NLRB v. Great Atlantic & Pacific Tea Company

• Decision Date: 15 June 1965
• Docket Number: No. 21436.,21436.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, Inc., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

346 F.2d 936 (1965)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, Inc., Respondent.

No. 21436.

United States Court of Appeals Fifth Circuit.

June 15, 1965.

Theodore J. Martineau, Atty., Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Arnold Ordman, Gen. Counsel, Elliott Moore, Atty., N.L.R.B., Washington, D. C., for petitioner.

Frederick S. Kullman, Samuel Lang, Kullman & Lang, New Orleans, La., for respondent.

Before WISDOM and GEWIN, Circuit Judges, and BOOTLE, District Judge.

GEWIN, Circuit Judge:

This is a petition to enforce an order of the National Labor Relations Board which is premised on violations of sections 8(a) (1) and 8(a) (5) of the Labor Management Relations Act, 29 U.S.C.A. §§ 158(a) (1), 158(a) (5). The events in question arose out of organizing campaigns which were conducted by two unions during 1962 at respondent's Opelousas, Louisiana, store. During the summer of that year Local 1691, Retail Clerks' International Association, AFL-CIO, engaged in a campaign to organize the grocery and produce employees. This activity culminated in an election victory for the union on September 27. In the fall of the same year the Meat Cutters, Butchers, and Allied Food Workers, Local 327, AFL-CIO, conducted an organizing campaign in the meat department. No representation petition has ever been filed in the Meat Cutters case.

The charges relating to both campaigns were consolidated for hearing before the Trial Examiner. The Board and the Trial Examiner concluded that respondents had engaged in coercive interrogation of employees in connection with both campaigns, had threatened employees with discharge and loss of benefits in connection with the Retail Clerks' campaign, and had refused to bargain in good faith with the Meat Cutters union. Accordingly, the Board issued the usual cease and desist orders.

We have no difficulty in concluding that substantial evidence supports the Board's inference of improper interrogation and threats of reprisal during the course of the Retail Clerks' campaign. While much of the testimony on this question was in conflict, credibility issues were resolved in favor of the General Counsel and cannot be overturned.¹ The credited testimony indicates an organized effort by the management and supervisory personnel to determine which employees supported the union. The supervisors carried out their instructions by making numerous inquiries of employees about whether they had signed union authorization cards, whether they knew the names of others who had signed, and how they intended to vote in the impending election. Answers were to be recorded and forwarded to higher management personnel. Although the local management in the Opelousas store had been instructed only to make guarded, discreet, "indirect" inquiries, many of the questions asked were quite pointed. In addition, employee Ellington testified that Store Manager Thibodeaux warned him that a union victory would mean the withdrawal of employee privileges, such as store parties. Thibodeaux also told him that "things were going to get a lot harder if the Union came in." Similar admonitions were directed to employee Ronald Leger. Furthermore, in response to employee Rozas' statement that she would not divulge the names of union sympathizers, supervisor Champagne replied, "Even though if it means your job?" From all the circumstances, we think there was ample evidence for a fair inference of coercion and interference. See, e. g., NLRB v. Camco, Inc., 340 F.2d 803 (5 Cir. 1965); Martin Sprocket & Gear Co. v. NLRB, 329 F.2d 417 (5 Cir. 1964). Hence, that part of the order relating to the 8(a) (1) violations should be enforced.

The Board also concluded that the company had violated section 8(a) (5) by refusing to bargain with the Meat Cutters' union. The company admits that it declined to recognize the Meat Cutters as the representative of a majority of the employees in its meat department, but it bottoms its refusal on a good faith doubt as to the majority status of the union. The Board, in affirming the Trial Examiner, determined that "no reasonable basis existed for the Respondent's asserted doubt as to the Union's majority claim, and in view of Respondent's other unlawful conduct reflecting an attitude of opposition to its employees' union representation, we find that its refusal to recognize the Union was not bottomed on a good-faith doubt of the Union's majority status. * * *" We cannot agree with the Board's conclusion.

The employee unit which the Meat Cutters sought to organize consisted of only four employees: Glinden Leger, Preston Leger, Jr., Annie Belle LaFluer, and Evelina Rozas.² Champagne was the supervisor of the meat department. By November 5, three of the employees had signed union authorization cards. Hence, in a letter dated November 21, the Meat Cutters informed the company Vice-President in New Orleans that it represented a majority of the meat department employees in the Opelousas store and that it desired to commence collective bargaining sessions. The union offered to prove its majority status through a cross-check of authorization cards by some neutral third party. After conferring with the district supervisor who had jurisdiction over the Opelousas store, the company responded by a letter dated November 26 in which it declined recognition on the ground that it did not believe the Meat Cutters had the support of a majority of the employees in the unit. The company asserted that the proposed cross-check would serve no "useful purpose." The union renewed its request on November 30, enclosing photostats of the three authorization cards, but the company again refused to bargain, asserting that it believed its employees were entitled to a secret election. At the hearing before the Trial Examiner, the company's asserted reason for its skepticism as to the union's majority status was that two of the employees who had signed cards were relatives of persons of known anti-union sympathies.³ The company concluded that they would not have signed union cards in the absence of coercion by union personnel.

Clearly an employer may not demand a Board-supervised election in all cases to determine whether or not the union which purports to represent a majority of the employees does in fact have majority status. An uncertified union which represents a majority of its employees is entitled to recognition unless the employer entertains a good faith doubt as to its majority status. See, e. g., Skyline Homes, Inc. v. NLRB, 323 F.2d 642, 647-48 (5 Cir. 1963), cert. denied, 376 U.S. 909, 84 S.Ct. 662, 11 L.Ed.2d 607; NLRB v. Dan River Mills, Inc., 274 F.2d 381, 386-389 (5 Cir. 1960).

When the General Counsel charges that an employer has committed an unfair labor practice, he must produce substantial evidence from which it may be inferred that a violation of the Act took place. Therefore, the burden of establishing a refusal to bargain in good faith rests initially with the General Counsel. In the instant case the Board introduced evidence which showed that the company in fact declined recognition and that a majority of the employees had in fact signed union authorization cards.⁴ The company in turn advanced the contention that its refusal was based on a good faith doubt as to the union's majority status. When some credible basis for a good faith doubt is advanced by the company, the General Counsel has the burden of establishing that the refusal was in fact improperly motivated. This can be done, for example, by pointing to evidence from which it can be inferred that the delay was designed to give the employer an opportunity to dissipate and undermine the union's strength. See, e. g., Skyline Homes, Inc. v. NLRB, supra, at 649; NLRB v. Southeastern Rubber Mfg. Co., 213 F.2d 11, 15 (5 Cir. 1954); Joy Silk Mills, Inc. v. NLRB, 87 U.S.App.D.C. 360, 185 F.2d 732, 741 (1950). The Board has recognized that the ultimate burden in these cases lies with the General Counsel. See Sunset Lumber Prods., 113 NLRB 1172, 1175.

In weighing the factors which are relevant in determining the presence or absence of a good faith doubt, we must be mindful of the dilemmas in which both the employer and the union may find themselves when the union makes a demand for recognition prior to an election. The union, if it cannot obtain recognition as soon as it is satisfied that it represents a valid majority, must suffer the delay of an election with, in some cases, the possible attendant threat that employer unfair labor practices will influence the outcome. Surely recognition is a more desirable alternative than an unfair labor practice proceeding which may come too late to serve the union's purposes at all. On the other hand, the company must have some method by which it can test the validity of the union's claim to majority status if it entertains a good faith belief that the union...