NLRB v. FREDERICK COWAN & COMPANY, INC.

• Decision Date: 17 July 1974
• Docket Number: No. 74C 791.,74C 791.
• Citation: 378 F. Supp. 325
• Parties: NATIONAL LABOR RELATIONS BOARD, Applicant, v. FREDERICK COWAN & COMPANY, INC., Respondent.
• Court: U.S. District Court — Eastern District of New York

378 F. Supp. 325

NATIONAL LABOR RELATIONS BOARD, Applicant, v. FREDERICK COWAN & COMPANY, INC., Respondent.

No. 74C 791.

United States District Court, E. D. New York.

July 17, 1974.

Harold L. Richman, Regional Atty., N. L. R. B. Region 29, Brooklyn, N. Y., for plaintiff.

Bruno Baratta, Mineola, N. Y., for defendant.

Opinion

PLATT, District Judge.

This proceeding had its origins on February 6, 1973 when Local Lodge #5, International Brotherhood of Boiler Makers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO (hereinafter called the "Union") filed a petition with the Applicant (hereinafter sometimes the "Board") herein (Case No. 29-RC-2175) requesting an election among employees of Respondent,

As a result of the filing of such petition, the Respondent, the Union and a Board Agent, met on February 21, 1973 for the purpose of negotiating a stipulation for certification upon consent election. Those present for the Respondent included Mr. and Mrs. Cowan and their attorney, Bruno Baratta; Mr. William Koenig for the Union and Mr. Ronald Travis for the Board, its Agent.

A number of matters were in dispute, negotiations ensued and a settlement on various issues was made. Among the issues in dispute was the Board's stated requirement that the Cowans would have to supply the names and addresses of employees in the unit in accordance with the requirements of the Board in its Excelsior Underwear, Inc. 156 NLRB 1236 case.

According to the decision of the Administrative Law Judge of the Board, the stalemate on this issue was broken when the Cowans volunteered that their objection did not apply to the addresses of employees who were willing to have their addresses handed over and the Cowans proposed that they ask the employees for their consent. Both the Union and the Board agreed to this proposal and a settlement of all the issues was achieved.

In the past, courts have consistently upheld settlements and stipulations freely arrived at between the parties in labor disputes as contracts between such parties and, unless otherwise contrary to law, binding upon the parties thereto according to its terms. NLRB v. United Dairies, Inc., 337 F.2d 283, 286 (10th Cir. 1964), stipulation and agreement to waive representation hearing and composition of appropriate bargaining unit; NLRB v. Carlton Wood Products, 201 F.2d 863, 36 A.L.R.2d 1070 (9th Cir. 1953), agreement to waive representation hearing; NLRB v. Standard Transformer Co., 202 F.2d 846 (6th Cir. 1953), agreement to waive representation hearing.

Thus, on February 21, 1973, the Union and Respondent executed a stipulation for certification upon consent election which was approved on February 23 by the Regional Director for the Board's Region 29.

On February 22, 1973, each employee was handed a form by Mrs. Cowan containing the following language and request for permission:

"In keeping with our Company policy not to divulge employees personal information to anyone, we ask you to sign this document allowing us permission to give your home address to the National Labor Relations Board, which they will pass on to the Boiler Makers Union #5.

Mildred C. Cowan Secretary Frederic C. Cowan President Permission granted: ________Dated Permission not granted: _________________Dated Witnessed by: ______________Dated"

The office clerical employee present at the time witnessed each signature as the employee signed. The Administrative Law Judge specifically found that "There is no credible evidence that the Cowans made any comment other than that indicated. Of the 28 employees in the agreed upon unit, only 11 signed their names after the words `Permission granted'".

Copies of the 11 forms containing the addresses of each employee granting permission were submitted to the Regional Office and Respondent submitted a complete written list of the 28 names of all its employees.

The election was held on March 14, 1973 and 25 ballots were cast of which 11 were for the union, 12 against and 2 were challenged.

The Regional Director investigated the challenged ballots and in his report he recommended to the Board that the challenges to the 2 ballots be sustained.

As this Court reads the record, the election held pursuant to the agreement made between the Board's duly authorized agent, and the duly authorized representative of the Union and the duly authorized representatives of the Company resulted in 12 votes against the Union and 11 votes for.

In recommending that the election be set aside on various grounds, the Administrative Law Judge said that "in addition, because there appears to have been no meeting of the minds at the time the stipulation for certification upon consent election was executed on February 21, I recommend that the stipulation be set aside and that the Union's representation petition in Case No. 29-RC-2175 be processed as if no stipulation had yet been entered into."

The Court finds absolutely no justification whatsoever for this recommendation.

In the course of his opinion, the Administrative Law Judge made such extraordinary statements as "the form of the ballot could reasonably be construed by the employee as requiring him to indicate some preference for or against the Union."

Any reasonable reading of the form can only lead one to conclude just the opposite. It appears without any doubt to this Court that the management (in a fashion designed to be in favor of the Union) asked each employee...