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National Labor Relations Board v. Dan Howard Manufacturing Co.

January 12, 1968

NATIONAL LABOR RELATIONS BOARD, PETITIONER,
v.
DAN HOWARD MANUFACTURING COMPANY ET AL., RESPONDENTS



Kiley, Swygert and Cummings, Circuit Judges.

Author: Kiley

KILEY, Circuit Judge.

The Labor Board found*fn1 respondent (Company) guilty of violating Sec. 8(a)(1) and Sec. 8(a)(5) of the National Labor Relations Act, 29 U.S.C. Sec. 151 et seq., in interrogating, threatening, etc., employees, and in refusing to bargain with the Union.*fn2 The Board has petitioned for enforcement of its order that the Company cease and desist from the unlawful activity, post appropriate notices, and bargain collectively with the Union. We enforce the order with respect to the 8(a)(1) violation, but deny enforcement of the order to bargain with the Union.

The Company manufactures maternity clothing in Chicago, Illinois. The Union began an organizational campaign among the Company's production and maintenance employees in November, 1964, and claimed a majority on November 24, 1964. The Company answered December 3 that it was advised a representative election should be held to determine a majority. On December 28 the Union filed a petition with the Board for an election, and, on January 5, 1965, the Company consented to an election to be held January 21, 1965. On January 6, 1965, the Union formally demanded recognition as bargaining representative of the unit employees "notwithstanding the . . . election." It offered to submit its claimed majority of authorization cards to a verification check. The Company did not respond to the demand. The Union lost the January 21 election 28-16. The Union filed with the Board an objection to the election and a complaint charging various unfair labor practices by the Company. The Regional Director ordered the objections and charges consolidated for hearing upon the Trial Examiner's recommendation. After the hearing the election was set aside.

At the hearing several employees testified that during the campaign before the election the Company's co-owners Leibach and Kirsch interrogated them about the Union campaign, about who had signed cards, who was and who was not for the Union, and how the employees felt about the Union; and who was at a pre-election Union meeting. Leibach and Kirsch did not deny having conversations at the time the employees said they were had, but denied generally the improper interrogations. Kirsch specifically denied making statements to employees about getting rid of the employees who "were behind all of this," and the Union might ask for things the Company could not pay and "would have to close up."

The conflicts in the evidence were resolved against the Company, and we are bound by the credibility decisions of the Trial Examiner, adopted by the Board. We think the Examiner was not required to believe Leibach was merely making the reasonable oral verification of majority status, contemplated in Int'l Ladies' Garment Workers' Union v. NLRB, 366 U.S. 731, 739, 740, 6 L. Ed. 2d 762, 81 S. Ct. 1603. The Company was guilty of unlawful interrogation in this respect. This conclusion is not affected by the validity or invalidity of the Board's finding that the Union had a majority on January 6, 1965. Interference (Sec. 8(a)(1)) is not determined by success or failure of the Union drive.

We see no 8(a)(1) violation in an employer's speech which the Board argues carried a threat of the probability of a layoff should the Union be chosen. The reference was to a Union promise to the employees of a thirty-five hour, instead of a forty hour, week. The speech told the employees that if a thirty-five hour week was adopted the Company would likely employ more girls to do the work, as other shops had done, rather than pay time-and-a-half for overtime. We cannot accept this response to the Union promise as instilling in the employees "a fear of economic loss" interfering with Sec. 7 rights by threatening a layoff. P. R. Mallory & Co., Inc. v. NLRB, 389 F.2d 704 (7th Cir. 1967). The speech in NLRB v. Nabors, 196 F.2d 272 (5th Cir. 1952), justified the inference of violation there.

There is a substantial basis in the evidence for the Board's conclusion of 8(a)(1) violations in that the Company imposed a general "no solicitation rule" on the shop which was discriminatorily enforced against pro-Union employees by permitting others to solicit anti-Union "votes"; and that employee White in solicitation of anti-Union "votes" was acting for the Company. The question of employee White's agency was one of credibility. There is substantial evidence in the light of the Company's concurrent unlawful interrogation and discriminatory enforcement of the "no solicitation" rule to support an inference that the Company, after the Union demanded recognition, interfered with employee organizational rights by denying customary employee wage increases, despite the Company's claim that this was done on the advice of counsel that to grant the increases would be an unfair labor practice. The Trial Examiner could well infer on the record that but for the organization campaign the raises would have been given and that the motivation was anti-Union bias resulting in violation. Federation of Union Rep. v. NLRB, 339 F.2d 126, 129.

We hold that the record substantially supports that Board's decision that the Company violated 8(a)(1) by its interrogation of employees, by imposition of the discriminatory no-solicitation rule and by the withholding, on pretext that it would be an unfair labor practice, of customary employee raises.

The representative unit consisted of forty-five employees.*fn3 Before the Examiner the Board's General Counsel presented twenty-eight signed authorization cards in support of the 8(a)(5) violation charge. The cards are unambiguous and freely authorize the Union to "act exclusively as my . . . representative . . . for the purpose of collective bargaining." The Company challenged ten of these cards, the Examiner sustained objections to four, and the Board approved his decision. As it now stands, the Union holds twenty-four valid cards, a majority of the forty-five members of the unit. In this court the Company challenges six of the twenty-four cards. If two of the cards are invalidated the Union will lose its majority status. The cards challenged were signed by employees Wilson, Brown, Burdette, Cole, Pate and Smith.*fn4

We think the Board erred in adopting the Examiner's decision that the cards signed by employees Brown and Burdette were valid. In our opinion the record compels the conclusion that those two cards are invalid.

There is no question of credibility involved in our decision as to the validity of these cards, since the Examiner credited the testimony of both employees involved. The Examiner's error was in applying an erroneous rule of law with respect to each of the two employees.

The Examiner found that Union Agent Weiner misrepresented to employee Brown that a majority of employees had signed cards. He concluded however that because Brown did not make an effort to check the truth of Weiner's statement, the card "should be counted."

The Examiner acknowledged that if the holding in NLRB v. H. Rohtstein, 266 F.2d 407 (1st Cir. 1959), controlled, the card was invalid. The holding in Rohtstein is that where an employee signs an authorization card in reliance upon a union agent's misrepresentation that a majority of employees had signed cards, the card is invalid, at least when the employee cannot readily check the truth of the statement.

The testimony of the colloquy between Mrs. Brown and Weiner before the card was signed discloses that she was induced by him not to check with the "old girls" before signing.*fn5 And clearly she relied upon the misrepresentation about the majority when she signed, "to get rid" of Weiner before knowing anything about the Union. We find nothing in the factual situation before us that would indicate that the employee here could have determined the truth of the organizer's statement any more readily than could the employee in Rohtstein. We follow the Rohtstein holding as being the wholesome rule tending toward a more forthright solicitation of authorization cards.

We think the record also compels a conclusion that the Burdette card is invalid. The Board erroneously adopted the Examiner's decision with respect to this card again because of an incorrect view of the law. The Examiner credited employee Burdette's testimony that she signed the card under the mistaken impression that its sole purpose was to admit her to a meeting. This he decided did not invalidate the card, since he could find no "misrepresentation" on the basis of Burdette's testimony. The Burdette testimony in our view supports only the inference that she was told the card was meaningless and was led to believe that it was for attendance at a union meeting and for an opportunity to vote in a representative election.*fn6 The fact that the language of the card was unambiguous is of little significance in light of her testimony as to her conversation with Weiner and her testimony that she did not read the card nor did anyone read it to her.

The attorneys at the hearing, and the Examiner in his opinion, assumed that the "sole purpose" rule announced in NLRB v. Cumberland Shoe Corp., 351 F.2d 917 (6th Cir. 1965), required the use of the exact word "sole" or "only" by the organizer, when he represented that the purpose of the authorization card was to secure an election, in order to invalidate the card, and that this mechanical rule was the proper guide in determining card validity. The attorneys sought to elicit from employees by leading questions whether or not it had been stated that the "sole purpose" of the card was an election, i.e., whether the word "sole" or "only" was actually used; and the Examiner similarly assumed one of those words was needed. Recently the District of Columbia Circuit in NLRB v. Preston Products, 392 F.2d 801 (D.C.C. 1967), cited and purported to follow the Cumberland rule, interpreting that rule as mechanically requiring the use of the word "sole" or "only." The Second Circuit in NLRB v. Nichols Co., 380 F.2d 438, interpreted Cumberland in the same manner as did the court in Preston, but refused to follow Cumberland so interpreted. It held invalid authorization cards where procured by misrepresentations that gave employees the impression that they would have a right to vote on the Union and that their signature on the card was not a designation of the Union as their bargaining agent.

In the recent case of NLRB v. Swan Super Cleaners, 384 F.2d 609 (6th Cir. 1967), the Sixth Circuit, through Judge O'Sullivan, explained its decision in Cumberland, expressly disavowing the view that Cumberland held that the very word "sole" or "only" was needed to invalidate a card. The court adhered to Cumberland, saying that its rule is not offended by invalidating cards, no matter what style or wording was used by the organizer "if it is clearly calculated to create in the mind of the one solicited a belief that the only purpose of the card is to obtain an election." The court pointed out that it is relevant to consider the subjective intention of the signer and his expressed state of mind in deciding whether a misapprehension was knowingly induced.

We apply the restatement in Swan of the Cumberland rule and hold that "in its total context" the only reasonable inference that can be drawn from the Weiner-Burdette colloquy, as testified to by her, is that statements made by Weiner created in Burdette's mind a misapprehension as to what signing the card meant and that her signature on the card did not represent an intention to designate the Union as her bargaining agent. We do not view this as a departure from the holding in Happach v. NLRB, 353 F.2d 629 (7th Cir. 1965), a case relied on by the Board, since we interpret Happach in the same manner as the Sixth Circuit interpreted Cumberland in its opinion in the Swan case.

We hold both cards are invalid, there was no Union majority when recognition was requested, and no 8(a)(5) violation in not responding to the request. We need not therefore pass on the issue of "good faith" in refusing to bargain. The 8(a)(1) violations present here are concededly insufficient to support a bargaining order under the circumstances of this case.

The portion of the order based on the 8 (a)(1) violation will be enforced; and enforcement of the portion of the order based on the finding of an 8(a)(5) violation ...


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