NLRB v. Cumberland Shoe Corporation, 16068.

• Citation: 351 F.2d 917
• Decision Date: 26 October 1965
• Docket Number: No. 16068.,16068.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CUMBERLAND SHOE CORPORATION, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

351 F.2d 917 (1965)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CUMBERLAND SHOE CORPORATION, Respondent.

No. 16068.

United States Court of Appeals Sixth Circuit.

October 26, 1965.

Melvin H. Reifin, N. L. R. B., Washington, D. C., Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Elliott Moore, Attorney, N. L. R. B., Washington, D. C., on brief, for petitioner.

William M. Pate, Atlanta, Ga., George B. Smith, Atlanta, Ga., on brief; Mitchell, Clarke, Pate & Anderson, Atlanta, Ga., Constangy & Prowell, Atlanta, Ga., of counsel, for respondent.

Before MILLER, O'SULLIVAN and EDWARDS, Circuit Judges.

EDWARDS, Circuit Judge.

This is a National Labor Relations Board petition for enforcement of an order to respondent to cease and desist from certain unfair labor practices and from refusing to bargain collectively with the union¹ as the representative of its employees.

As to the cease and desist order, respondent's brief states:

"Respondent does not agree with the Board\'s findings of violations of Section 8(a) (1). With the exception of those findings covered by the first two questions, however, respondent concedes that they are supported by substantial evidence. For this reason, the respondent has framed these questions to reflect the particular findings which it is questioning."

Since respondent does not oppose enforcement of the cease and desist order concerning 8(a) (1) violations, we shall not detail our views thereon, except to note that the record taken as a whole does contain substantial evidence to support the Board's findings of such violations.

The basic issue presented by this case concerns whether or not respondent violated Section 8(a) (5) and (1) of the National Labor Relations Act by refusing to bargain with the union after it had demonstrated majority status.

In January of 1963 the union began an organizing campaign in respondent's plant at Chapel Hill, Tennessee. By January 17, 1963, 81 out of 143 employees had signed an authorization card reading as follows:

"I, an employee of the Cumberland Shoe Co. hereby authorize the Boot & Shoe Workers Union, A.F.L.-C.I.O., through its duly accredited representatives, to act for me as a collective bargaining agency in all matters which pertain to rates of pay, wages, hours and all other conditions of employment, including the signing of an agreement with my employer in conformity with the National Labor Relations Law and/or State Labor Relations Law.

"Name "Address "Operation Date (Reverse side) "Boot & Shoe Workers' Union Affiliated with A.F.L.-C.I.O Southern Office 912 E. Cheatham Street Union City, Tennessee"

By letter dated January 18, 1963, the union notified the respondent that a majority of its production and maintenance workers had designated it as their collective bargaining representative, offered to agree to a card check by an impartial person, and requested recognition and negotiations.

The company responded by letter indicating that it did not believe the union had a majority of its employees who had joined "freely and without coercion," and refusing to recognize or bargain with the union. Respondent's position is that "Seventeen of these cards were solicited by fellow employees through statements that the purpose of the cards was to secure a Board election."

This issue was the subject of extensive testimony before the Trial Examiner. He found that 17 of the 81 employees claimed to constitute the union majority "were told when they were solicited by fellow employees that the purpose of the cards was to secure an election." Relying upon a somewhat similar factual situation where oral representations had been held to invalidate the written authorizations (Englewood Lumber Company, 130 N.L.R.B. 394 (1961)), the Trial Examiner found that the 17 cards were invalid and that as a consequence the union did not represent a majority when it demanded recognition and bargaining.

On review of the Rulings of the Trial Examiner (to which both respondent and the general counsel had filed exceptions), the Board found:

"We believe that the instant case is factually distinguishable from Englewood Lumber, supra, and that hence that case is inapplicable. While it is true, as found by the Trial Examiner, that 17 of the signatories testified that they were told that the purpose of the cards was to secure a Board election,3 it does not appear that they were told that this was the only purpose of the cards, and we cannot say, on the basis of this record that the card solicitors so indicated to employees.4

"3. The record indicates that the testimony to this effect consisted of affirmative responses by the signatories to leading questions propounded by Respondent\'s counsel, upon cross-examination, as to whether they were told that the purpose of the cards was to secure an election. We do not deem such testimony sufficient to controvert the statement of the purpose and effect of such cards contained on the face thereof, nor do we consider it inconsistent with an understanding that the cards served the dual purpose of designating a representative and of securing an election."

"4. In the Englewood Lumber case the solicitor explained to almost all the employees that the cards were only for the purpose of securing a Board election and thereby secured many signatures, including those of two employees whose hostility to the designated union was open and notorious and explicitly communicated to the solicitor. Cf. also, Morris & Associates, Inc., 138 NLRB 1160, 1164."

The Board also found:

"In view of the Respondent\'s threats, promises of benefit, and coercive interrogation of employees, as found by the Trial Examiner, we are persuaded that Respondent\'s refusal to bargain with the Union on January 23, 1963, was not the result of a good-faith doubt of the Union\'s majority, but in order to gain time to destroy that majority.6 We find, accordingly, that the Union has demonstrated its majority status and that Respondent, by refusing to recognize or bargain with it, violated Section 8(a) (5) and (1) of the Act.7"

"6. Joy Silk Mills v. N. L. R. B. 87 U.S. App.D.C. 360, 185 F.2d 732, cert. denied, 341 U.S. 914 71 S.Ct. 734, 95 L. Ed. 1350."

"7. Member Brown joins in this finding because, in his opinion, the best evidence of employees\' intent, i. e., their signature to cards designating the Union as their bargaining agent, establishes the majority status of the Union at the time it requested recognition. He believes it unnecessary and inappropriate to consider any representations the Union\'s solicitors may have made or what the employees may have been told."

Respondent in this case relies principally upon two cases: Englewood Lumber Company, 130 N.L.R.B. 394 (1961) and N. L. R. B. v. Koehler, 328 F.2d 770 (C.A.7, 1964). We are convinced that the factual situation in each of these cases was materially different from that posed by our instant case.

In the Englewood case the Trial Examiner and the Board placed much emphasis upon the fact that one of the solicitors of the union authorization cards testified that he secured cards from persons expressing hostility to the union. He said that they signed only after he assured them that the purpose was to secure an election where they could vote either way.

In the Koehler case the court relied upon this testimony:

"Thus Simons testified he told the employees that by signing the cards they were not selecting the Teamsters as their bargaining agent, that they would have a chance to vote at a secret election, and that they could vote for the Teamsters Union or against it." N. L. R. B. v. Koehler, supra at 773.

In our present case we find no claim of outright misrepresentation on the part of any solicitor. The authorization cards were themselves wholly unambiguous and they related solely to authorization of union representation as collective bargaining representative.

The record does disclose, of course, that 17 employees testified generally to the effect that they had been told that the purpose was to have an election. But, of course, the signing of authorization cards was an essential...