NLRB v. Midwestern Manufacturing Company

• Decision Date: 15 January 1968
• Docket Number: No. 9405.,9405.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MIDWESTERN MANUFACTURING COMPANY, Inc., Midwestern Engine and Equipment Company, Inc., and Midwestern Pipeline Products Company, Respondents.
• Court: U.S. Court of Appeals — Tenth Circuit

388 F.2d 251 (1968)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MIDWESTERN MANUFACTURING COMPANY, Inc., Midwestern Engine and Equipment Company, Inc., and Midwestern Pipeline Products Company, Respondents.

No. 9405.

United States Court of Appeals Tenth Circuit.

January 15, 1968.

Robert Hillman, Washington, D. C. (Arnold Ordman, Dominick L. Manoli, Marcel Mallet-Prevost, Washington, D. C., with him on brief), for petitioner.

William K. Powers, Tulsa, Okl. (Frank E. Turner, Tulsa, Okl., with him on brief), for respondents.

Before MURRAH, Chief Judge, PICKETT, Circuit Judge, and DELEHANT^*, District Judge.

MURRAH, Chief Judge.

This matter arises from unfair labor practices complaints consolidated for hearing after the Union¹ lost a 9(c) representation election. In essence the several complaints charged that the employer sought to undermine the Union organization by coercing and otherwise interfering with its employees' free choice in violation of 8(a) (1) of the Act, 29 U.S.C. § 151 et seq.; that in spite of this unlawful activity the Union succeeded in acquiring authorization cards from a majority of the employees in two of the employer's companies; that thereafter the employer unlawfully refused to bargain with the Union in violation of 8(a) (5);² and that it continuously sought to destroy and did destroy the Union's majority, also in violation of 8 (a) (1). The Union thus sought to have the election set aside and the employer ordered to bargain with it as the majority representative of the employees in two of the employer's companies.

The trial examiner found that the Regional Director had properly decided that the three companies involved, i. e. Midwestern Manufacturing Company, Inc., Midwestern Engine and Equipment Company, Inc., and Midwestern Pipeline Products Company, constituted a single employer with two appropriate bargaining units;³ that the production and maintenance employees of Manufacturing comprised Unit A and the production and maintenance employees of Engine's Oklahoma City and Tulsa plants and Pipeline's plant comprised Unit B. The examiner further found that the employer had violated 8(a) (1) in both Units by unlawfully interrogating, threatening and promising benefits to its employees thus frustrating their rights to engage in union activity, assist the Union and select it as their bargaining representative. He also significantly found that the Union had not acquired its alleged majority of the employees in Unit B when it demanded recognition and bargaining, hence there could be no unlawful refusal to bargain by the employer in violation of 8(a) (5). He did think, however, that the unlawful 8(a) (1) conduct of Engine and Pipeline interfered with a free and untrammeled choice of their employees in the Unit B election and recommended that the Unit B election be set aside and another conducted upon request by the Union made within thirty days following Engine and Pipeline's compliance with the remedy for the 8(a) (1) violations.

No exceptions or cross-exceptions to the examiner's findings were filed by the employer in either Unit, and on review the Board adopted the findings insofar as they related to the 8(a) (1) violations committed in both Units. The Board, however, modified the examiner's findings and conclusions regarding the 8(a) (5) allegations as to Engine and Pipeline to hold that the Union did have a majority status when it made its bargaining demand. It concluded that in view of the 8(a) (1) violations, Engine and Pipeline did not premise their refusal to bargain on good faith, but rather on a desire to gain time to destroy the Union's majority, and that, therefore, the employer in Unit B had violated 8(a) (5). The Board thus rejected the examiner's recommendation for a new election and ordered Engine and Pipeline to bargain with the Union. It seeks enforcement of that order here.

Manufacturing is involved in this action only insofar as the trial examiner found that it violated 8(a) (1). The employer seeks here to have all of the decreed 8(a) (1) violations in both Units set aside for lack of substantial evidence to support them. Since, however, admittedly no exceptions whatsoever were filed to the examiner's findings, we will not consider such objections lodged for the first time with us. See N. L. R. B. v. International Union of Operating Engineers, Local 66, 1 Cir., 357 F.2d 841, and cases cited; Marshall Field & Co. v. Board, 318 U.S. 253, 63 S.Ct. 585, 87 L.Ed. 744. This means, of course, that the Board's order in that respect will be enforced as to Manufacturing, Engine and Pipeline.

This leaves for consideration only the 8(a) (5) violations, i. e. refusal to bargain. The Board's order rests squarely upon its finding that the Union at the time of its bargaining demand had a card majority. It seems to be conceded that if it did not, the employer was never under a duty to bargain, hence a bargaining order would not be a proper remedy.⁴ Our primary question then is whether the Union had authorization cards for a majority of the production and maintenance employees of Engine and Pipeline, i. e. Unit B, at the time it made its bargaining demand. Resolution of this question turns on the validity of one authorization card which we do not think is supported by the record.

The background facts and critical dates are helpful only to an understanding of the complex surroundings in which this issue is cast. All three companies originally involved are jointly and solely owned by Armon H. Bost, Tulsa, Oklahoma, President and operator of each. Each company maintains its principal office at substantially the same site in Tulsa, and Engine has a branch plant and office in Oklahoma City. About the middle of August, 1964, the Union began its organizational activity at Engine's Tulsa plant, and on August 17 delivered a letter to Bost stating that it held authorization cards from a majority of Engine's production and maintenance employees; that it was amenable to a card check by an independent third party and that it requested recognition and a meeting to negotiate in behalf of the employees. On the same date Bost received a letter from the International Brotherhood of Boilermakers stating that it represented a majority of the production and maintenance employees of Manufacturing, requesting recognition and negotiations and offering to submit to a card check. Both the Union and the Boilermakers were immediately informed by Bost's attorney that neither Engine nor Manufacturing was in a position to dispute the authorization cards, but that each wished "to determine and ascertain for ourself that such persons have currently in effect either an authorization for such representation or membership in your Union." He further stated to each that since another union had requested rights of representation for a companion company operated at the same location and through the same management, it was necessary that the National Labor Relations Board conduct an election to certify the proper union and also determine the appropriate unit for collective bargaining purposes. The attorney then stated he would be available the following week to meet and discuss the situation.

The Union thereupon filed a petition for certification as bargaining representative for employees at Engine's Tulsa plant and attached its signed authorization cards. Boilermakers then filed a petition for certification as bargaining representative for the employees of Manufacturing. The Union thereafter filed an amended petition to include within the unit it sought to represent the employees at Engine's Oklahoma City plant and also the employees of Manufacturing. It attached three additional cards for Engine's Tulsa employees and signed cards for Manufacturing's employees. A hearing was held on the petitions on September 11, at which time the Union produced a signed card of an employee of Pipeline in connection with a showing of interest in representing the employees at that company. On the same date by letter to Bost it renewed its demand for recognition as representative of the employees at Engine's Oklahoma City and Tulsa plants and Manufacturing's plant. Again there was an offer to submit to a card check.

On October 6 the Regional Director issued his decision designating the appropriate units and directed an election. Both the Union and Boilermakers were to appear on Manufacturing's Unit A ballot, and only the Union was to appear on Engine and Pipeline's Unit B ballot. The parties...