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National Labor Relations Board v. National Container Corp.

March 10, 1954


Author: Medina

Before CHASE, Chief Judge, A. N. HAND and MEDINA, Circuit Judges.

MEDINA, C.J.: For a number of years prior to 1949, the National Container Corporation,*fn1 hereinafter referred to as "National," had maintained contractual relations with Local 444, U.S. Corrugated Workers Union, affiliated with International Brotherhood of Pulp, Sulphite and Paper Mill Workers, A.F.L., hereinafter referred to as "Local 444."*fn2 Shortly before the end of that year, when the then current collective bargaining agreement between National and Local 444 was scheduled to expire, a group within Local 444, having become dissatisfied with the union leadership, formed a "Committee for a Real Union in National Container" for the purpose of electing new leaders in the local. Being unsuccessful in this objective, the group thereupon formed a rival union known as Independent Corrugated Workers Union of America, Local 1, hereinafter referred to as "Local 1."

On December 1, 1949, Local 1 advised National that it represented a majority of the employees, requested a conference for the purpose of negotiating a contract, and filed with the Board a petition for certification as the exclusive bargaining representative of National's production employees. On December 5, 1949, National refused to recognize Local 1. At the hearing on the petition for certification, Local 444 was permitted to intervene, and, on March 17, 1950, an agreement to hold a consent election was entered into by National, Local 1 and Local 444, to determine whether Local 1 or Local 444, or neither of them, was the collective bargaining representative of National's employees. This agreement was approved by the Regional Director on March 20, 1950. Thereafter, both unions waged an active election campaign, distributing leaflets and soliciting members and votes.

During the course of the election campaign, National on a number of occasions not only prohibited electioneering in the plant of Local 1 while at the same time permitting electioneering on behalf of Local 444, but also threatened its employees with economic reprisals if Local 1 won the election. Under National's rules, all persons other than employees were forbidden to enter the plant without official permission. Beginning about February, 1950, until the election on April 14, 1950, however, Kassie Gray and Reuben Moore, former employees of National then working at a neighboring plant and personal friends of "Scotty" Smith, employee and president of Local 444, visited National's plant from one to four times a week during both the day and night shifts. Sometimes accompanied by Smith and on other occasions alone, they went through the plant and talked to most of the employees, urging them to vote for Local 444 and distributing pamphlets. On a few of these occasions, Gray and Moore had received permission to enter the plant, and, as was customary, had been given visitors' badges. More often, they entered without permission, and although supervisory officials saw them without badges, they were not restrained. On one of these occasions, in March, 1950, when Gray and Moore were distributing leaflets in the plant between seven and nine o'clock of the night shift, Douglas Fisher, a day shift employee and president of Local 1, was also in the plant. James Smith, "Scotty" Smith's brother and secretary-treasurer of Local 444, called Fisher's presence to the attention of a supervisor, who immediately ordered Fisher to leave. On the following day, Fisher was told by his foreman, Harry Roit, that he had heard of Fisher's presence in the plant the previous night and that company rules required day shift employees to punch out of the plant within a half hour of quitting time.

Another company rule prohibited employees from engaging in union activity during working time. Despite this rule, "Scotty" Smith and his brother, James, president and secretary-treasurer of Local 444, respectively, frequently discussed union business and campaigned on behalf of Local 444 on company time without objection from company officials. In contract, Wallace Irizarri, an employee and one of the leaders in the formation of Local 1 and later its president, was ordered by his foreman, William Chupa, to "stop talking to the other workers and talking about Local 1." On this occasion, Chupa also warned Irizarri that he "had better watch step because if Local 444 won the election would be out of a job." In addition, Chupa warned Irizarri's helper, Manuel Neives, that "if he listened to he will be out of a job the same way would."

On another occasion, "Scotty" Smith, president of Local 444, who had electioneered on company time without objection by National, demanded to know by what right Domingo Rivera, an employee, had signed a membership card for Local 1 and stated to him, "If I win the election you'll be out." And, on April 10, 1950, four days before the election, Kassie Gray, who had similarly electioneered in the plant on behalf of Local 444 without objection by National, told Victor Carrasquillo, an employee, that "You guys going to vote for Local 1 you are going to lose your jobs. If you vote for Local 1 you are going to get in trouble with the company." Gray added, "We have ways to find out the way you vote, and you will be in trouble with the company."

The election was held on April 14, 1950, and Local 444 received a majority of the ballots cast. On April 19, 1950, Local 1 filed objections to the election, alleging that the above described acts of interference and intimidation ahd affected the results of the election. On May 10, 1950, while these objections were being considered by the Board's Regional Office, National entered into a new collective bargaining agreement with Local 444. Accordingly, on June 5, 1950, Local 1 filed a charge alleging that National by its action had violated Sections 8(a)(1) and (2) of the Act.

After a hearing on Local 1's objections to the election and upon a second complaint*fn3 issued pursuant to the charge, the trial examiner on July 11, 1952, issued an Intermediate Report in which he found that, although National's conduct prior to the election constituted unlawful interference which would normally warrant setting aside the election, Local 1 had waived any rights accruing to it from such conduct since it did not file its objections until after the election had been held.*fn4 The trial examiner found further that since Local 1 was precluded from relying on its objections to the election as a basis for setting that election aside, no real question concerning representation existed at the time National executed its contract with Local 444 on May 10, 1950. Accordingly, the trial examiner concluded that National did not violate the Act by entering into such contract and recommended that the complaint be dismissed.

The Board in its Decision and Order*fn5 agreed with and adopted the trial examiner's findings of fact. The Board found that National's pre-election "conduct interfered with the employees' freedom of choice in the selection of a bargaining representative" and agreed with the trial examiner's holding that National's pre-election conduct constituted such interference as would invalidate the election. However, for the reasons set forth in tis decision in Great Atlantic & Pacific Tea Co., 101 NLRB 1118, the Board disagreed with the trial examiner's conclusion of law that Local 1's failure to file objections to that conduct prior to the election constituted a waiver of its right to file such objections thereafter and an acquiescence in the misconduct which occurred. Accordingly, the Board set aside the election and directed the Regional Director to conduct a new election at such time as he deemed appropriate. The Board further found that pending resolution by itself of Local 1's meritorious objections to the election, a question concerning representation still existed. The Board, therefore, concluded that National, by entering into a collective bargaining agreement with Local 444 at a time when the question concerning the proper representation of the employees was still unresolved, "contributed support to that organization in violation of Section 8(a)(2) of the Act, and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby also violating Section 8(a)(1) of the Act."

As already stated, Local 1 filed its objections to the election on April 19, 1950, and filed is charge of unfair labor practices against National on June 5, 1950. A copy of the charge was served on National on June 8, 1950. On November 1, 1950, the Regional Director issued his Report on Objections in which he found that National, by interfering with the employees' free choice in the election, had engaged in conduct affecting the results of the election and recommended that a new election be ordered. Exceptions to this Report having been filed by National and by Local 444, the Board, on December 28, 1950, directed the consolidation of the representation and unfair labor practice cases and ordered a hearing thereon. Accordingly, a complaint and notice of hearing in the consolidated cases were issued on March 7, 1951, and a hearing was held.

The consolidated complaint, however, was apparently issued inadvertently, since Local 1, although previously in compliance with the filing requirements of Section 9(f), (g) and (h) of the Act, was partially out of compliance with Section 9(f) and (g) for the two week period from February 28, 1951 to March 14, 1951.*fn6 Accordingly, on June 27, 1951, the trial examiner issued his Intermediate Report in which he recommended dismissal of the complaint because of Local 1's temporary lapse of compliance with the Act on the date of the issuance of the complaint. He further recommended that the objections to the election be dismissed because more than a year had elapsed since the date of the election.*fn7 Thereafter, on August 7, 1951, exceptions to the Intermediate Report were filed by Local 1.

On August 9, 1951, the General Counsel filed a petition for an order of the Board requiring National, Local 1 and Local 444, to show cause why the General Counsel should not be granted permission to withdraw the complaint "without prejudice to the General Counsel's right hereafter to issue a new complaint." On August 17, 1951, the Board issued a Notice to Show Cause affording all parties an opportunity to respond. On November 9, 1951, after having received responses from the parties, the Board issued a Decision on Motion granting the General Counsel leave to withdraw the complaint, but expressly reserving opinion on the question whether the General Counsel had, or should exercise, the power to issue a new complaint. Pending the General Counsel's final disposition of the charge, the Board deferred further action on the representation proceeding.

On January 14, 1952, Local 1 having remedied its lapse in compliance with the Act, the General Counsel issued a new complaint upon the original charge. On the same day, a Notice of Hearing on such complaint was issued, and copies of such Notice, complaint and charge were served upon National, Local 1 and Local 444. Answers to the complaint were filed by National and Local 444.

On March 24, 1952, the Board issued an Order directing that a hearing upon the objections to the election be held in conjunction with the hearing upon the complaint. On the same day, an Amended Notice of Hearing, further implementing the Order of March 24, 1952, was issued, and copies of the ...

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