DocketNumber： Nos. 5302, 5326
Citation Numbers： 147 F.2d 519, 15 L.R.R.M. (BNA) 892, 1945 U.S. App. LEXIS 3187
Judges： Dobie, Soper
Filed Date： 1/3/1945
Status： Precedential
Modified Date： 11/4/2024
These cases are before us on petitions by Western Electric Company and Point Breeze Employees Association (hereinafter referred to as the Company and the Association, respectively) to review and set aside an order of the National Labor Relations Board (hereinafter called the Board) issued on August 9, 1944, in a case under Section 10 of the National Labor Relations Act (herein called the Act), 29 U.
On the filing of the complaint, extended hearings were conducted by the trial examiner. After full consideration and the taking of a great mass of testimony, the examiner found the existence of unfair labor practices within the meaning of the Act, in that the Association is a successor to, and stands in the same position as, the Employees Representation Plan (hereinafter called the Plan) ; that the Company dominated and interfered with the formation of the Plan and the Association and is dominating and interfering with the administration of the Association. The Board approved and substantially adopted the findings and conclusions of the examiner and issued the order involved in this appeal. This order directed the Company to cease and desist from: Dominating and interfering with the formation of, or contributing support to, any labor organization of its employees; recognizing the Association as a representative of its employees; or giving effect to any contracts with the Association. The Company was further ordered to post appropriate notices. The questions before us are whether the-Board’s findings are based on substantial evidence, and whether the disestablishment order based on these findings is a proper order.
The Company is a New York corporation, and a subsidiary of the American Telephone and Telegraph Company. It now operates, and did operate at the time of the acts in question, four main manufacturing plants in various sections of the United States. It is conceded that the Company is engaged in interstate commerce within the meaning of the Act. We are here concerned solely with activities of the Company’s plant at Point Breeze, Maryland.
In the summer of 1933, in line with the requirements of Section 7(a) of the National Industrial Recovery Act, 49 Stat. 198, the Company established and sponsored the Plan at its several plants. In August, 1933, W. H. Meese, the Company’s vice-president and works manager, called a meeting at the Point Breeze plant and announced that officials of the Company had drafted the Plan, proposed its adoption, and invited the employees to elect a committee to set up the mechanics for the selection of employee representatives. Thereafter, an election was held, and, with the holding of this election, the organization of the Plan was fully effected. Under the Plan, no employee was required to pay dues. All expenses of the Plan were borne by the Company and all employees automatically became members of the Plan. The Plan operated through three pyramided types of joint committees, though even the ranking committee had, in effect, no more than advisory authority. In 1934 the Company integrated the Plan in its four plants, but no material changes were made.
Neither the form nor the administration of the Plan was illegal prior to July 5, 1935, the date of the passage of the Act. The Board has found, however, and the evidence amply supports the finding, that after that date the Plan clearly violated both the language and the purpose of the Act. N.L.R.B. v. Pennsylvania Greyhound Lines, Inc., 303 U.S. 261, 268, 58 S.Ct. 571, 82 L.Ed. 831, 115 A.L.R. 307; N.L. R.B. v. Newport News Shipbuilding & Dry Dock Co., 308 U.S. 241, 249, 60 S.Ct. 203, 84 L.Ed. 219. This illegal plan operated openly until April, 1937, when the decision of the Supreme Court in N.L.R.B. v. Jones & Laughlin Steel Corporation, 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352, sustaining the constitutionality of the Act, was brought to the attention of the Company.
The crucial question in the instant case is whether the evidence supports the Board’s finding that the Association is a successor to, and stands in the same position as, the Plan. By the terms of the Act we are bound by the findings of the Board unless it can be said that those findings are unsupported by substantial evidence, 29 U.S.C.A. § 160(f). And these findings of the Board are binding as to not only evidentiary facts, but also conclusions of fact which may reasonably he drawn therefrom. Virginia Electric & Power Co. v. N.L.R.B, 4 Cir, 132 F.2d 390, 395; N.L.R.B. v. Waterman S. S. Corporation, 309 U.S. 206, 60 S.Ct. 493, 84 L.Ed. 704; Martel Mills Corporation v. N.L.R.B, 4 Cir, 114 F.2d 624. Further, we may not substitute our own conclusions for those of the Board. Where the evidence admits of more than one inference, the choice of inference is properly for the Board, not for the courts. N.L.R. B. v. George P. Pilling & Son Co, 3 Cir, 119 F.2d 32; Montgomery Ward & Co. v.
On, or shortly after, April 13, 1937, Hicok, the Company’s superintendent of industrial relations, informed Scarborough, chairman of the Plan, that a pending meeting would not be held because there was doubt as to the legality of the Plan. On or about April 16, 1937, most of the seventeen employee-elected representatives were summoned to Meese’s office and he told them that the Company could no longer “deal” with them. The testimony shows that information to the effect that the Plan was “out” was passed on to their constituents by these representatives. However, the Board found that the Company did not, by oral statement of any officer or other supervisory employee, or by written notice or otherwise, convey directly to its employees as a whole, as distinguished from the seventeen Plan representatives, the Company’s intention no longer to recognize the Plan or to meet with its representatives.
The Company here strenuously argues that it is not compelled to follow any “ritualistic” form of notice, and that the fact that the knowledge of the disestablishment of the Plan was generally distributed to the employees is sufficient. No particular form of notice is required under the Act, yet any notice, to be valid, must constitute actual notice of the true situation, and not a statement of half facts from which many inferences might well be drawn.
Circulars distributed by the Plan representatives on April 21, 1937, the day before an election in which the entire number of Plan representatives were elected en bloc to act as bargaining agents for the employees for a period of sixty days, set forth information that was certainly not complete, correct though it may have been as far as it went. This circular, in part, stated the Plan “is no longer permitted because the management has been helping to pay the expense of it”; also, “It is necessary for us to form a New Plan or to have none at all.” Further, employee Mileski testified that Schmidt, one of the Plan representatives, said: “We are forming a union, and since they have passed the Wagner Labor Act we want to keep out an outside organization” and that if an outside organization came in “We would lose our sick benefits and our vacations, and all our benefits we got from the Company.” While these statements are not binding on the Company, they are important as tending to show the reactions to, and the interpretation of, Meese’s speech by the employees.
It was not unreasonable for the Board to conclude, and we think the evidence reasonably supports the conclusion, that the employees were not “freed of the respondent’s (Company's) domination of the Plan.” In view of the Company’s former active domination of the Plan, there is sound reason to believe the employees would consider that the “new Plan” had the hearty approval of the Company. The Board found that this brand of second hand notice “lacked the sanction and authority which attach to pronouncements of an employer concerning his employees.” Half truths and partial notice are not sufficient to eradicate completely the effect of domination over a prior employee organization, nor do they indicate a complete abandonment of the old, and a distinct beginning of the new. N.L.R.B. v. Moore-Lowry Flour Mills Co., 10 Cir., 122 F.2d 419; N.L.R.B. v. Continental Oil Co., 10 Cir., 121 F.2d 120.
It is not unimportant that subsequent to the notice relied on by the Company, the Company on April IS, 20 and 22, 1937, met in joint committee with these same seventeen Plan representatives and discussed grievances concerning wages, hospitalization, and other questions. Such conduct on the part of the Company draws no such definite and clear line of cleavage between the two organizations as would free the Association from any taint of employer domination. N.L.R.B. v. Condenser Corporation of America, 3. Cir., 128 F.2d 67.
It seems clear that both the Plan representatives and, judging from current conduct, the Company, considered these seventeen to still be the “duly elected” representatives of the employees between the time of the alleged notice of April 13 and the date of the election, April 22. The representatives themselves speak of “carrying on.”
On April 19, 1937, a circular was issued over the signature “Elected Representative, Hourly Rated Employees.” On this point the Company urges that the acts of the employee-representatives are of no concern to, and do not bind, the Company. In answer to this it might be pointed out that at the date of the alleged disestab
“* * * where an employer, without any public disavowal of a previously company-dominated union, has silently stood by and watched a new organization grow out of the smoldering ashes of the old union, ‘disestablishment’ of the second organization may still be ordered.”
Nor may the Company adopt a “convenient unawareness” vso as to further its own ends. American Smelting & Refining Co. v. N.L.R.B., 5 Cir., 128 F.2d 345, 346.
Counsel for the Company contend that a letter from the Company’s New York headquarters that arrived on the morning of April 22, 1937, gave clear instructions to the plant manager that he was to inform the employees of the Company’s indifference to the organizational effort of the employees. Timely notice to the employees of this letter might well have caused a different result in the election held on the same day. Moreover, so long as this letter remained, in effect, in the breast of the Company, it could in no way dissipate, in the minds of the employees, any impressions acquired as a result of the conduct of the Company and the representatives of the Company-dominated Plan.
In commenting on the Newport News case, supra, Circuit Judge Learned Hand, in Westinghouse Electric & Manufacturing Co. v. N.L.R.B., 2 Cir., 112 F.2d 657, 660, affirmed in 312 U.S. 660, 61 S.Ct. 736, 85 L. Ed. 1108, used words that are very much in point here:
“ * * * although the new union would be lawful, if freely formed, it had in fact arisen out of the earlier organization, and the company had done nothing to mark the separation between the two, and publicly to deprive the successor of the advantage of its apparently continued favor. * * * the employees at large had not been advised that the company was wholly indifferent whether they joined the new union, and that, as it might, and probably did, appear to be a successor of the old, the separation should have been made plain, and with it the discontinuance of any continued countenance from the employer. * * * the Board may take it as datum, in the absence of satisfactory evidence to the contrary, that the employees will suppose that the company approves the new, as it did the old, and that their choice is for that reason not as free as the statute demands.” »
As we pointed out above, the vote for seventeen Plan representatives was either for or against, as a single unit, to handle any bargaining controversies for the ensuing sixty days. It is true that even under an unquestionably fair election, “leadership will out,” and labor leaders under one plan are more than apt to continue their leadership in a subsequent organization, yet in this case, had there been proper notice to the employees, the same Plan representatives might or might not have been chosen to guide the policies of the new organization. The Board has found that there was no such freedom of choice as was intended by the Act. International Ass’n of Machinists Tool & Die Makers Lodge No. 35 v. N.L.R.B., 311 U.S. 72, 61 S.Ct. 83, 85 L.Ed. 50.
There is substantial evidence to support the conclusion reached by the Board that, under the circumstances obtaining in this case, these Plan representatives were unable to emancipate themselves from the domination of the Company so as to represent the employees fairly. Cf. N.L. R.B. v. Falk Corporation, 308 U.S. 453, 461, 60 S.Ct. 307, 84 L.Ed. 396.
Counsel for the Company strongly rely upon N.L.R.B. v. Duncan Foundry & Mach. Works, Inc., 7 Cir., 142 F.2d 594, to support their contentions. In that case, however, there was a “clear understanding of the attitude of the employer in this regard upon the part of the employees.” In the instant case, the Board has found that the Company failed properly to bring home to its employees that it was completely indifferent to their organizational efforts. We think there is substantial evidence to support this finding.
The Company points out that the Association election was carried by a large majority. This is the expected result in a
Counsel for the Company contend that the Association is now completely emancipated from the control of the Company; that it is unusually “militant” in its bargaining attitude. In the face of this contention, the Board has found from the credible evidence that interference on the part of the Company has existed since the formation of the Association, and still exists. In 1941 and 1942, the election of representatives was held on Company property and Company time, without objection by any supervisory employee. Pamphlets of the Association were distributed without objection. Employees were signed up by the Association on Company time with knowledge of Mercer, a supervisor.
About 1939, Leichsenring, a supervisory employee, said to employee Mileski, “All employees must have something else besides the goodwill of the Company and it would be better for a man to join a union that the Company approved of than an outside union.” It seems clear that Association members knew they could solicit on Company time, and non-Association employees would seem to have been just as certain they could not because they had no majority.
Disparaging remarks were passed by several supervisory employees concerning outside unions. Thus, employee Moore testified that, in May, 1943, W. D. Pollock, group chief of the inspectors, asked her if she'“belonged to the Union (I.A.M.),” and that when she replied in the affirmative, he told her “to stay the hell away from his girls or I would find myself throwed out.” While isolated anti-union remarks by supervisory employees may be neither vital nor controlling, they may yet serve to lend color to the over-all picture.
The Company maintained a measure of control over the Association by reason of the fact that the representative lost his representation if transferred to another department. Smith, one of the ■employee representatives, was so transferred in 1942. There was evidence tending to establish interference on the part of the Company within the meaning of the Act. N.L.R.B. v. Reed & Prince Mfg. Co., 1 Cir., 118 F.2d 874, certiorari denied 313 U.S. 595, 61 S.Ct. 1119, 85 L.Ed. 1549. It was for the Board to determine from the facts and reasonable inferences, the “whole congeries of facts,” whether domination or interference was present. N.L.R.B. v. Link-Belf Co., 311 U.S. 584, 61 S.Ct 358, 85 L.Ed. 368.
Further, even if the old practices had been abandoned, it would be within the discretion of the Board to order that the Association be disestablished as a means of eradicating the effect of past unfair labor practices. American Enka Corp. v. N.L.R.B., 4 Cir., 119 F.2d 60, 63; see N.L.R.B. v Newport News Shipbuilding & Dry Dock Co., supra. As Mr. Justice Reed stated in N.L.R.B. v. Southern Bell Tel. & Tel. Co., 319 U.S. 50, 60, 63 S.Ct. 905, 910, 87 L.Ed. 1250:
“Since the Association prior to the passage of the National Labor Relations Act in 1935 was obviously a company dominated and supported union, the question of the weight to be given the passage of time or subsequent efforts to dissipate the effect of this early domination is for the Board. Its conclusion is an inference of fact which may not be set aside upon judicial review, because the courts would have drawn a different inference. National Labor Relations Board v. [Pennsylvania] Greyhound Lines, 303 U.S. 261, 270, 58 S.Ct. 571, 576, 82 L.Ed. 831, 115 A.L.R. 307; National Labor Relations Board v. Falk Corporation, 308 U.S. 453, 461, 60 S.Ct. 307, 311, 84 L.Ed. 396.
Here, we think there was again substantial evidence to support the Board’s finding that the Association was a successor to the Plan and was a product of the Company’s interference. Roebling Employees Ass’n v. N.L.R.B., 3 Cir., 120 F.2d 289. The disestablishment of the Association then becomes necessary to give to the employees the essential untrammelled freedom' for the creation of a free and independent bargaining unit. N.L.R.B. v. Southern Bell Tel. & Tel. Co., supra.
In brief summary, there was substantial evidence tending to show: (1) The Plan was clearly dominated by the Company; (2) an equivocal second-hand announcement as to the dissolution of the Plan; (3) meetings by Company officials with the old Plan representatives between the end of the Plan and the beginning of the As
Finally, there is the contention running through the briefs and oral argument of the Company, that the attention of the Board has been focused, and its order based, solely upon the dead past, when the Plan was in active operation. The Board, upon proper evidence, has found this past to be not dead, nor even sleeping, but rather to be a continuing vital influence. In other words, the Board has interpreted the present in the light of both the past and the circumstances that projected this past into the present. In labor relations, as well as in art, the background may strongly color, or even dominate, the whole picture.
The petitions by the Company and the Association will be denied and the order of the Board will be enforced.
Order enforced.