UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
International Union of Electrical, Radio and Machine
Washington, Burger and McGowan, Circuit Judges. Burger, C.J., concurring.
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. § 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.
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 ...