Truck Drivers Union Local No. 413 v. NLRB

• Decision Date: 13 September 1973
• Docket Number: 72-1794.,No. 71-1529,71-1529
• Citation: 487 F.2d 1099
• Parties: TRUCK DRIVERS UNION LOCAL NO. 413 etc. et al., Petitioner, v. NATIONAL LABOR RELATIONS BOARD. TEXTILE WORKERS UNION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

487 F.2d 1099 (1973)

TRUCK DRIVERS UNION LOCAL NO. 413 etc. et al., Petitioner, v. NATIONAL LABOR RELATIONS BOARD.

TEXTILE WORKERS UNION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondents.

Nos. 71-1529, 72-1794.

United States Court of Appeals, District of Columbia Circuit.

Argued March 8, 1973.

Decided September 13, 1973.

Laurence Gold, Washington, D.C., for petitioners. Sidney Dickstein, Washington, D.C., and Thomas F. Phalen, Jr., Dayton, Ohio, were on the brief for petitioner in No. 71-1529.

Patricia Eames, New York City, J. Albert Woll and Thomas E. Harris, Washington, D.C., were on the brief for petitioner in No. 72-1794.

Stanley R. Zirkin, Atty., National Labor Relations Board with whom Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D. C., at the time the brief was filed, and Robert A. Giannasi, Atty. N.L.R.B., were on the brief, for respondent.

Before LEVENTHAL and ROBB, Circuit Judges and JAMESON,^* Senior United States District Judge for the District of Montana.

LEVENTHAL, Circuit Judge:

These consolidated appeals raise the question of the scope of an employer's duty to bargain, under Section 8(a)(5) of the National Labor Relations Act, on the basis of authorization cards obtained by the union, in light of NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). The cases require review of two orders of the National Labor Relations Board. The factual settings are closely related. We shall set out the background in each case before considering the pertinent legal principles.¹

I. STATEMENT OF FACTS AND PROCEDURAL HISTORY

A. Wilder Manufacturing Co.

On the morning of October 12, 1965, representatives of the Textile Workers presented Walter Derse, secretary and general manager of Wilder, with 11 signed and two unsigned union membership cards² and requested recognition as bargaining agent of the Company's production and maintenance employees. Of the 30 employees then on the Company's payroll, 18 were in the production and maintenance unit, which the Board found to be appropriate for purposes of collective bargaining.³ Failing to receive an immediate answer to the request, the eleven employees who had signed the authorization cards left the plant and established a picket line. They were joined the next day by the two employees whose blank cards were among the thirteen presented to Derse.⁴

During the evening of the next day, October 13, the Company's officers met. Walter Derse reported that there were ten or eleven employees on the picket line and as "we are about 30 (not including the officers of the Company) it appears that they do not represent a majority." The officers decided not to recognize the union.⁵ The picketing continued for at least five months thereafter. Subsequent demands for recognition were made without response from the Company.

On May 9, 1966, the Board's General Counsel filed a complaint charging Wilder with violations of § 8(a)(1) and (5) of the Act.⁶ The Trial Examiner, on September 22, 1966, upheld the complaint on the § 8(a)(5) and dismissed the 8(a)(1) charge.⁷ The Board, however, concluded that the 8(a)(5) charge should be dismissed since "there is no showing whatsoever that Respondent had rejected the collective-bargaining principle or engaged in any interference, restraint, or coercion of employees to undermine the Union. Nor does the record show that Respondent has engaged in any other conduct which would prevent the holding of a fair election."⁸ On petition for review to this court, we held per curiam, 137 U.S.App.D.C. 67, 420 F.2d 635 (Nov. 14, 1969), that in light of the intervening Gissel decision, supra, and possible conflicts between the "current practice" of the Board, as represented to the Supreme Court, and the decision reached, the case should be remanded for "further consideration by the Board in the first instance in light of Gissel, but without limitation."⁹

On August 27, 1970, 185 NLRB 175, the Board issued a Supplemental Decision and Order, after a review of the entire record, and now found that Wilder's course of conduct did constitute a violation of § 8(a)(5). In reaching this result the Board declined to rest on a finding that the case presented an employer who refused to bargain and "stands upon his doubt as to the appropriateness of the unit," stating that "the Respondents' response—or lack of response—to the Union demand did not assert this as the ground of the refusal . . . ."¹⁰ Instead the Board focused on these findings: (1) There was evidence, in addition to mere cards, sufficient to communicate to the employer convincing knowledge of majority status (the independent knowledge test). (2) The evidence was insufficient to show that the employer's refusal to grant recognition was based upon genuine willingness to resolve any doubts concerning majority status through the Board's election process. On finding both these conditions met, the Board concluded that the refusal to bargain constituted a violation of 8(a)(5).¹¹ The Board then filed an application for enforcement of its supplemental order in this court on September 21, 1970. While the petition was pending, the Company moved to dismiss this petition on jurisdictional grounds, and subsequently the Board moved to have the case remanded to it for reconsideration in light of its decision in Linden Lumber, 190 NLRB No. 116, 77 LRRM 1305 which issued on June 7, 1971 and is the companion case in this litigation. Our court upheld the jurisdictional objections of the company and transferred the case to the Second Circuit,¹² which on February 1, 1972, remanded to the Board for the requested reconsideration.¹³

The Board on August 21, 1972, 198 NLRB No. 123, then issued its Second Supplemental Decision and Order in Wilder which reversed the First Supplemental Decision and Order. The Board, one member dissenting, rejected the "independent knowledge" test and held that absent voluntary measures by the employer, through an attempt¹⁴ or agreement¹⁵ to determine majority status by any means other than a Board election, and in the absence of any independent unfair labor practices, the predicate could not be established for an 8(a)(5) violation.¹⁶ After over 7 years, and three Board decisions representing a series of reversals in position, the Board now seeks to limit sharply the scope of any duty to bargain on the basis of authorization cards.

B. Linden Lumber

The procedural history of Linden Lumber is shorter—there is only one Board decision—but pointed, for it is on the basis of the Board's decision in this case, issued June 7, 1971, that the decision in Wilder rests. The time elapsed since the underlying events, however, is more than six years.

On December 28, 1966, employee Martin contacted Local 413 representative Dow Norman about organizing the employees of Linden Lumber (the Company). Next day, Norman held a meeting during which 12 employees, including 2 alleged supervisors, Shafer and Marsh, signed authorization cards. In the proceeding before the Trial Examiner, "the parties stipulated that at all times material there were 10 employees" within the appropriate bargaining unit.¹⁷ On January 5, 1967, Local 413 ("the Union") sent a letter to the Company requesting recognition. On February 3, at a prehearing conference on the Local's representation petition, the Company declined the Union's request to enter into a consent election agreement. Instead the Company raised threshold questions as to the Union's showing of interest, on the basis that the union had been organized by supervisors (Marsh and Shafer).¹⁸ Based upon the Company's alleged fear of recognizing a supervisor— dominated union, the Company stated that unless it could settle the 8(a)(2) violation in the context of the petition for an election—a request refused by the hearing officer—it would refuse to recognize the union, even after a Board—conducted election.¹⁹ Immediately after this statement by the representative of the Company (Mr. Rector), the Union's representatives withdrew the representation petition.²⁰ After the withdrawal was approved, Rector told Mr. Smedstad, the Union attorney, that if the Union submitted a new petition supported by a "fresh" 30 percent showing of interest, the company would go to a consent election. By March 4, the Union had obtained 9 signatures (leaving out the two alleged supervisors, Shafer and Marsh). The Company still refused to recognize the Union "because its membership included supervisors who influenced employees," again raising the spectre of the 8(a)(2) violation.

On February 15, the employees struck in support of the Union demand for recognition.²¹ The Union filed its charge of refusal to bargain on February 23, and the strike ended on June 1. At the end of the strike the Company refused to reinstate Marsh and another striker, Alexander. Marsh was refused reinstatement on the ground that he had quit. Alexander was refused on the strength of the Company's belief that he had provoked and participated in a violent incident related to the picketing at the plant.

On these facts, the Trial Examiner concluded that the Company violated Section 8(a)(5) by refusing to recognize the Union, that the strike was an unfair labor practice strike, and that Marsh and Alexander were unlawfully denied reinstatement in violation of Section 8(a)(3).

The Board concluded that Marsh and Alexander, as economic strikers, were wrongfully denied reinstatement in violation of Section 8(a)(3). It further determined, two members dissenting, to reject the Examiner's conclusion, and held that the Company did not violate § 8(a)(5) and (1) of the Act by refusing to bargain with the Union.

The Board majority began its analysis by noting that the § 8(a)(3) violation did not amount to a serious independent unfair labor practice, and that it could not make a finding that "the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by...