NLRB v. Tampa Crown Distributors, Inc.
Decision Date | 10 November 1959 |
Docket Number | No. 17672.,17672. |
Citation | 272 F.2d 470 |
Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TAMPA CROWN DISTRIBUTORS, INC., Respondent. |
Court | U.S. Court of Appeals — Fifth Circuit |
Marcel Mallet-Prevost, Asst. Gen. Counsel, Thomas J. McDermott, Assoc. Gen. Counsel, NLRB, Washington, D. C., Jerome D. Fenton, Gen. Counsel, Norton J. Come, Deputy Asst. Gen. Counsel, Russell Specter, Atty., NLRB, Washington, D. C., for petitioner.
T. Charles Allen, Atlanta, Ga., Fisher, Phillips & Allen, Atlanta, Ga., for respondent.
Before RIVES, Chief Judge, and TUTTLE and BROWN, Circuit Judges.
While the ruling of the Board on the earlier representation proceeding1 was not subject to direct review under the statute, that ruling is subject to challenge when, as here, a complaint of unfair practices is made predicated upon the ruling.2
The parties agree that the questions presented for decision are:
Decision of the first question may also preclude the second. We hold that the Board erred in certifying the Union instead of setting aside the representation election, and we therefore deny enforcement.
The evidentiary facts are not in dispute. An election under the direction and supervision of the Board's Regional Director was conducted on June 7, 1957. Nine votes were cast. The Regional Director found that a challenge to one vote cast by an ex-employee should be sustained, and that finding has not been questioned. Of the eight eligible employees, four voted for the Union, three against it, and the eighth cast a blank ballot.
Two nights before the election, employee Roland Paz received an anonymous telephone call at his home, which he described as follows:
Paz did not recognize the voice of the caller. He testified:
Paz did not communicate the threatening conversation to any of respondent's other employees until after the election. He voted for the Union.
The "Leo" referred to in the conversation with Paz was employee Lionel M. Sardinas. The night before the election, Sardinas received an anonymous telephone call at his home, which he described as follows:
Sardinas could not identify the voice of his anonymous caller. He testified:
Sardinas did not tell any of the other employees about the threatening conversation until after the election. He was, however, later on the night of the call, visited by a group of employees and the ex-employee whose vote on the next day was challenged. That evening there had been a Union meeting. At the meeting the ex-employee and several employees, including Paz, and some Union officials discussed the election set for the next day. Comment was made that the Union might lose the election if employee Sardinas voted against the Union. When the meeting broke up, it was suggested that the group (now reduced to 4 or 5 employees and the ex-employee) visit Sardinas to talk to him about his vote. This group urged Sardinas to vote for the Union, but Sardinas demurred on the ground that a member of his family worked for the Company in a supervisory capacity and he did not want to be "on the spot with the Company." Paz suggested that Sardinas cast a blank ballot and Sardinas agreed.
In its decision in the representation proceeding, the Board stated the test as follows:
The respondent insists that the "agency" test and the "atmosphere of fear" test should not be the exclusive means of determining whether specific conduct renders improbable or impossible the employee's free choice, and refers in its brief to earlier Board decisions, as follows:
To continue reading
Request your trial-
Riverside Press, Inc. v. NLRB
...representation case and the unfair labor practice case become one, and the complete record is fully reviewable. NLRB v. Tampa Crown Distributors, Inc., 272 F.2d 470 (5 Cir. 1959). See also: NLRB v. Genesco, 406 F.2d 393 (5 Cir. 1969). In order to arrive at a decision in this matter, we must......
-
Certainteed Corp. v. N.L.R.B.
...the election might have been different. Daylight Grocery Co. v. NLRB, 678 F.2d 905, 909 (11th Cir.1982) (citing NLRB v. Tampa Crown Distributors, 272 F.2d 470, 473 (5th Cir.1959)). The objecting party must prove by specific evidence that the election results did not reflect the unimpeded ch......
-
NLRB v. Staub Cleaners, Inc.
...(1952) (anonymous caller). Cf. Manning, Maxwell & Moore, Inc. v. NLRB, 324 F.2d 857 (5th Cir. 1963). But see NLRB v. Tampa Crown Distributors, Inc., 272 F.2d 470 (5th Cir. 1959) (enforcement of bargaining order denied where no denial by Union of responsibility for anonymous call). Even wher......
-
NLRB v. Griffith Oldsmobile, Inc., 71-1100.
...as their reason for doing so, nor did they state that they had voted for the Union in the election. Cf., N.L.R.B. v. Tampa Crown Distributors, Inc., 272 F.2d 470 (5th Cir. 1959). Had the alleged threats been made by Union agents or adherents, we would reach a different result. See, Home Tow......