NLRB v. Montgomery Ward & Co.

• Decision Date: 26 July 1968
• Docket Number: No. 16602.,16602.
• Citation: 399 F.2d 409
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, And Truck Drivers, Oil Drivers, Filling Station and Platform Workers, Local 705, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Intervenor, v. MONTGOMERY WARD & CO., Incorporated, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

399 F.2d 409 (1968)

NATIONAL LABOR RELATIONS BOARD, Petitioner, And Truck Drivers, Oil Drivers, Filling Station and Platform Workers, Local 705, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Intervenor, v. MONTGOMERY WARD & CO., Incorporated, Respondent.

No. 16602.

United States Court of Appeals Seventh Circuit.

July 26, 1968.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Gregory L. Hellrung, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Lawrence M. Joseph, Attys., N.L.R.B., Washington, D. C., for petitioner.

Sheldon M. Charone, Sherman Carmell, Carmell & Charone, Chicago, Ill., for intervenor.

Mark C. Curran, Daniel Walker, B. Raoul Yochim, Chicago, Ill., for respondent.

Before SCHNACKENBERG, KILEY and SWYGERT, Circuit Judges.

KILEY, Circuit Judge.

The National Labor Relations Board (Board) has petitioned for enforcement of its order that Montgomery Ward & Co., Incorporated (Ward) cease and desist from unfair labor practices and upon request, bargain collectively in good faith with the Union. We enforce the order.

Early in January, 1966, the intervenor Union was conducting an organizing campaign in a group of Ward's auto service centers in the Chicago metropolitan area. On January 3 the Union filed unfair labor practice charges against Ward. On January 11 the Union and Ward met and discussed the charges and a demand by the Union for recognition as bargaining agent. In the meeting the Union agreed that employees of each center should be a separate bargaining unit; and Ward agreed to make a card check and to recognize the Union as bargaining agent if the cards established a Union majority.

On January 21, 1966, the Union withdrew the charges previously filed with the Board. On February 11, Ward sent the Union a Recognition Agreement in which it recognized the Union as bargaining agent for employees at the Old Orchard Service Center in Skokie, Illinois. On February 14, an employee at that center filed a decertification petition with the Regional Director. After a hearing on March 3, the Director allowed the petition and directed an election. The Union moved for reconsideration of that decision. The Director, in light of Keller Plastics Eastern, Inc., 157 NLRB 583, reconsidered and vacated his decision and transferred the "issues" to the Board. The Board followed Keller in dismissing the petition in an order dated June 16, on the ground that the Union had not been afforded a reasonable opportunity to prove itself as the employees' bargaining agent and that the Union, having been duly recognized, could not be decertified prior to being afforded such an opportunity.

On May 26, 1966, the Union filed the charge, now before us, that Ward "on or about February 14, 1966 and continuing thereafter" refused to bargain with it as agent for the Old Orchard Center employees in violation of 8(a) (5) and (1). The General Counsel issued a complaint which alleged Ward's refusal to bargain "since on or about February 14, 1966 * * * and * * particularly on or about June 22, 1966 * * * and * * * June 24, 1966." Ward's answer denied that a majority of the employees at Old Orchard had on or about February 10 selected the Union as bargaining agent, but admitted that Ward recognized the Union as exclusive bargaining agent on February 11. It denied that the Union requested bargaining prior to June 22, but admitted refusing to bargain, and relied in justification for its refusal upon the then pendency of the decertification petition signed by a "majority" of the employees.

The General Counsel's motion for summary judgment, based upon his contention that the Board's decision of June 16, 1966, had resolved all genuine issues of material fact concerning the Union's bargaining status, was granted. The Board found that the Union had requested bargaining on June 22, and that Ward had refused on or about June 24.

The principal issue presented by this case is whether the Board erred in holding that Ward violated 8(a) (5) and (1) by refusing to bargain with a union which it had recognized on the basis of a card check, when Ward's refusal to bargain was because a majority of employees in the bargaining unit had signed a decertification petition which the Board dismissed in order to give the union a reasonable time to prove itself. If the Board's ruling refusing to hold a decertification election was proper, the Union was the bargaining representative of the employees, and the employer was under a duty to bargain with it.

The Board relies upon Franks Bros. Co. v. NLRB, 321 U.S. 702, 64 S.Ct. 817, 88 L.Ed. 1020, and Brooks v. NLRB, 348 U.S. 96, 75 S.Ct. 176, 99 L.Ed. 125, to sustain its position. There are significant factual distinctions between the case before us and both the Franks and Brooks cases.

In Franks a union's majority was dissipated after an employer's unfair labor practice in refusing to bargain. The Supreme Court held that the Board could appropriately find that the unfair labor practice had undermined the prestige of the Union and require the employer to bargain with it for a reasonable period despite the loss of majority. In the case before us there is no allegation that a prior unfair labor practice contributed to the Union's loss of majority.

The holding in the Brooks case is that an employer may not refuse to bargain with a certified union during the one year period following certification, although he is presented with evidence which leads him to believe that the union has lost its majority status. This holding does not reach the question of whether the Board may refuse to order an election on a request by a majority of employees that the union be disqualified as bargaining agent for the employees.

The union in Brooks had been certified by the Board within a year of the refusal to bargain, and accordingly the Board was precluded from holding a decertification election, but the Court nevertheless stated that, "If the employees are dissatisfied with their chosen union, they may submit their own grievance to the Board." In the case before us there is no statutory bar to a decertification election and the employees have submitted a disavowal of the Union which the Board has rejected.

The question here therefore is not whether an employer may refuse to bargain with a certified union during the year following certification, because he has evidence that the union has lost its majority status. The question is whether an employer may refuse to bargain, with a recognized but uncertified union, on the ground that the Board has rejected a petition signed, three days after recognition, by the majority of his employees, requesting that the Board disqualify the union as their bargaining agent. The question of the propriety of Ward's refusal to bargain can be answered only by determining the propriety of the Board's rejection of the employees' petition. This necessity of determining the validity of the Board's policy of refusing to hold a decertification election until a recognized union has acted as bargaining agent for a reasonable time distinguishes Brooks. And, unlike the Brooks case, this case involves a union which was recognized on the basis of a card check rather than on the basis of an election and Board certification.

Although neither Franks nor Brooks is binding precedent here, both are useful in resolving the issue before us. Franks is useful since it...