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    National Labor Relations Board v. Sanford Home For Adults, and Local 6, International Federation of Health Professionals, International Longshoremen's Association, Afl-Cio, 669 F.2d 35, 2d Cir. (1981)

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    The National Labor Relations Board sought enforcement of an order finding that the Sanford Home for Adults and Local 6 union had violated the National Labor Relations Act. The Board found that the Home had coerced employees into joining the union to prevent them from joining a rival union. It also found that the Home and union improperly entered into an agreement when the union did not have majority support and tried to enforce a union security clause. The court upheld the Board's findings, excluding certain individuals from the bargaining unit and finding an employee was coerced into signing a union card. It also rejected arguments about improper contact between the ALJ and Board and that the Board had predetermined the outcome. The Board's petition for enforcement of its order was granted.

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    National Labor Relations Board v. Sanford Home For Adults, and Local 6, International Federation of Health Professionals, International Longshoremen's Association, Afl-Cio, 669 F.2d 35, 2d Cir. (1981)

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    The National Labor Relations Board sought enforcement of an order finding that the Sanford Home for Adults and Local 6 union had violated the National Labor Relations Act. The Board found that the Home had coerced employees into joining the union to prevent them from joining a rival union. It also found that the Home and union improperly entered into an agreement when the union did not have majority support and tried to enforce a union security clause. The court upheld the Board's findings, excluding certain individuals from the bargaining unit and finding an employee was coerced into signing a union card. It also rejected arguments about improper contact between the ALJ and Board and that the Board had predetermined the outcome. The Board's petition for enforcement of its order was granted.

    Original Description:

    Filed: 1981-12-07 Precedential Status: Precedential Citations: 669 F.2d 35 Docket: 421

    Original Title

    National Labor Relations Board v. Sanford Home for Adults, and Local 6, International Federation of Health Professionals, International Longshoremen's Association, Afl-Cio, 669 F.2d 35, 2d Cir. (1981)

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    The National Labor Relations Board sought enforcement of an order finding that the Sanford Home for Adults and Local 6 union had violated the National Labor Relations Act. The Board found that the Home had coerced employees into joining the union to prevent them from joining a rival union. It also found that the Home and union improperly entered into an agreement when the union did not have majority support and tried to enforce a union security clause. The court upheld the Board's findings, excluding certain individuals from the bargaining unit and finding an employee was coerced into signing a union card. It also rejected arguments about improper contact between the ALJ and Board and that the Board had predetermined the outcome. The Board's petition for enforcement of its order was granted.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    13 views3 pages

    National Labor Relations Board v. Sanford Home For Adults, and Local 6, International Federation of Health Professionals, International Longshoremen's Association, Afl-Cio, 669 F.2d 35, 2d Cir. (1981)

    Uploaded by

    Scribd Government Docs
    The National Labor Relations Board sought enforcement of an order finding that the Sanford Home for Adults and Local 6 union had violated the National Labor Relations Act. The Board found that the Home had coerced employees into joining the union to prevent them from joining a rival union. It also found that the Home and union improperly entered into an agreement when the union did not have majority support and tried to enforce a union security clause. The court upheld the Board's findings, excluding certain individuals from the bargaining unit and finding an employee was coerced into signing a union card. It also rejected arguments about improper contact between the ALJ and Board and that the Board had predetermined the outcome. The Board's petition for enforcement of its order was granted.

    Copyright:

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    of 3

    669 F.

    2d 35
    109 L.R.R.M. (BNA) 3007, 92 Lab.Cas. P 13,195

    NATIONAL LABOR RELATIONS BOARD, Petitioner,


    v.
    SANFORD HOME FOR ADULTS, and Local 6, International
    Federation of Health Professionals, International
    Longshoremen's Association, AFL-CIO, Respondents.
    No. 421, Docket 81-4127.

    United States Court of Appeals,


    Second Circuit.
    Submitted Nov. 30, 1981.
    Decided Dec. 7, 1981* .

    Howard E. Perlstein, Robert I. Tendrich, Attys., N. L. R. B., Washington,


    D. C. (William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy
    Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott
    Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C.,
    of counsel), for petitioner.
    Morris Tuchman, Gluck & Tuchman, New York City, for respondent
    Sanford Home for Adults.
    Jacob Laufer, Bornstein & Laufer, New York City, for respondent Local
    6.
    Before FEINBERG, Chief Judge, OAKES, Circuit Judge, and CONNER,
    District Judge.**
    PER CURIAM.

    Petitioner National Labor Relations Board seeks enforcement of an order


    finding that respondent Sanford Home for Adults (the Home) violated sections
    8(a)(1), (2), and (3) of the National Labor Relations Act, 29 U.S.C. 158(a)
    (1)(3), and that respondent Local 6 (the Union) violated sections 8(b)(1)(A) and
    (2) of the Act. 29 U.S.C. 158(b)(1)(A), (2). The Board found, in essence,

    that the Home had coerced its employees into joining the Union to prevent
    them from becoming members of a rival organization, Local 144, the charging
    party. It also concluded, inter alia, that the Home and the Union had
    inappropriately entered into a collective bargaining agreement when a majority
    of the Home's employees had not signed valid membership cards and that the
    Union had improperly attempted to enforce the agreement's union security
    clause by demanding that two employees be discharged. The order required
    respondents to desist from further violations of the Act and to reinstate and
    make whole employees who were victims of their unlawful practices. The
    Home was also ordered to withdraw recognition from the Union as the
    collective bargaining representative of its service and maintenance employees.
    2

    Respondents argue that the Board improperly excluded two individuals from
    the bargaining unit in determining that the Union did not command majority
    support. One employee, Beverly Salmon, completed a tax form and union
    membership card, but she did not commence work nor was she ever paid. The
    other employee, Raymond Murcia, began his term of employment only four
    days before and completed it one day after the Union's recognition demand
    date. Although he was ostensibly hired as a kitchen helper, Murcia helped out
    in the kitchen only on the first day of his employment. The bulk of his time was
    spent organizing activities for the Union. Under the circumstances, the Board
    did not err in concluding that Salmon and Murcia did not qualify as employees
    in determining whether the Union had garnered majority support.

    Respondents also claim that the Board erred in finding that Raul Alcides
    Echeverri's membership card was invalid because he was coerced into signing.
    At the hearing, the evidence showed that Harry Mayer, the Home's managing
    partner and administrator, and his wife, the assistant administrator, had been
    present at various times when Murcia solicited Echeverri to become a union
    member. Mr. Mayer also told Echeverri that everyone had joined and that
    anyone else who had not signed would be "thrown out." Mr. Mayer filled out
    the card for Echeverri, who then signed it. This showing amply supported the
    conclusion that Echeverri had been coerced into signing. Because exclusion of
    the cards signed by Salmon, Murcia, and Echeverri resulted in less than
    majority support for the Union, it is unnecessary to consider the Board's
    broader finding that all votes cast for the Union were tainted by coercion.

    Respondents also contend that the Administrative Law Judge (ALJ) should
    have been disqualified because he engaged in ex parte communication with the
    Board's general counsel. This contention must also be rejected. First,
    respondents did not comply with section 102.37 of the Board's Rules and
    Regulations, 29 C.F.R. 102.37 (1981), which requires the parties to file a

    timely affidavit alleging the grounds for disqualification before an


    administrative law judge files his decision. In fact, when the ALJ informed the
    parties of the ex parte communication, respondents stated that they were
    satisfied with his explanation. They did not raise their objection until well after
    the ALJ's decision. Second, the ex parte communication here was entirely
    proper. Section 102.130 of the Board's Rules and Regulations, 29 C.F.R.
    102.130 (1981), permits an administrative law judge to engage in ex parte
    communication regarding settlement of a case. The conversation challenged
    here involved only information relevant to possible settlement and did not
    inappropriately deal with the merits of the case.
    5

    Finally, respondents argue that their right to due process was denied because
    the Board had predetermined the outcome of the case when it decided to seek
    an injunction under section 10(j) of the Act, 29 U.S.C. 160(j). This claim is
    untenable. If it were accepted, the Board would preclude itself from fulfilling
    its obligation to review and decide whether unfair labor practices have occurred
    under section 10(c), 29 U.S.C. 160(c), by meeting its obligation to seek an
    injunction under section 10(j). Such a result would be completely out of
    keeping with congressional intent to delegate these duties to the Board. In
    seeking an injunction under section 10(j), moreover, the Board does not decide
    the ultimate merits of a labor dispute, but need show only that "there is
    reasonable cause to believe that unfair labor practices have been committed."
    See Seeler v. Trading Port, Inc., 517 F.2d 33, 36 (2d Cir. 1975).

    The Board's petition for enforcement is granted.

    This petition, originally heard on November 30, 1981, was decided by order
    dated December 7, 1981. Such a summary disposition has no precedential value
    under our Local Rule 0.23. Counsel for petitioner, however, has requested that
    the December 7 order be published, and we have decided to repeat the
    substance of our December 7 order in this per curiam opinion, which will be
    published

    **

    Honorable William C. Conner, United States District Judge for the Southern
    District of New York, sitting by designation

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