United Dairy Farmers Co-op. Ass'n v. N.L.R.B., No. 79-1807

CourtU.S. Court of Appeals — Third Circuit
Writing for the CourtBefore ADAMS, VAN DUSEN and HIGGINBOTHAM; A. LEON HIGGINBOTHAM, Jr.
Citation633 F.2d 1054
Docket NumberNos. 79-1807,No. 79-1807,No. 205,No. 79-1883,79-1883,I
Decision Date30 October 1980
Parties105 L.R.R.M. (BNA) 3034, 89 Lab.Cas. P 12,350 UNITED DAIRY FARMERS COOPERATIVE ASSOCIATION, Petitioner in, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Teamsters Local Unionntervenor. TEAMSTERS LOCAL UNION NO. 205, Petitioner in, v. NATIONAL LABOR RELATIONS BOARD, Respondent, United Dairy Farmers Cooperative Association, Intervenor.

Page 1054

633 F.2d 1054
105 L.R.R.M. (BNA) 3034, 89 Lab.Cas. P 12,350
UNITED DAIRY FARMERS COOPERATIVE ASSOCIATION, Petitioner in
No. 79-1807,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent, Teamsters Local
Union No. 205, Intervenor.
TEAMSTERS LOCAL UNION NO. 205, Petitioner in No. 79-1883,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent,
United Dairy Farmers Cooperative Association, Intervenor.
Nos. 79-1807, 79-1883.
United States Court of Appeals,
Third Circuit.
Argued May 23, 1980.
Decided Oct. 30, 1980.

Page 1056

John Regis Valaw, James J. Flaherty (argued), Pittsburgh, Pa., Stephen J. Cabot, Pechner, Dorfman, Wolffe, Rounick & Cabot, Philadelphia, Pa., for United Dairy Farmers Cooperative Association.

Hugh J. Beins, Jonathan G. Axelrod (argued), Bethesda, Md., Louis B. Kushner, Rothman, Gordon, Foreman, Groudine, P. A., Pittsburgh, Pa., for Teamsters Local Union No. 205.

Richard B. Bader (argued), Atty., William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Asst. Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., for N. L. R. B.

William J. Curtin, E. Carl Uehlein, Jr., Sozeen J. Mondlin, Morgan, Lewis & Bockius, Washington, D. C., Stephen A. Bokat, Washington, D. C., for Chamber of Commerce of the U. S., amicus curiae.

Before ADAMS, VAN DUSEN and HIGGINBOTHAM, Circuit Judges.

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

In this case the National Labor Relations Board (the Board) found that the employer had committed numerous unfair labor practices before and after the certification election. In formulating remedies to rectify these patent violations by the employer, the Board declined to issue a bargaining order because the member of the Board who supplied the critical third vote for the majority concluded that the Board lacked the power to do so in the absence of an election victory or card majority by the union. Thus, in reviewing its decision, we are presented with an issue commented on in dictum by the Supreme Court in NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547, reh. den., 396 U.S. 869, 90 S.Ct. 35, 24 L.Ed.2d 123 (1969), but not specifically reached: whether and under what circumstances the Board has the remedial authority to order an employer who has committed unfair labor practices to bargain with a union that has never won a certification election or secured a card majority. We affirm the Board's findings of various unfair labor practices by the employer, including the illegal dismissal of seven employees, the illegal threat of coercion, and the illegal distribution of a bonus during the election period. We also hold, however, that in remedying these and other unfair labor practices, the Board has the authority, despite the absence of a card majority and election victory, to issue a bargaining order in the circumstances of this case. We will therefore remand the case to the Board for it to determine whether it wishes in the exercise of its discretion to issue a bargaining order.

I.

FACTS

The facts of this case reveal a blatant and relentless effort by the employer, United Dairy Farmers Cooperative (United Dairy), to use unlawful means to block unionization attempts among its employees. We will

Page 1057

review these efforts in some detail not because there is any reasonable doubt as to the illegality of United Dairy's actions, but because of the need to understand the nature of these violations when we consider the remedial authority of the Board in the circumstances of this case.

United Dairy is a cooperative established in 1965 by farmers in western Pennsylvania for the processing and retail sale of their milk. It operates a milk processing plant in Pittsburgh, and owns 49 retail stores to sell its products to the public. At the time this case arose it used three types of employees in its operations. One group of employees worked in the processing plant itself; a second group of about 30 drivers and their helpers-the group directly involved in the events of this case-transported the processed milk and dairy products in leased trucks to the retail stores; and a third group of employees operated the retail stores.

A review of the actions of United Dairy in this case must begin with a prior case involving United Dairy that came before the Board. In the winter of 1970-1971, the Amalgamated Meat Cutters and Butcher Workmen of North America (AFL-CIO) attempted to organize the sales clerks in the retail stores. As reported in the earlier case before the Board, the president of the United Dairy, Ernest Hayes, announced at a Christmas banquet of salesclerks that "(h) e would fire any girl who had signed a Union card.... he would franchise the stores if a Union got in, and (the clerks) would all be out of a job. He (also) said that he was going to subpoena the Union organizers, get their Union cards, and these girls would be fired." United Dairy Farmers Coop. Ass'n, 194 NLRB 1094, 1095, enforced, 465 F.2d 1401 (3d Cir. 1972). After Hayes followed through on his threat by firing the leading supporter of the union, the union brought a complaint to the Board. The Board held that United Dairy had illegally threatened to discharge union supporters and to franchise its stores, interrogated employees about their union activity, and discharged an employee because of her union activity, in violation of Sections 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) & (3) (the Act). United Dairy was ordered to reinstate the employee and cease and desist from any further illegal statements. Nevertheless, the union drive among the clerks proved unsuccessful. 1

The events precipitating the present controversy arose in the fall of 1973 when a self-organizing drive was begun among the group of approximately 30 truck drivers and helpers employed by United Dairy to deliver the processed milk products to the retail stores. 2 On Friday, November 23rd, three days before the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America Milk and Ice Cream Salesmen, Drivers and Dairy Employees Local Union No. 205 (the Union) petitioned for an election, a truck driven by one of the strong Union supporters in this group, Bruce Bach, and his helper, Bernard Dhans, was in an accident. Two wheels fell off the rear axles. The truck had to be towed to the shop for what subsequently proved to be expensive repairs.

On Sunday, members of the board of directors of United Dairy held a meeting at which they decided that Bach should be fired. This was the first time that the directors had ever independently made the decision to fire an employee, the type of decision which had previously been made by Hayes alone. They did so in this case without ever speaking with Bach about the cause of the accident or waiting for an official report on the repairs. Bach was notified of his termination by telephone on

Page 1058

Sunday. He subsequently filed a complaint with the Board charging that his dismissal was motivated by his support for the Union.

On Monday, the Union filed a petition for a certification election which was later set for January 8, 1974. The next day Hayes questioned employee Larry Thomas on whether he had signed a union card. Thomas lied and said no. Hayes then informed him that he knew the Union was organizing and warned, according to Thomas' later testimony, that "if it gets in, you know what will happen to the guys who does ... if the union does get in, he said that he would have to close down, or subcontract, or something like that."

At Christmas, United Dairy distributed, for the first time in its history, a cash bonus to all of its employees, with the largest bonuses going to the drivers and the plant employees. Drivers and plant employees who had worked for the company for over one year received one hundred dollars; those who had been employed from 30 days to one year received fifty dollars, while those who had been there for under 30 days received twenty-five dollars. The retail employees received smaller bonuses-fifty dollars for those who had worked over a year, and twenty-five dollars for those who had worked under a year.

After Christmas but still before the January 8, 1974 certification election, Hayes called driver Jerry Finley into his office and, according to Finley's testimony, informed him that "if the union goes in, the farmers (who operate United Dairy) would come down and smash some heads; the farmers would never let the union in; they would close the plant down first, and start another plant under a new name." He also warned that the Teamsters had caused other companies to go bankrupt. Finally, on the day before the election, Hayes called Thomas again and, according to Thomas's testimony, warned him that "if the union gets in, we will have to close up." He added that the company was counting on him.

The results of the election proved inconclusive. The vote was 10 to 9 in favor of the Union, but seven additional votes were challenged and, on January 23, the Union filed a representation complaint challenging the employer's conduct during the campaign.

While these claims were being investigated by the Board and the result was still in doubt, company officials interrogated several other employees regarding their union activities. Immediately after the election, Helen Zitney, a supervisor and secretary of United Dairy, brought employee Melvin Lerch into the office. Claiming to know that one of the last two ballots cast was for the Union, she asked Lerch which way he had voted. He answered that he had voted no, but that he had signed a Union card. She asked him whether he knew Larry Thomas was a Teamster. He responded that he didn't know. She then asked whether he had discussed the Union with anyone else. When he admitted he had discussed it with Bruce Bach, she replied that she was "disappointed" in him.

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    • United States
    • United States State Supreme Court (California)
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    ...4 (Gissel, supra, 395 U.S. at pp. 613-614, 89 S.Ct. at pp. 1939-1940; see United Dairy Farmers Coop. Assn. v. N.L.R.B. (3d Cir.1980) 633 F.2d 1054, 1066, 1069; but cf. Conair Corp. v. N.L.R.B. (D.C.Cir.1983) 721 F.2d 1355, Second, the NLRB may issue bargaining orders in "less extraordinary ......
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    ...the presence of different circumstances in United Dairy Farmers Cooperative Association, 242 NLRB 1026 (1979), remanded on other grounds, 633 F.2d 1054 (3d Cir.1980), where the Board had also ordered the president Page 1386 personally to read the notice. 98 In that case the Board had emphas......
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    ...is designed to protect the uncoerced selection of union bargaining representatives by employees. United Dairy Farmers Coop Ass'n v. NLRB, 633 F.2d 1054, 1066 (3d Cir.1980). It does not speak to whether maritime rights are an appropriate subject of bargaining or whether the union can make a ......
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    ...bargaining representative is protected by the express terms of" 29 U.S.C. § 157); see also United Dairy Farmers Co-op Ass'n v. N.L.R.B., 633 F.2d 1054, 1066 (3d Cir.1980); W.W. Cross & Co. v. N.L.R.B., 174 F.2d 875, 878 (1st Cir.1949) (Under 29 U.S.C. § 159(a), "Congress intended to impose ......
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29 cases
  • Harry Carian Sales v. Agricultural Labor Relations Bd., AFL-CI
    • United States
    • United States State Supreme Court (California)
    • 1 Agosto 1985
    ...4 (Gissel, supra, 395 U.S. at pp. 613-614, 89 S.Ct. at pp. 1939-1940; see United Dairy Farmers Coop. Assn. v. N.L.R.B. (3d Cir.1980) 633 F.2d 1054, 1066, 1069; but cf. Conair Corp. v. N.L.R.B. (D.C.Cir.1983) 721 F.2d 1355, Second, the NLRB may issue bargaining orders in "less extraordinary ......
  • Conair Corp. v. N.L.R.B., AFL-CI
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 15 Noviembre 1983
    ...the presence of different circumstances in United Dairy Farmers Cooperative Association, 242 NLRB 1026 (1979), remanded on other grounds, 633 F.2d 1054 (3d Cir.1980), where the Board had also ordered the president Page 1386 personally to read the notice. 98 In that case the Board had emphas......
  • Barnes v. Andover Co., L.P., No. 86-1508
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 25 Abril 1990
    ...is designed to protect the uncoerced selection of union bargaining representatives by employees. United Dairy Farmers Coop Ass'n v. NLRB, 633 F.2d 1054, 1066 (3d Cir.1980). It does not speak to whether maritime rights are an appropriate subject of bargaining or whether the union can make a ......
  • In re Rath Packing Co., Bankruptcy No. 83-02293
    • United States
    • United States Bankruptcy Courts. Eighth Circuit. U.S. Bankruptcy Court — Northern District of Iowa
    • 28 Marzo 1984
    ...bargaining representative is protected by the express terms of" 29 U.S.C. § 157); see also United Dairy Farmers Co-op Ass'n v. N.L.R.B., 633 F.2d 1054, 1066 (3d Cir.1980); W.W. Cross & Co. v. N.L.R.B., 174 F.2d 875, 878 (1st Cir.1949) (Under 29 U.S.C. § 159(a), "Congress intended to impose ......
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