NLRB v. Commercial Letter, Inc.

• Decision Date: 22 April 1974
• Docket Number: No. 73-1247.,73-1247.
• Citation: 496 F.2d 35
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, and Graphic Arts International Union, AFL-CIO-CLC, Intervenor, v. COMMERCIAL LETTER, INC., Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

496 F.2d 35 (1974)

NATIONAL LABOR RELATIONS BOARD, Petitioner, and Graphic Arts International Union, AFL-CIO-CLC, Intervenor, v. COMMERCIAL LETTER, INC., Respondent.

No. 73-1247.

United States Court of Appeals, Eighth Circuit.

Submitted March 11, 1974.

Decided April 22, 1974.

Paul J. Spielberg, Atty., N. L. R. B., Washington, D. C., for petitioner.

Jerome Kalishman, Clayton, Mo., for respondent.

Bruce S. Feldacker, St. Louis, Mo., for intervenor.

Before VOGEL, Senior Circuit Judge, LAY and ROSS, Circuit Judges.

ROSS, Circuit Judge.

This case comes before us upon the application of the National Labor Relations Board (NLRB) for enforcement of a bargaining order issued by it against Commercial Letter, Inc. of St. Louis, Missouri (the company). Once before this unfair labor practice (ULP) case has been before this Court, at which time we refused to enforce the NLRB's order. N.L.R.B. v. Commercial Letter, Inc., 455 F.2d 109 (8th Cir. 1972). In this prior decision the Court remanded the entire matter to the NLRB so that it could hold hearings on certain objections which had been raised by the company regarding the union certification election which had been held earlier among a unit of twelve of its employees and which had resulted in a narrow victory for the union, the Lithographers and Photoengravers International Union (LPIU). On remand, the NLRB assigned the case to an administrative law judge who held two days of hearings on the company's objections in June, 1972. The law judge found that the company's objections had no merit, that the questioned election had been fair and that a bargaining order should issue. The Board issued a supplemental decision in November, 1972, affirming the judge's decision and again ordering the company to bargain with the union. It is this order which the NLRB seeks to have enforced. We grant enforcement.

In 1973, the NLRB was asked to amend the certification of the LPIU as bargaining representative of the company's twelve employees to reflect the merger of that union with another union, the International Brotherhood of Bookbinders, to form the Graphic Arts International Union (GAIU) and the later merger of two locals of the GAIU to form Local 505. A hearing was held by a hearing officer on both amendments and the Regional Director then issued the order substituting the certification of Local 505 for Local 252. The Board granted review of this decision, and affirmed the Regional Director's action.

The company advances three arguments to support its position that enforcement of the bargaining order should be denied. First, it asserts that there was no substantial evidence for the Board's finding that the representation election had been free of irregularities and was valid. Second, it urges that the hearing and decision on remand should not have been in the ULP case, but rather in the representation case so that the company could decide to bargain if the result went against it without being branded as having committed an unfair labor practice. Third, it argues that it has no duty to bargain with GAIU Local 505 anyway because the mergers and resultant changes in bylaws of the union so changed the nature of the certified representative that the NLRB erred in amending the certification rather than ordering another representation election.

I.

The first two arguments need not and do not detain us for long. The controversy in the case had its origin in the events leading up to the representation election held in August, 1970. The details are set out in our previous opinion. N.L.R.B. v. Commercial Letter, Inc., supra, 455 F.2d at 111. Basically, the company refuses to bargain because it claims that the election was tainted by certain prejudicial acts of the union. It maintains that the union needlessly subpoenaed ten of the twelve prospective members of the bargaining unit to a hearing held in June, 1970, to determine the appropriate unit. It further argues that the manner in which the union reimbursed these employees for their attendance was deliberately designed to and did influence their votes in the representation election. The union paid the employees for lost wages after the individual employees went to the union hall and filled out vouchers. At least one of these payments was made on the eve of the election.

Originally the Regional Director and the Board dismissed these claimed irregularities without a hearing and certified the union as bargaining representative. When a ULP charge was subsequently filed due to the company's refusal to bargain, the Board granted a summary judgment against the company, still with no hearing on the election charges having been held. It was this lack of an evidentiary hearing which this Court found objectionable in the earlier opinion. N.L.R.B. v. Commercial Letter, Inc., supra, 455 F.2d at 114.

Now, however, this hearing has been held and the NLRB has determined, based on the record made therein, that the union did not act improperly, that the free choice of the employees was not affected and that the election was valid. The Board's overall conclusion as to the validity of the election must be sustained as long as it is supported by substantial evidence on the record considered as a whole. National Labor Relations Act § 10(e), 29 U.S.C. § 160(e); Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 487-488, 71 S.Ct. 456, 95 L.Ed. 456 (1951). After careful review of the record in this case, particularly the evidence adduced at the hearing after the remand, we are convinced that there is substantial evidence to support the Board's determination.

Specifically, there is ample evidence to find that the union subpoenaed the relatively large number of employees in the good faith belief that they might be needed to establish the union's case in the hearing on the appropriate bargaining unit. There is no indication that the company objected at the time. There is also substantial evidence to find, as the Board did, that the union routinely paid all its members and prospective members for time lost on union business by reimbursing their lost wages; that all persons seeking such reimbursement had to go to the union hall to fill out vouchers; and that this procedure was not designed to influence the outcome of elections. Finally, there is adequate evidence to conclude that none of the payments made in this case were designed to nor did they affect the employees' free choice in the election.

We conclude that the Board's factual determination is supported by substantial evidence on the record as a whole and must be upheld.

When this case was originally remanded to the NLRB by this Court it was not clearly indicated in the opinion in what setting the evidentiary hearing should be held. N.L.R.B. v. Commercial Letter, Inc., supra, 455 F.2d at 114. The company contends that the ULP proceedings should have been dropped and the hearing held in the context of its original request for review of the certification granted by the Regional Director. This would mean that the company would then have the option, if it lost on the merits, of agreeing to bargain without being found guilty of a ULP. The NLRB takes the position here that the hearing should be in the context of the ULP case and that upon a finding that the election and resultant certification were valid, the company could be found guilty of an unfair labor practice for its failure to bargain from the date of the certification.

We agree with the Board. As already noted, the Court did not specify the nature of proceedings on remand. The major thrust of our earlier decision was that it denied the company due process of law to find it guilty of a ULP without ever giving it a hearing on its allegations regarding the election. We did not, however, state that the company must be given the option of avoiding the ULP charge if it lost on the merits. What we did say was:

At some point in the administrative process the employer is entitled to have an opportunity to present the evidence upon which he relies and to question the evidence upon which the Board relies, and to submit this evidence for consideration by the Board and by this court in proceedings to enforce or set aside the Board\'s order.

Id. 455 F.2d at 114. (Emphasis supplied.)

That is precisely what has happened here. The company has had its opportunity to present and rebut evidence. Its evidence has been reviewed by an administrative law judge, the Board, and now this Court. Certainly this company has been given adequate due process.

Finally, there is a sound policy behind forcing employers to litigate their claims regarding contested elections in the setting of a ULP case after they refuse to bargain. Unless they risked being branded as having committed an unfair labor practice, every employer who did not want a union could challenge every election and refuse to bargain no matter how frivolous the claim. He would have nothing to lose, and considerable time to gain.

II.

The company launches a twofold attack on the Board's action in amending the certification of the bargaining representative to reflect certain mergers which occurred within the union. First, it asserts that the changes caused by these mergers were so great as to call into question the representative status of the union; therefore, the members of the unit should be allowed to approve or disapprove in another representation election. Along this same line, the company argues that its employees in the unit were never given the opportunity to vote on the two mergers which took place and that this fact alone should prevent the NLRB from amending the certification.

Secondly, the company urges that the elections which did occur were not carried out with proper procedural safeguards to insure due process. It points to a number of alleged discrepancies in the handling of the voting ranging from unaccounted for ballots to lack of secrecy. When such safeguards are missing, it is contended,...