Crawford Manufacturing Co., Inc. v. National Labor Relations Board, Amalgamated Clothing Workers of America, Afl-Cio, Intervenor , 386 F.2d 367 ( 1967 )

ALBERT V. BRYAN, Circuit Judge:

The National Labor Relations Act, 29 U.S.C. § 151 et seq., was breached, the Board has found, by the Crawford Manufacturing Company, Inc. at its plant in Emporia, Kansas, in this conduct: interfering with employees in the exercise of their right to organize; discouraging membership in a union by discriminatory lay-offs; and inexcusably refusing to bargain collectively with Amalgamated Clothing Workers of America, AFL-CIO, as the exclusive representative of the Crawford employees.¹ These acts were laid, respectively, as offending Sections 8(a) (1), 8(a) (3) and 8(a) (5) of the Act.²

To effectuate these findings, the Board ordered the employer to desist from further interference and discrimination; to make reparation for the layoffs ; and to bargain with the union. On the parties’ cross-petitions, we must say whether substantial evidence on the whole record sustains the Board’s condemnation of the employer on all counts. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). The interference is adequately proved, we think, but not the discrimination in the lay-offs. Nor do we think Crawford should have been ordered to bargain with the union, for it was not substantially proved to be the employees’ representative.

A drive to bring into the ACWA the 172 production and maintenance employees of Crawford at Emporia was opened in December 1964. On January 7, 1965 Jay Dee Patrick, a national representative of the AFL-CIO, distributed folders, each including an application to join, as the workers entered the plant parking lot. The following day General Manager Jones addressed employees from a prepared text, listing the benefits they were receiving from the company and expressing opposition to any unionization.

On January 12 the employees met for the first time for a discussion of the ACWA, with about 75 present. Patrick and Edward Bonitt, a national representative of ACWA, addressed them, explained the structure of the local and national organizations, and at the same time noted a number of advantages of a union. Membership application cards were distributed; an organizing committee was appointed and met with Patrick and Bonitt after adjournment. At the committee meeting questions and answers about the ensuing campaign were exchanged.

By January 18 the union had obtained more than 100 signed cards. On that day Patrick wrote the company stating that a majority of the production, shipping, receiving and maintenance employees had designated ACWA as their collective bargaining agent. He requested an opportunity to demonstrate this authorization and to negotiate a contract on behalf of the employees. The company replied, in a letter dated January 20, that the matters submitted by the Creditor-should be “processed through the National Labor Relations Board.” During the two days before this reply, the company sent a letter to each employee and issued releases, reiterating the perquisites provided by the company and questioning the advisability of bringing in a union.

The union was busy too. On January 19 Patrick told a gathering of some 72 employees, that with authorization cards in hand he had demanded union recognition from the company. At the same time he had lodged with the National Labor Relations Board a petition for an election, anticipating the company’s denial of his demand. On the later hearing of the union’s petition the company assented to a Board-conducted election for March 26. A spirited campaign followed, with arguments and solicitations presented in letters and leaflets. On the final tally the union lost, 69 to 86, with 8 votes challenged.

The complaint in this case, issued on June 18, 1965, charged the company with unfair labor practices in the campaign, consisting of coercive threats and interrogation sufficient to invalidate the election, and indicted the company for refusing to recognize the union as the employees’ representative on the basis of the signed cards.

Section 8(a) (1) Infractions

Confirming its examiner, the Board found that Supervisor Drum-wright questioned certain employees about the union meetings and made anti-union remarks. It found also that Superintendent Jenks called two of the organizing committeemen into his office in the early part of March 1965 and impressed upon them the possibility of the loss of current benefits should the union succeed in the election. He engaged other employees in similar conversations. These instances are illustrative of the conduct disapproved by the Board and warranted, we think, the Board’s findings of interference and coercion transgressive of Section 8(a) (1).

Section 8(a) (8) Infractions

On February 19, 1965, the day after the consent election had been arranged for March 26, 8 employees from various plant departments were laid off. The reason given by the company was a slack period of work. It said, too, that these employees held the lowest seniority and would be recalled as soon as practicable. All but one had signed a union card, and all were called back soon after the election. Three of the 7 returned; the others did not, one because he had entered military service.

The Board rejects the justification offered by the company, particularly in view Defendant-Apthe union sympathies of the men and the anti-union disposition of the employer. However, we see no acceptable basis for this discredit of the company. Its officers testified to the business slump and cited company records in corroboration. We discern no falsification here. Even if mistaken, it was a managerial judgment not impeached as mala fide. None of the suspended employees were replaced by male substitutes, although some additional female workers were taken on during the lay-off. Those . released had not been hired for more than four months before, and indisputably their seniority was lower than that of any other workers.

Section 8(a) (5) Infraction — Refusal to Recognize the Union

Acknowledgment of its representation, the union forcefully argues, was required of the company when at least 100 and possibly 105 of the total of 172 employees had on or before January 20, 1965 signed membership applications, and the company advised of this majority. Each of the cards reads as follows:

APPLICATION FOR MEMBERSHIP in the Amalgamated Clothing Workers of America, AFL-CIO 1627 LOCUST ST. ST. LOUIS, (3), MO. CEntral 1-9329

I, the undersigned, hereby apply for membership in the Amalgamated Clothing Workers of America, and do hereby appoint and authorize the officers thereof, to represent and negotiate for me in all matters, pertaining to wages, hours and other conditions of employment.

Name (Please sign) :...............

Address: .........................

Telephone Number:......Date: ....

Company: ........................

Department:......Operation:.....

The company contends that these cards did not count because they were signed under a misrepresentation of the union: that the purpose of the card was only to have an election to determine whether the employees desired the union to become their bargaining representative. It was not understood by the employees, the company urges, as an immediate authorization to the union to act as their collective agent. The Board has in the past quite frankly conceded that a card signed under the representation that its sole purpose was to obtain an election should not be accepted as an appointment of the union. Bauer Welding and Metal Fabricator’s, Inc. v. NLRB, 358 F.2d 766, 775-776 (8 Cir. 1967).

The company’s position is supported by the findings of the Board’s examiner. From an experienced feel of the evidence in the case, he sensed that the employees misunderstood the meaning of the cards.

Adverting to the first meeting of the employees, January 12, he said:

“In answering questions Patrick assumed that the Company was going to insist upon an election and consequently made frequent references to the election. These references to the election which Patrick anticipated would be held and his explanation that in the election, no one would know how he voted, neither the Union, the Company, nor their fellow employees would know, I find, were interpreted by some of the employees at the meeting as indicating that the cards would be used only for the purpose of obtaining an election. There is much testimony concerning whether Patrick did or did not make such statements at this meeting. * * * ” (Accent added.)

Again, to the organizing committee Patrick’s statements were to the following effect, the examiner noted:

“Patrick answered, I find, that the cards would be used first to obtain an election, that the signers of the cards would not be joining the Union at this time, that this would be deferred until after the Union had won the election and had succeeded in negotiating a contract satisfactory to the employees. * * * ” (Accent added.)

Still again he observed:

“As indicated above, I further find accordance with the testimony to which I have referred, that when at the subsequent meeting of the organizing committee the question was raised as to the binding effect of the cards, Patrick explained that the cards would be used first to obtain an election, that the signers of the cards would not be joining the union at this time, that this would be deferred until after the Union had won the election and had succeeded in negotiating a contract satisfactory to the employees. In making this finding I do not wish to imply that Patrick conveyed this idea to all his hearers without any confusion on their part. It is clear to me that much confusion existed in the minds of the employees, including some members of the organizing committee, and that some genuinely believed that Patrick had expressly stated that the cards would be used only for the purpose of ■ an election and no other purpose. * * * ” (Accent added.)

At the very least, the findings of the examiner and the testimony of the employees make an issue of whether the cards were signed as a power to the union to act for the employees. Put the other way, the issue is made whether the cards were signed solely to procure an election.

On the question whether the cards evidenced an intentional and intelligent authorization by a majority of the employees to the union to represent them, we think the burden of proof was on the General Counsel of the Board. Engineers & Fabricators, Inc. v. NLRB, 376 F.2d 482, 487 (5 Cir. 1967); Peoples Service Drug Stores, Inc. v. NLRB, 375 F.2d 551, 556, 557 (6 Cir. 1967). Regardless of where the burden lay, we are obligated to scrutinize the entire record and ascertain whether there is substantial evidence for the Board’s finding here that the union, when it demanded recognition, was representing a majority of the employees. National Can Corporation v. NLRB, 374 F.2d 796, 804 (7 Cir. 1967).

The examiner here stated, with ample justification, that there was considerable confusion: some employees thought that by signing the cards they were only calling for an election, and others were confused by the union’s representations as to the significance of the cards. Actually, if we spell out of the cards the meaning attributed to them by the examiner — a dual purpose, first the call of an election and then admission to membership — the doubt still lurks, for even then the applicant’s membership is, in his own mind, conditioned on a union victory in the election. Proof of such a prevalent and pervading misconception when generated by the union organizers’ representations cannot be ignored. It is not decisive that the cards in their terms contained no suggestion that they signified anything less than a direct grant of authority for the union to act as collective agent for the employees. Despite the regard we hold for the contrary opinion, e. g., NLRB v. Cumberland Shoe Corp., 351 F.2d 917, 920 (6 Cir. 1965) and cases there cited, we will not stick mechanically to the literal phrasing of the cards. A ghost of the parol evidence rule, such literalism subordinates Bernheim,¹ Intervenor-counts: the actual understanding of the signers. As was said in NLRB v. Winn-Dixie Stores, Inc., 341 F.2d 750, 754 (6 Cir. 1965), cert. den. 382 U.S. 830, 86 S.Ct. 69, 15 L.Ed.2d 74:

“The decisions of the Board as well as the opinions of the courts place more emphasis upon the representations made to the employees at the time the cards were signed than upon the language set forth in the cards. If in fact misrepresentations are made by the union to the employees to the effect that the only purpose of the card is to authorize the union to petition the Board for an election, the card will not be construed to authorize representation, even though it contains language to that effect. N. L. R. B. v. Koehler, 328 F.2d 770 (C.A.7); Englewood Lumber Company, 130 N.L.R.B. 394.”

In fine, when as here substantial evidence does not show that the employees signed authorization cards free of any misapprehension of their purpose, a union majority entitling the union to representation cannot be said to have existed. Indeed, for the employer to have recognized it in these circumstances would have been a usurpation of the choice of a representative when by Section 9(a) of the Act, the selection belongs to the employees. In the face of such a doubt as presently appears, recognition by the employer is forbidden by law. International Ladies Garment Workers v. NLRB, 366 U.S. 731, 737, 81 S.Ct. 1603, 6 L.Ed.2d 762 (1961).

It remains for us to discuss the finding of the Board that the refusal of recognition to the union was not because of a good faith doubt of the union’s right to speak for the employees. Ordinarily, if the employer has no genuine doubt of the union’s claim of a majority, the refusal will not be valid. This proposition, however, has no force here because substantial evidence does not establish the union’s majority. This fact wholly undermines the Board’s conclusion, based on the absence of good faith, that the company’s refusal was unlawful. As was said in NLRB v. S. E. Nichols Co., 380 F.2d 438, 442 (2 Cir. June 21, 1967), “[L]ack of good faith doubt is immaterial if in fact no majority existed.” In accord is NLRB v. Koehler, 328 F.2d 770, 773 (7 Cir. 1964).

In conclusion, it is not amiss to note that the Board itself has expressed distrust in cards. NLRB v. Flomatic Corp., 347 F.2d 74, 78 (2 Cir. 1965). Our Chief Judge Haynsworth has recently quite forcefully demonstrated the unreliability of cards, and soundly inveighed against their unqualified acceptance as the basis of a bargaining order. NLRB v. S. S. Logan Packing Company, No. 10,-355 Decided October 27, 1967).

Having inspected the full record, we are not convinced that the Board's finding has the backing of substantial evidence. There is far too much doubt about the employees’ understanding of the cards to permit the conclusion that substantial evidence allows acceptance of the cards for what the union claimed for them. Consequently, we cannot hold that Crawford was required to recognize the union as a qualified demandant to bargain. As the Supreme Court has said: “Congress has merely made it clear that a reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board’s view.” Universal Camera Corp. v. NLRB, supra, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951).

The order of the Board will be enforced insofar as it seeks to correct the Section 8(a) (1) violations; it will not be enforced in respect to the reparations for the alleged 8(a) (3), violations; and it will not be enforced to compel Crawford to bargain 8(a) (5).

Enforcement granted in part and denied in part.

1 . Jurisdiction here rests on the fact that the company’s principal office is located in Richmond, Virginia. 29 U.S.O. § 160.

2 . These sections are codified as 29 U.S.O. §§ 158(a) (1), 158(a) (3) and 158(a) (5) respectively.

1 . The isolated portion cited by the majority opinion may be misleading if not read in the broader context of the examiner’s report. I therefore set out in fuller detail the relevant passages of the trial examiner’s decision:

“Patrick said that he wanted to get cards signed by 65 percent of the employees before he approached the Company. He explained that after this was done the Union would request recognition as bargaining agent. Patrick went on to say that if the Company was ’ agreeable, they would call in some disinterested outside party to check the cards, and that the Company would not find out who signed. Patrick commented, however, that as a rule employers did not agree to grant recognition on the basis of a card check and that generally the Union had to go to an election. Patrick further explained as follows :

* * * an election is a pretty much complicated problem from the standpoint that first we have to get at least 30 per cent of the people signed before the government will have an election. Then the government would send an agent when we send the cards to the government and try to set up an election. This was a secret ballot election, that no one would know how they voted, not even the union, the company, nor any of the supervisors nor any of their fellow employees. That the individual, himself, and his own God would know how he voted at the election. There would be no problem that way whatsoever.

Patrick continued that after the election, if the Union won, the employees would nominate a negotiating committee and both the Company and the Union would have to bargain collectively in good faith. Patrick further stated that while he could not promise anything definite, the chances were that as a result of the bargaining the employees’ benefits would be increased and that they would not lose any of their present benefits, although they might receive them in a different form.

After reading a membership application card to the employees, Patrick passed them out, together with postage-free return envelopes, and explained that if they wanted to think about the matter further, or talk it over with their families, they could do so and mail the cards back to his office later. Patrick informed the employees about their rights under the Act and the work of the Board in protecting these rights, and asked the employees to be on the alert for violations of their rights.

During the course of the general meeting questions were asked from the floor. Among others, questions were asked concerning the benefits which would be sought through the Union. A considerable discussion of piecework rates ensued. In answering questions Patrick assumed that the Company was going to insist upon an election and consequently made frequent references to the election. These references to the election which Patrick anticipated would be held and his explanation that in the election, no one would know how he voted, neither the Union, the Company, nor their fellow employees would know, I find, were interpreted by some of the employees at the meeting as indicating that the cards would be used only for the purpose of obtaining an election.”