Whiting Corp. v. National Labor Relations Board

• Decision Date: 02 December 1952
• Docket Number: No. 10661.,10661.
• Citation: 200 F.2d 43
• Parties: WHITING CORP. v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Seventh Circuit

200 F.2d 43 (1952)

WHITING CORP. v. NATIONAL LABOR RELATIONS BOARD.

No. 10661.

United States Court of Appeals, Seventh Circuit.

December 2, 1952.

Quentin Ogren and Carl M. Gould, Los Angeles, Cal., Robert N. Denham, Washington, D. C., Hill, Farrer & Burrill, Los Angeles, Cal., for Whiting Corp.

A. Norman Somers, Asst. Gen. Counsel, and Dominick L. Manoli, Atty., National Labor Relations Board, Washington, D. C., George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, and Mark C. Curran, Attys., National Labor Relations Board, Washington, D. C., for respondent.

Before MAJOR, Chief Judge, and DUFFY and LINDLEY, Circuit Judges.

LINDLEY, Circuit Judge.

Petitioner, Whiting Corporation, who has its main office and plant in the Northern District of Illinois but operates a branch in Norwalk, California, at which some 36 men are employed, seeks a review of an order entered May 14, 1952 by the National Labor Relations Board directing it to bargain with the International Brotherhood of Boilermakers, Iron Shipbuilders and Helpers of America, Local Number 92, A. F. of L., hereinafter referred to as the union, as the bargaining representative of the production and maintenance employees at the branch. In its order, the Board determined that on February 16, 1951 and all times thereafter the union was the employees' authorized bargaining representative. The propriety of this finding, in turn, depends upon the Board's subordinate finding that the union had been legally selected as the bargaining agent for the employees at an election on October 18, 1950, at which it had been reported that 18 votes had been cast for and 17 against the union.

Petitioner, after the intermediate report in this case, filed a motion to reopen the representation proceedings and to have a further hearing therein for the purpose of determining the eligibility of John Norgard to vote at the election, which petitioner had challenged. This motion having been allowed and the rehearing had, the presiding officer concluded, and the Board in its order of May 14, 1952 agreed, that Norgard was eligible. His vote made the majority. Therefore, the Board found that the union had been properly certified as the representative of the employees for collective bargaining, and, further, that petitioner, having refused to bargain with the union, was guilty of an unfair labor practice. It is this feature of the record with which we are concerned, namely, the question as to whether Norgard was eligible to participate in the election, for, if he was not, the union did not receive a majority, while if he was qualified, the union did prevail. If, upon the scrutiny of the record prescribed by the Act and discussed in N. L. R. B. v. Universal Camera Corp., 340 U.S. 474, 71 S. Ct. 456, 464, 95 L.Ed. 456, we find that the evidence does not adequately support the Board's finding in this respect, then the union was not the employees' representative for collective bargaining and the order declaring petitioner guilty of an unfair labor practice in failing to negotiate with it must fall.

The Supreme Court, in N. L. R. B. v. Universal Camera Corp., supra, has defined the nature of our review under the present law as follows: " * * * Congress has left no room for doubt as to the kind of scrutiny which a court of appeals must give the record before the Board to satisfy itself that the Board's order rests on adequate proof. * * * courts must now assume more responsibility for the reasonableness and fairness of Labor Board decisions than some courts have shown in the past. Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function. Congress has imposed on them responsibility for assuring that the Board keeps within reasonable bounds." Consequently, in resolving this specific question of fact, in order to ascertain whether it "rests on adequate proof", it has been necessary to examine in detail those parts of the record submitted to us by the respective parties, bearing upon the question.

The most telling evidence in this respect came from Norgard's fellow-workmen. This employee worked in a small steel fabricating plant, where his labor was arduous. He was 68 or 69 years old and had developed a severe, long-standing case of arthritis. His doctor had advised him to cease work, and after September 26, 1950, he did no work. In the two weeks immediately preceding that date he talked with various of his fellow employees, who, so far as this record discloses, entertained no other than a...