Petition for Review of an Order of the National Labor Relations Board.
Before Sprecher and Wood, Circuit Judges, and Brown, Senior District Judge.*fn*
Montgomery Ward & Co., Inc. ("Wards" or the "Company") has appealed to this court for review of a Decision and Order issued by the National Labor Relations Board (the "Board") on November 4, 1980. The case arises from an attempt by the employees at a Greensburg, Pennsylvania, Montgomery Ward Credit Service Center to gain representation by the Amalgamated Food Employees Union, Local 590 (the "Union"). The Administrative Law Judge (the "ALJ") found that the Union obtained authorization cards from a majority of employees and that the Company, after receiving the Union's demand for recognition, committed numerous violations of the National Labor Relations Act in an effort to undermine the Union. He further found that a bargaining order was necessary to remedy the unfair labor practices. The NLRB affirmed the ALJ's findings.
The Union solicited authorization cards from employees at the Greensburg Credit Service Center beginning on July 2, 1979. The Union representative distributed cards to a number of employees to give to their fellow employees. On the afternoon of July 9, 1979, the Union representative presented a written demand for recognition as the bargaining representative of the employees at the Greensburg Credit Service Center. On July 10, 1979, Wards acknowledged the request and informed the Union that it would not recognize it as the bargaining representative.*fn1
On July 13, 1979, the Union filed a petition for an election. On the same date, the Union filed an unfair labor practice charge*fn2 alleging that Wards had, since July 9, 1979, restrained, coerced and interfered with employee rights. On September 10, 1979, the Union filed an amended unfair labor practice charge, which alleged a violation of section 8(a)(5) and which had the effect of blocking the election that was scheduled to be held on September 13, 1979. Subsequently, on November 1, 1979, the Union withdrew its election petition.
Following the issuance of a complaint on the basis of the Union's amended unfair labor practice charge, a hearing was held before Administrative Law Judge Maloney. He found that Wards had committed violations of section 8(a)(1) of the National Labor Relations Act. Specifically, the ALJ found that Wards' supervisors improperly discussed the Union during the pendency of the Union's election petition and that the Company granted a wage increase on July 11, 1979.*fn3 The ALJ also found that Wards violated section 8(a)(5) by refusing to recognize and bargain with the Union as the representative of the majority of the Greensburg employees.
The ALJ concluded that the Union represented a majority of the employees based on authorization cards procured by the Union's organizers. At the hearing, 41 cards were placed in evidence by the General Counsel. Two of the cards were not signed until July 10, the day after the Union made its recognition demand. The ALJ expressly found that it was unnecessary for him to consider the significance of those cards in determining the Union's majority status.
The ALJ also determined that Donita Pierce and Linda Ohr were employees on July 9 when the Union made its recognition demand. Pierce and Ohr were clerical employees at the Greensburg facility when the Union began its solicitation of authorization cards in early July, 1979. Pierce's last day of work was Tuesday, July 3. She had worked eight hours as scheduled on Monday, July 2, and Tuesday, July 3. She failed to show up for work as scheduled on Thursday, July 5; Friday, July 6; Monday, July 9; or at any time thereafter. As a result of her absence on July 5, she forfeited holiday pay for July 4.
Ohr's last day of work was also July 3. She had worked 6 hours on Friday, June 29; 6.8 hours on Saturday, June 30; 6.1 hours on Monday, July 2; and 4.2 hours on Tuesday, July 3. Like Pierce, Ohr forfeited her July 4 holiday pay when she failed to work on July 5. Neither woman ever contacted Wards to explain her absence.
Although the two women did not return to Wards after July 3, 1979, the ALJ reasoned that they were still employees of Wards on July 9. A Wards administrative personnel rule provided that employees who did not call in when absent would be carried on the personnel rolls for three days before being officially terminated. Moreover, the ALJ rejected the Company's contention that five of the 39 cards signed prior to July 9 were invalid. Wards argued that the five employees had been misled regarding the purpose of the cards. The ALJ concluded that Wards waived its right to object to the validity of three of the cards (signed by Wunderley, Ghrist, and Corn) when it failed to object to their introduction into evidence. He further found that statements made to the remaining two employees (Falkosky and Robinson) were not such as to invalidate their cards.
Consequently, the ALJ concluded that, as of July 9, the Union had acquired 39 valid cards. The ALJ further found that the office and clerical unit consisted of 74 employees. Thus, on the basis of his findings, the ALJ concluded that the Union had 39 signed cards out of the 74 employees, more than the number needed to establish majority status.
Having found that Wards violated section 8(a)(5) of the National Labor Relations Act by refusing to recognize the Union as the representative of the majority of the employees, the ALJ granted the General Counsel's request that Wards be ordered to bargain with the Union on the basis of the authorization cards. NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S. Ct. 1918, 23 L. Ed. 2d 547 (1969). The ALJ relied on the granting of the wage increase as the basis for concluding that it was unlikely that a fair election could be held.
In establishing the Union as the sole bargaining representative of the Greensburg employees, the Judge gave no weight to an employee petition prepared after the wage increase. Addressed to the Union and Wards, the petition stated:
We the undersigned are employees and eligible voters of Montgomery Ward Credit Office in Greensburg, Pa. We employees are petitioning a right to an election to determine if we choose to be represented by Local Union No. 590. This petition is in no way a commitment determining anyone's individual position on a vote.
We, therefore, strongly urge that our rights be restored, and an election be agreed upon by Local Union No. 590, and ...