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11/13/69 Amalgamated Clothing v. National Labor

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


November 13, 1969

AMALGAMATED CLOTHING WORKERS OF AMERICA, AFL-CIO, PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD, RESPONDENT. WASHINGTON INDUSTRIES, INC. ET AL., INTERVENORS. MCEWEN

MANUFACTURING COMPANY, PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD, RESPONDENT 1969.CDC.288

Wright, Leventhal and Robb, Circuit Judges.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Date Reported: Cert. Denied March 23, 1970 at: 397 U.S. 988.

APPELLATE PANEL:

PER CURIAM DECISION

This appeal consolidates various competing petitions to review, modify, set aside, and enforce an order of the National Labor Relations Board holding that the McEwen Manufacturing Company had violated Sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act *fn1 during the course of an organizational campaign and representation election involving the Amalgamated Clothing Workers of America, AFL-CIO. The company seeks to set aside the finding of 8(a)(1) and 8(a)(5) violations and the Board order to bargain with the union. The union petitions for review of the Board's finding that McEwen and its parent, Washington Industries, Inc., were not joint employers under the Act; for review of the Board's decision that McEwen had lawfully established a nosolicitation rule; and to require the Board to order certain additional remedies. We reject these challenges to the Board's decision and enforce its order. I

The Board found that a letter and speech by McEwen's president to all employees just before the election warning that the plant might be closed if the union won, and the "extensive and widespread acts of interrogation and intimidation" of employees by company supervisors violated Section 8(a)(1). *fn2 After a careful review of the record, we find that substantial evidence supports this finding.

The company argues that in any event its Section 8(a)(1) violations may not serve as a predicate for the Board's order to bargain. The Supreme Court last term made it clear in NLRB v. Gissel Packing Co. *fn3 that "if the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order then such an order should issue . . .." *fn4 We find substantial evidence to support the Board's conclusion that the interrogation by company supervisors and the speech and letter from the company president made the holding of a fair election impossible. *fn5

The company, however, challenges the Board's finding that on May 28, 1966, the union had valid authorization cards from a majority of the employees. The company's basic contention is that some of the authorization cards were obtained by union misrepresentations, the signers being told that the "signatures were being obtained for the purpose of holding an election, [and] that the signer would have the opportunity to vote [for or against the union] at the election." Cards like those in question here which clearly and unambiguously designate the union as the signer's bargaining agent can be used to show a union's strength unless the union representatives in obtaining the cards "deliberately and clearly cancel[l] [the clear language of the card] with words calculated to direct the signer to disregard and forget the language above his signature." Since elections usually follow even when authorization cards are solicited, a representation that there will be an election does not of itself invalidate the cards. *fn6

The company also contends that the cards of 18 employees are invalid because those employees were never called before the trial examiner to identify their signatures. However, the courts have not imposed any requirement of authentication by the signer personally; testimony by one who witnessed the signature is adequate. Colson Corporation v. NLRB, 8 Cir., 347 F.2d 128, 134, cert. denied, 382 U.S. 904, 86 S. Ct. 240, 15 L. Ed. 2d 157 (1965). Fifteen of these cards were authenticated by people who witnessed their execution. The other three cards were properly authenticated by testimony that the signer had returned the card to the union agent, thus adopting as his own the signature thereon. *fn7

Since the Board properly concluded that the union did represent a majority of the employees on May 28, 1966, and that the company had made a free election impossible, under Gissel the Board was justified in issuing an order to bargain. II.

With respect to the points raised by the union, we affirm the Board's conclusion that the no-solicitation rule was lawfully established by the company in this case. The rule was admittedly valid on its face and on this record we cannot fault the Board's finding that it was not promulgated for a discriminatory purpose. See United Steelworkers of America v. NLRB, 129 U.S. App. D.C. 260, 262, 393 F.2d 661, 663 (1968). We reject also the union's claim that additional remedies are required. The Board's wide discretion to fashion appropriate remedies insulates its action in this case from judicial intervention. *fn8

Finally, the union asserts that McEwen and its holding company parent, Washington Industries, were joint employers under the Act and that the Board's order should also run against Washington Industries. Again, on this record we cannot fault the Board's disposition of this contention. See M. Lowenstein & Sons, Inc., 150 NLRB 737 (1964); compare Freda Redmond and Sir James, Inc., 147 NLRB 1025 (1964). This court, of course, remains open to deal with any interference with its enforcement order by persons not now parties to this proceeding. *fn9

Accordingly, the union's petition to review and modify is denied, the company's petitions to review and set aside are denied, and the Board's cross-application for enforcement is granted.

So ordered.


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