of photographic equipment in pre-election activities. The respondent resists enforcement, asserting that the Board committed fundamental error in its consideration of the evidence; that the evidence is insufficient to premise findings of violation of Sec. 8(a) (1); and that the order of the Board requiring a new election should be set aside and declared void.

The proceedings before the Board were a consolidation of two cases, separately docketed and numbered. Case No. 16-CA-1532 charged respondent with committing unfair labor practices in its pre-election activities; Case No. 16-RC-2910 petitioned the Board to set aside the August 2, 1961, election. Since the same evidence was pertinent to the issues of both cases the matters were consolidated for hearing. The Board's present petition seeks enforcement of its order only as to the issues presented in Case No. 16-CA-1532. This court consequently lacks present jurisdiction to give consideration to respondent's contention that the Board erred in setting aside the results of the August 2 election and directing that a new election be held. And, for reasons that will become apparent, we do not give consideration to respondent's assertion that the evidence is insufficient to sustain the Board's findings that respondent committed unfair labor practices as charged and found in Case No. 16-RC-2910.

Early in 1961, Local 670 of the International Union of Operating Engineers, AFL-CIO, began a campaign to organize some 100 production and maintenance employees working at respondent's milk processing and distribution plant at Ardmore, Oklahoma. On April 25, 1961, having complied with required procedures, the union petitioned for a Board election and a date was set. Thereupon both respondent and the union engaged in extensive activities intended to influence the employees in the exercise of their votes. On May 31, July 18, and July 31, respondent's general manager read to the assembled employees prepared statements expressing management's opinion regarding the union's attempt to organize the plant. In the trial examiner's evidentiary findings, adopted in toto by the Board, the examiner bottoms his consideration of the credibility of the conflicting testimony of witnesses and the weight to be given to the evidence thus:

"* * * The statements read by Respondent\'s representatives to the assembled employees clearly conveyed to them Respondent\'s position succinctly stated in the sentence in the prepared statement read to the employees on May 31, 1961, that, `We are convinced that there is no place for a union here and that all of you will be much better off without one.\'

"The Examiner does not find that Respondent committed any unfair labor practices or engaged in conduct illegally affecting the results of the Board-conducted election by assembling the employees and reading to them the prepared statements. However, this conduct is evidence of an antiunion animus on the part of Respondent and its officers. It will be considered as background evidence in appraising the conduct of Respondent alleged to constitute unfair labor practices and conduct illegally affecting the results of the Board election."

It seems patently clear that the trial examiner has taken the lawful statements of respondent, protected as they are by the First Amendment and specifically authorized by Section 8(c) of the Act,¹ as a basis authorizing an unfavorable inference in the appraisement of respondent's conduct and the credibility of its witnesses. In the case at bar the burden so imposed upon respondent may have been determinative of the ultimate issues and we hold it to be specific...