NLRB v. Superior Sales, Inc.

• Decision Date: 26 September 1966
• Docket Number: No. 18160.,18160.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SUPERIOR SALES, INC., Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

366 F.2d 229 (1966)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SUPERIOR SALES, INC., Respondent.

No. 18160.

United States Court of Appeals Eighth Circuit.

September 26, 1966.

Malcolm D. Schultz, Atty., N.L.R.B., Washington, D. C., for petitioner. Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, and Melvin Pollack, Atty., N.L.R.B., Washington, D. C., with him on the brief.

Irvin C. Levin, Omaha, Neb., for respondent. Jerry M. Gitnick, Omaha, Neb., with him on the brief.

Before JOHNSEN and BLACKMUN, Circuit Judges, and YOUNG, District Judge.

GORDON E. YOUNG, District Judge.

The National Labor Relations Board pursuant to § 10(e) of the National Labor Relations Act, as amended, 61 Stat. 136, 73 Stat. 519, 29 U.S.C.A. § 151 et seq., has petitioned this court to enforce its order issued against Superior Sales, Inc., on April 13, 1965. In its decision and order, reported at 151 NLRB No. 155, the Board adopted the findings, conclusions, and recommendations of the trial examiner and found that Superior Sales, Inc. (respondent hereinafter) had violated § 8(a) (3) and (1) of the National Labor Relations Act by discharging employee Maxine Chapman because of her activities on behalf of the union.¹ The Board also found that respondent made certain promises of benefits which violated § 8(a) (1) of the Act, and, finally, the Board found that respondent refused to bargain in good faith with the union in violation of § 8(a) (5) of the Act.

The order which we have been requested to enforce requires respondent to cease and desist from the unfair labor practices found and from in any other manner interfering with, restraining, or coercing its employees in the exercise of their rights under the Act. Affirmatively, the order requires respondent to recognize and bargain with the union upon request, and to embody any understanding that is reached in a signed contract. Also respondent is required to offer Maxine Chapman reinstatement to make her whole for any loss of earnings suffered as a result of the discrimination against her, with interest, and to post appropriate notices.

Respondent resists the enforcement of the order contending that upon the record as a whole there was not substantial evidence to sustain the trial examiner's findings, and that because of the bias shown by the trial examiner respondent did not receive a fair hearing in violation of its constitutional right to due process of law.

The following are the facts which are relevant to the issues of this appeal. Respondent is a Nebraska corporation which maintains, among other stores, a store located in Fremont, Nebraska, known as Shopper's Fair. This case involves respondent's activities in connection with the employees of the Fremont store. It is agreed by both parties that within the meaning of the Act: respondent is an employer engaged in commerce; that the union is a labor organization; and that the unit that the union is seeking to represent is an appropriate bargaining unit.

On May 25, 1964, a group of respondent's employees attended a union organizational meeting held at the home of one of the employees. At this meeting Edwin Arnold, a union representative, spoke to the group and solicited signatures on authorization cards. These cards, when signed by the employee, authorized the union to act as bargaining agent for the employee. Several cards were signed at the meeting. During the next two days Maxine Chapman, one of the employees, talked to several other employees about the advantages of joining the union and she obtained signed authorization cards from two of these employees. By May 27, 1964, the union had obtained 14 signed authorization cards.² That morning Arnold called on respondent's president, Samuel Goodman, at the latter's office in Omaha, Nebraska.

Arnold told Goodman that he represented the union and was there to request that the union be recognized as the collective bargaining representative of the employees of the Shopper's Fair store. Arnold stated that the union represented a majority of the employees of the store. Goodman indicated his lack of knowledge of labor-management matters and asked for an explanation. Arnold showed him a blank authorization card and explained that the union had obtained such cards from a majority of the employees of the store, and that the authenticity of these cards could be checked by a neutral party — and, in fact, Arnold requested that this be done. He explained that the union could also be recognized through a representation election conducted by the National Labor Relations Board, but repeated his request for a card check. Mr. Goodman said that he still did not understand the procedures and that he would have to confer with an attorney. Arnold asked Goodman to have his attorney "contact" him at the union's office, and then he left. On the following day, May 28, in a letter mailed to Mr. Goodman, Arnold again requested that a card check be made and the union be recognized.

On May 27, after his meeting with Arnold, Goodman retained Irvin C. Levin, counsel for respondent in this proceeding, and together they went to the Fremont store. Levin had a short conversation with one of the employees in which he sought to find out whether or not there was any union activity in the store. Later both men conversed with James Morris, the manager of the store, in regard to such activity.

The next day, May 28, employee Maxine Chapman was discharged by James Morris.

On May 29, Arnold telephoned Morris to request the reinstatement of Mrs. Chapman but Morris refused to do so. On the same day, Arnold had a telephone conversation with Levin, in the course of which he requested recognition of the union. He stated that the union represented a majority of the employees, and when Levin inquired how the company could be certain of the union's majority, Arnold said he was willing to have a check made of the union's authorization cards. In the course of the conversation Arnold objected to the discharge of Mrs. Chapman, and Levin said he did not think anything could be done about it but that he would check into it and he suggested a meeting with Arnold the following week.

On June 1, 1964, four days after Mrs. Chapman's discharge, Kathleen Delaney was hired and began working in the department in which Mrs. Chapman had been employed. Also on June 1, Levin and Arnold met in Levin's office in Omaha. Again Arnold requested that the union be recognized and asked for a card check. Levin said that the company would prefer to go to an election so that it would have time to talk to its employees. (Other aspects of this conversation will be discussed later in this opinion.) They decided that another meeting was necessary and set it for June 3.

On the evening of June 2, 1964, Levin addressed a meeting of the store employees for about twenty or twenty-five minutes. In this speech Levin informed the employees of their rights and responsibilities concerning a union election, and stated that he thought that the store could get along without a union since there was such a small number of employees and there was "easy contact" between the employees and employer. After the meeting, Levin had an informal conversation with some of the employees. The subject of this conversation will be discussed below.

On June 3, Arnold and Levin had a telephone conversation in which Levin told Arnold that the company had held a meeting of its employees, that he felt that the employees had not made up their minds about the union and he thought an election was in order. Arnold then stated that unless the company was willing to recognize the union there was no purpose in any further meetings. Therefore they did not meet that day as planned. Subsequently, the union again requested recognition by letter dated June 4, 1964, to which no answer was given.

On June 18, 1964, the union filed charges with the Board that respondent unlawfully refused to recognize and bargain with it, together with the other claimed violations of the Act which have been set out above. Other violations were also charged which are not at issue here. The Board issued the complaint in this action and a hearing was held before a trial examiner on September 22, 1964. The examiner issued his decision January 28, 1965, and on April 13, 1965, the Board adopted the findings and conclusions of the examiner and issued the order which it is seeking to have enforced in this action.

Section 10(e) of the Act, 29 U.S.C.A. § 160(e) provides that the "findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive." In interpreting this language in Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456, the Supreme Court said:

"The substantiality of evidence must take into account whatever in the record fairly detracts from its weight. * * * Nor was it intended to negative the function of the Labor Board as one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect. Nor does it mean that even as to matters not requiring expertise a court may displace the Board\'s choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo. * * * a reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board\'s view."

This court in N.L.R.B. v. Morrison Cafeteria Co. of Little Rock, Inc., 311 F.2d 534, 538 (8th Cir. 1963), said:

"The rule in this Circuit is that `the

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