NLRB v. Koehler

• Decision Date: 24 February 1964
• Docket Number: No. 14285.,14285.
• Citation: 328 F.2d 770
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Harold W. KOEHLER, Harold C. Koehler, and Jerry Koehler, Partners, d/b/a Koehler's Wholesale Restaurant Supply, Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

328 F.2d 770 (1964)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Harold W. KOEHLER, Harold C. Koehler, and Jerry Koehler, Partners, d/b/a Koehler's Wholesale Restaurant Supply, Respondents.

No. 14285.

United States Court of Appeals Seventh Circuit.

February 24, 1964.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Solomon I. Hirsh, Attorney, N. L. R. B., Washington, D. C., Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Gary Green, Attorney, N. L. R. B., for petitioner.

John D. Raikos, Richard P. Tinkham, Jr., Indianapolis, Ind., James K. Sommer, Indianapolis, Ind., Briggs, Berner, Sommer & Tinkham, Indianapolis, Ind., of counsel, for respondent.

Before DUFFY, SCHNACKENBERG and MAJOR, Circuit Judges.

MAJOR, Circuit Judge.

This case is here upon petition of the National Labor Relations Board, pursuant to Section 10(e) of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519, 29 U.S.C.A. § 151 et seq.), for enforcement of the Board's order issued against respondents on November 15, 1962, following proceedings under Section 10 of the Act. The Board's Decision and Order are reported at 139 NLRB 945.

The Board approved the findings of the Trial Examiner, from which it was concluded that respondents violated Sec. 8(a) (1) and (2) of the Act by coercing employees to refrain from joining a union of their choice and to join, instead, Koehler's Employees Union (hereinafter called KEU), and by dominating and interfering with the administration of KEU and contributing financial and other support to it. The Board also found that respondents violated Sec. 8(a) (3) of the Act by contracting with KEU to pay certain fringe benefits exclusively to its members, and Sec. 8(a) (5), by refusing to bargain collectively with the employees' majority representative. Respondents on brief concede that they engaged in conduct violative of Sec. 8(a) (1) of the Act, and do not challenge the Board's finding of a violation of Sec. 8(a) (3). They contest the Board's findings of a violation of Sec. 8(a) (2) and (5).

In view of the situation thus stated, there is no occasion for a recitation of much of the testimony heard by the Trial Examiner. The record is convincing that substantial evidence supports the Board's findings in all respects except that pertaining to a violation of Sec. 8(a) (5), refusal to bargain collectively with Local 135, International Brotherhood of Teamsters (hereinafter called Teamsters). A resolution of this issue is dependent upon whether there is substantial evidence in support of the Board's finding that Teamsters occupied a majority status of the appropriate unit at the time it sought and was refused recognition by respondents.

KEU, an independent union, had represented Koehler's¹ employees since 1959. The constitution and by-laws of KEU were drafted by John D. Raikos, the attorney for respondents, who also acted as such for KEU. Early in 1960, KEU and respondents executed a 3-year "bargaining agreement." Membership was not compulsory, and Jerry Koehler and respondents' office manager Rust were permitted to join. From January to September, 1961, Charles Shearer, a department supervisor and son-in-law of Harold Koehler, was president. Employees each paid dues of $1.20 per year, and most were participants in a mutual benefit fund to which each contributed $1.00 per week and to which respondents contributed $2.50 per member each week. Of the latter amount, 25¢ per month was paid directly to KEU. KEU received the proceeds from the coke vending machine on respondents' premises, free use of respondents' office facilities, and free legal advice from Raikos. The by-laws provided for the forfeiture of benefits by an employee if he refused to work in protest of any grievance without giving respondents one week's time to correct the grievance.

In the summer of 1961, dissatisfaction developed among employees, primarily relating to wages, respondents' failure to pay their Blue Cross health insurance premiums and the conduct of supervisor Maurice Hey. By late summer, KEU had become inactive, with two vacancies on its committee. As one employee stated, the company union had just "fizzled" and gone "to pot." About October 1, 1961, some employees became interested in Teamsters. Led by truck drivers Robert Simons and Jerry (Pete) Williams, 22 of respondents' employees, on October 2 and 3, signed cards which recited that the signer applied for membership in Teamsters and designated it as his bargaining representative. The appropriateness of the unit which included 38 employees is not in dispute.

On October 5, Harry Berns, local representative of Teamsters, telephoned respondents, announcing majority support and requesting recognition (20 was a majority, and he claimed to have cards signed by 22). Berns was referred to Raikos, who expressed disbelief in Teamsters' claim. Respondents denied Teamsters' request for recognition, and the latter filed a representation petition with the Board, which set November 28, 1961 as the date for an election. On November 24, Teamsters filed the instant unfair labor practice charge against respondents. The Board thereupon postponed and subsequently dismissed the scheduled election, pending disposition of the charge.

Whether Teamsters at the time it sought recognition held authorization cards from a majority of respondents' employees is the critical issue. The Board, with one member dissenting, affirming the finding of its Trial Examiner stated:

"On the record before us, we fail to see how it can be said that the cards which the Union obtained lacked reliability in establishing the Union\'s claim to representative status."

The dissenting member stated:

"I do not believe that the cards offered by the General Counsel to show such majority status are reliable for this purpose."

We know of no court decision which has set aside the finding of the Board that a union acquired majority status by authorization cards; however, the issue has been raised in a number of cases. Nearest in point perhaps is NLRB v. Stow Manufacturing Co., 2 Cir., 217 F.2d 900, wherein the contention of the employer was the same as it is here. The Court stated (217 F.2d at page 902):

"In spite of this unequivocal language that contained in the cards the respondent argues that at least five of the cards should not be counted because the signers supposed that they were only asking that an election should be called at which they would vote for or against the Union as they then pleased."

The Court pointed out that even though the five cards were eliminated, the Union would still have a majority of one, but that it could only find three employees "who said that they understood the cards not to be votes for the Union," and concluded, "We cannot say, in the face of the express language of the cards themselves, that the examiner's finding that a majority meant to make the Union their representative was not supported by substantial evidence." Another case of similar purport is NLRB v. Gorbea, Perez & Morell, S. en C., 1 Cir., 300 F.2d 886, which sustained the finding of the Board relative to authorization cards, but pointed out (page 887), "There was no claim of affirmative misrepresentation by the union."

In Englewood Lumber Company, 130 NLRB 394, the Board refused to accept authorization cards as proof of majority status. In its opinion the Board stated:

"As set forth in more detail in the Intermediate Report, the union did not tell the employees that by signing cards they were authorizing the union to represent them; rather, the employees were told that the cards were necessary in order that the Board might conduct an election by a secret ballot in which every employee would have an opportunity to express his preference. Ten employees who had signed cards testified that when solicited they were told that the cards were for a Board election. * * * we do not think it can reasonably be

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