NLRB v. Deutsch Company, 15889.

Citation265 F.2d 473
Decision Date08 April 1959
Docket NumberNo. 15889.,15889.
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. DEUTSCH COMPANY, Respondent. DEUTSCH COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

COPYRIGHT MATERIAL OMITTED

Jerome D. Fenton, General Counsel, Thomas J. McDermott, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Fannie M. Boyls, Irving M. Herman, Attorneys, N. L. R. B., Washington, D. C., for N. L. R. B.

Coyle & Cooper, Leon M. Cooper, Los Angeles, Cal., for Deutsch Co.

Before FEE, CHAMBERS and BARNES, Circuit Judges.

BARNES, Circuit Judge.

This is a petition for enforcement of an order of the National Labor Relations Board issued against the respondent company on September 14, 1957. The NLRB had jurisdiction in this matter because respondent engages in interstate commerce in the manufacture of aircraft parts and components. This Court has jurisdiction of the petition for enforcement under § 10(e) and (f) of the National Labor Relations Act.1

The Board's order here rests on its finding that respondent, in violation of § 8(a) (1) and (5) of the Act,2 refused to bargain with the union duly certified by the Board as the representative of employees of respondent in a single two-plant unit found by the Board to be appropriate. Denying the charge of unlawfully refusing to bargain, the company raises these principal defenses: (1) that the Board abused its discretion in finding a single two-plant unit rather than separate plant units to be appropriate; (2) that the election proceedings conducted by the Board were irregular; (3) that a private election conducted at one of the plants subsequent to respondent's refusal to bargain in the unit certified by the Board showed that a majority of the employees at that plant did not desire the union to represent them; and, (4) the union, by agreeing to the private election and participating therein, waived its right to represent the employees under the Board's certification.

I. Facts

On March 28, 1956, the union filed a petition with the Board requesting certification as the bargaining representative of the single unit comprising all of respondent's production and maintenance employees. These employees included those at both the respondent's Avalon Boulevard and Regent Street plants. The company took the position that the two plants should constitute two separate bargaining units. Two other unions intervened but took no firm position either way, although willing to accept the unit desired by the petitioning union.

On the question of the bargaining unit, the Board found, and the testimony adequately substantiates, that the appropriate unit was a two-plant or company unit. The specific facts relied on are essentially those based on a finding of "centralized administration and functional integration of the two plants, the similar skills of the employees, and the uniform personnel policy" of the company. The Board made it clear, however, that "a separate unit at each plant could be appropriate for collective bargaining." The company contends that there is a substantial difference between the items produced by the two plants, that the type of assembly work is different, and that the composition of the personnel at the two plants differs significantly, and that there is no uniform personnel policy with respect to the two plants. While it is possible to have found from the record that the first three of the company's contentions are true, the last contention is clearly unwarranted by the evidence. In any case, the points made by the company could or could not be taken as true, and the outcome would be the same.

An election was scheduled for August 8, 1956. On July 24, 1956, respondent filed a motion with the Board for a rehearing and reconsideration of its decision as to what was the appropriate unit, asking for a suspension of the election until the points raised were determined, and to permit the respondent to present further evidence, and other points. The principal contention in the petition seems to have been that the Board's determination was contrary to other similar cases, and that insufficient evidence was taken to justify its determination. This petition was denied by the Board on August 2, 1956, "for the reason that it presents no issues which were not previously considered by the Board." Somehow, this denial of the petition failed to reach respondent company until August 10, 1956. The copy of the Board's denial received by the company bore the notation "Delay due to GSA error not National Labor Relations Board." However, respondent admittedly had notice on more than one occasion between August 2nd and August 8th that the election would be held on the appointed day. A company officer conceded that he also "may have" been specifically advised that the motion had been denied.

The election was held on August 8, 1956, as scheduled. At the Avalon plant, because of respondent's refusal to permit the use of its premises for the election, polling booths were set up by the Board officials on the sidewalks outside the plant. Two hundred thirty of the approximately 460 employees eligible at both plants voted in the election — 207 in favor of the union. None of the parties at any time filed objections to the conduct of the election (although the rules of the Board require that this be done in five days), and on August 20, 1956, the union was duly certified as the bargaining agent by the Board.

Following several telephone communications between the parties, the union's secretary-treasurer, Doria, wrote to the company on September 14, 1956, asking that a date be selected to commence negotiations for a contract covering the two plants. The company notified the union that all negotiations should be carried on through H. Devoe Rea & Associates, its designated representative. A meeting was held on September 26, 1956. At this meeting Rea of the above named firm apparently announced that it was the company's position that the Board election was invalid, that the election did not represent the desires of the employees, and that the union had therefore been improperly certified. He further indicated that the company was not going to engage in collective bargaining until the question of the bargaining unit was worked out. Rea agreed to see what the company intended to do on this issue. There was also some discussion of the problems between the company and the union but little more than that, and the statements of Rea noted above.

The Board's position is that the company refused to bargain collectively, but wanted to bargain only on the issue of the appropriate bargaining unit, and proper representation by the union. The company contends that it did bargain, but since the election was "invalid" it only bargained as far as it properly could. In any event, after considerable haggling, the union and the company agreed to conduct a private election at the Avalon plant to determine the employees' sentiments on the question of the union representing them. This agreement provided that if the union won, the company would bargain without further objection to the Board's unit finding; but that if the union lost, the union would refrain from any strikes or related pressure and the company would refrain from any anti-union activity "until the question of representation is tested and determined by the circuit court of appeals." In the meantime, Aiken, of the Rea Firm, admitted in a letter to the Board's regional office that the company had refused to collectively bargain, but that it was justified by the invalidity of the Board's certification. All through its brief the company takes the position that the vote or private election at Avalon was the union's idea, while the Board asserts that the company forced the union into this election since the company refused to bargain until this issue was settled.3 The Avalon vote resulted in a vote of 169 to 137 against the union. After the election, the parties again met and respondent company refused thereafter to discuss any contract covering the Avalon employees, and it was agreed that further negotiation was futile.

Upon the foregoing facts, the Board, affirming the trial examiner, concluded that the company had refused to bargain with the union in violation of § 8(a) (1) and (5) of the Act. It refused to permit re-litigation of the appropriate unit question, rejected respondent's contention that the August election was invalid, and held that the November election was without effect "as it was a private election conducted in only one of two plants which the Board had previously found constituted a single appropriate unit and in which the union was certified." Finally it rejected respondent's contention that it had bargained in good faith.

The Board then issued an order in its usual form requiring the company to cease its unfair labor practices and to take certain affirmative action.

II. Law

The essence of respondent's defenses and affirmative allegations of error is that the employees of the company have been deprived of their right to choose their collective bargaining representatives, and that the findings and conclusions of the Board are erroneous. This ignores the case of Brooks v. National Labor Relations Board, 1954, 348 U.S. 96, at page 103, 75 S.Ct. 176, at page 181, 99 L.Ed. 125, where Mr. Justice Frankfurter says:

"Petitioner contends that whenever an employer is presented with evidence that his employees have deserted their certified union, he may henceforth refuse to bargain. In effect, he seeks to vindicate the rights of his employees to select their bargaining representative. If the employees are dissatisfied with their chosen union, they may submit their own grievance to the Board. If an employer has doubts about his duty to continue bargaining, it is his responsibility to petition the Board for relief, while continuing to bargain in good
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