NLRB v. Howe Scale Company

Decision Date02 January 1963
Docket NumberNo. 13825.,13825.
Citation311 F.2d 502
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. The HOWE SCALE COMPANY, Respondent.
CourtU.S. Court of Appeals — Seventh Circuit

Marcel Mallet-Prevost, Asst. Gen. Counsel, Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Melvin J. Welles, Janet Kohn, Attys., National Labor Relations Board, for petitioner.

Mervin N. Bachman, Chicago, Ill., for respondent.

Before CASTLE and SWYGERT, Circuit Judges, and GRUBB, District Judge.

GRUBB, District Judge.

This case is before the court on petition for enforcement of the order of the National Labor Relations Board against respondent.

The Board found that respondent withdrew recognition from and refused to bargain with the Union(DistrictNo. 8, International Association of Machinists) and discharged Shop Steward Edward J. Spicer in order to discourage membership in the Union and undermine its majority status in violation of Sections 8(a)(5), (3), and (1) of the National Labor Relations. Act.The Board also found a violation of Section 8(a)(1) in respondent's promises of increased benefits if its employees abandoned the Union and bargained directly with the respondent.

In August 1956, the Union was certified as exclusive bargaining representative of respondent's Chicago service employees, and annual written contracts were negotiated thereafter.In 1958, respondent suggested that a "more effective relationship" would be possible if dealings were "informal," i. e., without a written contract.The parties then agreed orally to carry forward the provisions of their last written contract.

In the spring of 1959, Shop Steward Spicer and employee Brown were given merit increases.Employee Karpinski asked District Manager Haskins why he had not received a raise.Karpinski's testimony, credited by the trial examiner, was that Haskins suggested that he might be able to get the employees more money if they did not have the Union as their bargaining agent.There was also credited testimony of Shop Steward Spicer that in the summer of 1959, Personnel Director Zitzmann sought to persuade Spicer of the desirability of having the men deal directly with respondent rather than through the Union.Zitzmann told Spicer that under such an arrangement, respondent would be in a better position to grant wage increases and better working conditions.

In June 1960, the Union sent its customary letter notifying respondent of its intention to reopen the contract and requested early negotiations.Respondent failed to acknowledge this letter.About July 27, 1960, having heard nothing from respondent, Union representative Britt and Spicer called upon Haskins and presented their contract proposals.Haskins told them that he no longer had authority to negotiate; that the proposals should be sent to the home office at Rutland, Vermont.The proposals of the Shop Committee were then sent to Personnel Director Zitzmann at Rutland, Vermont.Zitzmann called Haskins in Chicago to "find out what was behind this" and "who was the Shop Committee."Haskins replied it was Spicer.

During this same conversation, Haskins told Zitzmann of a "threat" that Spicer had made to an employee, Thomas H. Clemens, to the effect that he(Spicer) could "make it pretty rough" if Clemens did not join the Union.Zitzmann later notified Willie Jensen, Service Manager and Spicer's immediate supervisor, that Spicer was to be discharged at the close of work the next day.Zitzmann cautioned Jensen "not to go into details, to give any reasons or to discuss any reasons."Zitzmann's alleged reason for this caution was that Jensen was not familiar with labor relations, and he didn't want Jensen to be drawn into a long discussion in which his words might be misinterpreted or misunderstood.

On the same day that Spicer was discharged, Zitzmann sent a letter to Union representative Britt after Britt had written to Zitzmann a second time enclosing proposals for a new contract.In this letter Zitzmann formally refused to meet with the Union "unless you are certified," because the company "For some time * * * has had reason to believe" that the Union did not represent a majority of the employees.

On Monday, August 15, 1960, Spicer and Britt, who had not yet received Zitzmann's August 12th letter withdrawing recognition, asked Haskins why Spicer had been fired.Haskins said he knew nothing about it and suggested they call Zitzmann in Vermont.Britt called Zitzmann who refused to discuss the matter, and reiterated his unwillingness to talk with the Union representatives unless the Union obtained a current certification, and proposed that the Union petition for a Board election.Britt replied that an election was unnecessary since the Union already represented a majority, and that any effort to decertify the Union should come from the employees rather than from the Union.

With regard to the defenses raised by respondent, it is pointed out that Section 8(c) of the Act makes the use of opinions, views, or arguments inadmissible as evidence of unfair labor practices if they contain no threat of reprisal or force or promise of benefit.Respondent submits that the expressions by Haskins and Zitzmann that individual bargaining would be better for its Chicago servicemen come within the scope of Section 8(c).This contention is not tenable since there is substantial evidence in the record that Haskins and Zitzmann did more than express their opinions.Karpinski testified that Haskins suggested he could get the employees more money if they did not have the Union as their bargaining agent.In addition, Spicer testified that Zitzmann tried to impress on him that if the men would deal directly with the company, it would be in a better position to grant wage increases and better working conditions.Such promises of benefits in exchange for abandoning the Union constitute a violation of Section 8(a)(1) of the Act.Medo Photo Supply Corp. v. N. L. R. B., 321 U.S. 678, 684-685, 64 S.Ct. 830, 88 L.Ed. 1007(1944);N. L. R. B. v. Taitel, 261 F.2d 1, 3-4(7th Cir.1958), cert. denied359 U.S. 944, 79 S.Ct. 725, 3 L.Ed. 2d 677;N. L. R. B. v. Popeil Brothers, Inc., 216 F.2d 66, 67-68(7th Cir.1954)

With regard to the finding that respondent violated Sections 8(a)(5) and (1) of the Act by its refusal to recognize and bargain collectively with the Union, respondent's defense is that it had a good faith doubt as to the Union's continued majority status.Such a doubt is a proper defense but only where the doubt has a rational basis in fact.N. L. R. B. v. John S. Swift Company, Inc., 302 F.2d 342, 346(7th Cir.1962).

The evidence established that there were six employees in the appropriate bargaining unit as of August 12, 1960, the date of respondent's final refusal to bargain with the Union.As of that date, respondent was withholding Union dues pursuant to voluntary checkoff authorizations signed by...

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