National Labor Relations Board v. Marcellus S. Merrill and Geraldine R. Merrill, Co-Partners, D/B/A Merrill Axleand Wheel Service, 414 F.2d 1323, 10th Cir. (1969)
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Scribd Government DocsNational Labor Relations Board v. Marcellus S. Merrill and Geraldine R. Merrill, Co-Partners, D/B/A Merrill Axleand Wheel Service, 414 F.2d 1323, 10th Cir. (1969)
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Scribd Government Docs414 F.
2d 1323
71 L.R.R.M. (BNA) 3210
NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
Marcellus S. MERRILL and Geraldine R. Merrill, CoPartners,
d/b/a Merrill Axleand Wheel Service, Respondent.
No. 9424.
United States Court of Appeals Tenth Circuit.
Aug. 12, 1969, Rehearing Denied Sept. 18, 1969.
John Irving, National Labor Relations Board, for petitioner.
Earl K. Madsen, Golden, Colo., for respondent.
Before BREITENSTEIN, SETH and HICKEY, Circuit Judges.
HICKEY, Circuit Judge.
The National Labor Relations Board petitioned this court to adjudge
respondents, Marcellus Merrill and Geraldine Merrill, d/b/a Merrill Axle and
Wheel Service, (hereinafter called respondent), in civil contempt for refusing to
comply with a decree of this court. The decree, entered on February 15, 1968,
enforced the order of the Board.1
The Board order sustained the trial examiner's rulings and adopted his findings,
conclusions and recommendations. The trial examiner found interference,
restraint and coercion of employees in their efforts to unionize, and refusal to
bargain with the union.
Although the union requested the respondent to meet and negotiate after the
decree in Merrill, supra, negotiations were postponed until April 30, 1968. On
that date respondent filed a representation petition requesting an election to
determine the union's majority status alleging that respondent in good faith
doubted the union's status as majority representative of the employees. The
petition was dismissed because respondent had failed to comply with the decree
above referred to.
4
Thereafter, on May 10, 1968, the first meeting between respondent's
representatives and the union was held. The meeting concluded that day
without an agreement. The union made several requests for daily negotiations
which were refused by respondent for various reasons. On July 1, 1968, the
union was advised that respondent would no longer recognize it as the
authorized agent of the employees for the reasons stated in the representation
petition of April 30, 1968. Thereafter, on October 7, 1968, the Board filed its
petition for adjudication in civil contempt.
Respondent contends the Board violated its clear statutory duty in summarily
dismissing the election petition of April 30, 1968. It is further contended the
sole test in this proceeding is whether respondent had a good faith reason to
doubt the union's continued majority status.
Union authorization is based upon cards executed by employees on or before
May 14, 1965. This court set forth the contents of the cards, found that they
spoke clearly for themselves and were unambiguous.2
This court further concluded: 'The record does not support the contention that
Mr. Merrill had a good faith doubt of the Union's majority on May 14th (1965).
On that day he was shown 14 photo-copies of union authorization cards and,
checking with his bookkeeper, he found 23 employees in the unit. He never
again raised the majority question and there is no evidence that he then had any
suspicion that any cards had been obtained by fraud or coercion. On his own
testimony the reason for his refusing to bargain was that he would not do so
until the Union had organized his competitors. This, of course, is not a valid
reason.'3
The question of 'good faith' doubt, relates itself to the period of time after the
court entered its enforcement decree February 15, 1968. The reason for the
limited period is the determination of this court in Merrill, supra, supporting the
Board's order finding a 8(a)(1) and 8(a)(5) violation of the National Labor
Relations Act.
N.L.R.B. v. Gissel Packing Co. 4 settled the conflict among the circuits
regarding an employer's duty to bargain under 8(a)(5) based upon card
authorization. This circuit had approved card authorization prior to the recent
decision.5
10
The Supreme Court in Gissel, supra, countenanced the enforcement of good
faith bargaining in card authorization cases by Board orders to bargain in
addition to cease and desist orders.
11
N.L.R.B. v. Warren Co., Inc.6 teaches that an employer ordered to bargain, after
he has been found guilty by the Board of refusing to bargain, must bargain for a
reasonable time.
12
There was one bargaining session for a portion of one day between the date of
the enforcement decree, February 15, 1968, and the notice of the respondent
dated July 1, 1968 that they terminated the bargaining by what they term a
technical non-compliance based upon a good faith doubt. One bargaining
session in a period of approximately four and one half months is hardly
cognizable as good faith bargaining for a reasonable time.7
13
Gissel recognizes, 'There is, after all, nothing permanent in a bargaining order,
and if, after the effects of the employer's acts have worn off, the employees
clearly desire to disavow the union, they can do so by filing a decertification
petition.'8
14
We recognize the fact that respondent herein filed a representation petition on
April 30, 1968. However, as set forth above, the proper procedure would have
been a decertification petition after the effects of the employer's acts had worn
off. The effects had been determined by the decree of this court entered on
February 15, 1968. A decertification petition filed by the employees would
submit to the special expertise of the Board the substantial question whether or
not those effects had worn off.
15
The order of the Board and the enforcement decree of this court is directed to
respondent placing considerable responsibility upon them to participate in
fruitful bargaining sessions.
16
In Gissel the Supreme Court said: 'We have long held that the Board is not
limited to a cease-and-desist order in such cases, but has the authority to issue a
bargaining order without first requiring the union to show that it has been able
to maintain its majority status. * * * And we have held that the Board has the
same authority even where it is clear that the union, which once had possession
of cards from a majority of the employees, represents only a minoirty when the
bargaining order is entered. Franks Bros. Co. v. N.L.R.B., 321 U.S. 702, 64
S.Ct. 817, 88 L.Ed. 1020 (1943). We see no reason now to withdraw this
authority from the Board. If the Board could enter only a cease-and-desist order
and direct an election or a rerun, it would in effect be rewarding the employer
and allowing him 'to profit from (his) own wrongful refusal to bargain,' * * *
while at the same time severely curtailing the employees' right freely to
determine whether they desire a representative. The employer could continue to
delay or disrupt the election processes and put off indefinitely his obligation to
bargain; and any election held under these circumstances would not be likely to
demonstrate the employees' true, undistorted desires.'9
17
We, therefore, adjudge the respondent in civil contempt and order respondent to
purge themselves of contempt by:
18
(a) Fully complying with and obeying the said Decree of the Court by, upon
request, bargaining collectively in good faith with the Union as the exclusive
representative of the Employer's employees in the appropriate unit, and if any
understanding is reached, embody such understanding in a signed agreement.
(b) Immediately posting in conspicuous places including all places where
notices to employees customarily are posted, for a period of sixty (60)
consecutive days, an appropriate notice signed by the Employer's co-partners
which states that the Employer has been adjudicated in civil contempt of Court
for disobeying and refusing to comply with the Decree of this Court and that it
will take the action in purgation ordered by the Court, and by maintaining such
notices and a copy of the contempt order in clearly legible condition throughout
such posting period, and assuring that they are not altered, defaced, or covered
by any other material. (c) Filing a sworn statement with the Clerk of this Court
and a copy thereof with the Director of the Twenty-Seventh Region of the
Board, and separately in writing within ten (10) days after the entry of the order
of adjudication, showing what steps have been taken by the Employer to
comply with the Court's directions, and filing sworn statements every thirty
(30) days thereafter, with copies to the Regional Director, as to the manner of
the Employer's bargaining with the Union, and making such further report as
the Court may require. (d) Paying to the Board fees and all costs and
expenditures, including counsel fees, incurred by the Board in the investigation,
preparation, presentation, and final disposition of this proceeding to adjudge the
Employer in civil contempt.
19
If this decree is not complied with, the court, upon application, will take
appropriate action.
20
It is so ordered.
N.L.R.B. v. Merrill, 388 F.2d 514 (10th Cir. 1968)
N.L.R.B. v. Merrill, 388 F.2d 514 (10th Cir. 1968)
Id. at 519
Id. at 520
395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (June 16, 1969)
See Furr's, Inc. v. N.L.R.B., 381 F.2d 562 (10th Cir.), cert. denied, 389 U.S.
840, 88 S.Ct. 70, 19 L.Ed.2d 105 (1967)
350 U.S. 107, 76 S.Ct. 185, 100 L.Ed. 96 (1955)
See N.L.R.B. v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962)
395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (June 16, 1969)
