National Labor Relations Board v. Peter Paul, Inc., and Industrial Candy Workers Union, Intervenor

467 F.2d 700 80 L.R.R.M. (BNA) 3431 , 69 Lab.Cas. P 12,930 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PETER PAUL, INC., Respondent, and Industrial Candy Workers Union, Intervenor. No. 71-1397. United States Court of Appeals, Ninth Circuit. Aug. 1, 1972. Rehearing Denied Nov. 14, 1972. Charles Steele, Atty. (argued), William Wachter, Joseph E. Mayer, Attys., Dominic L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Atty. Gen., Peter G. Nash, Gen. Counsel, Washington, D. C., Roy O. Hoffman, Director, NLRB, Region 20, San Francisco, Cal., for petitioner. Robert J. Scolnik (argued), San Francisco, Cal., Marvin S. Siegel (argued), Menlo Park, Cal., Norman Leonard, San Francisco, Cal., Robert B. Snow, Jr., New Haven, Conn., Leroy King, ILWU Local # 6, San Francisco, Cal., for respondent. Before CHAMBERS, ELY and KILKENNY, Circuit Judges. KILKENNY, Circuit Judge: 1 Peter Paul, Inc. [Company] manufactures and packages candy in Salinas, California. For approximately 20 years prior to March 19, 1968, Industrial Candy Workers Union [ICW 1 had been the certified bargaining representative of the Company's employees. On that date, ICW notified the Company that it wished to…

Peter Paul, Inc. [Company] manufactures and packages candy in Salinas, California. For approximately 20 years prior to March 19, 1968, Industrial Candy Workers Union [ICW] 1 had been the certified bargaining representative of the Company’s employees. On that date, ICW notified the Company that it wished to initiate negotiations for a new contract inasmuch as the one in force was scheduled to expire on June 30th of that year. Negotiations commenced a short time thereafter.

Early in 1968, the International Longshoremen’s and Warehousemen’s Union [ILWU] commenced an organizational campaign in the Company’s plant and on April 29, 1968, filed a petition for an election among the employees in the unit covered by the ICW contract. The petition, filed with the regional office of NLRB [Board], asserted that there were 141 employees in the union and at least 30% of the employees supported the petition. Some 45 authorization cards were submitted to substantiate the claim. A copy of the petition, together with a letter from the Board, was received by the Company on May 1st. The letter requested a list of all employees in the described unit in order to determine whether the 30'% claim was…

(dissenting):

I respectfully dissent. One of the Hearing Examiner’s “Conclusions ol Law,” specifically No. 3, reads: “A *703 question concerning representation existed among employees of Respondent at all material times after May 1, 1968.” Additionally, the Examiner’s conclusion No. 4 was that the Respondent had engaged in unfair labor practices “[b]y continuing to bargain and entering into a contract with ICW while there was a question concerning representation .” (emphasis added). These “Conclusions of Law” were adopted by the Board and were, essentially, factual determinations for which I find plenty of evidentiary support in the record.

Next, I take exception to the majority’s concept, as “[s] imply stated,” of the issue before us. As I see it, the true is- • sue is whether an employer, while refusing to supply the Board with information deemed essential to the Board’s determination of whether a question of representation exists, has the power, paramount to that of the Board, to make its own self-determination that no such question does exist. My opinion is that it does not have, and should not have, such power. I do not asperse the employer’s motives in this particular…