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Toltec Metals Inc. v. National Labor Relations Board

decided: January 25, 1974.



Author: Rosenn


ROSENN, Circuit Judge.

This petition involves the basic duty of an employer to continue to bargain with a union whose representative status it has orally recognized even though the recognition was solely on the basis of a check of union authorization cards. The employer contends that its subsequent "good faith doubt" of the validity of a number of the cards and the absence of any independent unfair labor practice on its part relieves it of any duty to continue bargaining until certification following a secret Board election. The NLRB found that the refusal of the employer to bargain collectively with the Union constituted an unfair labor practice and ordered the employer to bargain in good faith.

The employer, Toltec Metals, Inc., petitions this court for review of the Board order pursuant to § 10(f) of the National Labor Relations Act as amended (61 Stat. 136, 73 Stat. 519, 29 U.S.C. § 151 et seq.) and the Board has made cross-application for enforcement of its order pursuant to § 10(f) of the Act. Since we find that the Board's findings are supported by substantial evidence and Toltec's legal contentions are without merit, we grant the cross-application for enforcement of the order and deny the petition for review.

Toltec is a New Jersey corporation*fn1 which manufactures, sells and distributes steel electrical enclosures and related products. In response to an employee's request, Local 569, Sheet Metal Workers International Association, AFL-CIO (the Union), sent representatives to the Toltec plant to solicit employees to sign union authorization cards. On May 22, 1972, the Union sent a telegram to Robert Figliuolo, Vice President of Toltec, stating that the Union represented a majority of the production and maintenance employees in the plant.*fn2

On May 24, Silverstein, president of the Union, visited the plant and requested of Figliuolo that the company recognize the Union. After Figliuolo requested further proof that the Union represented a majority of workers in the unit, Silverstein showed him authorization cards signed by ten of the sixteen employees in the unit. As Figliuolo testified at the later hearing,

I made a conclusion that he [Silverstein] had a majority of people and that is why I scheduled a meeting. As far as I was concerned at that time it was a legal majority . . .

A negotiating session was scheduled for May 30 and postponed until June 2. Prior to that meeting, two of the employees in the plant who allegedly knew little or no English and who had signed authorization cards told Figliuolo that they wished to have their names removed from the Union list. According to Figliuolo's testimony at the hearing, these employees also told him that they had been told (presumably by someone who had sought their signatures to the cards) they could not continue to work for the company unless they signed the authorization cards. Figliuolo related this incident to Silverstein on June 2. Silverstein responded that the employees could not have been threatened by the Union because this was not a Union practice. Silverstein offered to reassure the two employees, but Figliuolo refused to divulge their names.

A bargaining session then took place (June 2) with five Union and two employer representatives, including Figliuolo and Silverstein. The parties discussed specific articles contained in the Union's standard agreement, a copy of which had previously been given to Figliuolo. Although there is some dispute as to which provisions were agreed to during the hour and a half negotiating session, the Trial Examiner found that agreement was reached on the standard Union recognition clause, the union security clause, and other non-economic provisions, including the establishment of a plant shop committee. When Toltec claimed financial hardship, the parties agreed, at the company's request, to postpone discussion of economic issues until June 5, by which time a Union accountant would have examined the company's financial records and reported to the Union. Immediately following the bargaining session, Silverstein reported on it at a meeting with all but one of the employees in the bargaining unit present. No employee expressed any interest in disassociating himself from the Union.

Before the scheduled resumption of negotiations on June 5, Figliuolo informed Silvestein that two additional employees had informed him that they did not desire to belong to the Union and that the company was going to file an RM petition with the Board. Figliuolo refused to resume bargaining with the Union, and Toltec has since not bargained. The next day Figliuolo filed a petition with the Board requesting a Union election among company employees, and the Union filed an unfair labor practice charge with the Board alleging Toltec's refusal to bargain since June 5.

On the basis of these facts, the Board concluded that Toltec had violated § 8(a)(5) and (1) of the National Labor Relations Act,*fn3 by refusing to bargain collectively with a union that it had previously recognized voluntarily.*fn4 The resulting order requires that Toltec cease and desist from refusing to bargain with the Union, and affirmatively requires that Toltec bargain upon request with the Union.

It is clear that an employer who has not committed a contemporaneous unfair labor practice, when confronted initially with a union request for recognition based on authorization cards, may decline immediate recognition of the union and insist on a secret ballot election. NLRB v. Gissel Packing Co., 395 U.S. 575, 591, 600, 23 L. Ed. 2d 547, 89 S. Ct. 1918 (1969); NLRB v. Frick Company, 423 F.2d 1327, 1330 n.6 (3d Cir. 1970). In the present case, however, the Board contends that Toltec did in fact voluntarily recognize the Union, and that this initial recognition prevents the company from thereafter withdrawing recognition. The distinction between refusal to recognize in an organizational context and withdrawal of recognition from a validly recognized union is well established. See Frick, supra, 423 F.2d at 1330 n.6.

Toltec first contends that it never recognized the Union and that therefore its refusal to bargain on June 5 did not constitute an unfair labor practice. Toltec argues that, particularly in light of its inexperience in labor matters, its actions in setting up and attending the previous bargaining session should be interpreted consistently with what it alleges were continuing good faith doubts that the Union in fact represented a majority of employees in the unit. Under this theory, we are asked to ...

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