189 F2d 516 National Labor Relations Board v. Everett Van Kleeck & Co

189 F.2d 516


No. 202.

Docket 21903.

United States Court of Appeals Second Circuit.

Argued May 8, 1951.

Decided May 31, 1951.

George P. Bott, General Counsel, David P. Findling, Associate General Counsel, A. Norman Somers, Assistant General Counsel, Harvey B. Diamond and George H. Plaut, Attorneys, National Labor Relations Board, Washington, D. C., for the petitioner.

Adolph Bangser, New York City, for respondent.

Before SWAN, AUGUSTUS N. HAND and CLARK, Circuit Judges.


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The decision and order under review affirms the Trial Examiner's conclusion that the respondent coerced its employees by statements made to them on April 9 and 10, 1948 in violation of section 8(a)(1) of the National Labor Relations Act, 29 U.S. C.A. § 158(a)(1), and wrongfully refused to bargain with the union, which represented a majority of the employees on those dates, in violation of section 8(a)(5) of the Act. The respondent resists the Board's petition for enforcement of its order on the ground that the findings are not supported by the proof. It contends that its demand for proof of the union's majority status by means of an election was made in good faith, and that its employees were not coerced by Mr. Van Kleeck's statements to them.


The facts are stated in the Board's opinion, 88 N.L.R.B. 785, and need not be here repeated. The decision of the Board was not unanimous. Mr. Murdock dissented from the majority's view that the respondent's request for an election was not made in good faith but was motivated by a desire to gain time within which to undermine the union and avoid the statutory duty to bargain; therefore Mr. Murdock voted to dismiss that portion of the complaint which charges an illegal refusal to bargain. We cannot say that the Board's finding as to the respondent's motive in requesting an election is so unreasonable an inference from the proven facts that it is not supported by substantial evidence on the record as a whole. See National Labor Rel. Bd. v. Consolidated Mach. Tool Corp., 2 Cir., 163 F.2d 376, 378, 379, certiorari denied 332 U.S. 824, 68 S.Ct. 164, 92 L.Ed. 399; Joy Silk Mills v. National Labor Rel. Bd., D.C.Cir., 185 F.2d 732, 741. Consequently we must accept it. The petition for enforcement is granted.