*1 relief from the decision Ccmnelton to eligible. Therefore,
those otherwise regulation requires
the extent filing returns, income tax amended goes beyond authority conferred
the statute and is invalid. Scofield v.
Lewis, supra; R., supra. Willett v. C. I. taxpayer timely Since the filed a election provisions 87-312,
to use P.L. permitted depletion should be to base its
allowance accordance with that stat-
ute. respectfully
I dissent.
WAUSAU CORPORATION, STEEL Petitioner,
The NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 15840.
United Appeals States Court of
Seventh Circuit.
April 11, 1967. Schnackenberg, Judge, Circuit dis- part.
sented in *2 Tinkham, Smith, Richard Puch- P. Wausau, Wis.,
ner, Smith, Tinkham & petitioner. Mallet-Prevost, Asst. Gen. Marcel Bendixsen, Atty., Counsel, Glen M. Na- Board, Washing- tional Labor Relations ton, C., Ordman, Counsel, D. Arnold Gen. Manoli, Dominick Associate Gen. Counsel, Reifin, Atty., H. Nation- Melvin Board, respondent. al Labor Relations HASTINGS, Judge, Before Chief KILEY, Cir- SCHNACKENBERG Judges. cuit Judge. HASTINGS, Chief Corporation, a Wis- The Wausau Steel petitioned corporation, has consin an order of aside and set court review is- Board Relations the National Labor against August 19, 1966 and sued it The reported 47. NLRB No. of its requested Board enforcement has order. Wausau found that Labor Man- of the
violated § agement Act, 29 U.S.C.A. § Relations 158(a) (1) by promising its benefits threatening reprisals and that Wausau violated refusing (5) by 29 U.S.C.A. bargain good faith general- union. affirmed The Board adopted report ly trial exam- to cease Wausau iner ordered practice vio- from unfair labor desist bargain union on lations and to request.
Wausau contends
against
prove
it
insufficient
was
good
refusing
bar-
lacked
faith in
gain
was insuf-
and that
the evidence
engaged in un-
ficient to establish that
represen-
practices prior to a
fair labor
plant. Wausau
at its
tation election held
engage
urges
in unfair
if it did
even
precluded
practices,
it asserting
such conduct
concerning
union’s ma-
faith doubt
wages
jority
and to establish a rea-
ments
status.
It further contends that
program.”
involved, Shopmen’s
insurance
Local
sonable
No.
Association
Union
International
This theme was stressed
number
Bridge,
and Ornamental
Structural
various communica-
times Wallach’s
*3
Workers,
guilty
AFL-CIO,
Iron
of
was
tions.
misrepresentation or fraud in its card
made similar statements
Wallach
electioneering,
solicitation and
nul-
thus
employee Larry Hill,
or-
an active union
lifying
bargaining
its claim of
status.
ganizer,
summoning
after
of-
Hill
the follow-
The trial examiner found
any complaints
inquiring
and
fice
into
ing
cards
facts. The
received
any
employees
Hill
had and
other
employees
from 29
au-
of 38
of Wausau
why they wanted a union.
bargaining
thorizing it
act as their
Thomas,
employee
To
another
Kenneth
representative.
On Wallach asked
on another
to his office
claiming major-
Wausau,
the union wrote
Thomas,
occasion, Wallach stated that
ity
recognition.
requesting
status and
employed only
who had been
months, “might
a few
declining
replied
days later,
Wausau
two
long
have been here
recognize
ground
the union on the
that
* * *
enough to have received
[a]
proof
supplied
the union had
jority
of ma-
raise with
of
He fur-
the rest
the men.”
rea-
status and that Wausau had
ther said
if
that
the union won
elec-
the
Shortly
son to doubt the union’s claim.
tion,
working
he would
hours
have to cut
thereafter,
agreed
Wausau
the
employees.
to 40 and hire more
election,
to a consent
was held on
which
November 22, and which the union lost
Finally,
stated to another em-
Wallach
21-17.
ployee,
Martin,
if the union
Ronald
that
in,
of
first
Martin would be one
the
came
During
period prior
to the elec-
go, evidently
lack of sen-
to
iority.
of a
because
tion,
Wallach,
presi-
Wausau’s
Theodore
suggestion
repeated his
Wallach
dent,
communicated with his
expenses
if
in and
that
the union came
through
speeches.
letters and
While
high,
shut down
were too
Wausau would
generally guarded
Wallach
in his
operations.
statements,
suggest
he did
that
election,
union won
work
The trial examiner found that Wal-
overtime
might
speeches
be
al-
remarks in his letters and
reduced
eliminated. He
lach’s
limits,
permissible
expenses
speech
so stated
exceeded
amounting
that increased
due to
free
might
necessary
promises
unionization
instead to
bene-
make it
trucks,
reprisals
sell
and to
new steel de-
fits and
violative
close the
threats
partment,
Management
Act.
if the union obtained the Labor
Relations
that
a 22 or
cent raise for the
22%
8(a)
found
The trial examiner also
§
Wausau would
forced
be
out of business.
(1)
interviews
violations Wallach’s
wage inequities
He noted that certain
Hill and Thomas.
had come to his attention and
that
found to
interview with Martin was
planned to correct them. He further
Act to the extent that
violative
said:
repeated
promises and
Wallach
supply you
“No union can
with over-
speeches.
threats of his
provide
time or force the
The trial examiner concluded that
margin
profit
overtime. Our
sois
guilty
Wausau
of a
was also
§
small that
substantial
increase
Act,
is,
violation
bargain
that
failure
our costs would mean good
faith with a
operate at a loss and
be forced
finding
principal
union. His
reason for
drop major parts
operations.
of our
application
was an
violation
We don’t want this —and
don’t
rule a union has obtained
where
either.
majority authorization cards from a
intend,
“We
employer
when this union mat-
and thereafter
settled,
proper adjust-
ter is
engaged
to make
practices
in unfair labor
holding
prevented
specific employees
coupled
of a fair
rected
say
employer
interrogation,
will not
heard to
also violate §
good
faith
he had a
doubt of the
(1).
majority.
union’s
convinced, however,
areWe
supports
In addition to a
substantial
ing
cease
desist
the find-
8(a) (1)
8(a) (5)
based on
of a
violation. There
§
§
violations,
recom-
record
indication
required
begun engaging
may
mended that Wausau be
to bar- Wausau
gain
request.
8(a) (1) prior
union on
with the
conduct violative of
the union’s
recognition,
demand for
but
in Wausau’s
no merit
findWe
possible
it is not
to draw from this the
upon
authorization
union’s
attack
sole inference that Wausau had no
*4
evidence
introduced
cards. Wausau
tending
majority.
faith doubt of the union’s
It
six authorization
show
equally
is
inferable that Wausau was
through
union’s
the
cards
solicited
were
simply concerned and did not like the
misrepresentations.
au
Even if all six
organizational
union
ing
drive, perhaps fear-
counted, the
were not
thorization cards
development
the
majori-
of a union
yet
of Wausau’s
union
employees
had a
ty.
act
authorized it to
who had
8(a) (5)
cases,
In some
vio
§
representative.
bargaining
as
their
permissibly inferred from
lation could be
present,
Wausau did
Such
(1)
of
evidence
Furr’s,
violations. See
§
coupled
fact
no other
when
with the
Cir.,
B.,
(No.
R.
10
Inc. N. L.
v.
attacked,
not demonstrate
did
cards were
8686, 1967);
Corporation v. N.
Colson
pervasive misrepresentation
the
B., Cir.,
(1965),
L. R.
128
8
347 F.2d
upon the
union
to cast doubt
sufficient
240,
den.,
904,
cert.
86
382 U.S.
S.Ct.
remaining
validity
On
of
cards.
(1965). However,
15 L.Ed.2d
when
157
point,
failed to
this
meet
Wausau
evidence of
can
violations
judg
proof,
burden of
and the Board’s
probative
be
of a
said to be
lack
ment
errone
has not been shown
be
good
and, therefore,
faith
that bad
ous.
not,
record,
faith is
a reasonable
do not
While we
doubt
inference,
no basis to infer
then
is
carefully
proceeded
attempt
Wallach
8(a) (5).
a violation of §
ing
to limit his communications to
is
in
faith
an
Good faith or bad
legally
.employees
permissible, his
to the
facts. To
ference to
drawn from the
judged by
likely
words
port
their
im
must be
question
degree,
faith
employees. As the trial ex
to his
credibility.
may
question
L.
N.
engages
suggested,
aminer
one who
n “brinksmanship”
Center,
Economy
Inc., 7
R. B. v.
Cir.,
Food
easily
may
overstep
(1964);
N. L.
B.
333
R.
F.2d 468
It
into the brink.
is well set-
tumble
(1964).
Cir.,
Crean,
F.2d 391
v.
326
7
employer
fled that an
has violated
8§
Credibility,
course,
for the
is an issue
(a) (1)
communicating
if,
Act
case,
trial
In the instant
examiner.
during
organi
to his
a union
rely
however,
did
trial
preceding
zational drive
an
upon credibility
faith. He
to find bad
promises
makes
benefit
threats
stated:
reprisal
loss or
for their vote. N. L. R.
“ * * *
Realist, Inc., Cir.,
B.
Company
v.
7
benefits to its since claim, peti- threatening accuracy oppose unionization, by the of doubt recognize unionization, reprisals tioner the of would not union as the event bargaining by interrogating representative. coercively its On Novem- and em- ployees. ber 1965 the The board further found that union sent the board (5) election, petitioner petition and which was violated § resulting by refusing bargain 22, 1965, of held November de- the act with union, of union of 21 to 17. which claimed to feat been vote designated Thereupon as exclusive filed unfair labor collective bar- union gaining practice charges representative by majority against petitioner, al- petitioner’s production leging prac- improper and maintenance and unfair employees. prior tices to the and stated represented majority the union There was evidence before the board asking employees, election tending prove following, inter desig- set aside and that the union be alia,: bargaining agent nated for the em- Beginning ployees. union October The was heard case petitioner organizational pe- who concluded that drive commenced an (1), had violated § plant distribu- titioner’s and caused the 2(6) act, elec- among tion of authorization cards aside, peti- tion should be set captioned workers. Each “Au- card was bargain tioner should be ordered Representation”. The thorization union. the 38 em- claimed that 29 of adopted The board affirmed and ployees had executed such cards. proposed actions ex- letter dated November aminer, unimportant exceptions, represented petitioner informed and the matter is now before us majority production and mainte- petition for and the board’s cross- review recogni- requested nance petition for enforcement of its order. president, tion. Petitioner’s Theodore Wallach, that, stating A careful examination all wrote the union oral statements letters written inasmuch as had submit- the union they convincingly proof Wallach1 shows that ted of its status claimed *7 1”, transcript “Company’s aof which is a 1. Exhibit Petitioner introduced 3,1965: by employees speech November on made Wallach to important Again We under- an reason. Fellows. we are assembled for Personally organization. getting in our stand is talk a Union there why strangers, see, to as mes- I we need act our between do not approach sengers. enough, is small individuals to any to me or Fred or Peter differences. discuss discovered, By way inequities, which we there a number are very quickly. morning compared wages, I will be corrected we girls up time, sorry this, it our I and am never took the to check on yon please. any underpay wages, if made mention of these never ever anything, before, inequities, I amiss have been If mentioned besides certainly with I came to communicate me. tell me so. You aren’t afraid any ago surely years refugee and am not different as a to the States 28 you. discussing plan, submit which we were to to from all of We were a any you knowing weeks, However for the last Union difficulties. divulge might now, a violation of the cannot it it we because considered regulations, B. R. as a coercion. think, coming setup. you you im- can Now to the union Where do back prove yourself? large enterprise may help. In a with our Here setup any party peculiar advantages to but dis- I can’t either certain see advantages expenses get high, to all to both. If the too we have abandon expert employ case, particular more with overtime and men. In our professions always easily encouraged it all our can em- done. We they begged ployees, wanted, for it to work much overtime as even as right speech of free exercise of the do not constitute a violation of mate legiti- attempt they permissible reasonable and at Instead are a act. compensate wages. I ordi- their Because take chances that for and increase secondary narily by scrap and use steel and dealers are not taken other and setup. light my good loans, reputation for You can see have a decent we my p.m. evenings up 11-12 in evenings office 5-6 a week Sat. afternoons Sunday evenings keep organization smooth afternoons an even keel. buy plus prices, You which allows realize we wholesale 90% extremely company profit profit small and we are a therefore low us, limits, certain allows but that additional substantial business also employ many anybody for lack as men as we do and also not to send home unprofitable, of work or conditions it to hold because weather make our men, they during periods particularly even if cause a loss those extended wintertime. change pres- expenses would have To save substantial additional barely practical transactions, setup, which now are reduce certain ent losing profit standpoint must movement. We and then would become me, operation ourselves, try, is not and believe to máintain the to defend you grownups, easy, I kid not. are from the outside. You as looks as ability not realize how think for themselves. Some of the men do they necessarily change to the better. have it and a is no means employee pulled it, said rumor has that a card because One time has been employee here, 10 mts. 10 mts. is still whether he was ever late. The nobody- nobody anything repeat him I late do not know but mentioned —-I anybody, right any nor know of does who has fire incident of planted by somebody, kind. It is a malicious wants to rumor who fish speculates employees the dark. another rumor is Also of our one going Upon asking around, say good conscience, to be I fired. can nothing probably whatsoever to it and that it same comes from the story. mill rumor as the first unfounded appreciate your now, possible, I would comment but before we discuss you you I- matters want read letter which each one will receive at morning. home tomorrow letter, General Counsel for the board Exhibit introduced read # employees, reading Wallach to the and mailed him to said follows: (Letterhead Corporation, of Wausau Steel Wausau, 54402.) Wisconsin Employee Corporation: Dear Fellow of Wausau Steel attempting We have been advised that Iron Workers Local 811 has been organize employees’ of this and to become our bargaining representative agent. exclusive We have not been shown any membership signed by any or authorization cards of our signed therefore we do not know whether have or have not *8 such cards as of this time. purpose acquaint you your rights The of this letter is to as em- ployees. any pressure put upon you by rep- If there has been the union you sorry situation, resentatives ifor have been embarrassed this arewe
indeed. anyone against You do not have talk to about unions or or unions you you join don’t want to. No one can make a union. No one can you sign membership make a union authorization card union If or card. you already signed you card, up have such can ask that it be torn or you. you signed returned If such a and do not card want it to be force, you may agent either tell the union that or inform our office of your guided accordingly. fact so that we will know of wishes and can be country guarantee you right join laws The of this each one of join you you not to a union. It is for decide whether want to do not want to have union our business. any If an repre- election concerning is held at time in the future sentation, you you regardless are free to vote “Yes” or “No” as choose you prior signed signed whether or not have to the election or not a union letters, persuasion talks and exercised on that Wallach did in behalf employees, management Actually conferences, all was to advise the a business. you any way you you anything or to don’t want to do threaten to do right membership has the or coerce authorization or No one to force card. type of situation. working fair with its both has tried to be know, great wages. you our received conditions and As have very pay pay believe to be and their total takehome we deal of overtime satisfactory employees. elimi- hate to have to reduce or our We pay. are think our and the nate such overtime We very hope party getting along together a third such as a union well and we relationships placed between and our fine us you questions enjoyed past. any If about this letter or in the have you my always open anything me, over office door is would like talk employee. every very truly, Yours CORPORATION, WAUSAU STEEL By Wallach, Theodore President. among 16, 1965, petitioner’s employees On November circulated “Company’s following notice, introduced as Exhibit No. 2”: Corp. Wausau Steel Employees LONGER? HOW MUCH WILL YOU your employer?
be dominated WHEN you your will own feet? stand on ACT THE LABOR MANAGEMENT RELATIONS TO GUARANTEE YOU THE TO ORGANIZE AND CHOOSE RIGHT YOUR OWN REPRESENTATIVES. WHY ARE YOU AFRAID: organized helped pass Congress law thru to use the benefit of all labor. ATTEND: Meeting, Thursday, TEM- YOUR 1965 at 7:30 P.M. LABOR PLE, the INTER- Ave. LOCAL UNION So. 3rd SHOPMEN’S #811 STRUCTURAL, BRIDGE, ORNA- NATIONAL ASSOCIATION OF WORKERS, MENTAL IRON A.F. OF L. IT ALWAYS HAPPENS. deep you up talking from his “BOSS” When start UNION the wakes sunlight. sleep spring the breeze much a bear does in He sniffs like what sees. doesn’t like he scratching howling He “OLD BEAR” and instead of is wise things up. bouquet uses a nice of flowers sweeten silly you you, thinking about a You how UNION. Ha: He will tell you you. money, represent can It is a waste of don’t a UNION to need story? many Did How times have heard this do better without one. you why REPRE- LAWYER” TO ever ask a “WAUSAU the boss he uses THE COM- HIM THAT THE UNION AVOULD SEND SENT OR SAYS BANKRUPTCY, THE NOT MENTION PANY INTO BUT HE DOES SIMPLE, YEAR. IT HE MADE LAST IS TREMENDOUS PROFITS THE HE NEEDS THEIR REPRESENTATION AND PROTECTION *9 NEED NO. 811. SAME AS YOU SHOPMEN’S LOCAL UNION YOUR Many deliberately get you shop are in to reconsider. rumors started to you Then, just you late, for it when it too Boss smiles and tells is just a rumor. your you by Why Beware that are talk. aren’t not deceived this double Why pay wages shops? you in with the hos- line other union do have to pital you family? Why you pay plan your have to and for Why do welfare and you grievance pro- insurance[?] the life is it that do [have] not your you? plus properly grievances representation process for cedure to margin profit be properly it is small will then and his advice summarized reducing necessary petitioner’s to cut costs brief: “ eliminating ** * hours, un- overtime comes in and Union if marginal operations. profitable wages and other causes an increase wage inequities adjust Company’s plan expenses, We to because your represented by shopmen’s you local that when knows are The boss things will be different. union no. 811 only human, interests, simple, deals with when the Boss is selfish It is * * * * * * you you separately, be or can take what he offers with * * * * * * you you. quit, up deals with to When he kicked out represented your shopmen’s collectively, NO. 811 is local UNION up It wakes another wonder that boss horse of color. is no you promise shining face, will in his he is not so dumb. He sun starts anything keep you voting [sic] to on YES Nov. 22th. you. You that bear lest he devour watch your your, you. The can for He knows boss knows what UNION do job security, company provide you paid with life insurance union will things your representing you hospital insurance. He knows with will be different. you you anyone telling have know that not how to vote. We You do need things and will vote YES. considered these your shopmen’s support it MONEY Local Union No. 811 is Continue IN YOUR POCKET. your ELECTION TO WIN. This is organizing shopmen’s committee. No. 811 Your local Union their and mailed to Wallach read On November letter, following Exhibit No. 7”: introduced as “General Counsel’s homes the Corporation, (Letterhead of Wausau Steel 54402.) Wausau, Wisconsin 18, 1965 November Corporation: Employees Steel Dear Fellow of Wausau you know, the National Labor As will election conducted plant Monday morning, between Board at our Relations o’clock a.m. in the lunch room. This will be ballot 9:15 and 10:00 secret plant polling provided employee will a secret booth where each have representation. “Yes” or “No” as to union a chance vote Any right employee eligible urge vote. to vote exercise We each employee have vote belief will who does not his own and his own conscience effect, complaint grounds concerning and, will for later the outcome no helping group whose views he does not share. he any employee or will know how votes. This a secret ballot. one can is No you signed have a union au- It makes whether or have difference joined joined membership you card, or not whether thorization you paid any union, initiation fee to a union. or whether have or have you regardless anything gone wish before. You can vote as that has you high job security provide wages, and insur- union cannot Only company engaged prospering and in a con- ance benefits. sound tinuing you supply can that. No union can with overtime or business do company provide margin profit overtime. Our small force is so oper- in our costs would mean that we would substantial increase major parts drop operation. at a loss be forced to of our We don’t ate you don’t this —and either. want proper adjust- intend, settled, to make is when this union matter We program. wages insurance and to reasonable establish ments easy organizer promise finds when he moon—and It is for a union getting paid- you keeps deliver, you he strike. But can’t to tell — you either. want this —and don’t don’t! We don’t you thing you agree is best If with us you you past, able best if believe we have to continue you directly, yourself represent believe and to talk to us
379 where, discovered, Cir., Company, discuss F.2d tics which we have Judge you plan opinion insurance in learned Senior an additional regardless said, how Major, 512: after we “ * * * out, comparison discuss that facts it comes but cannot directly they readily prefer deal here discloses now. We would with those going employees support Board’s without for with our furnish * * * your through free In position it a Union but in case. Economy, make.” that choice to was evidence ation in mind when it enacted 158(c), Undoubtedly tion printed, graphic, or ment, “The thereof, or expressing opinion, Congress provides: whether or the dissemina- visual any views, had such a in form, 29 U.S.C. written, argu- shall situ- At the evidence and conclude that pay would be sold if [*] company president page “ * * * [*] #» 513, Judge Major wages We have read and stated he added: got re-read it does in. un- or be of an support constitute for not furnish substantial practice fair under order, in Board’s considered provisions subchapter, light of this such record. The con- the entire expression re- no threat of coercive, contains versations were not consid- prisal promise they force or benefit.” in ered in which environment nothing place. They took more Although were brief relies board expressions opinions than of views or Center, Economy on N. L. B. Food R. v. reprisal ‘no which contained threat Inc., Cir., sup- 333 F.2d ” promise or force or of benefit.’ port of its contention that it has con- sistently recognized been such finding against petitioner state- In on the by management carry implied alleged ments violation of the board reprisal employees opt threat if the also relies Wallach’s conversations representation, Hill, collective employees Larry and “instill with Kenneth a fear of economic loss Thomas and Ronald On Martin. Novem- * * *”, distinguished by that case was ber Wallach asked Hill what the com- Mallory us in plaints why they 1966 in were, R. B. Plas- of the men your trying pay we are to be fair total take-home —then urge you we “No.” vote very truly, Yours CORPORATION, WAUSAU STEEL By Wallach, Theodore President. 9, 1965, petitioner (introduced On December mailed letter as “General 8”) telling
Counsel’s Exhibit No. to its them: (Letterhead Corporation, of Wausau Steel Wausau, 54402.) Wisconsin December employee Corporation: Dear fellow of the Wausau Steel previously investigate We have advised our that we would possibilities program covering of an insurance our and advise possible. them of the results as soon investigations early We commenced such October several weeks solicitating employees. among before we learned the union [sic] our investigations. Unfortunately, We have continued these we are advised effect, improper us, plan put would be disclose into charges growing pending. while the out of the election are charges disposed of, As soon as these are will be in touch with our employees concerning program. an insurance CORPORATION,
WAUSAU STEEL Wallach, Theo. President. *11 foregoing reasons, I On that occasion For would wanted union. Wal- said, deny response to lach also Hill’s state- enforcement order plan, they aside that a retirement board and set the order. ment wanted looking into had been that insurance, promises. but could make no
Finally, examiner, before the Hill had
testified that Wallach
“ ** * told that about some- me thing cents, about cents 22% is, know, he, if had to
whatever parts much raise that certain COMPANY, a TIMBER SIMPSON would to be or cut have slowed down Appellant, corporation, something.” out v. 20, Thomas Wallach asked On November CO., CONSTRUCTION PALMBERG testified Thomas to come to his office. Appellee. corporation, said Wallach before said examiner CO., CONSTRUCTION PALMBERG men, and he would have to hire more Appellant, corporation, hours of work would be fewer v. (wages, expenses petitioner’s the men COMPANY, TIMBER SIMPSON Thomas, .According up. etc.) went Appellee. corporation, Wallach also said No. 20219. “ * * * men have Appeals United States Court coming work- to them that were raises Ninth Circuit. ing that had and those there before April 1967. just also.” will raises started Rehearing May 1967. Denied day, Martin, On that same pursuant telephone call from his to a
mother, petitioner’s office. went telephone con-
After he had finished
versation, told him that he Wallach
(Martin) seniority as did have much plant
as had those who worked at (Martin)
longer, and would be go.”
“one the first ones to if, contrary facts, to the
Even foregoing possibly could conversations regarded (1), as violations they are minimal and would not warrant bargain. Rather, remedy N. L.
then would be a new R. election. Corporation, Cir., B. Flomatic v. (1965).2 F.2d 74 subsequent opinion “good 2. Second A based on a faith” doubt was and, status, Circuit, Irving alleged majority Air Chute union’s the thus, B., bargain” dis was 350 F.2d such a “refusal L. R. ground justified. Moreover, tinguished Flomatic minimal on the they only violations, exist, “there minimal if in fact the latter asserting petitioner bar violation demand and no bar, bargain.” In the case faith doubt. refusal bargain petitioner’s however, refusal