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Krystyniak v. National Labor Relations Board

decided: July 31, 1969.

JOHN P. KRYSTYNIAK DBA RED & WHITE SUPER MARKETS, PETITIONER,
v.
NATIONAL LABOR RELATIONS BOARD, RESPONDENT



Hastie, Chief Judge, and McLaughlin and Seitz, Circuit Judges.

Author: Mclaughlin

McLAUGHLIN, Circuit Judge.

The National Labor Relations Board found that the employer-petitioner had violated Sections 8(a)(1) of the National Labor Relations Act by coercive employee interrogations regarding union activities and employee reaction to and in connection therewith; by promises of benefits made by petitioner and his store managers; threats of reprisals against employees for engaging in union activity and by discharge in event the union won the election; granting or promising of wage raises during the organizing campaign; threats to lay off part time employees if the union won; threat by petitioner about closing his Mt. Pleasant store (petitioner operated three grocery stores in the Commonwealth of Pennsylvania) and not staying in business if union got in the store; petitioner at his Greensburg store employees meeting saying that he would "* * * like to know who those people are that did that to me" which the Board held "implied that employees whose participation in union activities became known might be made to suffer harmful consequences as a result thereof" (in violation of Section 8(a)(1)). The Board also directly held that the above found course of conduct by petitioner "evinces a rejection of the collective bargaining principle." The Board, therefore, concluded that petitioner's refusal to recognize and bargain with the union was not motivated by good faith doubt of the union's majority, and was violative of Section 8(a)(5) and (1) of the Act. Petitioner, asserting that the Board's order is not supported by substantial evidence, asks that it be set aside and enforcement thereof denied. The Board has a cross-application for enforcement of its order.

Petitioner's first point is that he was denied due process of law. This is based upon the allegation in the Board's complaint that petitioner by his attorneys had "suggested to employees that they withdraw their union authorization cards."

The record shows that petitioner's charge of denial of due process is groundless. The Board, on the basis of testimony it credited, did hold that petitioner through his lawyers had not violated the Act by their questioning of employees. Nevertheless there was some evidence of the attorneys suggesting that employees withdraw their authorization cards. There was also inferential proof, pointing to that practice by petitioner directly and on his behalf. There was nothing in the complaint or Board action which in any way prevented petitioner's attorneys from legitimately representing petitioner in his defense to the Board's complaint.

Petitioner admits that he refused to bargain with the union. He asserts that he was entitled to refuse to bargain on the theory that he "had a good faith doubt of the union's majority status." He states categorically in his brief that his doubt was based upon the following factors: He immediately expressed his doubt to the union and filed a representation petition. He says his response to the union's demand for recognition was a denial of the union's majority status. When the union organizer demanded of him that he recognize the union he alleges that "he told him (the organizer) that I didn't think he represented a majority of my people." He makes the blanket declaration that "He had knowledge of threats, bribes and intimidation of his employees by the union in its attempt to obtain signed authorization cards." He claims previous attempts to organize his employees had failed. He said that he believed that the union did not represent a majority of all his employees as the union had warranted to him. He further states that he was not aware that a majority of his employees had signed authorization cards. He specifically says he was informed that his employees did not want a union. He concludes his reasons for what he calls "good faith doubt of the union's majority status" by the pronouncement that "He knew that authorization cards are an unreliable indication of union support."

Petitioner's above noted last statement of why he contends he "had a good faith doubt of the union's majority status" is very clear and was never changed in the slightest degree. Forty-nine employees signed authorization cards to the union as bargaining representative of the employees of petitioner's three stores. The employee bargaining unit as found by the Board consisted of eighty-three employees. Those who had signed the cards constituted a heavy majority of all the employees. At least twelve employees testified at the hearing in support of the complaint. Other employees attended the hearing. None of the authorizations was repudiated. The petitioner's evidence consisted of his own, his assistant, his managers, an assistant manager and three of his lawyers. Not a single union eligible was a witness supporting the petitioner's views.

Petitioner's theory as expressed in his brief is that even assuming "arguendo that the union possessed authorization cards from a majority of the employer's employees at the time of the demand and assuming further that this demand was clear and unequivocal, an employer cannot be found guilty of refusing to recognize the union if the employer has a good faith doubt about the union's majority status." With this in mind let us examine petitioner's other reasons for his alleged "good faith doubt". The union organizer presented petitioner with copies of forty-nine authorization cards*fn1 and advised him that the union represented the majority of his employees and therefore requested recognition by him as bargaining representative of said employees. Petitioner refused to take the cards and flatly denied the union's majority status. As above mentioned he, without qualification, said this was his response to the demand for recognition. Refusing to even look at the cards in front of him (or later when they were mailed to him) he told the organizer "that I didn't think he represented the majority of my people."

Petitioner, next in his brief, sets out that "He had knowledge of threats, bribes and intimidation of his employees by the union in its attempt to obtain signed authorization cards." There is no authentication of this by any of the employees who authorized the union to be their representative nor is there employee evidence in any respect corroborating petitioner's deliberate accusation. The one mention at the hearing on that issue is petitioner's own testimony.

Asked why he told the union official he doubted the union majority he answered, "I told him because I was told or heard that my people were intimidated to sign a card and they were being coerced in doing so." He said "One of the ladies came to me and said she had been contacted and they wanted her to sign up and join a union and she said she wanted nothing to do with it. Another lady was telling me that they came to her and she closed the door and didn't even let them in the house * * *." Asked by his lawyer "You mentioned previously about having information concerning intimidation and bribery. Could you explain this more clearly?" The witness answered "Yes. * * * Mrs. Helen Buczek told me herself that she was bribed, that she was pestered four or five times*fn2 and another lady * * * I have the lady in the bakery that she told me that she was annoyed and threatened along the streets to sign a card and she was walking between the store and her home." His lawyer asked him "What employee, if any, told you that they were bribed to sign a card?" Witness, "I had an employee tell me that they were offered 60 cents an hour if they would sign a card." The Examiner inquired "Is it someone who has a card?" The attorney answered "I will have to ask the witness." The latter said "I could name the individual who told me, yes. It was told to me by people in the Meat Department. Jim Gyurke was talking about it and he said that the boys were told that they were --."*fn3 The Examiner noted the hearsay element and asked the attorney to "present the case properly." The lawyer answered "All right" and put the following question to the petitioner, "Mr. Krystyniak, did you receive any information that concerned what success these organizers were having with your people?" Answer, "Yes, I did." Q. "What type of information?" A. "That the people were being contacted and they wanted nothing to do with it." Q. "Were there any other reasons to substantiate your doubt as to the union's claims?" A. "Yes: I have had experience with unions trying to organize my people before. * * * They have had a difficult time getting even 30 per cent, which is necessary to file a petition." Asked "Did this particular union fail in the past at your place?" A. "Yes. My older employees have been with me for a long time and they have rejected it before."

The only other testimony as to petitioner's doubt of a majority was "Subsequent to the 31st (January 1967), I was told by a couple of employees that they thought that when they signed this card, that they didn't realize that they were giving away their right to vote and they really thought that this was a change to express how * * *." The Examiner struck this testimony as "not the type of evidence which either the Board or the Court has said will affect the case."

There is no further evidence from petitioner or other witness in connection with petitioner's accusation of threats, bribes and intimidation of his employees. The above referred to testimony also covers all the evidence given on petitioner's behalf respecting petitioner's remaining named reasons for what he describes as his "good faith doubt" of the union majority, i.e. that previous attempts to organize his employees had failed; that he was not aware that a majority of his employees had signed authorization cards and that he was informed that his employees did not want a union.

It is of the utmost significance that throughout petitioner's grossly tendentious eighty-three pages of testimony he does not ever really challenge his own assumption "arguendo that the union possessed authorization cards from a majority of the employer's employees at the time of the demand and assuming further that this demand was clear and unequivocal * * *." In the same category is the major fact that not one of the accredited eighty-three employees, including those who did not sign authorization cards, or indeed, any of the other assorted petitioner witnesses (assistant to petitioner, managers, assistant manager and three of petitioner's lawyers) give any support whatsoever to those grounds advanced by petitioner for his "good faith doubt".

Petitioner's basic proposition here is " He knew that authorization cards are an unreliable indication of union support." He is totally wrong in that far-reaching, far-fetched edict which is typical of the defense offered. The acceptance of authorization cards and other means than a Board election to invoke a bargaining obligation has been in existence at least since 1940. NLRB v. Bradford Dyeing Assn., 310 U.S. 318, 339-340, 84 L. Ed. 1226, 60 S. Ct. 918 (1940); Franks Bros. Co. v. NLRB., 321 U.S. 702, 88 L. Ed. 1020, 64 S. Ct. 817 (1943); United Mine Workers v. Arkansas Oak Flooring Co., 351 U.S. 62, 100 L. Ed. 941, 76 S. Ct. 559 (1956). In the recent Supreme Court decision in NLRB v. Gissel, Packing Co., Inc., 395 U.S. 575, 23 L. Ed. 2d 547, 89 S. Ct. 1918 (1969) it had been decided below that authorization cards are such inherently unreliable indicators of employee desires that they may never be used to determine a union's majority and to support an order to bargain. The Court, 395 U.S. at 603, in reversing that ...


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