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National Labor Relations Board v. Boyer Brothers Inc.

decided: September 9, 1971.

NATIONAL LABOR RELATIONS BOARD, PETITIONER
v.
BOYER BROTHERS, INC., RESPONDENT



Staley, Adams, Circuit Judges and Garth, District Judge.

Author: Garth

GARTH, D. J.:

The question before the Court in this proceeding is the validity in various sets of circumstances of cards signed by employees which purport to authorize a union to represent these employees vis-a-vis their employer. The NLRB found that a majority of the employees of Boyer Brothers, Inc. (hereinafter referred to as the Company) validly authorized The Bakery and Confectionery Workers' International Union of America, Local No. 12 (hereinafter referred to as the Union) to represent them. The Board petitions this Court*fn1 for enforcement of an NLRB order which prohibits the Company from engaging in specified unfair labor practices designed to prevent unionization of its employees and which compels the Company to bargain with the Union.

In May, 1966 the Union began a drive to organize the employees of the Company and on July 7, 1966 requested the Company to engage in collective bargaining. The Union claimed it possessed at that time authorization cards from a majority of the employees in the appropriate unit. The Company, however, refused to recognize the Union. On August 17, 1966 an election was held to determine the status of the Union. The Union was defeated by a substantial margin.

The Union filed a charge with the NLRB shortly after the election. On April 3, 1967 hearings began before the trial examiner at which many of the employees of the Company testified and were subject to cross-examination. After the issuance of the trial examiner's decision on October 26, 1967, the Company moved on December 13, 1967 to reopen the record to present newly discovered evidence. On April 5, 1968 the NLRB denied the Company's motion and adopted the findings and affirmed the rulings of the trial examiner. On that date the NLRB ordered that the representation election be set aside because of specified unfair labor practices,*fn2 and that the Company be required to bargain with the Union on the basis of the Union's designation on a majority of valid cards signed by the employees.

The NLRB petitioned this Court for enforcement of its order of April 5, 1968. On August 18, 1969 this Court remanded the entire case for reconsideration by the Board in the light of the landmark case of NLRB v. Gissel Packing Co., et al., 395 U.S. 575, 23 L. Ed. 2d 547, 89 S. Ct. 1918, reh. denied, 396 U.S. 869, 90 S. Ct. 35, 24 L. Ed. 2d 123 (1969). In its Supplemental Decision and Order of March 3, 1970, the NLRB reaffirmed its initial decision, stating that "the unambiguous cards validly executed by a majority of the employees in the unit represent a more reliable measure of employee desires on the issue of representation than would a rerun election." The Board ruled that the Company's unfair labor practices were so substantial and pervasive and had so damaging an impact upon election processes that a rerun election would have been ineffective and unreliable.

In its Statement of the Issues before this Court, respondent concedes that substantial evidence supports the NLRB's findings that the Company committed unfair labor practices in violation of 29 U.S.C. ยง 158(a) (1) in all the respects found by the Board. Consequently these findings are deemed conclusive in this proceeding. That part of the order of the NLRB which prohibits specified unfair labor practices will be enforced.

The remaining determination for this Court is the validity of the provision of the NLRB order which compels the Company to bargain with the Union. Section 159(a) of Title 29, U.S.C., provides in pertinent part that:

"Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment. . . ."

Whether a majority of the employees in the appropriate unit designated the Union as their representative is the chief contested issue. It is agreed that the bargaining unit at respondent's factory included 207 employees at the time of the Union's demand for recognition. Hence 104 employees must have designated the Union to represent them in bargaining in order to constitute a majority.

The NLRB found that authorization cards had been validly executed by 106 of the Company's employees. The Company contends that a majority was not obtained by the Union and specifically attacks the Board's inclusion in its count of the cards of 9 employees among those who authorized Union representation.

We find that only two authorization cards were improperly counted (those of employees Burns and Rinker) and conclude that substantial evidence supports the NLRB's finding that a majority of the employees in the appropriate unit designated the Union as their representative.

Card of Harry Burns

The card executed by Harry Burns should not have been counted. Before signing, Burns altered the statement printed on the card. Originally that statement was printed as follows: "I hereby apply for membership in The Bakery and Confectionery Workers International Union of America, Local No. , and I authorize and designate that Union to represent me for collective bargaining with my employer." Burns lined through the word "membership," substituting another phrase for that word, and thereby caused the card to state: "I hereby apply for information of what you can do for me."

The Board counted Burns' card in accordance with a finding that in leaving intact the entire last clause of the card's statement, Burns knowingly differentiated between union membership, which he did not request, and authorization of the Union as his representative. The record does not present substantial evidence to support this finding.

Effect is to be given to words inserted in the body of an existing form, even if to do so requires a rejection of uncancelled provisions of the original draft. Marine Insurance Company v. M'Lanahan, 290 F. 685 (4th Cir. 1923). On the other hand, a correct construction of an instrument may be obtained by drawing the negative inference that if only one word or phrase of a sentence is stricken, the drafter intended that the others should retain their effect. But this latter proposition assumes ...


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