Kawneer Co. v. National Labor Relations Board , 413 F.2d 191 ( 1969 )

McCREE, Circuit Judge.

This case is before us on a petition to review and set aside, and on a cross-petition to enforce an order of the National Labor Relations Board requiring petitioner to cease and desist from certain unfair labor practices and to bargain, upon request, with the Union.¹ The Board’s Decision and Order are reported at 164 NLRB No. 138 (1967).

Petitioner, Kawneer Company, manufactures electrical applicance parts. In the spring of 1964, the Union commenced an organization drive at petitioner’s plant in Cynthiana, Kentucky, where approximately 450 rank and file workers were employed. The Union used the familiar technique of attempting to secure majority status by obtaining employees’ signatures on “representation” cards. The Company responded with a vigorous anti-union campaign, described by the Board in its order:

The Trial Examiner found, and we agree, that the Respondent engaged in extensive and serious violations of Section 8(a) (1) during the course of its antiunion campaign, including interrogation of employees concerning their union sympathies and their attitudes toward unions, a grant of wage increase to an employee to induce him to vote against the Union, threats of reprisal for union activity, including loss of jobs and benefits, and coercion of employees into signifying their opposition to the Union. The Trial Examiner also found, and we agree, that Respondent violated Section 8(a) (3) by discharging employee Custer Pratt because of his activity as Union observer in the election. [Footnote omitted.]

In addition, the Board concluded, contrary to the findings of the Trial Examiner, that the Company had committed further violations of Section 8(a)(1) in a series of speeches delivered by management personnel during the course of the organization drive.

In reviewing the record as a whole we find substantial evidence to support the Board’s findings that the interrogations, threats, and other coercive activities, and unilateral and unusual wage increases, were in violation of Section 8(a)(1). We also find substantial evidence to support the Board’s finding that employee Pratt was discriminatorily discharged in violation of Section 8(a)(3). Accordingly, the Board’s order relative to these unfair labor practices will be enforced.

The Board’s order to bargain, however, presents a more difficult issue. The bargaining order was based on the Trial Examiner’s finding, which the Board adopted, that the Company unlawfully refused the Union’s request for recognition after a majority of the employees in the appropriate bargaining unit had designated the Union as their bargaining representative. Since we determine that the Union lacked a majority at the time it demanded recognition, we deny enforcement of the bargaining order.

During the early stages of its organization campaign the Union used a “white” authorization card, which contained the following:

[Front]

(Union) Authorization to UAW

(Seal) Date..........

I, .............. authorize UAW to represent me in collective

(Print Name) bargaining

(Address No. Street City Phone No.)

(Class of Work) (Clock No.) (Dept. No.) (Shift)

Employed by ..................................................

(Company) (Address)

(Signature of Employee)

This card is for use in support of the demand of UAW-AFL-CIO for recognition, or for an NLRB election.

(Over)

[Back]

Secret Ballot Election.

This card will be filed with the National Labor Relations Board to secure a secret ballot election conducted by Representatives of the United States Government.

This Card Is Confidential.

You have the support of one of the world’s largest and strongest unions . . . UAW-AFL-CIO.

Between 80 and 100 employees signed these white cards. However, on the advice of the Union’s legal department, the white cards were withdrawn in the midst of the campaign and a “blue” card was substituted. The new card had the same wording on its front as the original, but the last two lines had been deleted. The back of the blue card contained the primary change and read as follows:

This Card Is Confidential.

This card may be used to secure a secret ballot election conducted by Representatives of the U. S. Government, or to prove majority representation for recognition by the employer.

Secret Ballot Election.

You have the support of one of the world’s largest unions * * * UAW-AFL-CIO.

When the blue card was substituted, the Union’s organizer mailed blank blue cards to most of those employees who had previously signed white cards, and he enclosed the following letter of explanation :

I would like. to relate to you that our Legal Department has asked us to make a slight change in our Authorization Card that we have been using in our Union drives. The card that you signed was white and the new card we are using starting now is blue with the slight change on the back of the card. We have just received these cards and they have suggested that we use the blue card in this drive. Therefore, I have enclosed the blue card for you to sign and return to me in the self-addressed envelope, no postage as you can see is necessary.

I regret to cause you this trouble, but all you have to do is to sign the card and send it in just as soon as possible so that we might bring about your Union as quick as possible. We will return your white card to you for you to tear up as we will have no use for it if we receive your blue card * -x- #

By no means should you fail to go ahead and sign the blue card, it’s just one of the changes that is being made with the card and it happened during the signing of your cards.

-X- * * * * *

Thanking you in advance for your cooperation in respect to the signing of the blue card.” (Emphasis in original).

The resolicitation was successful and many of the 80 to 100 employees who had signed white cards returned signed blue cards to the Union organizer.

Some time in June, 1964 the Union decided that it had obtained valid signatures from a majority of the employees in the bargaining unit, and on June 19 the Union first demanded recognition and offered to prove its majority by submitting the signed authorization cards to a mutually acceptable impartial party. On June 27 the Company rejected this demand and informed the Union that it doubted the claim of majority status. The Union renewed its request for recognition on June 29 and again offered to submit the signed authorization cards to an impartial party. The Company did not respond to this second request, but the Trial Examiner treated its silence as another rejection. See Irving Air Chute Co., Inc. v. N. L. R. B., 350 F.2d 176, 181 (2nd Cir.1965).

On June 29, the date of the second demand, the Union also filed a petition for a representation proceeding. A Direction of Election was issued after the representation proceeding, and on September 23, 1964 the election was held. The Union lost by a vote of 196 to 189, and on September 29 unfair labor practice charges were filed.

In concluding that the Company unlawfully refused to bargain collectively with the Union, the Trial Examiner found that as of June 26 the Union had obtained 248 valid and voluntary authorization cards in a unit consisting of either 443 or 444 nonsupervisory employees. He further found that the Company’s refusal to recognize the Union after this date was not motivated by a good faith doubt and therefore constituted a violation of Section 8(a)(5).

Among the 248 authorization cards upheld by the Trial Examiner were 11 of the “white” cards originally used by the Union. The Trial Examiner validated these white cards because they were “identical” to those “upheld by the Board as valid ‘dual purpose’ cards” in The Shelby Mfg. Co., 155 NLRB No. 39 (1965). However, subsequent to the Trial Examiner’s decision, this court reversed the Board in Shelby and held that the card used there was ambiguous because it was “calculated to and did indicate a purpose to secure an election.” N. L. R. B. v. Shelby Mfg. Co., 390 F.2d 595, 596 (6th Cir.1968). Although our decision in Shelby was buttressed by the observation that the card solicitors represented to a number of employees that their purpose was to secure an election, it did not turn on this additional element. Nevertheless, we observe that there is evidence in this case that many card signers were told by the Union solicitors that these cards were for an election. Thus, the 11 white cards validated by the Trial Examiner must be discounted in deciding whether the Union had obtained valid signatures from a majority of the employees at the time it requested recognition.

Also among the authorization cards validated by the Trial Examiner were the approximately 80 to 100 blue cards that had been returned after receipt of the Union organizer’s resolieitation letter (previously quoted). In that letter requesting the employees who had signed white cards to sign the substituted blue card, the Union organizer represented that the “change” in the card was “slight”, amounting to little more than a change in color and an unimportant modification of the wording on the back of the card. In fact, however, the change converted an ambiguous authorization card² into an apparently valid dual purpose authorization card. Such a “change” in legal effect is more than “slight”, and therefore the organizer’s characterization misrepresented what had been accomplished.³ Accordingly, signatures obtained as a result of the re-solicitation letter also should not have been counted by the Trial Examiner in determining the Union’s majority status.

If the approximately 80 to 100 signatures obtained on resolicitation and the 11 signatures on the white cards are excluded, the Union falls far short of the 222 or 223 valid signatures needed to establish majority status in the bargaining unit. Therefore, the Board’s bargaining order based on the Union’s majority status at the time the Company refused to bargain collectively was improper and cannot be enforced. See Schwarzenbach-Huber Co. v. N. L. R. B., 408 F.2d 236 (2nd Cir., Mar. 5, 1969).

Enforcement is granted the Board’s order remedying the violations of Sections 8(a)(1) and 8(a)(3). Enforcement is denied the Board’s order that petitioner bargain upon request.

1 . International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW).

2 . See N. L. R. B. v. Shelby Mfg. Co., 390 F.2d 595, 596 (6th Cir. 1968).

3 . Of course, if the Union organizer’s characterization of the change was accurate, it may be that the blue cards, too, were ambiguous for the reason enunciated in Shelby, supra.