NLRB v. Sehon Stevenson & Co.

• Decision Date: 27 October 1967
• Docket Number: No. 10189.,10189.
• Citation: 386 F.2d 551
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SEHON STEVENSON & CO., Inc., Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

386 F.2d 551 (1967)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SEHON STEVENSON & CO., Inc., Respondent.

No. 10189.

United States Court of Appeals Fourth Circuit.

Argued February 8, 1966.

Decided October 27, 1967.

Peter M. Giesey, Atty., N. L. R. B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Warren M. Davison, Atty., N. L. R. B., on brief) for petitioner.

C. Robert Schaub, Huntington, W. Va. (Jenkins & Jenkins, Huntington, W. Va., on brief) for respondent.

Before HAYNSWORTH, Chief Judge, and SOBELOFF and BOREMAN, Circuit Judges.

HAYNSWORTH, Chief Judge:

We enforce a Board order to bargain in this case, though the union's majority has not been established by an election, because the employer conducted his own investigation, which confirmed the union's claim, and left the employer with no basis for a good faith doubt of it.

In support of a demand for bargaining upon a claim of majority representation, the union¹ submitted to the employer 19 signed authorization cards. There had been 29 employees in the unit, though three of them had just been discharged, two of whom were reinstated two weeks later. Omitting the one employee lawfully discharged, the union had 18 authorization cards from a unit of 28. If the two wrongfully discharged employees, shortly reinstated, are excluded there were 16 signed cards of 26 employees in the unit.

Representatives of the employer received the cards and checked them against a list of employees. Objection was made to the cards signed by the three recently discharged men, but otherwise there was no objection to the cards and no expression of doubt of the union's claim of majority status. The employer stated that the question of recognition would be discussed with his directors.

Thereafter, the employer polled all of the employees. Each was asked about his signing a union authorization card, and his answer was noted on a list of employees. There was evidence that two of these conversations ranged widely and included threats of discharge and of plant closure.

Three days after the employer's check of the union's cards, the union filed charges of violations of § 8(a) (1), (3) and (5) of the Act. Twelve days later, the employer filed a petition for an election under § 9(c), and, on the same day, the employer's lawyer wrote a letter to the union in which it was stated the cards did not appear in order, the signatures did not check out completely and that several employees "are understood to have stated" they signed under some misunderstanding. The record contains no subsequent reference to the claims of disorder in the cards or their signatures.

The employer's petition for an election was denied because of the pendency of the unfair labor practice charges. A hearing was held on those charges resulting in findings of violations of § 8(a) (1), (3) and (5).

At the hearing, there was proof of the polling of the employees and of the instances of threats of discharges and plant closing. The finding of the threats supports the conclusion of a violation of § 8(a) (1), if the polling did not. There was also evidence of circumstances surrounding the discharge of two of the three men fired three days before the card check which clearly supports the inference that those two discharges were discriminatory. Those were the two men who were reinstated two weeks later with pay for 80 hours of work. The Board contends that the question of those discharges is not moot, however, for those employees normally worked a longer work week than 40 hours and each lost a week's vacation with pay. The resultant § 8(a) (3) finding is obviously correct and enforceable.

In NLRB v. Logan Packing Co., 4 Cir., 386 F.2d 562, decided this day, we have considered at some length the serious unreliability of signed authorization cards as an indication of the wishes of a majority of the employees. Because of that unreliability, they should not be accepted as proof of the union's claim of majority status, and an employer is entitled to doubt the union's claim as long as it is so unreliably founded.

The presentation of such a claim places an employer in a difficult dilemma, for, thus far, the Board has given him no assurance comparable to that we now proffer. Yet, if he undertakes to inform himself, he runs great risk of being charged with and held responsible for unfair labor practices, just as occurred here.² It is almost impossible for an employer, in such a situation, to steer a course of inquiry, safely and free of such grave risk.³ And, if he is found to have committed an unfair labor practice in the course of that perilous run, the Board will employ the fact to foreclose assertion of the doubt the employer sought to resolve.

Under the circumstances, the representation issue should have been treated as such. The employer is unconcerned about the § 8(a) (1) and § 8(a) (3) charges. It indicated its willingness to make the two discharged employees whole; it is a matter of a very few dollars only. There is every indication it would have posted appropriate notices, and a valid, reliable election could have been held long ago. The controversy is a result of the bargaining order and insistence upon bypassing the much swifter, more reliable election process.

After the hearing, however, we are not at liberty to disregard the evidence of the result of the employer's own investigation and its bearing upon the presence of a question concerning representation.

The employer admitted that it polled all of the employees and made notations of the answers. The witness first claimed that he made no tally of the results, though later he admitted he did, and it was silly to have denied it in the first place, for the tally was the sole purpose of the interrogations. He did not say what those results actually were, but the employer's strong interest in countering the union's claim and the reluctance of the witness to reveal the results of his investigation, compels the inference that the interrogations confirmed the union's claim.

There is no reason to attribute unreliability to the results of the employer's inquiry. If the interrogation of each employee, as disclosed on this record, was less searching than it might have been, there is no indication that the employer, after embarking upon the inquiry, felt under any constraint about the range of the questions. If he delved no more deeply than the record indicates, it was apparently because he had gone far enough to obtain answers he thought acceptable and reliable.

The employer had expressed no doubt of the union's claim when the cards were checked. He may well have had independent information of the union's strength. It was not until two weeks later that the employer's lawyer referred vaguely to unspecified misunderstandings of card signers. At the hearing, the employer's president testified that he had heard that some of the older employees did not want the union, a circumstance not shown to have been inconsistent with the union's claim, and that he "had some information * * * that more than one person" thought he was signing an application for free insurance rather than a union authorization card. That claim was not otherwise supported.

When the employer has conducted his own investigation, the results of which confirm the union's claim, we think it reliably establishes the union's majority and the employer's lack of any good faith doubt of it. Resurrection of that doubt, after the investigation, requires much more than a very general unspecific and unelaborated suggestion that some of the employees may have thought the union's authorization cards were applications for insurance which would cost them nothing.

If we had no more in this case than the cards and the finding of violations of §§ 8(a) (1) and (3), the Board's order to bargain would not be enforced for the reasons we state today in Logan. The employer's investigation, however, so conclusively answers the question of the union's majority and the question of the employer's lack of doubt of it, we think it may reasonably be said to have settled the representation question. If that question is settled, if its answer is not dependent upon a choice of permissible inferences, it is within the Board's power to order bargaining without resort to a § 9(c) election, the machinery for the resolution of representation questions.

Enforcement granted.

SOBELOFF, Circuit Judge (concurring specially):

While I concur in the result reached by the majority, I feel obligated to record my disagreement with some of its reasoning. With my colleagues, I conclude that the Labor Board's order should be enforced because the union represented a majority of the employees in an appropriate unit and the employer had no good faith doubt of this fact. Florence Printing Co. v. NLRB, 333 F.2d 289 (4th Cir. 1964); NLRB v. Overnite Transportation Co., 308 F.2d 279 (4th Cir. 1962).

My concern is with the court's overbroad dicta regarding the unreliability of signed authorization cards and its gratuitous assertion that in the absence of the employer's poll, the union's majority would not have been satisfactorily established. I think the majority opinion, as well as the Logan¹ case, decided today, upon which it relies, overstates the unreliability of authorization cards and undermines the useful functions they may properly serve. Since the Logan opinion, with its elaborate discussion of authorization cards, is incorporated by reference into the majority opinion of this case, it is necessary to examine Logan closely.

Oddly, in Logan the court observes with singular impartiality that there is nothing more unreliable than cards in determining the desires of a majority of employees unless it be an employer's poll. Yet in the instant case, the court joins these two "unreliable" devices and "conclusively" establishes the union's majority. I agree that a survey taken by an...