National Labor Relations Board v. Keystone Pretzel Bakery, Inc.

696 F.2d 257, 112 L.R.R.M. (BNA) 2349, 1982 U.S. App. LEXIS 22971

• Court: Court of Appeals for the Third Circuit
• Decided: December 29, 1982
• Docket: 81-2067
• Status: Published

Opinions

OPINION OF THE COURT

GIBBONS, Circuit Judge:

This case is before us on the application of the National Labor Relations Board pursuant to section 10(e) of the National Labor Relations Act, 29 U.S.C. § 151 et seq. (1976 Supp. V 1981), for enforcement of orders issued against Keystone Pretzel Bakery, Inc. on May 24, 1979 and June 2, 1981.¹ The Board found that the company violated sections 8(a)(1), 8(a) (3) and 8(a)(5) of the Act by engaging in activities aimed at discouraging union membership, and by refusing to bargain with a union having a membership card majority in the bargaining unit. As a part of its remedy the Board imposed a bargaining order. We enforce in full.

I.

Keystone is engaged in the production of pretzels at its Lancaster, Pennsylvania plant. The company, which employs about 40 people, was purchased in December 1976 by President Glen Hyneman and Secretary-Treasurer Horace Groff. Several months after that purchase, Bakery and Confectionary Workers International Union of America, Local 6, began organizing Keystone’s production and maintenance employees. By June 1, 1977 the Union had obtained authorization cards from seventeen employees in what it regarded as an appropriate bargaining unit of twenty-nine employees, and petitioned the Board for a representation election. No election was held, however, for on June 16, 1977 the Union filed an unfair labor practice charge with respect to Keystone's activities after its officers learned of the organizing effort. On August 31, 1977, the General Counsel filed a complaint and issued a notice of hearing. After a hearing an administrative law judge, on June 23,1978, found that Keystone had interfered, restrained and coerced employees in the choice of a bargaining representative, but that the Union had lacked authorization cards from a majority of an appropriate bargaining unit. Thus the administrative law judge did not recommend imposition of a bargaining order. The General Counsel, the charging party, and Keystone all filed exceptions, and the Board, rejecting Keystone’s exceptions, on May 24, 1979 made the first order for which enforcement is sought. That order finds appropriate a bargaining unit consisting of all full and part-time production and maintenance employees, excluding a truckdriver, office clerical employees, and supervisors. It finds that various forms of interference, restraint and coercion took place, and that those unfair labor practices were so substantial and pervasive that they disrupted the election process, thus precluding a fair election and warranting a bargaining order.

The Board petitioned this court for enforcement. In response, on September 9, 1980, Keystone moved pursuant to section 10(e) of the Act to remand to the Board in order to adduce additional evidence to the effect that changes in the membership of the bargaining unit since the union obtained its authorization cards would cast doubt upon the propriety of a bargaining order “at this late date.” On October 8, 1980 a two judge panel of this court granted that motion. The Board moved for reconsideration of that order by the court in banc, and on November 14, 1980 this court denied the Board’s motion, four judges dissenting.

On remand the Board notified the parties that they could file statements of position on the issues raised by the remand. Accepting as true the employer’s affidavit describing personnel changes in the bargaining unit, the Board concluded that no evidentiary hearing was required, and declined to withdraw its earlier bargaining order. Once again the Board petitioned for enforcement. Keystone resists enforcement, contending that: (1) there is insufficient evidence to support the Board’s findings of unfair labor practices; (2) the Board erred in defining the appropriate bargaining unit; (3) the Board erred in determining that a majority of the bargaining unit had authorized the Union to bargain on its behalf; and (4) the Board’s statement of reasons is insufficient to justify a bargaining order. We consider those contentions seriatim.

II.

Under section 8(a)(1) of the Act it is an unfair labor practice for an employer to interfere with, restrain or coerce in the exercise of the right of employees, guaranteed by section 7, to organize, and to bargain collectively through chosen representatives. The administrative law judge who heard the testimony found that Keystone had violated section 8(a)(1) by authorizing employee Douglas Shertzer to conduct surveillance of union activity and report, by coercively interrogating employees Ken Rohrer and Charles Swift, and by coercing employee Ken Hall to refrain from union activity. He also found that Keystone, with knowledge of the union activity, solicited and promised to resolve employee grievances, and grant benefits; conducted an employee meeting on a holiday, for attendance at which employees were paid, and conducted an employee poll at that meeting; and through President Hyneman expressed satisfaction at a negative vote. The administrative law judge also found that Keystone violated sections 8(a)(1) and (3) when it denied a pay raise to union adherent Hall, while giving a raise to a union foe, Schertzer. The Board adopted these findings.² We have reviewed the testimony, and conclude that the findings respecting these activities are amply supported. Moreover, they fully support the Board’s conclusion that Keystone engaged in a pattern of unfair labor practice reasonably tending to coerce or intimidate employees in the exercise of section 7 rights. See, e.g., NLRB v. Garry Manufacturing Co., 630 F.2d 934, 937 (3d Cir.1980); NLRB v. Eagle Material Handling, Inc., 558 F.2d 160, 165 (3d Cir.1977); Hedstrom Co. v. NLRB, 558 F.2d 1137, 1144 & n. 18 (3d Cir.1977); NLRB v. Armour Industries, Inc., 535 F.2d 239, 242 (3d Cir.1976); NLRB v. Triangle Publications, Inc., 500 F.2d 597, 598 (3d Cir.1974) (The test of coercion and intimidation is whether the misconduct is such that, under the existing circumstances, it may reasonably tend to coerce or intimidate employees in the exercise of rights protected by the National Labor Relations Act.)

III.

Under section 9(b) of the Act the Board has broad discretion in determining what is an appropriate bargaining unit. E.g., Allied Chemical Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 171, 92 S.Ct. 383, 393, 30 L.Ed.2d 341 (1971); NLRB v. St. Francis College, 562 F.2d 246, 248 (3d Cir.1977). Before the Board the parties were in agreement as to the inclusion of twenty-eight employees contended for by the General Counsel. Keystone objected to the exclusion of seven others. These included three bakers whom the administrative law judge found to be supervisors and thus excludable as a matter of law. 29 U.S.C. § 152(11) (1976). These findings as to supervisor status, approved by the Board, are supported by substantial evidence. The administrative law judge excluded from the bargaining unit a truckdriver, Russ Yoder, whose work was mostly outside the plant, on the ground that he lacked a community of interest with plant employees. In doing so he noted that the Union expressed a preference for Yoder’s exclusion, and that under Board precedent unrepresented truckdrivers may be either included in or excluded from a production and maintenance unit depending on the wishes of the petitioning union.³ The Board approved this determination. We find no abuse of discretion. Finally the administrative law judge found that Joanne Herbst, a part-time employee, first included in the General Counsel’s list, but later objected to as a casual employee, should be included. The Board approved her inclusion.

The unit approved by the Board, therefore, consisting of all full and part-time production and maintenance employees, excluding the truck driver, office clerical employees, and statutory supervisors, apparently included a stipulated list of twenty-eight people plus Joanne Herbst, a total of twenty-nine. Since the Board’s findings are supported by substantial evidence, the exclusion of three supervisors was required by law, and the exclusion of Yoder, the truck driver, was a matter within the Board’s discretion, we must approve the makeup of the bargaining unit.⁴

IY.

The General Counsel placed in evidence seventeen authorization cards (GC Exhibits 3-19). Since these comprise a majority of the twenty-nine members in the approved bargaining unit, Keystone urges that the Board erred in relying on them as evidence that the union could bargain for those members. The authorization cards are unequivocal. Each is on a printed form as follows:

LOCAL NO. 6

B. & C. W.I.U. of A. — AFL-CIO 5416 Rising Sun Ave. Phila. Pa. 19120-329-8933

I

Print Name (Date employed)

the undersigned, employee of the_

(Name of Company)

Home Address_Phone_

City-

hereby authorize the Bakery and Confectionery Workers Local No. 6 to represent me and, in my behalf, for the purpose of collective bargaining to negotiate and con-elude all agreements in respect to rates of pay, wages, hours of employment, or other conditions of employment.

Department-Shift-Job Title_

Signature of Employee-Date_

Each of the seventeen cards is filled in with the employee’s name and address, phone number, and job description, and each is signed by a Keystone employee. No objection is made about their authenticity.

Keystone offered no testimony impeaching the authorization cards. It makes two contentions with respect to the sufficiency of the General Counsel’s showing: that the General Counsel’s showing of authorization was legally insufficient, in that he failed to adduce testimony that each employee read the card before signing it, or that it was read to the signer; and that in any event, in the General Counsel’s own case, there is testimony impeaching the cards.

In appraising Keystone’s contentions, the starting point must be the Board’s decision in Cumberland Shoe Corp., 144 NLRB 1268 (1963), which holds that when a card states on its face that it authorizes collective bargaining it will be counted for that purpose unless it is established that the employee who signed it was told it would not be used for that purpose, but solely for another purpose. Under the Cumberland Shoe rule the General Counsel need do no more than produce duly authenticated cards authorizing collective bargaining. The Supreme Court has expressly approved the Board’s customary analysis of the consequences of signing such cards.

The customary approach of the Board in dealing with allegations of misrepresentation by the Union and misunderstanding by the employees of the purpose for which the cards were being solicited has been set out in Cumberland Shoe Corp., 144 N.L.R.B. 1268 (1963) and reaffirmed in Levi Strauss & Co., 172 N.L.R.B. No. 57, 68 L.R.R.M. 1338 (1968). Under the Cumberland Shoe doctrine, if the card itself is unambiguous (i.e., states on its face that the signer authorizes the Union to represent the employee for collective bargaining purposes and not to seek an election), it will be counted unless it is proved that the employee was told that the card was to be used solely for the purpose of obtaining an election.

NLRB v. Gissel Packing Co., 395 U.S. 575, 584, 89 S.Ct. 1918, 1924, 23 L.Ed.2d 547 (1968). This holding confirms that the General Counsel establishes a prima facie case of authority to bargain collectively by producing unequivocal authorization cards from a majority of members in the bargaining unit. The holding is consistent with the settled rule that an employer may rely upon such cards to recognize a union and enter into a collective bargaining relationship. NLRB v. Atlas Lumber Co., 611 F.2d 26 (3d Cir.1979); Eisenberg v. Hartz Mountain Corp., 519 F.2d 138, 143 (3d Cir.1975); Suburban Transit Corp. v. NLRB, 499 F.2d 78, 82-83, 85-86 (3d Cir.), cert. denied, 419 U.S. 1089, 95 S.Ct. 681, 42 L.Ed.2d 682 (1974); NLRB v. Air Master Corp., 339 F.2d 553, 556-57 (3d Cir.1964). Certainly an employer examining an unequivocal card authorization for collective bargaining is under no obligation to inquire beyond the four corners of the instrument before deciding to recognize a union holding authorization cards from a bargaining unit majority. When an employer, instead, refuses to recognize a card majority there is no reason why a higher burden of coming forward with proof of employee intention should be placed upon the General Counsel. There is no presumption that union adherents are any more likely not to read what they have signed than are members of the public at large. If they have signed an unequivocal authorization for collective bargaining they should, like anyone else, be presumed to have intended what the card says, absent proof of an unambiguous representation by the solicitor that the card will not be used for the stated purpose even if the employer should agree to bargain. Thus we reject Keystone’s contention that the General Counsel failed to establish a prima facie case of majority representation.

Keystone’s alternative contention, that the General Counsel’s evidence impeached the cards, is predicated on the testimony of union organizer Murray, with respect to three of them. With respect to a card signed by employee Kline, Murray testified on direct:

I asked her if she coud [sic] care to sign a card to bring an election in, for the purpose of negotiating a contract, to better the wages, working conditions, etc., the benefits and things of this nature. And she signed the card in front of me and her husband.

With respect to employee Geyer, Murray testified:

I told Mrs. Geyer that the purpose of the card was to bring a federal election in the plant, conducted by the National Labor Relations Board, for the purpose of negotiating a contract for wages, better benefits, working conditions and etc.

With respect to the Mays card the following colloquy occurred:

JUDGE SCHNEIDER: Mr. Murray, I understand that before Ms. Mays signed the card, you told her the purpose was to get a contract negotiated in the plant for better working conditions?

THE WITNESS: The purpose was to bring an election in the plant for contract negotiations, of better wages, working conditions and benefits, yes sir.

JUDGE SCHNEIDER: To bring an election in the plant?

THE WITNESS: Yes, sir.

On cross-examination Murray testified that he told every employee whose card was solicited that it would be used to get a board-supervised election at the plant.

Murray’s testimony about the purpose of the cards was certainly truthful, since authorization cards always have a dual purpose. If the employer refuses to recognize a card majority the cards may be used to obtain a representation election. But neither Murray nor any other witness testified that any signer was told that the sole purpose of the cards was to bring about a representation election. The Board found:

Murray’s statements that the cards would be used to get an election did not negate, and were not inconsistent with, the clear and unambiguous statement on the cards that the signers authorized the Union to represent them for the purposes of collective bargaining. We find nothing in the circumstances surrounding the solicitation of the cards which would indicate that Murray deliberately and clearly directed these employees to disregard the language on the cards, or otherwise assured them that their cards would be used for no purpose other than to get an election.

242 NLRB at 494.

Having so found, the Board relied on the cards as evidence that the Union represented a majority of employees in the bargaining unit. That holding is entirely consistent with governing precedent. In General Steel Products, Inc., which was consolidated with NLRB v. Gissel Packing Co., the Supreme Court observed:

In General Steel, the trial examiner considered the allegations of misrepresentation at length and, applying the Board’s customary analysis, rejected the claims with findings that were adopted by the Board and are reprinted in the margin.⁵

395 U.S. at 584-85, 89 S.Ct. at 1924-25. The Court ordered enforcement of a bargaining order in General Steel. In its first postGissel case considering the effect of unequivocal authorization cards this court observed:

In Gissel the Supreme Court upheld the Cumberland Shoe doctrine of the N.L. R.B. and held that evidence of intention in signing an unambiguous single-purpose union authorization card is not pertinent in the absence of evidence that the signing employee was clearly told that the sole purpose of the card was to bring about an election to determine the status of the Union. (Footnote omitted) (emphasis supplied).

NLRB v. Boyer Brothers, Inc., 448 F.2d 555, 561 (3d Cir.1971), cert. denied, 409 U.S. 878, 93 S.Ct. 132, 34 L.Ed.2d 132 (1972) (footnote omitted, emphasis supplied). That opinion explained, further, that “the teaching of Gissel is that the purpose of an employee in signing a card is conclusively presumed to be authorization of the Union to represent him if the card signed so states unambiguously and if no one has explicitly represented to him that the card has a different purpose.” Id. at 562. More recently, in Hedstrom Company v. NLRB, 558 F.2d 1137 (3d Cir.1971) (Hedstrom I), we held that cards of employees who were told that an election was a purpose of their cards were valid for determining majority representation. Only when a union adherent soliciting a card stated affirmatively “that the sole purpose of his signing an authorization was to get an election” could the card be disregarded. Id. at 1150 n. 34. The caselaw in other circuits is to the same effect.⁵

Under the governing caselaw, therefore, the testimony of organizer Murray on which Keystone relies to impeach the General Counsel’s prima facie case of majority representation is legally insufficient. The Board’s holding that a majority of the employees in the bargaining unit authorized the union to represent them is supported by the seventeen cards in evidence.

V.

Turning to the question whether the Board’s reasoning adequately supports a bargaining order based on a card majority, we note that this case falls within what this court customarily characterizes as a Gissel II case: a factual situation in which an employer has engaged in unfair labor practices, and those practices, while not so outrageous as to prevent the holding of a free election, nevertheless have a tendency to erode union support.⁶ A bargaining order in the Gissel II category requires, as we have found, that the union has a valid card majority. Thus for this case only two inquiries remain: whether the Board initially gave adequate reasons for its conclusion that a bargaining order was required, and whether it gave adequate reasons for concluding on remand that a bargaining order was still required despite the passage of time.

In its initial decision the Board justified a bargaining order as follows:

We further find that the unfair labor practices committed by Respondent warrant the issuance of a bargaining order in this case. The record shows that Respondent embarked on its course of unlawful conduct shortly after the Union’s organizational campaign began in April, when it engaged in surveillance and encouraged and authorized employee Douglas Shertzer to engage in surveillance. Respondent’s course of unlawful conduct continued through May, when Respondent unlawfully granted Shertzer’s wage increase, withheld Hall’s wage increase, continued its surveillance of union activities, and interrogated employees as to their union activities. Respondent’s unlawful activity culminated in the May 31 employee meeting, during which Respondent solicited and promised to satisfy employees’ grievances, promised and subsequently granted retroactively raises to almost all employees, and conducted an unlawful poll. We find that this campaign of serious and extensive unfair labor practices had the tendency to undermine the Union’s majority strength and impede the election process. In this regard, we agree with the Administrative Law Judge’s findings that in 1 week the Union’s support in the plant had been obliterated and that the result of the May 31 poll more reliably reflected the success of Respondent’s unfair labor practices than the employees’ uncoerced desires. We further find that the possibility of erasing the effects of Respondent’s unfair labor practices and of ensuring a fair election by the use of traditional remedies is slight. Therefore, for all the above reasons, we conclude that the employees’ sentiment, once expressed through authorization cards, would, on balance, be better protected by our issuance of a bargaining order than by traditional remedies.

242 NLRB at 494. This statement of reasons for the original entry of a bargaining order fully satisfies the requirements of intelligent judicial review and the legal standards for Gissel II bargaining orders articulated by this court. NLRB v. Permanent Label Corp., 657 F.2d 512 (3d Cir.1981) (in banc), cert. denied, 455 U.S. 940, 102 S.Ct. 1432, 71 L.Ed.2d 651 (1982).

In its supplemental decision following this court’s rémand order the Board considered whether evidence of employee turnover warrants modification of the original order and concluded that it did not. The Board reasoned:

Respondent’s unfair labor practices, as summarized in the Board’s original Decision, included conduct which, in the Board’s experience, tends to have a continuing effect on employee freedom of choice long after the conduct has ended. Thus, upon learning through an unlawful solicitation of grievances that its failure to give pay raises was a major source of employee discontent, Respondent promptly raised the pay of virtually every unit employee. Such an unprecedented pay raise in the midst of a union campaign has been found to be particularly coercive because it eliminates “the very reason for a union’s existence.” That effect was further heightened in this case because the pay raise followed — and rewarded— the employees’ “vote” in an unlawful poll which revealed that Respondent’s unlawful campaign had been so successful that not one employee indicated support for the Union. Thus, the lesson to be learned by Respondent’s employees was that the rejection of a union was the means by which to assure the receipt of improved wages and benefits. A corollary to this lesson, which has been recognized by the Board and courts, is that the employees’ departure from this preferred antiunion stance may result in the withholding of benefits in the future.⁸ Such a lesson, once learned, is not forgotten quickly but continues to exert a restraining influence on employee free choice.

Nothing in the evidence presented by Respondent indicates that the employee turnover since the election has vitiated the effect of these unfair labor practices. Thus, nearly half of the current employees were employed while Respondent was engaged in its campaign of surveillance, interrogation, solicitation, and the implied promise to remedy grievances, and the actual grant of benefits as a reward for their rejection of the Union. Further, all 14 of the current unit employees who were in Respondent’s employ at the time of the unfair labor practices received the pay raise which we have found to be unlawful. Thus, a substantial portion of the current employee complement was not only in a position to be aware of Respondent’s unlawful actions, but, in fact, was subjected to such unlawful conduct. Finally, Respondent’s conduct remains unremedied and at no time has Respondent given assurances to its employees that such conduct will not recur.

We further find that the passage of time from the date of Respondent’s unlawful conduct has not rendered a bargaining order inappropriate. Assuming, arguendo, that Respondent is correct in alleging that a majority of its employees no longer supports the Union, any current expression of employee sentiment is necessarily tainted by the lingering effect of Respondent’s unfair labor practices. In any event, the Board and courts have long held that a union’s loss of majority status following the commission of unfair labor practices by an employer sufficient to warrant the issuance of a bargaining order does not require a change in the Board’s remedial order, for “a requirement that union membership be kept intact during delays incident to hearings would result in permitting employers to profit from their own wrongful refusal to bargain.”^{8 9} The delay in the Board’s issuance of its Decision and in seeking enforcement of its Order in this case, while regrettable, does not alter our conclusion in this regard. Such delay has in no way diminished the coercive effect of Respondent’s serious and extensive unfair labor practices. Further, we find that Respondent has suffered no prejudice from the delay and note that Respondent at all times had the option, which it chose not to exercise, of seeking court review under Section 10(f) of the Act.¹⁰

256 NLRB at 335-36 (footnote 7 omitted). Plainly, the Board has disclosed to us the reasons for its reaffirmation of the appropriateness of a bargaining order. As we noted in Hedstrom Co. v. NLRB, 629 F.2d 305, 311 (3rd Cir.1980) (en banc) (Hedstrom II), cert. denied, 450 U.S. 996, 101 S.Ct. 1699, 68 L.Ed.2d 196 (1981), once those reasons have been articulated our role is to do no more than determine whether the Board, in effectuating the policies of the Act, has acted within the bounds of its broad discretion in adopting remedies to the needs of the situation before it. Indeed we can discern no legally significant distinction between the situation presented in this case and that which we considered in Hedstrom II.

Thus we reject Keystone’s challenge to the adequacy of the Board’s statement of reasons for issuing a bargaining order and for declining to modify its order because of the passage of time.

VI.

The Board’s order will be enforced in full.

1 . The orders are reported at 242 NLRB 492 (1979) and 256 NLRB 334 (1981).

2 . The Board also found that a remark made by Hyneman to employee Rohrer, “Here is your check, union steward,” was a section 8(¿)(1) violation, although the administrative law judge who heard testimony about the incident considered the remark to be jocular and thus not coercive. Since there is ample evidence in the record sustaining the Board’s other unfair labor practice findings, we need not resolve Keystone’s objection to this one.

3 . See Pacemaker Mobile Homes, 194 NLRB 742 (1971); Fayette Manufacturing Co., Inc., 193 NLRB 312 (1971); Marks Oxygen Co., 147 NLRB 228 (1964).

4 . We do not reach the question whether the Board’s exclusion of Leroy Hyneman and Michael Boaman from the bargaining unit was, considering their close identification with management, an abuse of discretion.

5 “Accordingly, I reject Respondent’s contention ‘that if a man is told that his card will be secret, or will be shown only to the Labor Board for the purposes of obtaining election, that this is the absolute equivalent of telling him that it will be used “only” for purposes of obtaining an election.’ ...

“With respect to the 97 employees named in the attached Appendix B Respondent in its brief contends, in substance, that their cards should be rejected because each of these employees was told one or more of the following: (1) that the card would be used to get an election (2) that he had the right to vote either way, even though he signed the card (3) that the card would be kept secret and not shown to anybody except to the Board in order to get an election. For reasons heretofore explicated, I conclude that these statements, singly or jointly, do not foreclose use of the cards for the purpose designated on their face.”

5 . E.g., L’Eggs Products, Inc. v. NLRB, 619 F.2d 1337, 1349 (9th Cir.1980) (Board did not err in finding that statement, “[I]f we got a majority, that we would have an election.... We have to have an election in order to get the union in,” was not a statement that card was to be used solely to get an election); Tipton Electric Co. v. NLRB, 621 F.2d 890, 895 (8th Cir.1980) (“Here, as in Gissei, the employees were told that if sufficient cards were signed, an election would be made possible but the totality of the circumstances surrounding the card solicitation was not such as to add up to an assurance to the signers that the cards would be used for no other purpose than to help get an election”); Red Oaks Nursing Home, Inc. v. NLRB, 633 F.2d 503, 508 (7th Cir.1980) (“[a] union representative told him that the card was ‘to form a committee so there could be an election.’ Although this incomplete explanation of the card approached the outer limit of valid solicitation, the union representative did not refute the unambiguous language of the card....”).

6 . See Hedstrom Co. v. NLRB, 629 F.2d 305 (3d Cir.1980) (in banc), cert. denied, 450 U.S. 996, 101 S.Ct. 1699, 68 L.Ed.2d 196 (1981). Compare United Dairy Farmers Cooperative Association v. NLRB, 633 F.2d 1054 (3d Cir.1980).

8 See, e.g., N.L.R.B. v. Exchange Parts Company, 375 U.S. 405, 409, 84 S.Ct. 457, 459, 11 L.Ed.2d 435 (1964). Respondent’s willingness to retaliate against employees who supported the Union is exemplified by its action in withholding a wage increase from employee Hall in violation of Sec. 8(a)(3) of the Act.

9 Franks Brothers Company v. N.L.R.B., 321 U.S. 702, 704, 64 S.Ct. 817, 818, 88 L.Ed. 1020 (1944). See also Hedstrom Co. v. N.L.R.B., 629 F.2d 305, 321 (3d Cir.1980), N.L.R.B. v. L.B. Foster Company, 418 F.2d 1, 4, 5 (9th Cir.1969), cert. denied 397 U.S. 990, 90 S.Ct. 1124, 25 L.Ed.2d 398 (1970), and Gibson Products Company of Washington Parish, La., Inc., 185 NLRB 362 (1970).

10 See N.L.R.B. v. Pool Manufacturing Co., 339 U.S. 577, 581, 70 S.Ct. 830, 832, 94 L.Ed. 1077 (1950), where the Court in similar circumstances stated, “The employer, who could have obtained review of the Board order when it was entered, [Section] 10(f), is hardly in a position to object.”