NLRB v. Greenfield Components Corporation, 6033.

• Decision Date: 10 May 1963
• Docket Number: No. 6033.,6033.
• Citation: 317 F.2d 85
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GREENFIELD COMPONENTS CORPORATION, Respondent.
• Court: U.S. Court of Appeals — First Circuit

317 F.2d 85 (1963)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GREENFIELD COMPONENTS CORPORATION, Respondent.

No. 6033.

United States Court of Appeals First Circuit.

May 10, 1963.

Allison W. Brown, Jr., Attorney, Washington, D. C., with whom Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Seymour Strongin, Atty., Washington, D. C., were on brief, for petitioner.

Sidney A. Coven, with whom Joseph E. Lepie and Melvin Pierce, Boston, Mass., were on brief, for respondent.

Before HARTIGAN and ALDRICH, Circuit Judges, and GIGNOUX, District Judge.

HARTIGAN, Circuit Judge.

The National Labor Relations Board seeks enforcement of its order against respondent, a Massachusetts corporation engaged in the manufacture of electronic components, following the usual proceedings under the Act. The Board found that respondent had violated Section 8(a) (1) and Section 8(a) (3) and (1) of the Act by means of various coercive and discriminatory conduct towards its employees, and further found that respondent violated Section 8(a) (5) and (1) of the Act by refusing to bargain in good faith with the Union, which represented a majority of respondent's employees. Initially, in its petition for enforcement, the Board asked that its entire order — embracing all the foregoing asserted violations — be enforced. Respondent has since complied with the portion of the order based on the Board's findings that it violated Sections 8(a) (1) and 8(a) (3) of the Act. Consequently, the Board now seeks enforcement of only the Section 8(a) (5) provision of the order.

The facts germane to this charge are as follows: In May 1960 the Union¹ began a campaign to organize respondent's employees. With varying degrees of intensity, this campaign continued until February 20, 1961. On this date, one Murdock, the Union's district representative, telephoned Francis J. Sweeney, respondent's president, stating that he was formally notifying him that the Union represented a majority of respondent's employees. Murdock offered to prove the factual basis of this claimed majority, and requested recognition for the purpose of collective bargaining. Sweeney requested that Murdock send him a letter incorporating the substance of their conversation and on that same day, Murdock notified respondent by letter that the Union represented a majority of its employees within the appropriate bargaining unit.² The letter again requested a meeting for the purpose of negotiating an agreement covering wages, hours, and other conditions of employment. In this letter, Murdock offered to submit to a mutually agreeable third party evidence of the Union's majority designation.

By letter dated February 24, 1961, signed by president Sweeney, respondent replied to the Union as follows:

"It is the position of Greenfield Components Corporation that unless and until your union has been duly certified by the National Labor Relations Board as the bargaining representative of the employees at our plant, the Company will not meet with your representatives for the purpose of negotiating a contract."

Respondent has continued to adhere to this position since the sending of the above letter.

The Board found that on February 20, 1961, the date of the Union's initial request for recognition and bargaining, there were seventy-nine employees in the unit, and that on that date the Union had forty-one validly executed authorizations. Under these circumstances, the Board concluded that respondent violated Section 8(a) (5) and (1) of the Act in refusing the Union's request to recognize and bargain with it as the majority representative of its employees except upon certification by the Board.

Although the Board cited no authority in reaching this result, its opinion as well as the Board's position in this court is apparently predicated on a line of cases of which N. L. R. B. v. Gorbea, Perez & Morell, S. EN C., 300 F.2d 886 (1st Cir. 1962) and N. L. R. B. v. Whitelight Prod. Div. of White Metal Rolling & Stamping Corp., 298 F.2d 12 (1st Cir. 1962), cert. denied, 369 U.S. 887, 82 S.Ct. 1161, 8 L.Ed.2d 288 are illustrative in this circuit. The thrust of these cases is that a company's refusal to deal with a union — except upon an election — after it has been correctly informed that a majority of its employees had signed union authorization cards, prima facie warrants a violation of Section 8(a) (5).

It is to be noted that in each of the above cases, the record indicates that the Union had authorization cards from a clear cut or substantial majority of the relevant employees, whereas here the majority status of the Union — even on the Board's own count — is of the razor thin variety. As a matter of logic, the more tenuous the majority status of the union, the more reasonable is the inference that the company entertained a good faith doubt as to this status and, consequently, the more reasonable its refusal to meet with the Union except upon certification. However, in the instant case, the respondent has pitched its defense on the attempt to show that the Union never possessed a de facto majority of its employees on the critical date quite apart from any question as to whether respondent entertained good faith doubts as to the majority status. In respondent's words, the issue is: "whether substantial evidence on the record as a whole supports the Board's finding that the Union had been validly authorized by a majority of Respondent's employees in the unit involved to represent them for purposes of collective bargaining." In short, the case has been argued on the basis that if the Union did possess a factual majority of the respondent's employees on the critical date, then the Board was correct in sustaining the charge of a refusal to bargain. Conversely, if this factual majority was absent, the Board was wrong in finding a violation of Section 8(a) (5) and (1).

It is respondent's position that the Board in finding that there were seventynine employees in the unit, excluded two individuals whom respondent contends should have been included, while in finding that the Union had been validly designated by forty-one employees, the Board erroneously counted certain authorization cards which — for various reasons to be cited hereafter — should not have been counted in determining the question of union majority. We turn to these contentions.

One Charlie Jones was excluded from the unit on the ground that he was a "supervisor" within the meaning of the Act and respondent challenges this determination. Jones is a member of respondent's sealing (furnace) department — a department in which one of respondent's major production processes is performed. In addition to Jones, eight or nine women worked the evening shift in the sealing department — with hours from 3 p. m. to 11 p. m. This department is located on the lower floor of respondent's plant and the record indicates that the plant's night foreman — one Erwin Price — spent relatively little time there. Jones was required to report to work early to receive instructions from the day shift foreman — one Host — who normally left the plant at 5 p. m. Host's conversation with Jones included directions regarding the product to be produced and the employees who should do particular work. Jones, however, had some discretion in the assignment...