Schnackenberg, Swygert, and Major, Circuit Judges.
This case is here upon petition of the National Labor Relations Board, pursuant to Sec. 10(e) of the National Labor Relations Act, as amended (29 U.S.C.A. Sec. 151 et seq.), for enforcement of its order issued against Laystrom Manufacturing Co. (respondent or company) on April 8, 1965. The Board's decision and order are reported at 151 NLRB No. 144. Respondent concedes that it is engaged in commerce, that the alleged unfair labor practice occurred in Chicago, Illinois, and that no jurisdictional question is presented.
The Board, contrary to its Trial Examiner, found that the company violated Sec. 8(a)(5) and (1) of the Act by withdrawing recognition from the Union (Tool and Diemakers Lodge No. 113, International Association of Machinists, AFL-CIO), after the close of the Union's certification year, on a claim of doubt as to the Union's majority status -- an asserted doubt which the Board concluded to be without any reasonable basis in the objective facts.
There is no dispute as to the evidentiary facts which, with the exception of the oral testimony of respondent's president, were stipulated. The Trial Examiner in his decision reviewed the facts and concluded that respondent had not violated Sec. 8(a)(5) and (1) of the Act and recommended that the complaint be dismissed. The Board in its decision and order, without taking issue with the findings as made by the Examiner, concluded, contrary to the Examiner, that the certified Union continued to represent a majority of the employees in the appropriate unit; that respondent, in March 1964, had no reasonable basis for believing otherwise, and that respondent, therefore, violated the Act as charged.
A brief statement of the facts, even though not in dispute, seems to be essential. On April 27, 1960, after an election, the Board certified the Union as the bargaining representative of respondent's toolroom employees. Following the Union's certification, respondent and the Union negotiated and established two successive one-year collective bargaining agreements. By its terms, the second contract would expire on June 1, 1962. On March 15, 1962, respondent filed a petition with the Board to conduct an election for the purpose of determining whether a majority of the toolroom employees still desired to be represented by the Union, and on June 1, 1962, an election was held. The tally of ballots showed seventeen cast for the Union, thirteen against, and two challenged. On June 11, 1962, the Board again certified the Union as the majority representative of respondent's toolroom employees.
On June 4, 1962, respondent and the Union entered into a collective bargaining agreement which, by its terms, would expire June 2, 1964. This agreement contained a "union security" clause which required membership in the Union as a condition of employment. On March 16, 1964, respondent notified the Union that it was terminating the agreement as of its scheduled expiration date and had filed a petition with the Board to conduct an investigation to determine whether the Union currently represented a majority of the toolroom employees.
One week later, on March 23, 1964, the Union filed a Charge, alleging that respondent violated the Act by its refusal to bargain. The Regional Director of the Board investigated this Charge, and on May 1, 1964, recommended that respondent bargain with the Union. On May 4, 1964, respondent advised the Regional Director that it could not enter into negotiations with the Union for a new agreement without giving the toolroom employees an opportunity to vote by secret ballot on whether a majority wanted continued representation. On May 7, 1964, respondent informed its employees of all the facts on which its "good faith doubt" of the Union's majority was based and why it could not accept the Regional Director's recommendation to bargain for a new agreement without first having the question of the Union's majority properly established. On May 22, 1964, respondent advised the Union in writing of its offer to enter into negotiations with the Union for a new contract, with the understanding that such agreement would not be signed until the Union's majority status was properly established. On May 29, 1964, the Union rejected respondent's offer.
Inasmuch as we agree with the Examiner's analysis of the situation as it relates to the good faith issue, as well as his conclusion in this respect, we think we can do no better than quote from his decision. He stated:
"* * * The close vote in the 1962 election, the stipulated fact that 16 of the 35 employees eligible to vote in that election had in the interim left their employment, and the union-shop provision are factors which, while perhaps not determinative, must be considered relevant and accorded due weight. * * *
"* * * So far as the record shows, no serious dispute between the parties has, until this proceeding, arisen and there is no evidence or claim that the respondent has ever interfered with or coerced employees in the exercise of their right to select their own bargaining representative. * * *
"Plainly the circumstances here described are not those which reasonably lead to the inference of 'bad faith.' Stipulations noted above show that the parties have negotiated, executed and presumably have administered three bargaining agreements, with no claim of bad faith in any respect. After the first two yearly contracts the Respondent asked for an election. There is no evidence that the Union objected to proving its majority status again, and it did so, although by a narrow margin. A 2-year contract was then executed -- one which required membership as a condition of employment.
"Toward the expiration date of the latest agreement the employer again asked for an election. This time the Union declined, apparently, and chose to stand fast on the union-shop requirement as proof that it was, and is, the lawful agent of all employees in the unit."
Thus, we have a situation where respondent and its employees had enjoyed an harmonious and friendly relationship for a period of four years. There is no evidence but that respondent during that period accorded the Union every right and privilege to which it was entitled under the Act. Two years previously respondent had expressed a doubt as to the majority status of the Union and had ...