National Labor Relations Board v. Mink-Dayton, Inc.

416 F.2d 327, 72 L.R.R.M. (BNA) 2232, 1969 U.S. App. LEXIS 10756

• Court: Court of Appeals for the Sixth Circuit
• Decided: September 17, 1969
• Docket: 18605_1
• Status: Published

Opinions

McCREE, Circuit Judge.

This case is before the court upon the petition of the National Labor Relations Board for enforcement of its order against respondent. The Board’s Decision and Order are reported at 166 NLRB No. 79 (1967).

Respondent, Mink-Day ton, Inc., is located in Dayton, Ohio and is engaged in the design and fabrication of metal products. Since 1961 it has been the object of at least four organizational campaigns conducted by three different unions. During 1961-62 the UAW¹ distributed literature and solicited signatures on authorization cards, but apparently failed to obtain enough cards to petition the Board for an election. Beginning in September, 1962, the IUE² solicited signatures on authorization cards and in December of that year it requested recognition, claiming to represent a majority of respondent’s employees. Respondent refused to recognize the union and in an election held on January 31, 1963 the IUE was defeated by a vote of 61 to 24. In the fall of 1964 the Sheet Metal Workers International Association began distributing literature and by January 13, 1965 had requested recognition as the employees’ bargaining representative. Once again respondent declined and suggested an election. The election was held on February 5, 1965 and the union was defeated by a vote of 33 to 27. Less than a year later the Sheet Metal Workers again inaugurated an organizational drive, and this last campaign spawned the present litigation.

On February 7, 1966 the union sent respondent a telegram in which it claimed to represent a majority of the company’s employees and requested recognition for the purpose of engaging in collective bargaining. The company president responded the same day and, citing past experience with requests for recognition based on authorization cards, declined to recognize the union. One week later the union filed a petition for an election with the Board. The hearing on the petition was held on March 15, 1966 and a Direction of Election was issued by the Regional Director. Prior to the hearing, a union representative mentioned to respondent’s president the union’s desire to negotiate, but apparently received no immediate response.³

The election was held on May 13, 1966 after a spirited campaign and the union was defeated by a vote of 39 to 38. Thereupon, the union filed unfair labor practice charges with the Board, in which it alleged violations by the company of Sections 8(a) (1) and 8(a) (5) of the National Labor Relations Act as amended, 29 U.S.C. §§ 158(a) (1) and 158(a) (5).

The Board, which adopted the findings and conclusions of the Trial Examiner, found that on February 7, the date of the union’s first demand for recognition, the union possessed only 44 valid authorization cards for a unit consisting of 89 employees. However, the Board also found that the remarks of the union representative prior to the hearing on March 15 constituted another request for recognition, and that at this date the union had obtained 52 valid authorization cards. The Board concluded that the company’s refusal to recognize the union on this latter date⁴ was not motivated by a good faith doubt with regard to the union’s majority status but rather by a desire to gain time within which to thwart the union’s organization efforts, and that the company’s action therefore constituted a violation of Section 8(a) (5). In addition, the Board found that the company had engaged in various practices during the election campaign that violated Section 8(a) (1). The Board ordered the company to cease and desist from the unfair labor practices, to bargain with the union upon request, and to post appropriate notices.

The Section 8(a) (1) violations engaged in by the company consisted primarily of thinly veiled threats that unionization would result in the curtailment of existing benefits, the postponement of future benefits and the crea-

tion of more restrictive working conditions. The company contends that the statements in question were merely predictions of the economic consequences of unionization and therefore protected by Section 8(c).⁵ We find, however, substantial evidence in the record considered as a whole to support the Board’s conclusion that these statements contained suggestions of economic reprisals on the part of the company and were more than mere predictions. In deciding whether statements are entitled to the protective cloak of Section 8(c) we:

“must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear.” N.L.R.B. v. Gissel Packing Co., Inc., et al., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969).

The more difficult issue concerns the Board’s finding of a Section 8(a) (5) violation and issuance of a bargaining order. Initially, the company objects to the Board’s ruling that the union representative’s statements prior to the March 15 hearing constituted a request for recognition. A review of the record, however, discloses substantial evidence to support the Board’s finding that the representative adequately conveyed to the company president the union’s desire to negotiate as the employees’ bargaining agent. Moreover, there is also substantial evidence to support the Board’s finding that at the time of this request for recognition the union possessed valid authorization cards from a majority of the employees.

Accordingly, the decisive issue is whether the company still could refuse to accede to the union’s request for recognition as of March 15. The Board decided this question prior to the Supreme Court’s ruling in N.L.R.B. v. Gissel Packing Co., Inc., et al., 395 U.S. 575, 89 S.Ct. 1918 (1969), and its determination that the refusal was unlawful was based on a finding that the company’s action was not motivated by a good faith doubt of the union’s majority status but rather by a desire to gain time within which to undermine the union’s support. In Gissel Packing, however, the Supreme Court decided that an employer’s subjective motivation in rejecting a request for recognition is “largely irrelevant.” The important inquiry in determining the legality of a refusal to bargain is whether the employer has committed serious unfair labor practices which tend “to undermine majority strength and impede the election process.” 395 U.S. at 614, 89 S.Ct. at 1940. If the employer’s violations are such that the “possibility of erasing the effects * * * and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight,” the finding of a Section 8(a) (5) violation and issuance of a bargaining order are justified. Id. 395 U.S. at 614, 89 S.Ct. at 1940. On the other hand, there is “no per se rule that the commission of any unfair practice will automatically result in a § 8(a) (5) violation and the issuance of a bargaining order.” Id. 395 U.S. at 615, 89 S.Ct. at 1940 (emphasis added).

We cannot be certain that the Section 8(a) (1) violations committed here are the type that would be likely to preclude the holding of a fair rerun election and therefore support a finding of an unlawful refusal to bargain and the issuance of a bargaining order. We therefore remand this case to the Board for reconsideration and further findings in light of Gissel Packing.

The Board’s order with respect to the violations of Section 8(a) (1) is enforced and the ease is remanded for further consideration of the alleged violation of Section 8(a) (5).

1 . United Automobile, Aircraft and Agricultural Implement Workers of America.

2 . International Union of Electrical, Radio and Machine Workers.

3 . During the course of the hearing the company made it clear that it still declined to recognize the union.

4 . See note 3, supra.

5 . Section 8(c) of the NLRB as amended, 29 U.S.C. § 158(e), provides: “The expressing of any views, argument, or opinion, * * * shall not constitute or be evidence of an unfair labor practice * * * if such expression contains no threat of reprisal * *