July 18, 1963
NATIONAL LABOR RELATIONS BOARD, PETITIONER
SMALL TUBE PRODUCTS, INC., RESPONDENT.
Before GANEY and SMITH, Circuit Judges and AUGELLI, District Judge.
GANEY, C. J.:
The respondent points out in its petition for rehearing that the Union was certified by the Board in 1958 only. Our statement that it was certified also in 1960 was in error. However, it is obvious that our decision is not predicated on any reliance that the Union was certified in 1960.
On June 25, 1958, the Union was certified as the collective bargaining agent and two agreements were negotiated with the Company, one on September 15, 1958, and one on October 2, 1959, which was to run through October 1, 1960, and was extended by the parties to October 16, 1960. There can be no doubt since the Supreme Court's decision in Brooks v. NLRB, 348 U.S. 96, that when the Board certifies a Union as majority representative, its status is immune from challenge for one year and after that period an employer may refuse to bargain with the Union if it has "fair doubts" as to the Union's continuing majority. The Board's finding here that the Company did not have a good faith doubt of the Union majority is one of fact and, accordingly, is entitled to affirmance by this Court if it is supported by substantial evidence on the record, as adverted to in the Opinion of this Court of February 28, 1963. We there reviewed the facts of record up to October 28, the date on which the Respondent broke off relations with the Union by refusing to recognize it by withdrawal of Union recognition. While the facts there recited are sufficient to substantiate the Board's decision, since it is unnecessary to recite all the facts, showing it was not possessed of a good faith doubt as to the Union's majority status, we might add, in confirmance of the Board's decision, that of the fifty-three men who were on the Company's payroll as of October 16th, when the strike vote was taken, not a single one went to work on the 17th, nor did they return to work on any of the days up to and including October 28th, as testified to by Edward Oliphant, President and Treasurer of the Respondent. He further testified that up to the 28th of October - the date the Company refused to recognize the Union - he had gone into the plant daily and saw perhaps 20-25 employees of the Company on the picket line.
Accordingly, we confirm the finding of the Board that the Respondent did not have a good faith doubt in accordance with our Opinion of February 28, 1963.
It is Ordered that the Opinion of this Court filed February 28, 1963, be amended by deleting from page 2, paragraph 3, the following:
"The record discloses that the Board had certified the Union as the collective bargaining representative of respondent's production and maintenance employees on two separate occasions, once in 1958 and once in 1960, following which two successive collective bargaining agreements covering the employees were entered into between the respondent and the Union, the second of which expired on October 1, 1960."
and substituting therefor the following:
"The record discloses that the Board had certified the Union as the collective bargaining representative of respondent's production and maintenance employees in 1958, following which two successive collective bargaining agreements covering the employees were entered into between the respondent and the Union, the second of which expired on October 1, 1960."
The petition for rehearing is denied.
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