Orion Corp. v. N.L.R.B.
| Citation | 515 F.2d 81 |
| Decision Date | 28 April 1975 |
| Docket Number | No. 74-1432,74-1432 |
| Parties | 89 L.R.R.M. (BNA) 2135, 76 Lab.Cas. P 10,840 ORION CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Walter S. Davis, Milwaukee, Wis., for petitioner.
Elliott Moore, Deputy Associate Gen. Counsel, John D. Burgoyne and Roger T. Brice, Attys., N. L. R. B., Washington, D. C., for respondent.
Before CLARK, Associate Justice, * and CUMMINGS and TONE, Circuit Judges.
This case comes before the court on the Company's petition for review and the National Labor Relations Board's cross-petition for enforcement of a Board order that the Company cease and desist from refusing to bargain with the Union, District 10, International Association of Machinists and Aerospace Workers, AFL-CIO. Since the Company concedes that it withdrew recognition of the Union by letter dated August 11, 1972, at issue is whether the Company's refusal to sign a collective bargaining agreement or to continue negotiations with the Union was justified on the grounds (1) that the Company reasonably believed the Union no longer represented a majority of the employees in the certified unit, or (2) that the Union in fact no longer had such support.
After four days of hearings on the complaint charging the Company with violations of sections 8(a)(5) and (1) of the Labor Management Relations Act, 29 U.S.C. §§ 158(a)(5) and (1), the administrative law judge issued his decision on June 19, 1973, finding against the Company. In a decision and order dated May 16, 1974, a majority of a three-member panel of the Board sustained the findings and conclusions of the judge, with exceptions not here material. Member Kennedy, however, dissented. Since we find that the Board's decision was supported by substantial evidence, we hold that the order should be enforced.
The underlying facts of this case may be summarized as follows: As a result of an election held March 19, 1971, among the Company's production and maintenance employees which the Union won by a vote of 20 to 13, the Regional Director of the Board certified the Union as the representative of the unit. Protracted negotiations followed, culminating in a mediation session under the auspices of the Federal Mediation and Conciliation Service. The Union then sent the Company a request for "a finalized proposal in the form of a complete contract," but the Company refused to prepare such a written proposal, contending that during the long months of negotiation certain information had come to its attention to the effect that the Union no longer represented the majority of the unit due to growing dissatisfaction among the employees.
It appears from evidence introduced at the hearing that at the time the Company withdrew recognition, it possessed the following information about the Union's support among the employees of the unit: Joseph Moravchik, the Company's Operations Manager, received reports, both directly from the employees in question and by hearsay, that eleven or twelve unit employees had either quit the Union or had stopped paying dues. He was also told by six employees that they had not and would not join the Union. From the background information known to him regarding approximately eight other employees and his personal knowledge of them, he inferred that they would not be likely to join a Union. Therefore, Moravchik and the Company represented that they had information leading them to conclude that 24 to 26 of the approximately 44 employees in the unit, a majority, never supported or had defected from the Union.
Other evidence, presented at the hearing but not available to the Company at the time of the withdrawal of recognition, which tended to show the allegedly weakened condition of the Union's support, included nine letters of resignation from the Union, subpoenaed from the Union records; the lapsing of the membership of four other individuals for failure to pay dues, also evidenced by the subpoenaed records; and an admission by the Chairman of the Union Shop Committee, William Riedel, offered in testimony at the hearing, that on August 11, 1972, there were a total of about sixteen or seventeen members in the local unit of the Union. The Company implies that the admission should have been considered dispositive of the case as conclusive evidence that the Union no longer had majority support in fact, making irrelevant the belief of the Company or its agents, a position endorsed by Board member Kennedy in his dissent but finally argues that this testimony actually shows the reasonableness of the Company's belief that only a small proportion of the employees did support the Union.
The evidence upon which the Company relies to establish the reasonableness of the withdrawal of recognition tends only to show the number of members in the Union. Whether this showing would be sufficient to establish the number of employees who would vote in favor of the Union in a representation election is the core question here. The Board concluded that the reasoning it had used in Terrell Machine Co., 173 N.L.R.B. 1480, 1481 (1969), enf'd, 427 F.2d 1088 (4th Cir. 1970), was controlling:
". . . 173 N.L.R.B. at 1481.
The principal difficulty in resolving the central legal issue in this case is reconciling divergent treatments accorded the allocation and measure of the burden of proof in several of the leading refusal-to-bargain cases. Compare Stoner Rubber Co., 123 N.L.R.B. 1440, 1445 (1959) and Taft Broadcasting, 210 N.L.R.B. No. 113 (1973) with Terrell Machine Co., supra,173 N.L.R.B. at 1481, and Automated Business Systems, Inc. v. N.L.R.B.,497 F.2d 262, 269-272 (6th Cir. 1974). It is well established that Board certification of a union as the representative of a unit creates a presumption of continued majority status for one year, which is conclusive, absent a showing of special circumstances. After the first year, the presumption remains, but becomes rebuttable. Brooks v. N.L.R.B., 348 U.S. 96, 98, 75 S.Ct. 176, 99 L.Ed. 125 (1954); see, e. g., Zim's Foodliner, Inc. v. N.L.R.B.,495 F.2d 1131, 1139 (7th Cir. 1974), cert. denied, 419 U.S. 838, 95 S.Ct. 66, 42 L.Ed.2d 65 (1974). At issue here are the weight and effect of that rebuttable presumption of continued majority status.
There are two lines of cases, one emphasized in the Board's order relying...
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