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05/13/65 International Union of v. National Labor

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


May 13, 1965

WORKERS, AFL-CIO, PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD, RESPONDENT. S.N.C. MANUFACTURING COMPANY, INC., INTERVENOR. NATIONAL

LABOR RELATIONS BOARD, PETITIONER

v.

S.N.C. MANUFACTURING COMPANY, INC., RESPONDENT 1965.CDC.76

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

International Union of Electrical, Radio and Machine

Cert. Denied, 382 U.S. 902 (1965).

APPELLATE PANEL:

Washington, Burger and McGowan, Circuit Judges. Burger, C.J., concurring.

PER CURIAM DECISION

In No. 18,745, the Union complains of the action of the National Labor Relations Board in dismissing part of its complaint against S.N.C. Manufacturing Company (the Employer). In No. 18,805, the Board seeks enforcement of its order against the Employer, finding that it had violated Sections 8(a)(1), 8(a)(2) and 8(a)(5) of the National Labor Relations Act, 29 U.S.C. ยง 158(a)(1)(2)(5). The Board's Decision and Order are reported at 147 NLRB No. 92 (1964).

The facts presented are very similar to those which were before us in Joy Silk Mills, Inc. v. National Labor Relations Board, 87 U.S. App. D.C. 360, 185 F.2d 732 (1950), cert. denied, 341 U.S. 914, 95 L. Ed. 1350, 71 S. Ct. 734 (1951), and our decision there is controlling here on most aspects of the case, as the Board recognized. We think there was sufficient evidence here to warrant the Board's conclusion under the principles stated in that case.

The Union complains that the Board erred in finding that the Employer did not violate Section 8(a)(1) when it reprimanded Employee Lewis, transferred Employee Hebert, and allegedly attempted to have Employees Shafer and Hebert retract certain statements previously given to Board agents. The evidence was not entirely clear. But the Board's decision was supported by substantial evidence; therefore, we do not consider ourselves justified in overturning the conclusions favorable to the Employer reached by the Trial Examiner and later by the Board.

The Employer's challenges to the Board's findings and conclusions appear to us to be without merit. In particular, the Employer argues that the Union waived its right to file refusal-to-bargain charges by its action in proceeding to an election. This may have been a valid position under the rule announced in Aiello Dairy Farms, 110 N.L.R.B. 1365 (1954). But the Board has now rejected that rule, and, we think, it was within its statutory authority in so doing. See Bernel Foam Products Co., 146 N.L.R.B. No. 161 (1964); National Labor Relations Board v. Stow Manufacturing Co., 217 F.2d 900 (2d Cir. 1954), cert. denied, 348 U.S. 964, 99 L. Ed. 751, 75 S. Ct. 524 (1955); National Labor Relations Board v. Howell Chevrolet Co., 204 F.2d 79 (9th Cir. 1952), aff'd, 346 U.S. 482, 98 L. Ed. 215, 74 S. Ct. 214 (1953); cf. National Labor Relations Board v. Seven-Up Co., 344 U.S. 344, 349, 97 L. Ed. 377, 73 S. Ct. 287 (1953); Dayton Typographical Union No. 57 v. National Labor Relations Board, 117 U.S. App. D.C. 91 at 104 ff., 326 F.2d 634 at 645 ff. (1963). And see Comment, 39 N.Y.U.L. Rev. 866 (1964).

The Board's decision and order are affirmed and their enforcement decreed.

So ordered. IN AGREEMENT

BURGER, C.J., concurring:

I agree that the record contains sufficient evidence to support the Board's conclusions that the union had a majority of the employees at the time of its demand for recognition and that the employer had no good faith reason to doubt that fact. The finding of a Section 8(a)(5) violation is accordingly sustainable.

However, a word is in order concerning the format of the authorization cards with which the union established its majority. Bold face type at the top of the form states "Petition and Authorization to Show That I WANT AN NLRB ELECTION NOW,"1 the capitalized sentence being set off in a box by itself underneath the preceding words. Two paragraphs in ordinary type follow, the first paragraph authorizing the union to petition for an election and the second authorizing it to act as bargaining agent. After lines for name and address, a box at the bottom sets off the words "Sign Here" and allows space for a signature.

This authorization card seems to me misleading; a less than studied reading of it might well leave the impression that it authorizes the union only to petition for an election. Moreover, this possibility of confusion is unnecessary. As Chief Judge Tuttle of the Fifth Circuit said only recently,

It would be very simple for the union to prepare a card that in an unambiguous form would authorize union representation as a bargaining agent. If the union also wished to have cards signed to call an election this would also be a very simple matter. There can be little excuse for combining the two in a card that makes possible . . . misrepresentation . . . .

NLRB v. Peterson Brothers, Inc., 5th Cir., 342 F.2d 221, 225 (1965) . Our observation in Joy Silk Mills v. NLRB, 87 U.S. App. D.C. 360, 371, 185 F.2d 732, 743, cert. denied, 341 U.S. 914, 95 L. Ed. 1350, 71 S. Ct. 734 (1950), that "an employee's thoughts (or afterthoughts) as to why he signed a union card, and what he thought that card meant, cannot negative the overt action of having signed a card designating a union as bargaining agent" should not be taken to license the use of misleading authorization cards. If such cards are to substitute for a secret ballot, their terms ought to be unmistakable. IN AGREEMENT FOOTNOTES

1 The following is a sample of an authorization card:

Petition and Authorization to Show That I WANT AN NLRB ELECTION NOW I, the undersigned, an employee of S.N.C. Manufacturing Company hereby

authorize the International Union of Electrical Radio and Machine Workers, IUE-AFL-CIO, to petition the National Labor Relations Board for an election as soon as possible.

I authorize the IUE-AFL-CIO to act as my bargaining agent with the company in regards to wages, hours and working conditions.

NAME (print) ... Grace Shafer ...

Date ... 2/20/63 ...

ADDRESS (print) ... R.R. 1 ... Van Dyne ...

City ...

Dept. ...

Shift ...

Day ...

Phone ... MU 8-2453 ...

Sign Here

/s/ Grace Shafer

19650513

© 2002 VersusLaw Inc.



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