Wilson Athletic Goods Mfg. Co. v. National Lab. Rel. Bd., 9370.

• Citation: 164 F.2d 637
• Decision Date: 18 November 1947
• Docket Number: No. 9370.,9370.
• Parties: WILSON ATHLETIC GOODS MFG. CO. v. NATIONAL LABOR RELATIONS BOARD.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

164 F.2d 637 (1947)

WILSON ATHLETIC GOODS MFG. CO. v. NATIONAL LABOR RELATIONS BOARD.

No. 9370.

Circuit Court of Appeals, Seventh Circuit.

November 18, 1947.

Richard C. Winkler and John L. Cockrill, both of Chicago, Ill., for petitioner.

Gerhard P. Van Arkel, General Counsel, A. Norman Somers, Ass't General Counsel, Fannie M. Boyls, Atty., David P. Findling, Associate General Counsel, Ruth Weyand, Acting Ass't General Counsel, and Thomas B. Sweeney, all of Washington, D. C., for respondent.

Before MAJOR and KERNER, Circuit Judges, and BRIGGLE, District Judge.

MAJOR, Circuit Judge.

This case is here upon the petition of Wilson Athletic Goods Mfg. Co., Inc., to review and set aside an order of the National Labor Relations Board issued against petitioner on April 30, 1947, pursuant to § 10(c) of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C.A. § 151 et seq. The Board in its answer to the petition requested enforcement of its order.

On July 30, 1946, the Board issued a complaint, alleging that petitioner had refused to bargain collectively with Textile Workers Union of America, C.I.O. (hereinafter called the Union). On August 5, 1946, petitioner answered, denying that it had engaged in any unfair labor practices. Following the usual proceedings, the Trial Examiner issued his intermediate report, finding that petitioner had engaged in the unfair practices charged. Thereafter, on April 30, 1947, the Board issued its decision and order adopting, so far as here material, the recommendations of the Trial Examiner, and ordered petitioner to cease and desist from its unfair labor practices, to bargain with the Union upon request and to post appropriate notices.

The jurisdiction of the Board is conceded, and it is not in dispute that the unit established by the Board for the purpose of collective bargaining was appropriate. The sole contested issue is whether the Union properly represented a majority of employees in an appropriate Union so as to entitle it to the right to bargain for such employees. The petitioner's contention is that the Union was not so entitled because it was certified to by the Board as the result of an election wherein the Union in a pre-election campaign used fraudulent, illegal and unfair methods for securing votes in such election.

Pursuant to a decision and direction of election (66 N.L.R.B. 263) issued by the Board, a secret election was held among petitioner's employees of an appropriate unit. The tally of ballot disclosed that there were 57 eligible voters, of whom 51 voted, and that 32 votes were cast in favor of and 19 votes against the Union. Petitioner filed no objections to the conduct of the election and on April 9, 1946, the Board certified the Union as the exclusive bargaining representative of all the employees within such unit. The Union on several occasions sought without success a conference with petitioner for the purpose of bargaining. On June 25, 1946, petitioner stated in writing that the "Union never did and still does not represent a true majority of the employees * * * due to the method used by the Union in its pre-election campaign to secure members." Again, on July 23, 1946, following the receipt of notice that the Union had filed an unfair labor practice charge, petitioner wrote the Board and gave substantially the same reason for refusing to bargain. It took the same position before the Trial Examiner and the Board, and now seeks to justify such position before this court.

It should be noted that there is no attack upon the manner in which the election was conducted. In fact, representatives of petitioner and the Union certified to the Board in connection with the report of the Regional Director concerning the election that "The undersigned acted as authorized observers in the counting and tabulating of ballots indicated above. We hereby certify that the counting and tabulating were fairly and accurately done, that the secrecy of the ballots was maintained, and that the results were as indicated above."

The Examiner, sustained by the Board, refused to admit...