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National Labor Relations Board v. Fiore Brothers Oil Co.

UNITED STATES COURT OF APPEALS, SECOND CIRCUIT.


May 22, 1963

NATIONAL LABOR RELATIONS BOARD, PETITIONER
v.
FIORE BROTHERS OIL COMPANY, INC., ET AL., RESPONDENTS.

Author: Waterman

Before WATERMAN and KAUFMAN, Circuit Judges and BRYAN, District Judge.

WATERMAN, C. J.: The National Labor Relations Board petitions for enforcement of its order issued against Fiore Brothers Oil Company, Inc. and Amalgamated Union Local 355.*fn1 The Board found that the Company violated Sections 8(a)(1), (2) and (3) of the National Labor Relations Act, 29 U.S.C. §§ 151 et seq ., by bringing Local 355 into the Company's shop; by rendering illegal assistance to it and recognizing it as the majority representative of the employees; by entering with the Union into a collective bargaining agreement which included a union security clause, while knowing that Local 355 did not at any time represent an uncoerced majority of respondent's employees; and by maintaining and enforcing the unlawful agreement. The Board found that Local 355 violated Sections 8(b)(1) (A) and 8(b)(2) of the Act by virtue of its participation in the above activities.*fn2

The evidentiary facts of the case, as fully set out in the Trial Examiner's report and in the decision and order of the Board, 137 NLRB No. 19, are not in dispute.*fn3 Moreover, the Company concedes that the Board's order must be enforced if Anthony Bartholdi, an employee of respondent Fiore who solicited Local 355 designation cards from a majority of the Company's employees, was acting as an agent of the Company when he did so.*fn4

The Board relied upon the following facts to establish Bartholdi's agency. On June 9, 1961, the Seafarers International Union (S.I.U.) filed a petition with the Board to be designated as the collective bargaining representative of the Company's employees. Bartholdi, a non-supervisory employee who was the son-in-law of the Company's president, Ferdinand Fiore, explained his refusal to sign an S.I.U. card on the ground that the union would tell Fiore "how to run the business, after he had been running it 35 or 40 years by himself." When the S.I.U. subsequently withdrew its petition, Fiore stated that the withdrawal gave the Company the opportunity to "bring in" Local 355. Bartholdi thereafter solicited Local 355 authorization cards during his scheduled work time, and in the course of his solicitation told an employee that the "Company" was "going union." A supervisory employee of the respondent Company arranged a meeting between Bartholdi and another employee, apparently in order to afford Bartholdi the opportunity to solicit the employee for membership in Local 355. The employee benefits which Bartholdi promised from Local 355 membership were essentially the same benefits that were set forth in the contract subsequently entered into by that Union and the Company. The contract was executed by employer and union within some two days of the time that Bartholdi had signed up an apparent majority of the employees for union membership.

Upon these uncontested facts we cannot say that the Board's finding of an agency relationship between Bartholdi and respondent was not supported by substantial evidence. 29 U.S.C. § 160(e).

Enforcement granted.


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