NLRB v. Southbridge Sheet Metal Works, Inc.

• Decision Date: 17 July 1967
• Docket Number: No. 6875.,6875.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SOUTHBRIDGE SHEET METAL WORKS, INC., Respondent.
• Court: U.S. Court of Appeals — First Circuit

380 F.2d 851 (1967)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SOUTHBRIDGE SHEET METAL WORKS, INC., Respondent.

No. 6875.

United States Court of Appeals First Circuit.

July 17, 1967.

Warren M. Davison, Washington, D. C., Atty., with whom Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Vivian Asplund, Washington, D. C., Attorney, were on brief, for petitioner.

George H. Mason, Worcester, Mass., with whom Richard Robinson, Worcester, Mass., was on brief, for respondent.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

COFFIN, Circuit Judge.

The National Labor Relations Board seeks to enforce an order directing respondent company to desist from coercive conduct in violation of section 8(a) (1) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1) and to bargain collectively, upon request, with Sheet Metal Workers' International Association, Local 127, AFL-CIO, as the exclusive bargaining representative for respondent's production and maintenance employees. The Board affirmed the Trial Examiner's findings that the refusal to bargain charge under section 8(a) (5) was substantiated by a campaign of conduct in violation of section 8(a) (1) calculated to undermine the majority status which the union had achieved through a card-soliciting effort in July of 1964.

The procedural history of this particular conflict is a tortuous one. In July 1964, the union began a card campaign among the thirty-four nonclerical employees of respondent's plant. By July 29, twenty-one had signed cards and the union requested a meeting with the company to discuss preliminaries to negotiation. After several abortive exchanges in which the company questioned majority status and suggested an election, and the union offered to submit the cards to an impartial person for a card count, the union filed an unfair labor practice charge on August 28, then withdrew the charge and petitioned for an election. A consent election was held on October 13, the union losing by a 19-16 vote. On union objection the Regional Director conducted an investigation and, on November 13, recommended that the election be set aside. On November 19, the union filed an unfair labor practice charge which was substantially identical to the earlier charge of August 28. The company filed exceptions to the Regional Director's findings in the representation proceedings and requested a formal hearing. The Board, on December 28, 1964, adopted the Regional Director's report, set aside the election, and directed that a second election be held. In April 1965, the union requested and was granted permission to withdraw its petition for certification, complaint issued, and a Trial Examiner proceeded to conduct a hearing on the union's unfair labor practice charges. His findings for the union were affirmed by the Board.

Respondent resists enforcement on four grounds: that the union waived the unfair labor practice charges by seeking an election; that the election was improperly set aside; that even if it was not, the Board's finding that the employer violated section 8(a) (5) by refusing to bargain is not supported by substantial evidence; and that the Board was incorrect in finding that a post-election, pre-hearing questionnaire submitted to employees by the company violated section 8(a) (1).¹

The first ground asks us to reject the principle readopted by the Board in Bernel Foam Prods. Co., 146 N.L.R.B. 1277 (1964); see also Irving Air Chute Co., 149 N.L.R.B. 627 (1964), aff'd, 350 F.2d 176 (2d Cir. 1965), that, after losing an invalid election, a union may still press charges under section 8(a) (5) for employer conduct before the election. But we find persuasive the reasons given in Bernel Foam for refusing to relegate the union to a new election as its sole remedy. Furthermore, we have recognized that a violation of section 8(a) (5) does not "cease to become such by the union's filing a certification petition or by its dismissing it." NLRB v. Whitelight Prods., 298 F.2d 12, 14 (1st Cir.), cert. denied, 369 U.S. 887, 82 S.Ct. 1161, 8 L.Ed.2d 288 (1962). We see no sound principle for allowing a union to dismiss a certification petition before election and seek a bargaining order on the basis of a prior unlawful refusal to bargain, but denying it the same privilege after an election that has been voided by employer misconduct.

The respondent, however, argues that the union should be barred when it loses a valid election, and that the election here was in fact valid because the Board improperly set it aside. With the substantive principle suggested we can agree. No sound reason suggests allowing the union bargaining recognition when it goes to and loses an election untainted by employer interference. See Wholesalers Coop. Trucking Ass'n., 157 N.L.R.B. No. 120 (Apr. 8, 1966); Koplin Bros. Co., 149 N.L.R.B. 1378 (1964). Nor are we impressed by the Board's contention that this defense is not available to the employer because the order setting aside the election is unreviewable under section 9(d), 29 U.S.C. § 159(d). It is undeniable that the Board's decision in a representation proceeding cannot be reviewed until a bargaining order is issued on the basis of that decision. E. g., Daniel Const. Co. v. NLRB, 341 F.2d 805, 810 (4th Cir.), cert. denied, 382 U.S. 831, 86 S.Ct. 70, 15 L.Ed.2d 75 (1965). But we are here reviewing an order to bargain that, under the Board's own rulings, Wholesalers Coop. Trucking Ass'n, supra, should not have been issued if the election were not properly set aside. To construe the statute as denying review on this issue solely because the order is not the direct result of a union certification would be to make the certification proceeding conclusive in every case where Bernel Foam applies, a result that Congress surely did not and could not intend.

Nevertheless, it appears that the respondent did not properly raise this defense before the Board in the 8(a) (5) proceeding, and thus is barred from raising it before us now. National Labor Relations Act § 10(e), 29 U.S.C. § 160 (e); cf. Elm City Broadcasting Corp. v. NLRB, 228 F.2d 483 (2d Cir. 1955). That respondent excepted to the Regional Director's report and sought a hearing from the Board in the representation proceeding is not sufficient to save the issue for review, because it did not fairly put the Board on notice that the asserted validity of the election was to be posed as a defense to the 8(a) (5) charge. The issue was not raised at all before the Trial Examiner or before the Board in its review of the Trial Examiner's decision; it appears for the first time in respondent's brief in this court. Respondent argues that the Board's policy would have required it to exclude the defense as having been conclusively decided in the representation proceeding. Whether this is a fair prediction is irrelevant, for the Board was never given the opportunity to decide whether the alleged policy applied to this case.² Nor was it apprised that it would have to meet the issue in argument on the petition for enforcement. Therefore, we must hold that respondent has effectively waived objection to the propriety of setting aside the election.

Coming to the substance of the 8(a) (5) charge, we confront respondent's allegations that 18 of the 21 authorization cards which had been obtained by the union were invalid. Fifteen cards are challenged by reason of an invalid restriction appearing on their face; six of these cards and three additional cards (not containing the invalid restriction) are challenged because of alleged misrepresentations made in soliciting them.

The cards signed by fifteen of the employees, after setting forth a designation of the union "to represent me and, in my behalf, for the purposes of collective bargaining to negotiate and conclude all agreements in respect to rates of pay, wages, hours of employment, or other conditions of employment * * *", contained the following restriction on withdrawal:

"The full power and authority to act for the undersigned as described herein supersedes any power or authority heretofore given to any person, or organization to represent me and shall remain in full force and effect for one year from date and thereafter, subject to thirty (30) days\' written notice of my desire to withdraw such power and authority to act for me in the matters referred to herein."

This was, as the Board concedes, an invalid restriction.³ The respondent contends that it vitiated these cards since it could have stifled any efforts by signatory employees to withdraw within 30 days after signing — a time span covering the critical period of solicitation before the union's first demand for recognition. We cannot emphasize too strongly our disapproval of such clauses, and we express our hope that the Board will make all feasible efforts to bring about the elimination of such unwarranted representations on authorization cards. It seems to us that so long as the use of cards is countenanced as an alternative to an election, there is the corresponding obligation, on the part of the Board and the unions, to make the cards as clear and straightforward and as little susceptible to misinterpretation as possible. See International Union of Elec. Radio and Mach. Workers v. NLRB, 122 U.S. App.D.C. 145, 352 F.2d 361, 363-364 (concurring opinion of Burger, J.), cert. denied, 382 U.S. 902, 86 S.Ct. 235, 15 L.Ed.2d 155 (1965); cf. NLRB v. Freeport Marble & Tile Co., 367 F.2d 371 (1st Cir. 1966).

The presence of this clause has induced us to scrutinize the record for signs of its effect. We have reviewed the testimony of some twenty-two employees and have found no suggestion that the clause had the slightest effect. Only one employee was asked if he understood that his right of withdrawal was restricted, and he answered "No". Under these circumstances, we do not think that respondent has met its burden of...