NLRB v. Southbridge Sheet Metal Works, Inc., No. 6875.

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtALDRICH, , McENTEE and COFFIN, Circuit
Citation380 F.2d 851
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. SOUTHBRIDGE SHEET METAL WORKS, INC., Respondent.
Decision Date17 July 1967
Docket NumberNo. 6875.

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.


380 F.2d 852

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

380 F.2d 853
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

380 F.2d 854
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...

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19 practice notes
  • Riverside Press, Inc. v. NLRB, No. 25783.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 11, 1969
    ...decision to determine if it was legally erroneous or factually unsupported, cf. NLRB v. Southbridge Sheet Metal Works, Inc., 1 Cir., 1967, 380 F.2d 851, 854, & n. 2; Pepsi-Cola Buffalo Bottling Co. v. NLRB, 2 Cir., 1969, 409 F.2d 676. The company's only argument was that before it could be ......
  • National Labor Relations Board v. Gissel Packing Co Food Store Employees Union, Local No 347, Amalgamated NLRB v. Gissel Packing Co., 585
    • United States
    • United States Supreme Court
    • June 16, 1969
    ...occasionally to uphold the Board's application of its own rule in a given case. See, e.g., NLRB v. Southbridge Sheet Metal Works, Inc., 380 F.2d 851 (C.A.1st Cir. 1967); NLRB v. Sandy's Stores, Inc., 398 F.2d 268 (C.A.1st Cir. 1968); NLRB v. Swan Super Cleaners, Inc., 384 F.2d 609 (C.A.6th ......
  • N.L.R.B. v. Best Products Co., Inc., No. 84-7645
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 10, 1985
    ...of the election was to be posed as a defense to the 8(a)(5) charge.' " Id. at 262, quoting NLRB v. Southbridge Street Metalworks, Inc., 380 F.2d 851, 854 (1st Cir.1967). Our test for determining the sufficiency of notice was first set out in NLRB v. Giustina Bros. Lumber Co., 253 F.2d 371, ......
  • Schwarzenbach-Huber Company v. NLRB, No. 130
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • March 5, 1969
    ...Cir. 1967); N. L. R. B. v. Swan Super Cleaners, Inc., 384 F.2d 609 (6th Cir. 1967); N. L. R. B. v. Southbridge Sheet Metal Works, Inc., 380 F.2d 851 (1st Cir. 1967); Engineers and Fabricators, Inc. v. N. L. R. B., 376 F.2d 482 (5th Cir. 1967); Bauer Welding and Metal Fabricators, Inc. v. N.......
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20 cases
  • National Labor Relations Board v. Gissel Packing Co Food Store Employees Union, Local No 347, Amalgamated NLRB v. Gissel Packing Co., 585
    • United States
    • United States Supreme Court
    • June 16, 1969
    ...occasionally to uphold the Board's application of its own rule in a given case. See, e.g., NLRB v. Southbridge Sheet Metal Works, Inc., 380 F.2d 851 (C.A.1st Cir. 1967); NLRB v. Sandy's Stores, Inc., 398 F.2d 268 (C.A.1st Cir. 1968); NLRB v. Swan Super Cleaners, Inc., 384 F.2d 609 (C.A.6th ......
  • Riverside Press, Inc. v. NLRB, No. 25783.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 11, 1969
    ...decision to determine if it was legally erroneous or factually unsupported, cf. NLRB v. Southbridge Sheet Metal Works, Inc., 1 Cir., 1967, 380 F.2d 851, 854, & n. 2; Pepsi-Cola Buffalo Bottling Co. v. NLRB, 2 Cir., 1969, 409 F.2d 676. The company's only argument was that before it could be ......
  • N.L.R.B. v. Best Products Co., Inc., No. 84-7645
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 10, 1985
    ...of the election was to be posed as a defense to the 8(a)(5) charge.' " Id. at 262, quoting NLRB v. Southbridge Street Metalworks, Inc., 380 F.2d 851, 854 (1st Cir.1967). Our test for determining the sufficiency of notice was first set out in NLRB v. Giustina Bros. Lumber Co., 253 F.2d 371, ......
  • Schwarzenbach-Huber Company v. NLRB, No. 130
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • March 5, 1969
    ...Cir. 1967); N. L. R. B. v. Swan Super Cleaners, Inc., 384 F.2d 609 (6th Cir. 1967); N. L. R. B. v. Southbridge Sheet Metal Works, Inc., 380 F.2d 851 (1st Cir. 1967); Engineers and Fabricators, Inc. v. N. L. R. B., 376 F.2d 482 (5th Cir. 1967); Bauer Welding and Metal Fabricators, Inc. v. N.......
  • Request a trial to view additional results

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