NLRB v. H. Rohtstein & Co.

• Citation: 266 F.2d 407
• Decision Date: 29 April 1959
• Docket Number: No. 5423.,5423.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. H. ROHTSTEIN & CO., Inc., Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

266 F.2d 407 (1959)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. H. ROHTSTEIN & CO., Inc., Respondent.

No. 5423.

United States Court of Appeals First Circuit.

April 29, 1959.

Arnold Ordman, Atty., Washington, D. C., with whom Jerome D. Fenton, Gen. Counsel, Thomas J. McDermott, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Alfred Avins, Atty., Washington, D. C., were on the brief, for petitioner.

Samuel Leiter, Boston, Mass., with whom Benjamin E. Gordon, Boston, Mass., was on the brief, for respondent.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

HARTIGAN, Circuit Judge.

This is a petition by the National Labor Relations Board pursuant to Section 10(e) of the Labor Management Relations Act, 61 Stat. 146 (1947), 29 U.S. C.A. § 160, for enforcement of its order against the respondent, H. Rohtstein & Co., Inc. (hereinafter called the Company), a wholesale distributor of flour and bakers' supplies located in Boston, Massachusetts. This order required the Company to bargain collectively with Local 25 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, AFL-CIO, (hereinafter called the Union) as the exclusive representative of its drivers and warehouse employees, to desist from discouraging membership in that Union, to make whole from the date of the receipt of their offer to return to work to the date of their reinstatement two striking employees and to post the customary notices, etc. The Board's order adopted the findings, with one exception not pertinent to this decision, conclusions and recommendations of the Trial Examiner who had found that the Company had violated Sections 8(a) (5) and (1) of the Act by refusing on and after April 22, 1957 to bargain collectively with the Union and Sections 8(a) (3) and (1) by discriminatorily failing to reinstate immediately the two striking employees upon their unconditional request for such reinstatement. The respondent contends that the findings of the Board with respect to the questions of fact upon which the respondent's violations of Sections 8(a) (1), (3) and (5) are predicated are not supported by substantial evidence on the record considered as a whole.

The main force of the respondent's argument is centered upon a finding of fact that is essential under the Act in order for the Board to hold that the respondent's refusal to bargain with the union violated Section 8(a) (5). It vigorously asserts that the record before us does not support the conclusion that the Union was designated or selected at any time by the majority of the Company's employees in the appropriate unit as their exclusive collective bargaining representative.

The Trial Examiner found that the appropriate bargaining unit was composed of no more than fifteen employees during the period in which the alleged refusal to bargain occurred. At the time when recognition was assertedly requested by William McCarthy, the Union's president and business agent, he had in his possession authorization cards from eight employees or a bare majority of the members of the collective bargaining unit. The respondent has challenged the validity of three of these authorizations but because of the fact that the loss of one authorization to the Union would result in it not qualifying as the exclusive collective bargaining representative as provided for in Section 9 of the Act, if we find that the Board's acceptance of any one of these three authorizations was erroneous (and we do so find), it will be unnecessary for us to consider the other two.

It appears from the record that seven of the Company's employees at a meeting at the Union hall on Thursday evening, April 11, 1957, signed union application and authorization blanks. The following day Samuel L. Jones, one of these seven, contacted Johnnie Bowman, an employee who had not been at the meeting, and secured Bowman's signature on an authorization blank. The testimony of these two men concerning the circumstances of Bowman's execution of the authorization is conflicting. Jones testified that he asked Bowman to sign the card while both were working in a freight car and told Bowman that seven employees, including himself, had already signed the authorization cards. Bowman, on the other hand, testified that he was in an automobile getting ready to go home when he was approached by Jones. He further testified that he asked Jones whether anybody else had signed and Jones had answered that he had "got the majority". Bowman then indicated that in reliance to this response he signed the authorization card. The Trial Examiner did not attempt to resolve this conflict in testimony but stated:

"Assuming that Jones made the statement attributed to him by Bowman, testimony which was denied by Jones, the Board has held that such conduct was not of such a character as to invalidate his designation. `This sort of claim of success on the part of union organizers, though untrue or exaggerated, is certainly not fraud affecting the employees\' grant of bargaining authority. On the contrary, it is clearly quite common and harmless sales talk which is ordinarily not taken seriously by the employees to whom it is made, and, in any event, is subject to ready check by the employees as to its truth.\'"

In essence, the Board thus holds that a misrepresentation even though relied upon by an employee in choosing a collective bargaining agent does not in any way affect the validity of the authorization so obtained. In the instant case it seems fairly clear that the untrue "claim of success"...