Pizza Products Corporation v. NLRB
| Decision Date | 07 December 1966 |
| Docket Number | No. 16697.,16697. |
| Citation | 369 F.2d 431 |
| Parties | PIZZA PRODUCTS CORPORATION and G. & W. Food Products of Ohio, Inc., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
George R. Hewes, Toledo, Ohio, for petitioners.
Joseph C. Thackery, Atty., N.L.R.B., Washington, D. C., for respondent, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Nancy M. Sherman, Atty., N.L.R.B., Washington, D. C., on brief.
Before O'SULLIVAN, PHILLIPS and PECK, Circuit Judges.
A joint petition to review and set aside the order of the National Labor Relations Board has been filed by petitioners, two closely held Ohio corporations. The Board filed a cross application for enforcement of its order, which is reported along with its decision at 153 N.L.R.B. 1265.
The first question to be considered is whether the Board correctly treated the two corporations as a single employer under the Act. The Board held that the two corporations are a single employer for bargaining purposes, finding that: Gustav Feldtmann is president, treasurer, director and shareholder of each of the corporations and is actively engaged in the management of both; his wife and brother serve as directors of both corporations; the two corporations occupy the same premises, one renting space from the other; they share a common bookkeeper, but maintain separate books of account and payrolls for the two corporate entities; employees of the two companies have substantially the same terms and conditions of employment, wage rates and vacation allowance and share the same plant facilities; and employees of one corporation occasionally are "loaned" to the other when there is a temporary need for additional help.
Since these findings of fact are supported by substantial evidence, we conclude that the Board was justified in treating the two corporations as a single employer for jurisdictional purposes. N.L.R.B. v. City Yellow Cab Co., 344 F.2d 575, 577 (C.A. 6); N.L.R.B. v. Elias Brothers Big Boy, Inc., 325 F.2d 360, 362 (C.A. 6).
The union involved is the United Stone and Allied Product Workers of America, AFL-CIO, herein referred to as the union or the Stone Workers Union, which was found by the Board to represent a majority of the employees in the unit. Also involved is a local United Mine Workers Union, referred to herein as the Mine Workers.
The Board further found: (1) that petitioners violated Section 8(a) (1) of the Act, 29 U.S.C. § 158(a) (1), by threatening to close their plant if the employees selected a union as their representative, and by a coercive poll of employees concerning their union sympathies, and (2) that petitioners violated Section 8(a) (5) of the Act, 29 U.S.C. § 158(a) (5), by refusing to bargain with the union after a majority of employees had signed cards signifying the union as their exclusive bargaining representative. Petitioners were ordered to cease and desist from the Section 8(a) (1) violations, and upon request to bargain collectively with the union as exclusive representative of all employees in the unit.
Petitioners concede that substantial evidence supports the Board's findings concerning the Section 8(a) (1) violations, all of which occurred on August 20, 1964. However, they contend that the Board's findings of Section 8(a) (5) violations are not supported by substantial evidence on the record as a whole, that petitioners were precluded from expressing their good faith doubt of the union's majority status, and that petitioners are not guilty of Section 8(a) (5) violation of refusal to bargain.
As presented to this court, the proceeding is narrowed to the single issue of whether petitioners have violated Section 8(a) (5) by refusal to bargain with the union as the representative of the employees in the unit. In order to dispose of this issue, however, it is necessary to review the facts in some detail, including the Section 8(a) (1) violations.
The Board found that several of petitioners' employees met with a union representative on April 20, 1964. Thereafter membership application cards were distributed and 30 cards had been received by the union as of August 20 bearing the names of employees of petitioners. During a shift change on August 20, Mr. Feldtmann, president of both corporations, called a meeting of employees and stated that he had received a letter from the United Mine Workers of America claiming representation.1 Mr. Feldtmann told the employees that the company was in poor financial condition, that he could not afford to pay union wages; that if a union came in he would have to close the plant and turn it into a distribution center; and that if the employees chose a union, they would not be able to retain their jobs.
The trial examiner further found that at the conclusion of Mr. Feldtmann's talk, one of the employees (who had signed a union authorization card three days earlier) suggested that a secret vote be taken among the employees to determine whether they wanted a union. A majority of the employees indicated that they favored a vote at that time. Mr. Feldtmann procured pencils and paper and the employees voted. The result of this balloting was seven votes for a union and 34 votes against a union.
Petitioners contend that on the date of this meeting Mr. Feldtmann had no knowledge or means of knowing that the Stone Workers Union had conducted any organizing activities among the employees. Further, because of the letter from the United Mine Workers Union noted previously, petitioners assert that Mr. Feldtmann was of the impression that the Mine Workers were interested or engaged in organizing the employees.
Four days after his meeting with the employees, Mr. Feldtmann received a letter from Mr. Harold Etchison, representative of the Stone Workers Union, as follows:
Mr. Feldtmann received this letter on August 24, and on the same day replied as follows:
"Very truly yours G & W Food Products of Ohio Inc. /s/ Gustav H. Feldtmann Gustav H. Feldtmann" The Mine Workers' letter enclosed by Mr. Feldtmann was as follows:
On the same day that Mr. Etchison mailed the above quoted letter to Mr. Feldtmann, he also mailed to the Board's Eighth Regional Office a letter enclosing 30 signed union authorization cards in support of the union's representation petition which he forwarded on that date. This petition was withdrawn on December 4, 1964. The representation petitions filed by petitioners were subsequently dismissed by the Board because of its practice of refusing to process representation cases while charges are pending, unless the charges are waived.
Some ten days after the mailing of his letter of August 21, Mr. Etchison met with Mr. Feldtmann in the latter's office. The record does not present a satisfactory picture of what transpired at this meeting. At the time of the hearing before the examiner Mr. Feldtmann was confined to a hospital with "almost complete blockage of the left kidney" and was not able to testify.2
Only Mr. Feldtmann and Mr. Etchison were present in Mr. Feldtmann's office at the time of the conference in question. Since Mr. Feldtmann did not testify, the Board's findings necessarily are based entirely upon the testimony of Mr. Etchison.
The trial examiner made the following findings, based upon Mr. Etchison's testimony:
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