*1 (PLAN OF et al. STEEL CO. BETHLEHEM AT REPRESENTATION EMPLOYERS’ STEELTON, PA., OF PLANT THE al., Inter et STEEL CO. BETHLEHEM RELA LABOR veners) NATIONAL v. BOARD. TIONS AT THE OF EMPLOYEES
ASSOCIATION BETHLEHEM PLANT OF MARYLAND SAME. CO. STEEL 7503, 7538.
Nos. Appeals for the Court of
United States Columbia. District of
Argued 17, 1941. Feb. May
Decided *3 McCormack, City, Alfred New York vice,
pro by special court hac leave of Wilmer, C., (Richard Washington, H. D. Broun, City, Fontaine York New brief), Bethlehem al. et Steel Co. Warnken, Ralph Baltimore, Md., S. petitioner Employees Association Maryland Plant of Bethlehem Co. Steel Atty., Weyand, National Labor Re- Ruth (Robert Watts, Gen. lations B. Counsel, Knapp, Laurence A. Associate Counsel, Gross, Gen. Ernest A. Asst. Counsel, C., Washington, all of D. Gen. respondent. brief), for on the Storey, Pa., Douglass Harrisburg, D. Employees’ Repre- Plan of for intervener Steelton, Pa., sentation at Plant. Driskill, H. of Washington, Robert D. C., Rep- Plan Employees’ for intervener the Cambria resentation at Plant. Pressman, of Washington, (Jo Lee D. C. seph Anthony Wayne Smith, Kovner Washington, C., brief), both of D. on the Organizing for intervener Steel Workers Committee. STEPHENS, VINSON, Before
EDGERTON, Associate Justices.
EDGERTON, Associate Justice.
Corporation
Bethlehem Steel
and its iron
producing subsidiary
and steel
Bethlehem
Company, here
petitioners,
Steel
called
ask
STEPHENS,
Justice,
Associate
dis-
and set
us to review
aside1an order of the
senting.
Charges
National Labor Relations Board.2
10(f)
Section
Under
the National
160(f),
Tit.
Section
29 U.S.O.A. 160
§
Act,
Relations
49 Stat.
U.S.C.
(f).
2
by interfering restraining and coerc- plants about instructed foremen the to employees in ing their the exercise of men explain to new that “the 7, petitioners Section rights guaranteed * * * adopted the Plan of Em- engaged, and were engaging in unfair Representation” ployees’ “is one that it practices meaning within the Sec- important policies of the Com- of the most 8(1) of the Act. The Board’s order pany.” officers, agents, and their directs assigns Although majorities to cease from dom- have voted in (2) successors with, elections, found, interfering inating or or Plan it is not contribut- various to, evidence, support Employee Rep- no majority Plans of that a plants ap- plants; have ever at the ten named from men in resentation interfering Plans, giv- proved formation admin- or have ever been with the or against up machinery for for- opportunity to for members and set no en an vote mulating controlling or in- demands them.3 Meetings structing representatives. are mere- (3) Petitioners continued not practice. held The charters part of Plans as a Com- ly to hold out funds, by provision raising encourage pany policy facilitare but Independent action in dues otherwise. Plans; voting represent to em- impossible. obviously such circumstances is ployees beneficial the Plans them; support (5) the Plans advise Until the charters of join unions— the Plans and not to amended concur could without specifically, (S.W. join Management Representatives the C.I.O. rence required O.C.). Up to 1937 the charters on Rules. In 1935 Committees Joint expenses pay all the in- the charters were amended permit volved the conduct of nominations and further amendment a two-thirds elections, Repre- pay Employees’ Employees’ and to Representatives; vote sentatives, spent meetings exceptions. excep for time in Plan important One but activities, or in “might Plan rate tion is that no amendment which ordinarily prevent received their work. operating Plan as a fair representatives method of selecting (4) preclude The charters Plans whole body *5 of independence Company embody domi- as a method bargaining” fair of power nance. Plans have no The to ad- approval can be made without the 4 mit, exclude, expel, discipline control or Rules, on the which Committee Joint employees, members. All non-supervisory power. voting half the Company abilities, characters, whatever their or petitioners, for and also counsel Counsel sympathies, automatically become members Employees the Association of for at they as soon as have worked for the Com- Maryland Plant, language in identical pany days. for severely The charters briefs, respective excep describe their power limit the of the Plans to choose their just quoted have being tion which we representatives. own “Employees’ Repre- effect, “in a condition the Com which sentatives” must (1) pany repre will deal Petitioner Company, (2) at year’s least one stand- sentatives in accordance ing, (3) working the department which procedure In outlined.” them, elects (4) adult American citi- words, Company requires, as a condi zens. may However Plan much members Plan, dealing tion of with a (1) that wish representative to select as their a good Plan shall continue receive and retain bargainer or administrator who does not member, regardless conduct, aas of his meet all requirements, four of those views, principles, every non-supervisory or prevent Plan charters it. The charters au- employee sees fit whom practically thorize no action the mem- employ, (2) shall bership, voting other than Employees’ have a determining voice in the fairness Representatives. Employees’ While changes desired method of Representatives as a Body” meet “General representatives choosing Pían or of Pian Representatives” “Committee snd bargaining. permanence This insures the committees, choose pro- the charters also large degree of a control vide for composed Committees of a Joint the subjects over of Plan membership, group Employees’ Representatives and representatives, choice and bargaining group Management Representatives. Obviously methods. organization no labor two groups equal power voting have independent when management is shares joint Committees. There is a “Mian- control over such matters. agemeut’s Special Representative”, who be and sometimes Management’s Special invited Rep to attend meet- ings Employees’ Representatives. plants at various resentatives sent identi provide charters meetings response for no letters to Plan of cal officers in only Limited, “Their cheleo is to vote et al. v. National Labor Rela vote, Board, Cir., under the Plan. If do tions F.2d vote, representatives (now Cambria), Bethlehem, At Midvale will chosen perhaps plants, do, representatives some of the other those who and these representatives recognized by elected company will bo tlie as the approved the charters. bargaining agents sole em ployees.” Shipbuilding Corp., supplied. Italics Bethlehem
6á6
organizations
National
and shake down the
regarding
effect of
inquiries
Laughlin employer
employee
too.”
&
Relations
Jones
found, despite
of a Pin-
called at Board
the denial
Corporation.5 These letters
Steel
officer,
Act,
descriptions in-
kerton
necessity, under the
that these
tention
support
scope
cluded within their
the activities of
Company’s
limiting the
financial
organization.
“opera-
union
Plans,
Plan
Pinkerton
officers
assured
“correspondents,” several of
were tives” and
charters
changes
no other
one union or an-
accord whom were
necessary.
members
In the course of
other, proceeded
Agency
substantially
amendments
inform
identical
ingly,
activity among
charters,
sentiment
union
but
Com
were made
Repre Company’s employees.
con-
Petitioners
Employees’
pany
pay
continues
from the
cede that
obtained
spent
time
in conference with
sentatives
Management
frequent
which the
agency
reports in
Representatives6 during work
oral
S.W.Q.
lack
pays progress
progress
plant it
hours. At the
Cambria
was discussed.
working hours) C.
(within
for the time
them
Representative
Management
during
(7) During the Cambria
strike at
Body
present meetings of
General
at
plant
Mayor
(Johnstown)
Representatives.
thereby
Employees'
speech
he
re-
Johnstown
effect,
present
them,
pays
him
broken
ferred to the fact that violence had
meetings.
is no evidence
at their
There
promised
suppress
He
it.
also
out
practice
followed at the
a different
that
other
spoke in hostile
terms
the “dictation
Apart
plants.
from the amendment
sharply
strike lead-
outsiders”
criticised
clauses,
support
clauses and the financial
Evans,
Repre-
Special
Management’s
ers.
charters,
hearing,
at
time of the
re
plant, through
in-
Cambria
sentative
substantially
original
form.
tained
termediaries,
sev-
afterwards turned over
erase from the
The amendments could not
Mayor;
*6
eral thousand dollars
employees
minds of the
the well-known
plant,
Ellicott,
Manager
General
of
encouragement
long-continued Company
several thousand dollars direct-
turned over
ly
approval
of
Plans.
money
paid
Mayor.
The
was
Testimony
findings
was taken and
were by check, but in
Board did not
cash. The
regard
practical operation
to the
made
find,
clearly appear,
and it does not
what
stipulated
It was
of the Cambria Plan.
money.
It
Mayor did with the
is not
operated
all
other Plans
ma-
applied it to
or shown
he
found
respects substantially in accordance
terial
purposes of a “Citizens’
The
Committee.”
respective provisions.
their
Company’s payments
found that the
Mayor
Company employed
calculated to insure the
were
(6)
Pinkerton’s to the
Inc.,
hostility
of
Agency,
his
to S.W.O.C.
Detective
National
continuance
and so
others,
deprive
impar-
among
the union of
purpose,
obtaining
found
spies
city
also
through
regarding
labor
information
tial
administration.
activity
Company promised money to a
organization.
“Citi-
and
employed
union
which,
name
Agency
first
before 1936. It zens’ Committee”
order,
1936,
reengaged
following
to break
strike.
June,
sought
law and
S.W.O.C.,
employed
and was
formation
I.
1937;
purposes
time
some
until
8(2) of the Act makes it
others,
evidence,
Section
among
according to the
practice
employer
for an
labor
“the
informing
on
activi- an unfair
with the forma
or interfere
trying to an-
dominate
various
who are
“to
ties of
men
organ
labor
administration
employees,”
disturb
on
or
noy and
their
“the tion
sup
or
financial
other
or contribute
and out-
arrival
of-radicals
ization
activities
prohibit
support, to
disturbers,”
Thus
it.”7
going
port
on what was
on
side
forms.
It is
ed,
not take financial
vicinity
including
need
plants,
dominated,
inter
C.I.O.;
protecting
also
clear
activities
with,
supported
Plans. The
plants and
from violence
“out-
fered
which we have
communists,
racketeers,”
findings other
labor
defined Board’s
side
supported by substantial evi-
“people
get
legitimate
are
control of
referred
5
301 U.S.
The Act
’ Employees in Plants “Representation interference, union domination. ofor Corporation.” must be On order the Bethlehem Steel Board’s held that Court type chart entitled: “same cover a inside acts of unlawful limited to Representation employer “Chart Employees Illustrative acts which as the or class” Corpo- rec of the Bethlehem Steel expressly The Court had committed. Companies.” Subsidiary When acts which “Having found the ration ognized that McClintic-Marshall, merged practice the now the unfair constitute a practice petitioner, first subsidi- became restrain is free to * * * ary Corporation petitioner acts unlawful like or related other violations, subsidiary’s prevent president distributed being purpose indicated a leaflet a containing the future is facsimile of which threat Grace, similarity or relation letter to him E. G. of their because Corporation petitioner, president the Board has acts unlawful those by the em This letter said: committed “I desire call to have been such. found to advantages past.” your That is what attention certain now ployer your organization sub- done here. available sidiary of Bethlehem Corporation. Steel part contend that Petitioners Bethlehem, period years, over a has de- order its terms would ex Board’s veloped program of industrial relations every plant and of the Com works tend many plans embracing for the économic bet- States, and throughout the United pany employee. Among terment these As understand the invalid. we is therefore order, plans provide a common meeting limited the ten named its effect adjustment ground questions for the af- express opinion plants.17 We ** * employee’s fecting the work. might properly whether question * * * pleasure is * extend Company’s extended ** privileges to the McClintic-Mar- plants. organization, shall on the same basis as III. enjoyed other members now *8 Corporation petitioner, The family.” Accordingly, Bethlehem McClin- properties, operates physical contends President tic-Marshall’s said to em- its is, events, all in Board’s order advantages ployees: “New con- working Though it. the is a valid wholly-owned protection and financial are now ditions subsidiary Corpora of the employees of McClin- available large tion, both extent have Corporation, as communicated tic-Marshall officers, responsibil Corporation’s same ity organization Eugene letter from to our on those facts. turn Section does Grace, of Bethlehem President Steel G. Act, 152(2), 29 U.S.C.A. de 2(2) § subsidiary As a Corporation. “employer” “any person including fines Corporation, Steel McClintic- Bethlehem employer. interest of an acting in the ” * * employees * are entitled to a series Marshall The Board found Cor developed which have been suc- of benefits poration, Company, as well as the 657; order, Express 16 Board’s 18 N.L.R.B. F.2d No. Since decision case, 46. Cf. National Labor Relations has as as Court enforced order Manufacturing v. Reed & Prince findings narrow, broad, based Cir., April 2, 1941, Co., Westinghouse F.2d 1 118 874. Elec- those now before us. 17 Mfg. Cf. National Relations Rela- & v. National Labor tric Co. Bay Co., (Curtis American Oil Inc. tions March S.Ct. Cir., Plant), affirming, Cir., —, 114 F.2d 85 L.Ed. subsidiaries, ployees Corporation’s Bethle- companies cessfully “ * * * dis Anything that years. These which said: period of family over a hem imperil the Employees present our will turbs condition include: Plan privileges * * * Undoubtedly you have Plan interests of all. Relief Representation * * * have professional seen labor leaders Corporation will assume The * * * campaign to unionize publicly announced a administration cost of entire industry. employees steel entirely the Cor- financed Plan Pension * * * * * * should We believe that no worker Saving Stock poration anyone or required pay tribute to Plan.” Ownership any organization right to work. for the Beth- Corporation petitioner, in its * * * through industry issued Review, the subtitle which carries lehem American Iron and Institute the Steel state Employees of News for Bulletin “A reprinted ment in this number of the Re Companies of the Beth- Subsidiary management firmly view. Our believes in the repeatedly Corporation”, has lehem Steel expressed in They views statement. employees that represented to those express policies controlled have Corporation’s pol- part are a Plans relationships dealings our many Review, issue of icy. The first years. your The effectiveness of existing statement, over 1924, begins April, Plans, Representation proper for the set President,” Grace, signature “E. G. questions tlement of arising all between Bethlehem Steel Cor- officers “The you management through Companies Subsidiary poration and its years uninterrupted operation out of direct some means long felt the need of outstanding, speak and the results employees with their communication * * * you themselves. We will assist could be general interest which facts of every way present proven continue everyone brought to the attention dealing prob method of with our mutual Corporation’s Corporation.” Beth- lems.” The Institute which the statement September 25, 1933, lehem Review president, Corporation’s on behalf of its years ago Bethlehem start- “Fifteen states: management, adopted thus and commended Representation Emplees’ Plan. ed its employees Company, includ in effect in various Today Plan is following language: ed over “The manufacturing, ship operating in steel units employees whelming majority of the building, mining, and McClintic-Marshall.” Industry recently participated Steel in an Progress A Years’ booklet entitled “Ten representa nual elections their own Human Relations —A Review Some plans representatives elected Accomplishments under the Bethlehem Plan bargaining. for collective The elections was, Representation” Employee accord- conducted them page, title “Distributed at 1928 pur selves secret One of the ballot. employee rep- joint conferences of annual poses campaign of the announced is to over representa- management resentatives representatives plans those throw Corporation.” Bethlehem Steel tives of Industry Steel elected. The is recov so heading “Em- same contains a This booklet years depression six ering from Policy” ployment followed “This is the huge losses, and the are now Corporation.” policy of Bethlehem Steel receive beginning to of in the benefits Corporation’s pri- operations. Any interruption Although the conduct creased passage seriously of the National Labor will in or to the forward movement obviously Act could not violate and their jure Relations families and *9 Act, goes dependent upon Industry, in- conduct to show that that all businesses management, specifi- endanger the welfare of the coun tervention and will relations, Corpo- drive, cally try. announced labor The with its accom strife, agitation ration’s subsidiaries was an established industrial panying Corporation practice. passed interruption.” The Act was In threatens the Re 3, 1936, March, 1937, Grace, 5, president July July 1935. On the Beth- lor view Grace, printed letter Corporation, lehem Review said to of the Corporation, president Employees’ Rep- to the em- :18 subsidiaries “The News Bethlehem Review was Steel [18] The snbiitle Corporation.” Employees this number Since “A bulletin Bethlehem Corpora- tended. tion is a petitioner, physical properties, subsidiaries, holding obviously company including which persons operates in-
650 Savings also that a Vacation Plan and were established Plans which resentation Plan, Ownership as well as the ago and Stock twenty years con- plants nearly in our Employees’ Representation, Plans of ever-increasing effec- operate tinue 15, put been into effect in all the subsidiaries19. January Review for In the tiveness.” opinion In Cor- 1938,Grace, president the Cor- our the evidence again as in the poration’s habitual intervention sub- poration, said to the justified the know, Company’s labor relations you great : we take sidiaries “As Corporation was feel, finding that the fact that Board in pride, justly in the Company’sdealings responsible accepted for the nearly years ago prin- 20 we Mayor of much Pinkertons and the ciple bargaining the town; of collective which Johns- irrespective of is valid today. application that but the order In the discussed years finding. principle during those dealt that we have you Representatives through with you whom Inc., Company, v. National In Gannett Em- your have elected under Plans of - 1940, Board, 9, Labor Relations Dec. ployees’ Representation questions on all -, 937, App.D.C. 118 F.2d on which the having wages, to do with hours and work- relies, Corporation held that court For last conditions. several holding there was no evidence that the cor long-established months method of affirmatively poration participated had you subject dealing with has practices subsidiary; the unfair its hearings the National Rela- before Labor merely failed record indicated had it defending tions Board. The itself, powers “to assert its corrective after the expense, against and at considerable event.” The contrast with the facts here charge, believe to be an unfounded what we made Here, is obvious. as National Labor Re Organizing the Steel Workers Lund, Cir., 815, lations Board v. 103 F.2d Committee, is dominat- distinguished case, which we Gannett ing your bargaining Plans. It is collective (in sole stockholder this case the Cor your put regrettable being Plans are personally poration) interfered with union expense defending to like hear- those interfered, ization. Because the stock independence type ings their “employer” within the defini holder is bargaining has been ef- which subject Board’s Act many years.” them fect under order.20 short, Corporation, long over a actively supported period, the Plans and IV. join actively opposed efforts of the men to only order is directed organizations. thereby against but domination, against also interference, Company’s the restraint, etc., successors, officers, agents, assigns. own. From 1935 its object to the inclusion of “suc Corporation Petitioners hearing, the time assigns.” Court 8(1) cessors of Sections persistent violator enforced repeatedly orders of that the It follows Board’s .'8(2)of the Act. include term.21 Board “ refrain directing it to from similar order * * * sought strife apparent- Petitioners valid. violations object legis less an is no averted Corporation pays concede ly n entire contract, death, when Plan, solicitude lative Pension and the en- cost of a brings change about tof operation of law expense of a Relief administrative tire employing An subsidiaries; ownership agency.”22 employees.of 'Plan, for the , 303 U.S. sCompany v. used tion, ration, 115 20 Pennsylvania Plans In Bethlehem Cf. A.L.R. a Plan Ltd., Bethlehem another National 261, Cir., Bethlehem here v. v. 307; substantially 58 National 114 F.2d National involved. wholly-owned subsidiary S.Ct. Greyhound Lines, Labor Steel Shipbuilding Consolidated Shipbuilding Corpo 571, Labor Relations Corporation, Relations Board identical with 82 L.Ed. was found Relations Corpora Edison Inc., 831 Link-Belt Inc., 85 L.Ed. lations Ed. 126. v. Dock 877; National Labor Board, Colten, Ct. [22] Newport *10 358, National e.g. 2 4, Co., Cir., Board v. 305 U.S. 6 National 85 Cir., Company, 883. 308 U.S. 104 F.2d L.Ed. enforcing News Labor Relations 105 Hopwood Retinning Co., Cf. National 197, Labor Relations —, F.2d Shipbuilding 302, Jan. 59 S.Ct. Relations enforcing 8 N.L.R.B. 179, 60 S.Ct. 303. 183. Labor Re 206, Board v. 12 N.L.R.B. & 61 S. Dry L.
651 sharp cross examina- titioners describe as reorgan permitted, be employer cannot tion: Board’s nullify the transfer, ization or new necessary start make it Bloom) I think order Examiner “Q. Trial (By owner new against the proceedings conditions general the you have told us course, in order, is not were The mills Saturday business.23 when the that after interpreted, bind tended, not be reasonably and will familiar you closed. Were it, who week, notice no persons following who have conditions general petitione go- in concert Saturday acted have that say beginning with Perhaps following rs.24 week? A. ing until the fairly so. V. reopened? “Q. the mills A. When were they did contend that Petitioners remember, now, min- wait a That I don’t largely on hearing, fair not have ute, place approximately, I but I can Bloom was Trial Examiner ground that place exactly. can’t example of prejudiced. As an biased newspaper ap- “Q. you— If A. The ad. applications complain bias, they Thursday. peared McDonald, one subpoenas directed to “Q. Thursday— mean The You A. officer, They were denied. an S.W.O.C. protest’ ad. ‘We dates, question regarding him wished agree and terms scope, duration “Q. Thursday following You mean the 1, 1937, January into since entered ments closing of the mills? A. I think that and the United States it, S.W.O.C. between have to refer— I would of its Corporation subsidiaries. Steel “Q. assuming Thursday. I am it was . require produce him sought to They also Yes. A. Later, themselves. documents mean, assuming “Q. I Thurs- supplied petitioners’ counsel with counsel mind, day; with that in when did the mills documents, accept petitioners’ counsel Thursday, reopen? Perhaps A. it was late evidence, offered them ed them Friday, not, can’t, would perhaps it was I them. As Examiner excluded Saturday, maybe just it was I can’t tell. found, agreements ir these were things “Q. were relevant; Corpo How dur- the United Steel State.s Johnstown period, from the ration, subsidiaries, S.W.O.C., ing time of clos- its ing reopen- of the mills time of the hearing trial. A agreements not on were right.” the mills? A. All a refusal to sum is not made unfair in order that mon a witness he colloquy, foregoing peti- The questions.25 Though the asked irrelevant complain, immediately tioners followed attorneys apply its Board did not own by this: subpoenas applications for must rule all, “Trial Examiner Bloom: That proved, of the facts to specify the nature you. Anything further ? thank is shown to no unfairness Nothing “Mr. Shawe: further. supervisory Board’s resulted. petitioners’ Moore “Mr. [of counsel]: it, agents power its own enables irre over No. rule, prevent spective such a obstruc right, “Trial Examiner Bloom: All part. thank on their tive tactics very much. You are you excused.” say Petitioners the Trial object particularly badgered Petitioners to the their witnesses and Examiner sharp “cross examination” the witness cross Wil- subjected them to examination. part of the record of liams. charge. docs not sustain this record complain example includes pe- colloquy in full one what be- quote We 41 Donald, 165 U.S. tioners joined S.Ct. 58 S.Ct. privity ard Education 23 City L.Ed. Cf. persons with the refer, Federal Trade Comm. v. Stand 113, 648, Norwalk, 82 L.Ed. Society, and Chase the reversed who parties L.Ed. 141. 107, 110, 291 802 U.S. U.S. to which National Bank 17 S.Ct. decrees suit. 112, 119, Scott v. sort of peti 262, en 330 U.S. Ass’n v. 9 Ed. 1402; 889; contra, 18-20. 738, U.S.C. Tit. 28, Section [25] 24 Cf. 38 Stat. Cir., Cf. North Whittier Friedrich, 383, Relations National 109 F.2d National Labor 28 U.S.C.A. 632, Inland Inc., 60 S.Ct. Labor Board, Cir., 76, Steel 83, § Cir., Relations Board v. Relations certiorari denied Heights Co. v. National F.2d 84 L.Ed. F.2d Citrus *11 Examiner, witness, rejected questions tween Mr. asked Examiner petitioners, counsel substi petitioners’ Broun counsel: for and framed tutes, petitioners urge showing the this as “Trial Examiner Bloom: What were against them. But when Examiner’s bias you circumstances under which saw rejected asked questions Examiner minutes, please? substi counsel for the and framed “The right Witness: I on sat the other tutes, urge show petitioners this also as side secretary when he was writ- ing against petitioners. We are his bias ing them. “he then told that associated himself “Trial Examiner Bloom: I see. prosecu attorney for Board in the Examiner, Broun: * * * “Mr. Mr. I would like taking tion of the case Board’s you develop matter, to have I didn’t behalf of over the examination on cross know present Mr. Williams at attorney for lat when meeting. difficulty.” Petition ter found himself in comparable complaints. Well, “Trial It Examiner Bloom: ers make other it states examiner, top. just at the as it here an the function judge, trial recognized is the function of a Broun: I didn’t look “Mr. the min- fully clearly see de that facts are utes, fact, a matter of glad I would be required veloped. idly sit He is myself you develop go have ahead. meaningless permit rec a confused long Examiner Bloom: “Trial As as I spirit If the and conduct ord to be made. might it, started I as well finish there are throughout this case were of the Examiner points. just a few error, administrative reversible few " Very well, Broun: “Mr. sir.” proceedings could withstand judicial few questioning alleged Some the Exam- manifestations feel attack. The iner, petitioners Examiner, object, pe which now ing part 11,000 likewise undertaken and carried on with have culled a record of titioners petitioners’ approval They pages, peti counsel. did are mild indeed.25b harm; undisputed testimony, tioners for no complain questions Petitioners such unquestioned adduced with propriety, con “Why you remarks as did care if the clusively proved the Board’s case. There not?”; particular men voted “What af suggestion that the Examiner committed yours?” fair was it “This is sec man any gross breach decorum. The mere retary of Plan and doesn’t even know existence and reflection feeling kept Plan”;
who the minutes of the “He course of trial25c does disqualify pre possibly accurately.” couldn’t know that siding call officer or for reversal.25d It does They complain that after decision in not constitute “bias and prejudice.” case, Peti Greyhound the Examiner ex charge tioners’ of bias and prejudice is with pressed the view time and expense out foundation. might by discovering be saved whether or Greyhound not the Bethlehem Plan is also afterthought. If substantially Plan identical. He did thought the Examiner question.25a to decide not assume When prejudiced they should, biased or and doubt- 25a clear, think, long is made This we necessarily course of a trial are not quoted colloquy iu note of3 prejudicial, dissent- or reversible when “reversal opinion ing promote justice.” herein. would not the ends of 25b Socony-Vacuum seldom Men conduct themselves United Co., v. States Oil long provocative throughout a 150, 239, 240, hear- U.S. 60 S.Ct. approximation with so close an to uni- L.Ed. 1129. temper. good form fairness In the 25d “Judges cannot be forbidden to feel colloquy course of mentioned in the sympathy party or aversion for one or the petitioners’ preceding note, example, expressions feeling other. Mild are as disgraceful counsel said: “It thing is a most feeling hard to avoid as the itself.” Whit Examiner will allow stuff — McLean, App.D.C. —, aker reply as this.” Examiner’s F.2d 596. great you Moore, “The tides “Mr. since think was: currents en- gulf outrageous things men, the rest do me to allow like turn aside in pass going you course, that, judges by.” specifically, am to ask their Cardozo, you Greyhound opinion read The Nature the Judicial Process, the United States Court?” 25c “highly improper” Even statements government counsel
653
subpoenas,
(b) Petitioners
that
to issue certain
would,
and demanded
said so
less
Representa-
sought
Employees’
to ask the
appoint
different examiner.
Board
during the
series of about
tives at the Cambria Plant a
They
no such contention
raised
designed
whether
promptly appealed
questions,
150
to elicit
they
hearing, although
being (or,
refusal
conscious
Examiner’s
the witnesses were
Board from the
to the
By
put it,
influenced, re-
petitioners
were)
subpoenas
to above.
referred
coerced,
make,
strained,
with,
they
or dom-
interfered
the contention later
raising
stipulated
charge
negligence
effect,
by petitioners.
inated
It was
be-
an unwarranted
Examiner
that
tween counsel and the
against their trial counsel.
neg-
would have answered in the
witnesses
complain of
the extent
Petitioners
structure,
organization,
ative. Since the
Board
itself of the serv
which the
availed
support of the Plans ensure
process
of con
ices of subordinates in
Act,
and violate the
Company dominance
sidering
reaching
conclu
case and
irrelevant,
testimony would have been
petition alleges
Board
sion. The
object
(c)
following
Petitioners
rul-
consider,
ap
judicially
weigh “did not
Examiner,
quote
we
ing of the
which
decision,
praise
making
the evidence” in
record,
with reference to
Cambria
but relied
conclusions of fact and law
testimony
by
strike: “Certain
was adduced
subordinates,
and that
general
Board to the
effect that no vio-
given
opportunity
inspect
no
or ar
strike,
no
during
lence occurred
against
gue
conclusions. The Board’s
these
lines,
place
picket
took
on the
disorders
answer neither
nor denies
al
admits
these
apparent
thrown.
stones were
legations,
ground
on the
ir
testimony
twenty-five wit-
from the
of some
beyond
scope
relevant and
judicial
Respondents
produced
nesses
[the
inquiry.26
pre
Petitioners’ contention was
present petitioners]
testimony
of-
way,
rejected,
sented
the same
fered
the Board does
accurately
re-
Corp., Limited,
Bethlehem Shipbuilding
v.
flect the facts.
I find
aas
fact that vio-
National Labor Relations Board.27 There
during
strike,
lence did occur
are other cases to like effect.28 The Act
disorder,
there was
that stones were thrown
requires only
hearing, before the
Board
Board,
picket
on the
lines. The
on this
designated
agent
Board,
or an
state of the record cannot find as a fact
findings by
supported
which are
violence,
was no
no disorder
by evidence.
It is not the function of a
during
opinion
the strike.
my
it would
“probe
processes”
court
the mental
time,
a needless waste
officer “in reaching
administrative
considerable
his
gave
expense
persons concerned,
if
hearing
conclusions
he
to all
which
29
required.”
the law
purpose,
no useful
to have further
testi-
mony concerning
VI.
the fact that violence oc-
strike,
Petitioners have
during
moved30 for curred
and I according-
adduce,
leave to
evidence,
ly
testimony
additional
further
along
bar
such line.”
items excluded
Board,
turn,
the Examiner and
found
“that
the ex-
Board,
(a)
agreements
The S.W.O.C.
apprehension
with istence
violence and the United
Corporation
States
Steel
newspaper
violence induced
reports
its subsidiaries
above,
we have dealt with
of violence
strikes at
plants
other steel
in connection with the Examiner’s refusal
were two
leading
factors
National
here
Re
103
said;
ner.
Mills, Inc.,
agraphs
allege that
reliance
administrative
not act in a
sider all
28
26
27 Cir.,
The Board
lations
1
F.2d
Cupples Company
purported findings
do
“The
14
Labor Relations
953,
114 F.2d
and 20 of the
judicial
go beyond showing
evidence,
Cir.,
allegations
Board v.
assistance”;
members of
Board did
does, however,
106 F.2d
930,
did not itself make
quasijudicial
Manufacturers
Botany
where
petition,
fact,
the Board
National
itself con
deny
265, 266;
Worsted
and did
petition
8
proper
court
man
Cir.,
par
Labor
v.
ville
Inland Steel Co. v. National Labor Be
252;
Ed.
Lane Cotton Mills
lations
lations
National Labor Relations
denied,
568.
Coleman Lumber
Morgan
[29]
30 Under
477,
160(e),
Befining
National Labor Relations Board v.
Belations
petition
Board,
Board,
urged
S.Ct
Section
U.S.
29 U.S.O.A.
Co. National Labor
7
773,
United
for certiorari
Act,
Cir.,
568,
Co., Cir.,
similar contention.
v.
10(e)
Co., Cir.,
U.S.C. Tit.
60 S.Ct.
9
105 F.2d
States,
5
§
160(e).
L.Ed. 1129.
the National
98 F.2d
81,
246, 251,
304 U.S.
108 F.2d
v.
Louis-
Court
Biles
Sec
Be-
16;
L,
*13
petitioners’ employees,
at
izations of
in
the Citizens’ Committee”
formation of
8(2)
that violence
of
National
not clear
violation
Section
of the
It is
Johnstown.
Act,
consequence
Even if it was Labor Relations
in
in
relevant,
and
the strike was relevant.
no
in
dis-
refusal
admit
basis
the case for an order of
the Examiner’s
establishment;
testimony
his dis-
is no
my
within
in
was
and
view
cumulative
injure petitioners.- (d)
the
respect
desist
basis in
record for a cease and
cretion
and did
sup-
in
members of
order
of
sought
Petitioners
ask
contribution
port
labor
em-
Committee,
manager
organizations
and
of
of the
Citizens’
;
plant,
ployees,
and
manager
8(2)
in
of
of the Cambria
violation
Section
assistant
for their con- I think there is
evidence of
questions calling
of
no substantial
series
self-organ-
rights
Citizens’ Com- interference
clusions as to whether the
Company,
bargaining
with the
ization and collective
em-
mittee
connected
was
ployees, through
the benefit
contribution to the
acted at the behest or for
Johns-
through sur-
any
business trans-
town Citizens’ Committee or
Company, or
veillance, in
Company,
8(1);
violation of
Section
actions
connections with
assuming
it.
evidence of domina-
financial contributions from
substantial
other than
interference,
tion
was rele-
is not
that the evidence
case,
in violation of
clear
Sec-
8(2)
any
8(1), my opinion
did not
pres-
its exclusion
in
In
vant.
expressly ent order
injure petitioners, for the Board
is nevertheless too broad.
find that
induced
refused to
I
participated
the formation
tire Citi-
Subpoena
the Examiner and
Bias oe
prejudicial
We find no
zens’ Committee.
Requirements
rulings.
No
any
Examiner’s
error
procedural
entire case had
incident
Bias
the examiner. The examiner
effect
result
conceivable
presides
hearing
who
at a Board
leave
adduce
the case. The motion for
by rulings
determination of the issues and
additional
denied.
admissibility
evidence
makes
as to
evidence
up
for the consideration of the
record
other conten-
have considered the
We
Board,
report
who
intermediate
his
petitioners,
it is
of the
but
not nec-
tions
gives
Board in
guidance to the
essary
proceedings
to discuss them. The
case,
judicial
acts
decision
regard
conducted with careful
capacity.
Oakley
As-
As was stated
v.
the law. Petitioners’
fairness and
of
defiance
1850,
547, 549, and reiter-
pinwall,
3 N.Y.
Wagner
as stated in
Act
the law
Naimark,
People
1913,
App.
154
ated in
v.
of the
Court
plain decisions
763,
418, 420,
760,
N.Y.S.
“the
Div.
139
pro-
The Board’s order
clearly shown.
justice
first idea in the administration
remedy and will be
only lawful
vides
necessarily
judge
.
is that
must
.
.
enforced.
partiality.
from all bias and
be free
He
ordered.
So
party,
judge
both
arbiter and
cannot be
cause.”
the same
A trial
advocate
STEPHENS,
(dissent-
Associate Justice
judicial
is not
a biased
officer
in conform-
ing).
process.
ity
Turney Ohio,
with due
v.
my opinion the order of the Board
47 S.Ct.
L.Ed.
273 U.S.
71
the cause remand-
set aside and
should be
1256;
Whitaker Mc-
50 A.L.R.
hearing.
think
the hear-
new
ed
Lean, 1941,-App.D.C.-,
596.
F.2d
examiner,
bias of the
ing was vitiated
Morgan
States, 1938,
And
v. United
see
requirements
by the Board’s
concern-
773,999,
1, 58 S.Ct.
mation or administration of witness Much VVilliams. the ex- Board that was in nature contention questioning of this petitioners’ wit- questioning In contrast with aminer’s cross-examination. not, except necessary by in- lack isolated nesses was made the examiner did part the Board’s stances, competency witnesses for on the question Relations refrained Cf. instances he counsel. National and in such Dehydrated Food Washington The examiner’s Board v. from cross-examination. Cir., petitioners’ Company, witnesses F.2d questioning of *14 end of cross-exam- at occurred often ination Improper The examiner (2) questions: or after one more re- (frequently witnesses extensively who cross-examined cross-examinations) by the counsel Board’s petitioner oí the were did apparent that the latter —after it was the Cambria concerning provisions oi further. At times examine not desire to despite the fact operation, Plan and ¡he interrupted cross-examination examiner admitted that most of witnesses petitioners’ counsel for witnesses of the knowledge did not technical the examination the Board and continued Plan, despite provisions interrupted direct examina- himself. He eligible not fact that some of them were petitioners for the to in- tion terpose counsel participate organization in the Cambria pursued He cross-examination. and that none had testified under direct not been questioning iiue concerning examination the matters as to during for the Board by counsel pursued the examiner was cross-examining ¡he suggest- He latter’s cross-examination. apparently The them. examiner was at- possible of cross-examination ed a avenue tempting to demonstrate Plan adopt- promptly to counsel for the satisfactory work as a would bargaining The examiner byed such counsel. conduct- questions method. The lengthy searching examination of aed following direct examiner examination ¡he petitioners’ witness Stanton in an ob- frequently for petitioners counsel far impair the credibility of his effort to vious testimony scope exceeded of the direct examina- put light more favorable and to tion, beyond and in one instance went upon the of the Governor of Penn- action issues case. Often the examiner’s sylvania ordering a shut-down sought testimony, questions example, inadmissible for Cambria Plant after the strike Johnstown non-expert when asked a he wit- end. achieve had failed to aminer made a The ex- if he considered the Plan of Em- ness ployees’ effort his cross- similar Representation at the Cambria petitioners’ examination of witness Obviously Plant a labor union. such a Nicely. question could be answered in factual as- such improper— course only expert, pect legal an aspect only necessary indeed it is at times ex- an—for Again, or courts. judge aminer amine, to examine cross-ex- questions, asked lay examiner of a witness he even on his own mo- petitioners, concerning for the the legal get call It is his duty witnesses. provisions Plan, effect of the Cambria the case. His' truth of own exam- at despite the fact the Plan itself was may in some instances ination certaining aid in as- in evidence—therefore the examiner and But this the truth. alone should could legal Board and numerous determine its meaning— n objective. his He should be restraint exercise with hypothetical questions call- authority his conduct an ex- opinion witness’ concerning va- must amination himself. He advo- be rious states of facts which had never ex- side the other. cate the one He must This sought isted. examination put in- only, judge, partisan. never a non-expert the record interpretation Montgomery &Ward Co. v. National La- of a written document. one instance Board, Cir., 1939, bor Relations 103 F.2d attempted get the examiner witness to represented The testimony in his supply a word which would hearing its examiner before by sev- legal petitioners’ prejudicial of its own to the eral members staff. There case.1 1 During thereupon the course of examination examiner took over the cross- Ryan, petitioners, one called as follows: examination testified that “Trial Examiner witness men in the mill Bloom: What was the had talked the Cambria Plant about? about discussion Well, against they all one “The Witness: Fetzko whom discrimination wanted charged. George [Fetzko] after know what intend- the strike had been
.656 to make petitioners against ob- he rules the whom Often counsel for the liged purpose of ruling exam- record of the for the interpose objections appeal. then questions the examiner was iner’s pass being obliged to position During petition- cross-examination of the questions very propriety of the Campbell, ers’ witness counsel asking. which he himself was unsigned ar- Board offered in evidence rulings: ex- (3) Discrimination clipped page of a from the editorial ticle petition- aminer discriminated between the newspaper. author was Johnstown not Board in of cross-ex- ers amination produced by Board to counsel for the by permitting counsel for the article, the examiner stat- but identify beyond scope di- go Board to alleged he “satisfied” that the ed that confining petition- rect examination but Andrews, author, had in fact written one ers’ counsel to the limits of the direct The it, evi- received it in the examiner put examiner forbade the in- petitioners. *15 objection the over dence proof to record written offers of with pe- the effort counsel for the a later Yet ' respect general lawless- to violence matter dur- titioners to introduce similar strike, refusing
ness at even the was ing presentation of the Board’s case Johnstown permit subject to a final offer on to this During his cross-examina- not successful: exhibit, apparently be marked as an thus Jordan, coun- tion of the Board’s witness attempting deny petitioners the the petitioners the offered in evidence sel for perfect a foundation for review of the (parts had newspaper article of which ruling testimony that the offered was in- read record counsel for into the been say admissible. I do ruling Board) not the which had written the Jor- himself, (as point itself because bore part incorrect I out in least dan and which topic necessarily portions was) subject II that it as evidences the same matter on judge bias. A or examiner make above mentioned editorial a the article at- Andrews, mistaken on ruling admissibility the of evi- ap- tributed and which had convicting without peared newspaper dence himself of unfair- in the same the An- fairly ness. But he deny party cannot editorial. drews Nevertheless the exam- strike, ed to do if come out trial on Tke examiner then stated that a “fairly elapsed” whether he would stick the men or with substantial time between stick with the O.I.O.— time the when the witness said the what “Mr. Ford [counsel for examiner Board] the t claimed he had said the I Could have that? time when the made witness the first “(The reporter repeated ques- only regard the last statement in that recorded forth.) reporter set hearing. above the official Repeat “Trial Examiner Bloom: Whether or not the witness said in the answer, please. first instance what the examiner claimed reporter “(The repeated said, the last an- had he the incident illustrates forth.) set swer as above effort of the examiner to assist' prosecution “Trial Examiner Bloom: You don’t re- Board in the of its case. If company’? saying, say ‘the call the witness did what the examiner said, [counsel Board]: Shawe “Mr. for the claimed quently had subse- he witness saying You don’t recall men whether clear that he had George say it, for, response would stick with the men— intended to to a men, question Witness: “The Stick with the of counsel for the Board as company. anything with whether men had ever said “sticking” (By Shawe) company, about with “Q. Mr. The men never responded, anything sticking that? A. “About said about About witness with sticking company, company, If, hand, no.” no.” the other say Later, witness what exam- did after redirect examination on said, subject iner claimed he the examiner different pleted, matter had been com- went further than did trial examiners the examiner referred to the fore- Montgomery going Inland Steel stated that it was his recollec- Ward cases referred to in the text tion that the witness had said that topic. There the examiners this trial matter discussed was whether Fetzko kept out of In this matters the record. company would “stick with the or stick incident, attempting the examiner apparent purpose was men.” The with the prejudicial add matter record prejudice examiner was appeared Company petitioner by which would not otherwise implying regarded therein. op- its interests posed to their own. true, findings one coun- article as rested iner, objection by the Board’s Moreover, Citizens’ al- of the Board with sel, this article. excluded Committee, subject is the of discus when ad- stated he though the examiner topic it was re- sion in VII below.2 the Andrews article mitted simply that Andrews had to show ceived (4) Prejudging the case: Before say, mere- (that is statements made the principal com- case for proof ly as fact that the statements plete on the facts the examiner abetted and proof truth), of their were made and not as joined counsel for the con- Board in report exam- yet in the intermediate tending National Labor Relations proof of facts iner used this article as Pennsylvania Lines, Greyhound Board v. it, and the Board’s decision contained 303 U.S. 82 L.Ed. S.Ct. examiner’s both the did likewise. Thus during 115 A.L.R. decided hearsay ig- limitation rule progress hearing, was determinative noteworthy up- It is nored. further colloquy of the instant case. I set out margin.3 suggest on the faith of the of the Andrews in the I contents do not bargaining. Now, found “that existence method of collective The Board apprehension why respondents vio of violence want know by newspaper reports notify don’t lence induced the Su- plants preme in strikes at other steel Court has outlawed violence all those com- pany leading They told were two of the factors unions. them it le- gal. Now, Greyhound since the decision formation Committee Citizens’ *16 explanation finding, respondents duty I think the ....” of this owe a to all employees notify their said: to them that foregoing employee representation plans these ac- “It evident from the is are illegal by the Citizens’ and have been count the activities outlawed the Su- that, premo prime Court function was Committee that, the United States.. organization vilifying petition- [counsel Mr. Moore union for say, Examiner, engendering public hostility posi- I op- ers] : Mr. that is tively misleading. position false and the strikers. The Citizens’ Mr. Shawe: The Government tell Committee considered that it could best will objectives by directing them. achieve its its at- Supreme against organization Mr. Moore: The tack by ending Court has union plan possible. illegal, not that decided is there the strike as soon as nothing Greyhound perhaps pungently is in the was most ex- Case that “This says pressed February it is. II. G. Andrews on Mr. Shawe: I like after the Citizens’ Com- would to read from months Greyhound active, in Case. mittee had been Table,’ “The Round appearing a column edi- on the comes, Mr. Moore: When the time we pago the Johnstown torial Democrat. argue Greyhound Case, will but we states, alia: The column inter putting evidence, are now in we not “ very hasn’t much ‘There testi- arguing now. mony concerning fact tiic Citizens’ Mr. Shawe: I would like to read this organized purpose for Committee was Supreme from the Court decision— breaking the strike and for no other object Mr. Moore: 1 to it. purpose. Bethlehem’s Mr. Evans was provisions Mr. Shawe: “There is no in any misapprehension under never as to Employees’ tho Associations made for purposes the actual for the com- meetings members, pro- nor was That mittee was formed. there were at whereby employees cedure established least some members of the committee might representatives instruct their who what knew were about must be whereby representatives might these dis- granted. job hand, taken for on reports information seminate —” standpoint, from the Citizens’ Committee petition- [counsel Mr. Broun for tho breaking was and tho strike ers] : Examiner— Mr. resumption of work the mills. The respond- academic members of the committee did Mr. Shawe: I would like for talking right any provi- tho about the me constitutional ents show if there are Employees’ Representation However, of the men to work. sions permits whoops didn’t amount Plan which two their Hades ” meet, unless the allows strike was broken.’ problems? Why, [counsel Mr. Shawe meet discuss their the Board]: working Examiner, Mr. this man has been also for the mill evidence years respondents twenty-eight this record that in- I bet he meeting formed their a Em- attended Em- never ployees’ legal ployees’ Representation Representation Plan. Plan awas say examination, do not proper- and the like. I may not examiner judge or that a malevo- examiner case Court Supreme ly that a suggest counsel especial- lent; not partisanship did and his vitally upon issues may bear decision rough ly certainly he itself sarcastic evidence hearing; but involved in the witnesses, as did that decision is treatment that such a not decide should National v. in Inland Steel Co. has heard examiners on the facts before he controlling Cir., Relations all the evidence. Ward & Co. Montgomery F.2d and in I conclude that the order of the Board Board, cited Labor Relations National the ex-
was vitiated
the unfairness of
above,
quote
both of which I
below.
from
I bear
mind
burden
aminer.
examiner
in this case was
But
examiner, especially where —as
success,
for the
ac-
partisan
a
anxious
lengthy,
hearing
case—a
ill feel-
instant
development,
aiding
tively
between counsel
for the
ing is exhibited
case,
regret obliged
Board’s
I am
respective parties, and where the factual
conclude.
complex
aspect of the case is
and the tes-
ex-
documentary
contends
even if the
volumi-
The Board
timony
evidence
biased,
easy
was waived
his bias
nous.
an examiner
aminer
object
through
proceeding
petitioners
failure
to maintain his
prej-
composure
accomplish
showing
of actual
all times and to
absence of
at
are,
consistency
ruling.
think,
These
full
I bear in mind
contentions
udice.
Objection
supportable.
an examiner
also that
has —must have—
to the bias of the
broad discretion
manner
examiner was
conducting
hearing,
extent of cross-
the earliest
time that
it could
made to
you
going
(By
Shawe)
Q.
Mr.
Have
at-
I am not
to sit
ever
bere for another
meeting
Employees’
24,000 pages
tended
under the
six months and take
of tes-
Representation Plan,
timony
point
may
Mr. Cover?
going
completely
Mr. Moore: When
are we
decided
argument
get
start
down
Court.
*17
your
right,
job
the basis—
Mr.
That’s
Moore:
it is
outrageous.
Mr.
It
Shawe:
is
to rule
we will—when I have con-
by
Mr. Moore: The statements made
cluded—
absolutely
every
counsel are
in
childish
Trial Examiner Bloom:
If
the re-
spondents’
sense.
counsel care to answer some
anything
questions
going
them,
If
Mr. Shawe:
is childish it
I
which
am
to ask
respondents
they
they may
is for
to
this out-
continue
them.
answer
If
don’t
rage
prolonging
this suit.
them,
to answer
don’t have to
care
disgraceful
now,
Mr. Moore:
It
is a most
that
is obvious. All I
answer
want
thing
is,
respect,
you
Examiner
that an
will allow stuff
in what
since
to know
Greyhound
this.
decision of the
have read the
I
Mr.
submit
opinion,
Shawe:
you
I
since
familiar
assume
February
handed down on
Court decision
take
Plan —we will
the Cambria
case like
blanket.
28th covers this
in
ma-
Plan —I would like to
what
know
Moore,
you
respects
Trial Examiner Bloom: Mr.
terial
conceive the Cambria
you
outrageous
it
think
is
for me
since
from the
in
in
Plan to differ
Plan
issue
things
that,
going
like
I am
Greyhound
to allow
to
Case?
you specifically,
you
ask
have
read
place,
Mr. Moore:
I
the first
have
opinion
Greyhound
States
United
Plan in the
not
read
Gres'hound
Supreme Court?
it,
Case,
had it.
If
had
I haven’t
I had
have,
I
Mr. Moore:
sir.
opinion
going
express
to
an
not
I am
way
you
or the
in
Trial Examiner
one
so far
that
Bloom: Would
tell
until I
the Plan—
know what
the dif-
wherein
is concerned
me
are,
upon
am
but when I know
Mr. Moore:
I
not
ferences
what
called
are,
argue
going
then I will be able to
the case
differences
now
I
not
am
my
whether,
mind,
say
in
is
I
I studied
find out
to.
the Plan and
I know
any application
think,
in this
whatever.
the facts
case
I
and I
Greyhound
moment,
say
bearing
I
not seen it from
have
Case has
At the
no
upon
ease,
this
whatever.
what is stated
facts
case
bunk,
compared
right,
all
and this is
Trial Examiner
Bloom: All
we
Grey-
judgment,
say
my
will
find out.
in
this
did the
Mr. Moore:
decides
case. So
I am not called
hound Case
argue my
Meyers
case.
Case decide this
case now.
No,
Bloom:
I don’t
Examiner
Trial Examiner
Trial
Bloom: At
same
Meyers
time,
did.
Case
I am the
in
think
this case and
Examiner
might willing,
who
land
anyone
Steel Co. v.
who
be
National Labor Relations
re-
power,
ordering
correct
cited above:
wit,
examiner,
another
hearing before
argues
though
“Tlie Board
the crit-
even
filing of
at
the Board
the time
justi-
icism directed
Examiner
at
Trial
be
exceptions
intermedi-
examiner’s
yet
fied,
order
be
should not
set aside be-
cause petitioner
prove
has failed to
case
legal
in
report.
requirement
ate
The
prejudiced,
was
favorable
evidence
at
objection
made
proceedings
shall be
to it was kept
say
from the record.
...
To
or otherwise
of an asserted error
time
prejudiced
petitioner
was
because
waived,
ex-
give
judge or trial
is
the unfair
and biased
be
manner
ease
tried
Trial
purely
is
Examiner,
opportunity
aminer,
he,
case
as the
page
matter
speculation.”
[109
F.2d at
.J
com-
error
of its
at
time
correct the
Board further defends the order
But the
thus
a retrial.
mission and
save
pointing out that
the examination of wit-
require
futile
doing
of a
does not
law
nesses
the trial examiner covered but
thing. A
examiner cannot correct
biased
portion
a small
of the record —on a basis
bias
is
cure for
liis own bias. There
evidence,
pages excluding
documentary
On
—
except rehearing
officer.
before
fair
think,
also,
some
This contention
Appeals
5%.
subject,
the Circuit Court
this
judi-
merit.
without
Once bias exists
Montgomery
Eighth
Circuit said in
officer, hearings
cial
him
before
are vitiat-
Relations
Labor
Ward & Co. v. National
ed no
during
matter how short the time
Board, cited above:
happened
which the bias
to disclose itself.
called to
"...
These matters were
Subpoena requirements. The rules of
exceptions
Attention of
filed
the Board
II,
(Article
21)
Section
effect
They were
report
intermediate
of the examiner.
recognized
hearing
pro-
nor
rectified
instance.
at
time
in this case
injustice
way
We see no
which the
done
applications
vided in
for sub-
righted
hearing
except
this character
be
can
poenas :
setting
in en-
the Board
aside
order
remanding
a new
tirety
the case to
“Such
applications
shall
subpoenas]
Ffor
hearing
another
examiner
a deter-
timely
before
and shall
specify the name
the wit-
upon the record to be
mination
the Board
ness and the nature
he proved by
facts
hearing.
delay
new
nec-
upon such
him,
specify
and must
documents,
pro-
regrettable
hearing
a new
but avoid-
essary to
duction of
partic-
with such
desired,
justify
delay
cannot
a tolerance
of vio- ularity
ance
as will enable
them
identified for
rights
Regula-
fundamental
in the administra-
lation
purposes
production.”
[Rules
justice.”
pages
[108
157.]
F.2d
Series
tions,
1930]
amended, April 27,
Italics supplied]
T
discerningly
remarked
National
applied
examiner
requirement
Washington De-
Relations Board v.
*18
respect
subpoena
of a
duces tecum and a-
above,
hydrated
Company,
Food
cited
that:
subpoena ad
to one McDon-
testificandum
ald,
that
an official
may truly
respondent
“It
be said
who was
of the Steel Work-
objection
no
to such conduct of the
strenuous
Committee,
Organizing
ers
hereafter
during the course of
hear
Trial Examiner
convenience referred to as S.W.O.C. and
objection
ing,
always
nec
may
not
be
but
person
likely
therefore
be
a
not
to
will-
of
essary
where it would be
avail.
-especially
no
counsel
to
voluntary
‘failure
...
pe-
to
a
Furthermore,
be
witness
object
feeling
due to
may well have been
only
require-
not
And
was
titioners.
might antagonize
course
Exam
that
that
specification of the
ment of
nature of the
Cupples
the detriment
of their clients.’
to
iner
proved
facts
enforced
to be
exam-
Co. Mfrs. v. National
Relations
8
Board,
precedent
100,
1069F.2d
iner as a condition
113.”
to the issu-
Cir.,
subpoenas,
ance of the
but also the exam-
As
the contention that
there was
to
subpoena
declined to issue the
to Mc-
iner
showing
prejudice:
is a
showing of
There
he,
Donald for the reason that
iner,
the exam-
in the use
the examiner
prejudice
sought
not “think
did
the matters
of the Andrews article above
the Board
proven
particularly
be
relevant
these
require
not
But
the law does
described.
ruling by
The
proceedings.”
the examiner
prejudice
objective demonstration of actual
Moreover,
the Board.
was sustained
judge
a
from the bias
examiner.
requirement
subpoenas
should state
prejudice,
itself
because
due
bias is
proved
the nature
the facts to be
Amendment to
process clause
Fifth
unilaterally,
is,
applied
against
pe-
guarantees
hearing
fair
Constitution
titioners,
subpoenas
not
hearing
can
no fair
before
and there
issued
the instance
of the Board itself.
biased officer. The law docs not speculate
bias,,
consequences
once it
right
every
is
in both
citizen
civil
subject
On
shown.
it was
in In-
said
and criminal cases to have compulsory
is
process
witnesses
proved
necessary
for the attendance of
facts to
has the
Anglo-American
effect of
essential feature of the
compelling such a
either
party
legal
(3d rely upon
system. Wigmore, Evidence
voluntary
witnesses or to disclose
Amendment
to the Board in
ed.1940)
2190-1.
Sixth
advance
strategy and
§§
plans
preserves
to the
for the
expressly
Constitution
his
conduct of
defense. A
civil
right in
cases. And
both
lawsuit or
criminal
is
hearing
of course not
compulsory
right
game,
certainly
and criminal cases the
but it
controversy.
is
concept
process
For
one which inheres in
the Board thus
is
to obtain advance
preserved
per- knowledge
to all
process
party
of due
law
case of a
trial
on
Cf. before
sons under
the Fifth Amendment.
party
can have
when
45,
1932,
Alabama,
53 no
case,
Powell
U.S.
advance knowledge
of the Board’s
v.
contrary
elementary
with, restrained, coerced or dominated erroneous. State ruling I think tak- taking, refraining or witness motive, intent, action mind, reason for of con- relating to the terms or ing, any action like, of substan- when as matter employees or employment of the lay ditions of issue, aby testified can tive law be or amendment of formation relating knowledge the sub- possessed of on witness ject, its administration or to the Cambria Plan of division though there is some and the self-or- operation, relating or or testimony under authority, such better purpose for ganization of the objectionable upon theory view mu- or for other bargaining collectively “usurps fact the function” of the trier of to the protection, or relating tual aid or the ultimate issue in the case. employees in concerted engaging (3d Wigmore, ed.1940) Evidence §§ purposes, or the bar- 1917-29; for such state activities and see id. intent, And the 1963. § mind, motive, action reason for such collectively gaining Company paid 11. That Bethlehem Steel Conferences and the Annual tended voting lists for use nomina- for time furnished tions and elections held under at and other the witness spent the Plan there. any year. any paid at witness was 4. That Company Company That and 12. Bethlehem Steel Bethlehem Steel time paid and not the Plan or else for someone else Plan or someone transportation any spent by for and in connection with labor in him connec- time setting up voting places with the him under the Plan. taken action representatives man- the Plant within for and That nominations 5. Company any agement held under Bethlehem Steel elections Plan in any present year. any at Annual at time were any meeting Company That Bethlehem 13. Steel Commit- or Conference any Committee, tee, and not the Plan the General or someone at or else Joint mimeographed paid Body, time or for mim- the Plan. under eographing meetings meetings Body minutes held That General 6. under the Plan. the various committees and of any property time Company at held on were Plan 14. That Bethlehem Steel Company any Steel without Bethlehem of charge the Plan or at and not someone else stenographer Plan. paid for time of time meetings Body meetings General a clerk took That or who notes at 7. under the committees under the Plan of the various held writing up used them in prop- any meetings. at time held on minutes Plan were of such Company erty Company in- Steel That Bethlehem Bethlehem 15. Steel property. permitted any off such at time minutes of meet- stead Company through ings Bethlehem Steel delivered 8. That inter- any delivery plant Plan someone at not the or else time at service the Cambria provided or more Plant. one rooms use headquarters of Plan. meetings 16. That minutes of held un- headquarters any 9. That the Plan posted der the Plan were at time property located on were Bethlehem boards the Cambria bulletin Plant. Company prop- instead of off such Steel erty. Company 17. That Bethlehem Steel any printed not the Plan at time or paid printing schedules any printing 10. That at time meetings to held under the Plan. notices, typewriting of ballots other That 18.. Bethlehem Steel typewritten printed or material use Plan not the or someone at else with nominations elec- connection printed the time Plan. held under the Plan was tions done expense Bethlehem Steel That Bethlehem Steel Plan someone not of the else— Plan not the someone fur- else stationery that all materials that supplies the fact other nished all holding with the used connection used the Plan. that were and elections in nominations 20. That nominations and elections *21 by year any furnished were the Plan under were at time held by property Plan the or someone else. and on the Bethlehem Steel held property. such instead off
663 person be Treasurer 251 particular like of a of' S.W.O.C. Exhibit No. may and the purported testimony bargaining the be by to only established not agreement testimony the between the Car persons but also S.W.O.C. and other that negie (1910) Corporation. peti see Note person Illinois himself. And Steel Objection seq. L.R.A.,N.S., 367, et tioners asserted the Board in National 372 23 made to this given testimony, Republic when Labor Relations class Steel v. that, himself, Company, 1938, 219,5 ground the had N.L.R.B. char person the agreement known mind can be of that state of acterized the an as signing since own his importance cannot him, possible the steel only his falsification “event historic to industry,” Golden, refuted, foundation. had Clinton quoted sound and without be per supra, Regional 1965. Such an Wigmore, op. cit. Director of and S.W.O.C. § compe- weight, signed charge not to to son case, instant objection goes who objection agreement that such a to tency. Similarly, as referred having an judge his as con pur person bargaining be accurate the “standard collective cannot weight to alone. tract” goes Exhibit No. 252 state of mind S.W.O.C. own like person, ported agreement mind of to be between “The state of body, fact is a to and Gen state or condition of United Workers Automobile it Corporation fact proved any when eral and to be terms like Motors case, per- and the agreement in a with the substantially an issue identical relevant to sought directly petitioners thereto.” 251. The may testify Exhibit No. son himself execution, 312, prove And cf. Crawford date 335. McDonald the § Am.Jur. States, 1909, duration, terms, scope, provisions 212 U.S. and other v. United 465, agreements 15 Ann.Cas. 392. amend of each of these 29 S.Ct. Under this L.Ed. principle supplements a witness or general ments modifications or thereof, influence on application meaning to the existence and the testify as 610-1, applied provisions 704. Interna- construed his mind. § C.J. Parmer, 1909, agreements; parties 58 Tex. and the tional Land Co. 196; proce sought Grever v. Civ.App. petitioners 123 S.W. to show N.E. provided 829. Plans similar Taylor, 53 Ohio St. dure for in the was Employees’ case, that under these the instant in essential whether elements In wrongfully influenced refused to re agreements. The examiner Representatives persons matters evidence and refused ceive exhibits in was in issue questions, subpoena McDonald. The referred issue and inter- charge upon domination ruling two under the Board affirmed this first, administra- upon the formation grounds: theory ference with gist of this Plan. tion of the the agreements Cambria contents and the testi state of the will issue What was mony was: of McDonald were irrelevant to the Employees’ Representatives issue in instant case domination —was petitioners, of the subjection petitioners, will and interference since topic point out under was not? IV Carnegie Corporation Illinois Steel Corporation “domination” “interfer- below the General Motors were not National Labor Relations Act case; second, ence” in the parties instant corruption overriding of the upon theory is meant the Board consid provisions will. ering Plans Plans a whole and in light of the That error excluding testi- origin light history prejudicial mony cannot I think be interference, simi long course of and that The Board introduced doubted. evidence provisions larity of the Plans prove domination actual intended Carnegie provisions Illinois petitioners Plan. The the Cambria Corporation or General Motors Cor rebut it Steel poration agreements would he of little partial (2) charge defense to the Board did exclude the two value. and interference domination testimony of McDonald or the exhibits organizations comprised in the Plans the would ground that collateral issues attempted to introduce evi raised. dence exhibits marked identification sought ruling Nos. 251 also to examiner’s obtain I think subpoena of a issuance thereof were errone- ad Board’s confirmation testificandum McDonald, David of exclusion— ground one the first Secretary- As to ous. J. pages 243, See *22 66á if, sought petitioners’ the case prove, to petitioners concerning as the violence. The attempted given objected ruling counsel Republic case had and Board in’the its Steel to Carnegie proof. Illinois make a imprimatur Steel written offer of The ex- to Corpora- permit aminer Corporation and Motors would not even this to be General if, petitioners agreements, go tion and marked or to into the record. In sev- show, provisions and sought hearing, to eral other instances during further agreements es- practices petitioners examiner forbade the intro- under such to provisions in and testimony general as the duce sentially the same intended show Plans, ap- then the practices and extreme and vi- the proval violence in Johnstown Carnegie cinity. rulings Board to the given by the were con- examiner’s Corporation and General Mo- firmed an offer Illinois the Board. shown Steel As proof printed constituted Corporation agreements appendix to the mo- in an tors approval adduce, expert of the Plans petitioners effect intended relevant application as standard was a and their call witnesses to theré show thus tended to bargaining agreements complete and breakdown in and order law against charge them. vicinity. the Board’s confute The items vio- Johnstown was not of exclusion ground sought The second lence proved were assaults testimony the offered because types, trespasses meritorious of various batteries on merely have shown of McDonald property, would and other dynamiting, to, agreements referred automobiles, shooting, structure throw- overturning objection application. This missiles, also their ing dows, but stones breaking and other win- admissibility. The weight, not to went one man of all of his stripping intended having introduced evidence Board night eject- clothes in the of the middle procedure prove Plans and the ing street, public him from an automobile into interfered with dominated and vandalism, thereunder general together comprised organizations the labor adequate police protection. an absence of The Plans, of the exhibits and of of the exclusion ruling apparently examiner was he had testimony of McDonald was denial upon already ground petitioners to rebut the mind, determined in his own and would case, prejudicial and was hence er- Board’s recommend a finding ror. there had violence in He Johnstown. complaint paragraph of the the did IS so recommend and (3) did so petitioners, through charged find. The was that reasoning apparently officers, representatives agents and finding violence favor of the con- had, called the strike of during petitioners tention of the that there was Plant, the Cambria S.W.O.C. at Johns- violence—the Board having originally con- town, Pennsylvania, engendered, expressed the contrary tended to further testi- —made hostility publicized opposition subject unnecessary. on the mony leaders, S.W.O.C., organizers and mem- bers; against petitioners ruling introduced evidence This the Board my and the Board that this done the examiner was in view er prove intended roneous for reason petitioners through the formation and ac- that it failed to dis tinguish the issue as to the between mere of Citizens’ Committee tivities town. Johns- petition- fact of and the issue as to ex To rebut this evidence violence testimony generality peti introduce tent and thereof. This the ers endeavored to desired, right, general extreme violence tioners and had a to show showing prove vicinity during period in rebuttal tending Johnstown of certain formation and testimony When activities Citizens’ strike. petitioners’ response the natural been elicited from the witness Committee were general the effect that there had been citizens to the extreme and Lawrence to violence enforcement, Johnstown, civil disorder at the trial and breakdown law
some interrupted rather than to the influence petit and ruled that no examiner evidence would be received in the ioners.6 Board introduced further Since ev identify rulings assailants, ex- was not able bis Peculiarities aspect aminer in of the case for that reason tbe examiner struck employee Stein, testimony illustrated: out all of bis One refused petitioners, and witness for the allow counsel tbe to make described argument opposition direct examination an an ing. attack made to that rul- way purpose testimony on him while his tbe to work. Since of tbe appeared merely that he cross-examination was to show tbe and sev- extent
(J65
any
take
ultimately,
through any
any time
charge,
committee at
the
prove
dence to
purpose or
below, found action or do
for the
topic
anything
VII
out in
point
as I
designed to
charge,
the intent of helping
the
with
against
petitioners
[or
the
dis-
as
Company
was
testimony
help] Bethlehem Steel
offered
of the
exclusion
the
interest
tinguished
any
business
from
other
prejudicial.
property
or
owner
located
whether
the evidence
rebuttal of
Johns-
(4) In further
any
elsewhere?”;
ac-
taking
“In
town or
charge in
its
Board under
the
introduced
refraining
or in
anything
in doing
or
peti-
the
complaint,
of the
paragraph 15
anything
doing
action or
taking any
from
members
as
produced
witnesses
tioners
the
you,
a member of
did
as
representatives
Johnstown
the Citizens’ Committee
its Executive
or of
Citizens’ Committee
them
petitioner and asked
Company
of the
Committee,
purpose
aid-
ever act
testimony
elicit
questions designed to
ing,
or
Steel
Bethlehem
helping
benefiting
accessory
connec-
effect
there was
Corporation
Company or Bethlehem Steel
the Citi-
petitioners and
tion between the
distinguished
other interest or
any
from
as
Objections to some
zens’ Committee.
owner
located in
other
whether
property
ex-
were sustained
questions
these
or elsewhere?”
examiner’s
The
called
ground
aminer
Johnstown
rulings
by the Board.
confirmed
Such
were
conclusion. Some
an inadmissible
questions
permissible,
as com-
so far
were
rulings
ground were techni-
made on
concerned,
petency
al-
was
rule
example,
question
within
For
cally correct.
subtopic
topic
luded
this
to in
(1)
there
connection in
where-
any
was asked: “Was
pointed
testimony
out
Company
that the
any
Bethlehem
way
Steel
between
intent,
mind,
motive,
state of
witness
Corporation
or
Steel
Bethlehem
like,
for action
an in-
reason
not
Citizens’
Whether
was
Committee?”
conclusion.
admissible
The examiner did
conclusion to
such a
connection
against any
questions,
not
evi-
rule
of fact
drawn
the trier
proper, upon
I have above indicated were
concerning
dence
the activities of
Com-
that the
not
ground
answers
mittee,
or trans-
were
with-
concerning
contacts
thereof,
knowledge of
the witness.
or the absence
actions
with
By
the is-
petitioners.
inference therefrom
testimony sought
to be elicited
connection
accessory
sue
would
as to
questions
is-
these
was relevant under the
determined.
accessory
between
sue of
connection
many
petitioners
questions
But
did seek testi-
Citizens’ Committee and
Committee,
mony
activities of the
rulings
as to the
its activities. Therefore the
were
prejudicial
to its contacts or transactions or the
petitioners
denying
thereof,
petitioners. opportunity
absence
to rebut
the evidence intro-
against
“Did the
or
Thus:
Citizens’
them. The
ultimately
Committee
duced
Committee,
Executive
for the
acting
Citi-
that:
found
Committee,
any
acting
zens’
or
official
“
implement-
.
.
.
was thus
Committee,
any
the Citizens’
have
business ing
strengthening
agency
which was seek-
organiza-
transactions
to defeat the efforts of the union
Bethlehem Steel Com-
destroy
organization by
tion and to
creat-
Corporation?”;
pany or Bethlehem Steel
ing hostility toward it.
Represen-
“Did
[Management’s
Evans
Mr.
“
.
.
.
tried to utilize the
Elli-
tative at
Cambria Plant
or Mr.
]
apparent
impartiality of the Citizens’ Commit-
manager
general
cott
Cambria
[the
interfering
tee as a means of
with the self-or-
ganization and concerted
Representative
of Beth-
activities of
its em-
Plant]
ployees.
...”
lehem Steel
Bethlehem Steel
Corporation
any part
time
take
defends its
action
of any
transaction
business that was
the examiner in
of the foregoing
transacted
Citizens’ Committee or
pointing
rulings
out that in its decision
the Executive Committee?” The answers
“We do not
respond-
find that the
stated:
questions
improperly
to such
excluded
[petitioners]
ents
participated
induced or
competency
far
so
was concerned.
formation of
Citizens’ Commit-
Again,
examiner
question
excluded
an-
this
tee.” But
the real
evades
questions
following:
aspect
rejected
swer
as the
to such
case. The
testi-
mony
“Did the
directly
merely
Citizens’ Committee
offered
to defend
erity
per-
operated
the violence
to fix
and should
to exclude
testimony.
responsibility
identity
therefor,
sonal
assailants
witness’
was immaterial
against
charge
approximate-
November
within
thus
ly
participated
induced or
the formation
one month after
the court
denied
*24
Committee,
par-
supplement.
also and
motion
Citizens’
but
charge
ticularly
against
to defend
think, therefore,
I
the order of the
petitioners
had actuated the activities
Board should be set aside because of the
the Committee after its formation.
pre-
denial to
petitioners
right
of a
sent evidence material
to their defense of
respect
rulings
of the
examiner
charges,
rehearing
Board’s
and that a
by
Board con-
their confirmation
should be ordered with directions to admit
evidence,
admissibility
it is
cerning the
testimony erroneously
therein the
excluded
Labor
to be
that the National
commented
present hearing.
in the
provides
proceedings
Relations Act
that in
pre-
before the Board “the rules of evidence
Ill
equity
not
in courts of
shall
vailing
law
Findings
Form oe the
) The
controlling.”
10(b)
be
rec-
(Section
10(c)
requires
of the
Section
Act
opinion
ord
evi-
with
hearsay
filled
findings
Board to state
of fact.
I think the
dence,
beyond
scope
cross-examination
decision
the Board does not comply
with
direct,
of the
and other matter admitted in
requirements
Supreme
of the
Court
evidence,
sup-
violation of
rules
fact,
respect
findings
court in
of this
port of
Board’s
case. This
tois
be con-
accordingly
I think that its form should
application
trasted with the
of the strict
approval
not have the
court.
against
petitioners—
rules of evidence
charges,
decision is an intermixture of
evi-
sometimes with technical
(as
correctness
dence,
inference,
argument,
opinion,
re-
subtopic
I comment above in
this
(4) of
findings
citals
facts and
underlying
topic II)
incorrectly.
and at other times
If
ultimate facts.
It
further rendered con-
the rules of evidence
to be
relaxed
fusing
failure almost
to distin-
wholly
proceedings
of an
tri-
administrative
guish
Plans,
between
although
the several
Board,
bunal such as the
the relaxation
respect
the evidence with
them
most of
equal.
should in fairness be
The Board
testimony
limited and there is
except
adjective requirements
should not lower
with
to one
them.
require-
up
aid its own case
put
again
them
ments
concerning
findings,
form of
the effect of
out of the
keeping
record
Supreme
stated
Court
in United
charged
evidence
party
offered
Chicago, Milwaukee,
States v.
Paul
St.
&
violation of the Act.
does
10(b)
Section
Co., 1935,
499,
Pacific Railroad
294 U.S.
purport
not
to apply to the
case
Board’s
462,
1023,
55 S.Ct.
L.Ed.
79
United States
only.
worthy
It is
of note in this connec-
Railroad, 1935,
v. Baltimore & Ohio
293
although
the examiner excluded
454, 465,
268,
587,
U.S.
55 S.Ct.
L.Ed.
79
the inadmissible conclusions of the wit-
1931,
States,
and Florida v. United
282 U.S.
nesses which
just
to,
I have
alluded
he
194,
119,
291,
L.Ed.
51 S.Ct.
75
and stated
nevertheless,
point
I,
topic
I
out in
per-
Saginaw
court
Broadcasting
this
mitted counsel for the Board to cross-ex-
Federal
v.
Communications Com-
lay
amine
witnesses as to the
meaning
1938,
mission,
App.D.C. 282,
68
554,
96 F.2d
provisions
Plans,
and thus to ask
1938,
certiorari denied
Gross
Saginaw
v.
questions
them to determine
of law.
Co.,
613,
Broadcasting
72,
305 U.S.
59 S.Ct.
objection
391,
the mo-
L.Ed.
83
and in Tri-State Broad-
tion to
timely
not,
adduce
filed is
casting Company
v. Federal Communica-
think,
7, 1940,
Commission,
well taken.
1938,
On October
App.D.C. 292,
this
tions
68
court denied the motion
564,
F.2d
are not
purpose.
formalistic in
supplement
the record.
contrary,
The nature
and On the
as said
Mr. Justice
purpose
motion,
Cardozo,
of that
and the allegations
for the
speaking
Court
petition
upon
Milwaukee,
review
which it
Chicago,
United States v.
St.
was based
Co.,
were such that if the
supra:
motion to Paul
Railroad
& Pacific
“We
supplement was sustained the order of the must
what a decision
know
means before
duty
Board must have
set
been
aside
the the
say
becomes ours to
whether it is
again
held over
hearing
wrong.”
before
And as
court
said
Saginaw
case,
which event
to adduce
motion
Broadcasting
would
the re-
unnecessary.
It
quirement
findings
therefore
in terms
possible
file
the motion
to adduce un- of
basic
ultimate
“is .
.
.
both
facts
supple-
technicality.
til after action
contrary,
motion
far
On the
against
The motion
ment.
was filed on it is
adduce
to insure
Star
rneth-
Chamber
Although,
be ad- to
shall
reason.
said in National
justice
ods,
certain
to make
Pennsylvania
law.”
Labor Relations Board
to facts
according
ministered
Lines, 1938,
Greyhound
instant
U.S.
were made
findings as
Such
82 L.Ed.
A.L.R.
in National
58 S.Ct.
inferences are to
condemned
case were
Products,
the trier
Thompson
drawn
courts,
Board v.
Relations
Inc.,
fact and
the inferences
Cir.,
F.2d
where
inferences.
nevertheless be reasoned
must
And
to
court said:
tribunal
reviewing
is the
duty
finding
is not
of facts
tho
“The
are,
the case is
see that
otherwise
mingled
proper
state-
therein
form.
*25
pri
opinion.
expressions of
law. “The
according
not decided
witnesses
ments of
No reference should
nor
evidence
he made to the
presented
mary
for our determina
question
finding
injected
into
ultimate
discussion
findings
or not the
of the
tion is whether
upon
rests its order.
the Board
facts
support
not
arc
Board find
arbitrary
record and
of the
Statement
a clean-cut
There should be
capricious.”
Drawn
Union
incorporating
tho
therein
facts without
ultimate
reasoning by
Board
which tho
or the
evidence
arrived at
Labor Relations
Steel
National
Co. v.
finding.
If
desires to
the Board
Cir., 1940,
587,
Board,
589. Un
109F.2d
3
any part
emphasize
evidence
or
discuss
findings
sup
der the Federal rule
must be
give
findings,
do
it should
for its
or
its reason
evidence,
ported
and sub
opinion
substantial
memorandum
or
so in the form of
incorporated into, or con-
be
not
which should
is
than a scintilla
evidence
“more
stantial
and
special finding
with,
[97
of faets.”
nected
suspicion of
than
a
do more
create
must
page 13.]
P.2d
fact to be established.”
existence
re-
be
findings should
proper
I think
Labor Relations Board Colum
National
v.
quired
the Board before a decision in
Co., 1939,306
Stamping
Enameling
bian
&
this court.
501,
292, 300,
L.Ed. 660.
59 S.Ct.
83
U.S.
In
IV
Company Na
v.
Edison
Consolidated
Principles
Proof and Review
Board, 1938, 305
Labor Relations
tional
topics I have
foregoing
In the
indicated
330,
197, 229,
U.S.
59
L.Ed.
S.Ct
83
206,
ought
opinion the
be
case
not
my
126,
put
it
Court
thus:
present record but should be
decided on the
statute,
providing
"...
‘the
rehearing
Board
a
returned to the
findings
support-
facts,
Board as to
if
But,
findings.
properly
at the ed
cast
stated
by evidence,
conclusive,’
sup-
shall
be
means
ported by
Washington,
substantial
outset,
my further
if
evidence.
Y.
that even
view
& M.
v.
Coach Go.
National Labor Relations
proper
hearing,
testimony
fair
admission of
[19371
301 TJ.S.
57 S.Ct.
defense,
petitioners’
support
and Substantial
L.Ed.
evidence is more
form
findings
proper
be assumed-—as- than a mere scintilla.
means such
relevant
might accept
evidence as a reasonable mind
is,
present
suming,
a basis
record
adequate
support
[Citing
a
au-
conclusion.
case on its merits—
consideration
.
thorities]
.
.
findings
foundation for the
still
is no
flexibility
.
desirable
“.
.
in administra-
proceed
Board. And
order of the
go
procedure
justify
does
tive
not
so far as to
my
out
reasons for this
now to set
view. orders
having
without
a
basis in
ra-
evidence
probative
so,
necessary
tional
force.
I think
...”
doing
But before
principles
certain well
state
established
cases,
are
course
There
the instant
the determination of such cases
governing
such, which,
case
one
sub-
because the
judicial
instant case and
review
as the
undisputed,
facts are
sidiary
the function
thereof:
of fact
of the trier
is limited
second
step
determining
charges
determining
wheth-
In
or not
above mentioned
whether
admitted
proved,
is,
determining
subsidiary
er
facts the
from
case,
reasonably
fact in
ultimate facts
to be inferred.
questions of
a
a trier of
determination,
steps: one,
safeguard
findings
integrity
two
takes
To
fact
from
evidence,
inference,
arrived at
consideration
of the ultimate fact
subsidiary
case;
principles
or
facts in the
established certain
with
underlying
law
other,
dependability
determination
of infer-
the
the
from such facts of
reference to
be
whether the
facts
An inference to-
reasonable
question
(1)
ultimate
ences:
evidence,
And,
all the
charged have been established.
un-
be warranted from
must
guaranteed
reasonably
system of
inferable from
der
law
our otherwise
fact
might
Constitution,
subsidiary
group
or
facts
in-
single
facts must be a
fact
be
proven or
totality
the evidence and
ultimate consistent
reached from
facts,
in Na-
subsidiary
facts. As
facts
arbi- conceded
said
subsidiary
from
assumption
Pa-
trarily
conjecture
Relations Board Union
tional Labor
v.
Inc.,
F.2d
process contrary
reason,
Stages,
Cir.,
according
but
cific
interpreted the mean-
where the court
tric Power
Relations
Co. v. National Labor
Board, Cir., 1938,
10(e)
(4)
of the National
A
Section
669
phrase
necessary
tion.
or
will,
covers the abuse of relation
are
logic
reasoning
opportunity
corrupt
so as to
or override
adjudi-
type of
accomplishment
appraise
and it
difficult
con-
is no more
system of law
under our
guaranteed
cation
duct
tion
in connection
the selec-
sort
with
Board,
applied
representatives
must
purposes
for the
of this
applications
findings.
Act
than
relation to well-known
fact,
reaching its
Con-
trier
fraud,
of the law
duress and
La-
National
Company v.
Edison
solidated
undue influence.”
Board,
U.S.
305
Relations
bor
pains
to set
the fore-
I
out
126;
Labor
National
L.Ed.
S.Ct.
principles
settled
going
so well
—which
Cir.,
Co., 4
Abell
Board v. A. S.
Relations
ordinarily
their
would
iteration
Rela-
951;
National
F.2d
supererogation
opinion
it is
my
—because
Co., Cir.,
Gas
&
Board v. Bell Oil
tions
application
recognition
lack
due
Manufac-
406; Cupples Co.
F.2d
wrongly
instant case
of them that the
Board,
Labor Relations
National
turers v.
decided
the Board
its merits on
Company v.
Magnolia Petroleum
supra;
present record.
Cir.,
Labor Relations
National
V
1940,
E G GRACE President
67á Company, Subsidiary pre- Companies, Ef- and sentatives a revision of the Plan was 1, 1918,” meeting fective pared negotiated was October and this was submitted Company between representatives and by the Representatives approved Cambria Steel and the had of the who January 1920. This became them by been for that elected all of the substance the Bethlehem Plan down purpose; below, and after amendment of amendments of referred to existence, into came Maryland, Cambria Plan it thus like it essentials in its was approved was the War Labor Board. by by Plans devised Steelton and Lebanon like King, and Plan Mackenzie Cambria Lackawanna, The and Rankin Leetsdale approval which of the War direct acquisition Plans were after the established appear below. Labor Board will 10, 1922,by Company peti- on October tioner of the Lackawanna Plant after Plant of the Plan at Cambria acquisition February by Company petitioner was in effect at the Company petitioner affiliate17 of the acquired Company that Plant on time the Works. The Leetsdale and Rankin Con- 30, 1923, and it existence came into March established after centrator Plan was the Plant manner: In following March, 1929, Concentrator became by Plant operated Cambria Steel being separate operated by manufacturing unit subsidiary the Midvale Septem- Company aas petitioner. Company an affiliate18 of the Company. Steel Ordnance On After the and the Lackawanna Plant Leets- suggested to the the Plan was ber employees acquired, Plant, dale Rankin posted Works were a notice at the after the became such Concentrator Plant Board Directors and authorized separate unit, President, a pany manufacturing Com- as follows : signed reading petitioner Plant, at the Lackawanna Company and Ordnance “Midvale Steel and the above referred affiliates Company Steel “Cambria Leetsdale and Rankin and at Works Mid- “The Board of Directors Officers Plant, to the em- Company, Concentrator submitted vale and Ordnance Cambria Steel Subsidiary Company Companies, rec- Steel ployees at the Plants and various Works prosperity ognizing Companies of their the fact mentioned, plan employees’ form inseparably up with the bound representation provisions which contained general employes, propose, with welfare their employes, co-operation and assent of itheir largely based already on those of Plans the and plan interests, mutual to establish for their existence, wit, Maryland, Steelton, representation employes, will Lebanon and Bethlehem Plans. Sometimes govern all relations between the Com- hereafter without and sometimes modification with employes. panies and their history Companies past accepted plan em- “The these has form remarkably disputes free their ployees through designated their repre- due, sincerely wage-earners, believed, by voting in the first sentatives and nomina- always dealing which it been the the fair held tions elections thereunder. Management aim all mat- of the maintain in affecting Company the relation of ters Although they the Plans. Structure of employes. their stated, there separately are not classes are two “'ty/'e recognize wage-earners Plans, provisions each collectively bargain employers, employes hereby invite all organic principles to meet with the those we which relate to respective Companies officers of their organization labor considering, adopt- purpose practicable, and if prin- and those ciples have to do with representation plan employes, the relations between governing thoroughly democratic and entire- which shall ly Companies, from interference free organization peti- labor agent thereof. official tioner, stipulation griev- including every hoped , employe respond “It will adjustment and collective bargaining ance invitation, and meet ito with the officers of organic provisions procedures. Spirit dealing fair helpfulness. mutual usually found in are those the con- Plans mutual “For convenience of officers and organization. stitution of a Accord- employes, meetings per these are called as sched- them, represented employees are ing to attached ule hereto. organization government Dinkey, “A. C. Representatives, Employees’ elected “President” Plan, privilege limited to Rep- voting being then known those em- the “Plan of Employees ployees have been on the resentation of Midvale who Steel Steel days immediately Company, preced- payroll sixty Cambria Ordnance Corporation. Mines McClintie-Marshall Bethlehem Construction
Company. Representatives not, regularly may ing election, and who neither an except upon position Body have the any supervisory hold nor invitation of the General Committee,' power or dis- or hiring meetings. attend such to recommend Employees’ employees. of charging expressly Each of the Plans states that possess Representatives themselves must way representation thereunder “shall in voters, stipulated and qualifications for against any employee discriminate because adult qualification being of additional race, of abridge or creed or or conflict sex employed American Com- citizens his or with her to be- belong or not year; they chosen in for are pany one long any fraternity, society, lawful union employees secret conducted balloting other organization.” And Plan fur- each regulations prescribed a Rules tinder provides ther if any Employees’ Rep- Repre- composed Employees’ Committee of resentative deems himself discriminated respect balloting of sentatives. against any he may reason of action provide: Plans representative capacity, taken in his hy stages he take the successive matter he elections shall secret “Nominations and ballot influ- as to avoid undue and so conducted manager, the Plant to the General Joint any ence whatsoever, with manner or interference voters Appeals, president on Committee prevent fraud in the and Company, Department and to counting casting or of ballots.” Labor Secretary the State or to the Employees’ Representatives The tenure of States, case United which compose Collectively year. is one they the decision rendered is to be final and bind- Repre- (or General Committee Body ing. assembly sentatives as thereof called express provisions The Plans contain no Plans). Representation some meetings general employees for dis- for the basis proportional, in the latter on reports hearing cussions or for from Representative speci- Employees’ for a one Representatives and the instruction number fied number of —the Representatives, provisions and contain no pro- different Plants. varying applications membership, member- prescribe visions of the Plans in detail a ship cards, or dues. Membership results Repre- method to be followed recalling employee. an becoming filling sentatives and in vacancies. provisions Those Employees’ After the annual election the Plans gov- which Representatives, Body bargaining General holds an ern relations be- organization meeting employees’ and tween the organization elects officers and These and the Company Committees. Committees the and in the aggregate consti- jurisdictions thereof, taking agreement the Cambria tute between typical, Plan arc respect as follows : the Finance with pro- to the Committee, which deals with the cedure to meeting bargaining. be followed Un- expenses organization; of the labor agreement der Committees are Joint composed taking Committee, up. They No. 1 acts in Standing which set — rules, means, respect ways typical and and the Cambria Plan as the members —of elections; 1, 2, 3, 4, 2 Standing conduct the No. and Standing Nos. Com- Committee, jurisdiction having wages, up over organization mittees set under the labor piece work, Plans, tonnage aspect together and schedules, equal bonus with hours, employment Management’s Regular and ; Repre- working conditions number Committee, Standing No. 3 Representatives The two sets of con- sentatives. pensions relief, cerns itself these equal with and ath- on Committees have vot- Joint recreation, prevention power. letics safety and Committees are Joint accidents; No. 4 Standing known as the No. 1 (the Commit- Committee Joint tee, employees’ dealing transportation, with on Rules), Committee the No. 2 Joint housing, Committee, domestic economies the No. living Commit- Joint Joint conditions, Committee, tee, health sanitation, works No. 4 No. Joint publications, education and (the continuous em- Committee General S Com- Joint Joint ployment industry; Appeals). condition Their the mittee function is to Committee, No. Standing attempt consider discuss to reach occu- pied respect all other falling agreement matters with- matters of mutual scope of the above. Company, Plans de- interest provisions regular special tail and re- severally meetings spectively subject of the General Body deal matter com- They provide thereunder. Committee Nos. that mitted 5 Commit- *33 676 on Representatives aspect of on Committee organization tees under the labor Joint method Appeals addition to this agree. the Plans. grievances, with individual dealing regular provision for The Plans make adjustment matters provide for Plans Commit special meetings of the Joint general. employees in interest to the Company shall They tees. appoint provide may ini- be such matters Consideration of Repre Special Management’s Body, any Com- tiated the General but sentative shall no vote whose who it has first submitted (provided mittee management in touch duty it is to keep the mat- Body) to the General matter ters are then Representatives and Employees’ with appropriate to the referred negotiations represent management the man- ultimately Committee Joint Representatives. He Employees’ with such is meeting, Company. agement of the to attend Committee authorized Joint only The Plans invited. of the Na- but when to the enactment Prior provision an conference for annual
make Act tional Labor a two-thirds vote Relations Representatives Employees’ and of of all (one-half on Rules Committee Joint (cid:127) representatives management.19 The above, membership, as stated of whose representation em equal principle of Management’s Representa- comprised of ployees management on committees for the Em- tives), majority concurrent bargaining agreed was Management’s Representatives and ployees’ Company during Labor conference, War the an 'annual Representatives at after place conferences took After necessary to amend Plan. receipt Board of the letter Presi by the amended each Plan was passage of the Act Bethlehem Com dent E. G. Grace provide might be amendments 12, 1918, pany dated referred December adopted by a two-thirds of the General vote above.20 Body except (i) amendments would — change procedure griev- materially procedure specifically Plans outline adjustment, (ii) might prevent the ance grievances. adjustment An in- fair method of as a operating Plan selecting representatives employee dividual unable to obtain satis- all factory pre- adjustment grievance his bargain- as a fair of collective and ing, method may first sented his immediate foreman might or (iii) materially increase the up then second take superintendent matter with Company’s obligations under the Plan. department, his third Special Management’s Representative, April Prior to the decision on manager. of National Relations fourth with the Plant he does Board v. If Jones Laughlin Corporation, stage, not obtain relief fourth he & Steel then, through Employees’ Repre- his 81 L.Ed. 108 A.L. may U.S. 57 S.Ct. sentative, require the to be in which the held matter referred Court R. Appeals. to the Labor Relations Act constitu General Committee National Joint tionally applicable Ap- type this General Committee on to the If peals business Joint satisfactory effect a Company petitioner, fails to settlement the Plans uniform employee, aggrieved ly provisions then contained Com- Com obligating president pay Employees’ pany pany Representatives notified and the arbitration, presi- spent meetings, defray referred to if time at Plan matter and to majority Employees’ expenses.21 necessary dent and a Plan Shortly there Stipulated provision par- un- Exhibit This deleted first Plan, February, 1938, agraph provides: the Bethlehem “I. Bar- der Collective gaining: present amendment. 1. Local boards at con- together Referring one stituted should be eliminated conferences “Thereafter, stipulations De- Chairman from the War states: repre- partment and there should be substituted were held between conferences general con- representa- therefor a small committee Board and sentatives taining equal employer number an under- tives employee representatives. employee standing at em- arrived which was ‘Sug- representatives by the to be entitled selected bodied a memorandum already among Adjustment Looking gestions elected from committees Toward (Italics supplied) photostatic Award’, their number.” the Bethlehem necessarily occupied which, copy “For draft’ shall time marked ‘Final through regular or attendance actual herein admitted evidence pur- meetings special Stipulated held or conferences Exhibit marked 16.” *34 Plans, ments, except together copies Rankin the the of minutes after each of the Plan, meetings of certain in evidence to prescribe so as to admitted was amended supplement stipula de payments schedules; these two such Company the make per develop only origin, history the expenses “to the extent tions as to fray such of the effect the ment of the Plans which are to mitted law.” discuss manner topic things the close of under VI. that as of among these amendments making operated in hearing are out the existing themselves set the Plans The amendments respects substantially all in ac not so material margin.22 the The Rankin Plan was provisions; respective amended, Company the their advised cordance with but the by counsel Representatives stipulation that and a into under entered Committee of parties that, showing of except permitted to the certain the Plan extent law, petitioner durixig payments any employees Company no to the make of would Plan, spare had amount of Employees’ Representative working under hours the the expense time therein.23 to stated would incident defray discharge the duties Employees’ of of the (2) the case con- appearing The facts Representatives under Plan. operation cerning the of the Plan Cambria respect operation Company of the the Plans and the con- conduct duct They comprise them. thereto are few. Company with to in sub- the following; stance and effect Except (1) printed certain insofar as ma- copies employee terial work, the Bethlehem a new (including When came he publications foreman, Review certain other was given copy aby Plan more below) referred particularly Employees’ Repre- introduced department which reference made to the Plans sentative of the he in which was concerning work, some of and evidence Repre- them and was informed that posting distribution or of that at material sentative had elected a secret ballot at may he, various Plants con- election employee, Works and that would opportunity sidered to be evidence the Plans have regarding vote at next election Plan, other than the evi- if employed Cambria he only had at that time been dence operation sixty days. in the case regarding explained The foreman Plans following: employee such is the adopted the documents Company provisions themselves in of the as a far obtaining, pos- Plan as means so contained; Plans are large schedules griev- plant, personal sible in a close rela- agree- tionship ances handled under each employees, of the with its and in order Employees’ Plan, Repre- Plan; VII, paragraph 9, suant to the tor and § of the sentatives shall receive the Com- and Rankin Leetsdale Plans. payment pany permitted by law, commensurate with subject “To the extent respective average earnings, Employees’ Representatives shaE be en approval majority of a entire titled to receive from the membership necessarily occupied through of the Committee on Rules time actual Management’s Special Represent- regular special and the meetings at attendance VII, paragraph pursuant ative.” § Cam- or conferences held to the Plan Lackawanna, Maryland, Lebanon, payment bria, commensurate with their re Plans; para- spective VII, average earnings.” § Concentrator graph Steelton, Bethlehem, permitted “. . .To the extent Leetsdale, Rankin Plans. defray law the shall such ex- penses necessarily “The Joint shall Committee on Rules incident arrange place places discharge suitable duties under Plan sub- meetings ject approval Body majority [or General of a Representatives, membership Committee entire of the Committee on may Management’s Special and of Rules be] case the several Com- Representative.” mittees and Joint Committees held, defray shaE Included within items of evidence expenses necessarily concerning as are incident mentioned the record discharge Plan, copies duties Plans are of certain letters hav subject majority approval of a reference to the amendments membership entire changes the Committee provisions Management’s Special Rules Leetsdale Plan. letters These re VII, paragraph Representative.” explained § fer the 1937 amendments Cambria, Bethlehem, Lackawanna, topic description in this above under the Maryland, Plans; Steelton, and Lebanon Plans, and, structure VH, paragraph stated, of the Coneentra- § I discuss the manner topic making VI. them ot Relations, Review Progress Human A of the em- clear idea have a might that it Bethle- Accomplishments Some Under The foreman ployees’ conditions. working Representation,” Employee Plan might hem he take employee told the also *35 aby and employees, also which he distributed to matter up any foreman with his “Message” “Message” employees. The to that the adjustment, and required thought was in the terms: following such a taking provided a means Plan impressed the higher. The .foreman matter “A MESSAGE Plan was that the employee idea with Employees: “To Our handling union, purpose of get join you for the merely to their “In their effort to organizers saying-— I. the O. O. was a medium grievances, but rather you join in order to union —that must their employees management and bringing the your job; hold together, told him Com- and closer union, join a their —that there is rush to up suggestions from you sign welcome pany would before had better therefore late; too employees the betterment Plant responsible officials want —that Government conditions. and working union; join you to their and of each The elected chairman Com- your Employees’ Representation Plan Joint i—that provide legal a usually Plan effective meth- a or mittee the Cambria does bargaining man- with the od collective Manage- superintendent. Company agement. Special Representative often ment’s statements; by “Do not such false be deceived Employees’ present, by invitation is no in there truth them. Employees’ Representation meetings and Representatives Committee Plan “Your does bargain- legal collective constitute a method of meetings Body. There has the General past ing it over and the effectiveness of management no interference reflecting years many record, is a matter of of, or the holding transacting with good been attained with- conditions which have day’s through meetings, no out the loss of wages at, business Committee strikes or disorder. meetings by Manage- attendance at such government law “There or rule of except upon invita- Representatives ment’s join you your requires to a union or surrender ifco prior nor thereafter to 1935 tion. Neither representa- individually through your rights, tives, or Representatives ever Management’s have directly negotiate management with the to proposed or employment. opposed amendment Outsiders all conditions past nothing necessary has not been have happened Body. — favorably by the General acted on necessary them now. make to transfer of There been no has your is no doubt in “To make sure that another, promo- department or one employment pol- regarding Company’s minds again prin- icy, ciples. its fundamental state supervisory positions, we will tion to on account They are: activities. bargaining join pay employee or tribute has to “1 —No (3) Facts in appearing the case concern- job get any organization or hold a with operation of all of the Company. (that Plans this depend upon Employment us does not is, both the Plan the others) “2 — Cambria non-membership membership organiza- in and the conduct of the with re- Company tion. spect are the following: thereto belong belong right “3 —The personal any organization is an individual cooperated for the Company Counsel n guaranteed by the Federal Constitution which preparation form amendments Company recognized as a funda- this and is contributions Representation your principle mental Company support to the of the various Plan. job topic holding of a discuss this in Plans. VI. “é —Advancement in or the Company depends mer- on individual with this since the various times At installation of efficiency length it, service. Plans, both the Plan Cambria many Company in and for believes “5 —This others, praised has them bargaining years practiced true collective has representatives. freely you your accomplishments the employees, chosen to do so. will continue contrasted Plans and their advan- principles fundamental American “These are tages advantages with the claimed of out- your yourselves, which, the interests side unions with the disadvantages stockholders, public, families, this our steadfastly outside unions as described by the Company. adhere. will STEEL COMPANY “BETHLEHEM This was done means of statements in “January : 15, 1937.” Review, paper published Bethlehem Corporation pages of the booklet “Ten petitioner first two distributed petitioner Relations” con- Progress Human employees, to its Years’ following material:24 statements in booklet “Ten entitled tained Years’ following terms: The booklet was “inscribed” ployers tribution and economically; ployees ployees jectives, well as fellow workers. fairly ple intimate toward stockholders and efficiency joined laying bo translated into a pect siderations: ist that which make this who ployees quires in ness to ity 70,000 “THE cess of their cant so far as it is am! desires as human which takes into account two plants have fully and mortar. ture in American Plan of of machines. realized involved alized on the dustry icy covering man Plan have principles adopted rated in Bethlehem’s lars and walls are “Bethlehem’s “Employees “It “The same ten “It was ten “This production the market for today and foundation. that work beings. brought justifies join together changes generally in the and employees. with the the have since built depends HUMAN SIDE play their this and quantity structure by employers in knowledge in an Employee Representation between employees continuing based on grown foundation a better expect justly employees fair with new joint First, employees enough, however, mutual all This the faith and distribution and in a at three part of possible Its cornerstone economy wages. industrial and for its policy years ago management undertaking a attitude is reflected in more in order to attain a industry. into is built not efforts. Bethlehem industry’s products years as applies business of in [*] the activities and [*] [*] understanding production; fair will second, public, plants. responsibility purchasing power human relations employers beings their friends practical working policy and the and a human cooperative [*] in [*] [*] right the success On the toward each other and wisely OF OUR have witnessed broad, enlightened sound business produce efficiently company consideration [*] # # a new kind its industry dealing management It that employees. production formulation company are all benefited Employees will has pioneers. to a success Bethlehem ten fundamental con- relations that is men. and reasonable needs stands only management, largely men, employers that part attitude who treat that the Bethlehem steel and it is true also come be satisfied with its em- years of efforts of their to do so. was BUSINESS for the partners firmly upon to the not all this be and employees, more period which upon to he re- and dis- properly of their agencies It must alize that that willing- inaugu- Its of ago merely of em- princi- signifi- its ob- plants to ex- struc- of all brick those qual- them the than foundation part suc- and and this oh! pol- em- em- ihe pil- the hu- ex- re- in- in they tained Grace Years’ tween Additional material contained in “Ten tions and independence ployees phasized tunity ists between the that tions in Employee Representation began utilized and death. say denced in their sincere and enthusiastic which has been made in this eventful decade reciprocal spirit hem’s was first the business, faithful, efficient service. pends upon common employment, does the Plan since able wants right cooperation luis achieved such notable success. is ployee Representation.’ sired. inaugurated ance of the features extent at least of ulations and to “ *36 “Third, good, “After “What are these interests in “ “Fourth, “Second, “These “It “First, fitting ‘Not ‘The management age. employee may purchase sense of it is with a real are all to our grown to see satisfied is which their assistance and advice human said pay ready employees Progress are concerned? What are in interesting under which men are asked broad, only industry stockholders and the interests relief in case the first elections in 1918 President presenting “Faith four to a at inaugurated the Bethlehem Steel provision against accident, laid ten engaged. in a a constructive manner. Not alone out of it would be deserving employees this relations, to do its through voice in the has the a letter to provide job of stockholder’s very large opportunity constructive features which have factors, degree which the feels that management safe in Each will in Human Relations” em- time itself, steady jointly to note reach the years provided settlement lasting payment physical a channel saving, representation tribute to the men whose ” permit? They of have been reared part the management, that cooperation ago extent the need and it now has an determining Other,” enterprise review the hope employees that when the management employees questions in the Plan of Em- success it extent pillars and and when employees: of fair home management acquire management interest Corporation responsibility working realized. so through grievances uninterrupted welcomes its management operate. pensions the reason- far that condi- success ownership, of Bethle- wages plan employees in which expressed have evi- financial concern: progress must sickness Plan work. as the are accept- in is, on the oppor- condi- Plan been reg- be- em- but but the ex- de- de- at- re- in of It “Progress great company joint stool been a decade endeavor in progress organization employees of men which Bethlehem have con- working together generous for a common interest tributed a share both to corporate been upbuilding recorded the last decade results and to the Corporation. policy employee-manage- Bethlehem Steel Real sound only measured achievement can be ment relations. plants represented terms of modernized widen- “To men who have employees accomplishment but also in terms during markets of co- in this undertakings years operative past grate- all ten which benefit booklet is engaged fully this business. who inscribed.” you you er every way assure will assist we representation and keynote employees’ present proven continue the uninter- accomplishment; stressed dealing problems, method of mutual with our wages which rupted employment fair and of best we will use our resources to the your protect you ability safety conditions accomplished, families our interference, from intimidation coercion prevention Plants, meth- including accident source. ' medical aid, ods, safety first instruction GRACE, “E. G. care; and referred to benefits “President.” in sav- through assistance and their families fore- The statement referred age security (pen- old acquisition, ing, home through the going, as been issued having sickness, accident ownership, sions), stock Institute, American Iron Steel the Beth- issue of benefits. The death the following terms: contained of July lehem Review “Security Employment,” THE “TO PUBLIC AND THE EMPLOYEES entitled bulletin IN THE INDUSTRY: STEEL reading thus: campaign “A to unionize the OF EMPLOYMENT “SECURITY Industry Steel has been announced. Employees: “To public “In order that agree your am sure we all welfare “I Industry position the Steel know your communi- that of families drive, Indus- the face of threatened in try *37 you depends upon uninter- ties in which live through Amer- statement the makes this any- rupted operation plants, and that of our Iron Steel Institute. ican and present thing imperil will disturbs our condition organizations not and connected “Persons Undoubtedly you all. the of interests Industry charge the have taken professional labor leaders bave have seen campaign. campaign publicly unionize the announced a to many disturbing are “There indications industry. employeesof the steel promoters campaign employ the the of will enjoyed industry employees the “The long in have employees coercion and in intimidation of the during peace of times when era industrial Industry and foment strikes. unions have dominated other industries objective campaign “The is the ‘closed may be However de- with strife. torn shop,’ one not prohibits any- employment purpose scribed, unionization real Industry union member. The Steel shop’ campaign on all to ‘closed force the oppose any attempt compel to em- will its industry employees employees to com- in the steel and thus ployees join pay to union or to tribute for industry pel you to in all and other right to work. join pay to a union in order that and dues employee Industry “No to Steel has your jobs. you may We that no hold believe join job. any organization get to or hold required pay worker should to tribute to Employment Industry depend does in anyone work, any organization or to for the to any upon membership organization. nonmembership in depends indi- Advancement “Realizing obligation employees, merit and effort. These are fundamen- its vidual Industry principles public, tal American which the owners and to the after care- steadfastly phases adhere. will ful ened all threat- consideration Industry principles industry through drive, “The believes Steel issued bargaining, of collective and in the state- effect Iron and Steel Institute American industry. throughout reprinted in this number of the ment REVIEW. firmly management overwhelming majority in believes the views Our “The the em- express expressed They recently partici- that statement. ployees Industry in the Steel dealings policies rep- pated controlled our have in annual under their elections own many years. relationships plans representa- their elected resentation Repre- your existing bargaining. “The effectiveness of elections tives Plans, proper employees for the settlement of sentation all conducted themselves arising any you questions purposes between secret One of tbe ballot. management throughout years campaign unin- those is to overthrow announced operation outstanding, terrupted representatives plans has been so elected. and the recovering speak Industry themselves. results is unnec- from six “The Steel essary are They huge losses, depression years employees review in detail them here. Experience beginning all us. known has tbe well now receive question Any operations. that no can arise between inter- us shown increased benefits of adjusted. seriously equitably ruption There have movement will cannot the forward jobs strikes, injure employees no all been no strife or loss of families and their Industry, time, dependent dues fines. tbe businesses will country. employees endanger am convinced that know “I tbe welfare of anyone accompany- problems drive, than else better can its own announced “Tbe strife, agitation ing and that no outsiders can deal with threatens them for industrial know effectively intelligently problems interruption.
those as Industry employees themselves. its resources will use can “The Steel employees ability prvtect addressing you have, its I I do best of “In have intimidation, any change thought you coercion from their families our and desire maintaining relationships you present and to aid them violence or that will be mis- and bargaining you appeal interference by any free be made collective from led campaign. My purpose source. rath- in the announced AND STEEL “AMERICAN IRON grievances thousands and differences as INSTITUTE.” hours, wages, and other condi working dated tions. Bethlehem Review In an issue en- after the September published Annually, years beginning with (cid:127) Re- Industrial of the National actment respectively originated, the which the Plans year, the the same Act in covery participated large ma- June Mr. statement following jorities elections con- nominations and Grace: purpose for the ducted under the Plans Employees’ Representatives. The electing adminis- “The Plan become vital onr business .... election tration of ballots contained a statement possibly agency take the outside could “No following effect: Employees’ Representation Plan, place of our “By using approves destroying this ballot voter that all-essential direct con- without tact holding relationship necessary so to insure the Nominations Election posted possible working as stated in the Election the best and liv- notice of this Employees’ issued Committee on Rules conditions . ... “ plan Employees’ Representation Meeting requirements under the . . . expresses Representation Employees’ at this Plant and Plan the desire to be N.I.R.A. our represented represen- bargaining for collective to servo as the medium of continues and the by purposes just urge past. it has in the all stated tation the notice Em ployees’ Representatives employees to use continue to full the elected under presenting [26]” Plan. of the Plan for their needs facilities and views. ...” elections were conducted secret ballot in such manner toas avoid interfer- policy The announced ence with the voter and as to see to it that since installation of the Plans has been in none of the entitled to vote was bargaining favor of collective and self-or deprived of an opportunity to if vote he de- ganization employees. *38 sired to do so. employees discriminated against its membership activity. for union or The contentions the Board concerning charge dismissed its of discriminat domination and The Board interference. operated ion.25 The Plans have as effective contends that the finding of fact— ultimate bargaining agencies as shown the ad petitioners the that dominated inter- and justment, employees, the satisfactory to fered the formation administra- and charged paragraph employees The Board in had mote certain of their in the complaint Johnstown, join they of its that at event that assist should Bethlehem, Pennsylvania, charge and at and S.W.O.C. This is not discussed Sparrows Point, Maryland, report from about in the briefs. In his intermediate July 1, 1936, down to the date the the made examiner no mention of the complaint August 26, charge, issuance the and the Board made no subsidi- petitioners discharged, ary finding the laid had or ultimate of fact or conclu- employees, respect off and refused to reinstate sion in law of it and made no and had demoted and transferred em ployees mention of it in the course its deci- jobs involving pay Therefore, although less and sion. there is no working conditions, part dismissal, less charge desirable formal must this of the against having bad employees disregard- other discriminated acts taken be joining assisting S.W. ed the Board. is an This additional engaging O.C. in concerted activities illustration of the defective form of the employees purposes findings. with other for the Board’s It should not nec- bargaining essary of collective mutual to make a detailed search to de- protection. aid and The Board also termine action what if the Board has charged paragraph complaint 14 of its respect charge. taken in of a The Board that the had maintained arms respect should state its action of each plants in their and hired and utilized the charges. of its police guards of men as services 26The nominations ballot contained the intention and effect of interfer similarly ing with, restraining coercing statement: worded “The voter their by using approves holding rights this ballot the in the exercise of the guaranteed of the Nominations and Election as stat Labor Rela the National posted charge ed in the notice issued the dis Act. This was also tions Employees’ Committee on Rules missed. Employees’ Representation charge paragraph Plan of A was made in 11 of expresses Plant, complaint petitioners, at that those elected shall this his desire from that the represent July 1, him the time on or about bargaining complaint, and for the other the issuance of discharge, lay purposes off, stated the notice.” threatened to de- Plants; em- of these three their elections organizations of the Employees’ held Representatives were inference ployees reasonable —follows facts, set thereunder Plants. in each subsidiary which I from structure, and above, origin, out toas facts can be agree I cannot that these the conduct operation the Plans support said an inference reasonably' to petitioner concerning them. originated Maryland, Plans them- subdivide Board’s contentions Steelton, ref- and Lebanon Plants without selves as follows: employees. It erence to the wishes as- origin Plans. In (1) The equal from could with reason be inferred single case, pect Board makes its desired the such facts that that argument, wit, the fact posted notice Plans referred peti- originated with Plans distributed. described booklets upon were proves they tioner equivocal. Only The facts are forced therefore Board’s put employees. the brief, As assumption that the did that because the contention such Plans be established can wish and installed in “formulated Plans were they suggested, fact dis- were plants reference ten without each of the effective, tributed, as above set and became employees, the Plans wishes forth, reason- foundation very the creatures of outset were upon able were forced inference Company.” employees. respect of these three details, as to such Plans record is silent the Plans were formu- assertion Em- manner of election of concerning reference lated and installed without ployees’ Representatives and the manner begs question. employees' wishes Plans, as indi- might making effective respect cer- is, my opinion, in And it employees towards cate the attitude of the support in the without tain of undisputed Plans adoption. Plans The burden the of the others facts, as to proof upon by them. refuted petitioners. The silence record can- Bethlehem, at the Plans So far as place of not take the evidence. Steelton, Plants and Lebanon Maryland, proba- In its contentions concerning concerned, undisputed facts set Plans, origin tive effect ex- they came into forth above show particularizes charge Board of the *39 its proceed- a result of immediate istence as the by a asserting Bethlehem Plan that 1918, Labor Board in the ing before War agreed by form of Plan the War Labor the that Board directed installation of that put that Board was into effect but after the system a Beth- bargaining the in agreed dissolution of that Board the Plan proposed Plant and ideas the to be lehem superseded rejected by “by was the Plan in, objectives of, the contained by the Board.” distortion the facts Only system, acquiesced and that the Company origin concerning the the Bethlehem proceeded carry and jectives such ideas ob- omitting all by Plan to consider of them effect, only respect into with can such a statement countenance. Plant concerning to the Bethlehem Under fair of the consideration whole the Board’s direction had been specifically aspect plan the facts in this the case the made, respect Maryland, also of the but in up Steelton, originally drawn the Lebanon that advice of Plants. All the record shows as the details “rejected,” of installation Mackenzie was not King it was Steelton, Maryland, postponed Lebanon into effect going waived and by following: the A notice of an emergency Plants is Octo- the on account of posted Company, was by summary, ber the undisputed the situation. facts, In prin- that the general respect
which it was stated set forth above in of the system employees’ Plans, ciples representa- aof origin of that: The Plan the show working adopted tion to deal with conditions having ultimately the Plant Bethlehem developed,they be negotiations would “submitted to the result of into effect as went Copies employees.” printed the Company, book- the em- between Bethlehem “Representation Employees let representatives, entitled who ployees’ had been se- Corpora- in tion,” of the Bethlehem Steel Plants the War Labor lected under Board craft plan through committee, the containing form of plan, drafting thus acting itself, suggested among were distributed the em- the Labor and that and War plan This became ployees. negotiated, effective as minor the' Plan thus with addi- Employees’Representation accepted Plan of by in each was proposed tions Leetsdale, respect Lackawanna, committee employees’ drafting ap- Rankin, and Concentrator As Plans: dis- and was May on pears above, stipulated all facts that Company in a tributed booklet show that submitted to there was employees’ representatives names employees at and Works the various Plants it, employees signed all the among who plan employee representation forma a revi- There was Bethlehem Plant. provisions largely based containing agreement January, sion mutual Bethlehem, Mary- those of the Plans at Temporary Company and between land, Steelton, Plants, Lebanon and that appointed by the Em- Rules Committee sometimes with and sometimes without revision, it Representatives. This ployees’ accepted by the modification this form was true, the War followed the dissolution of employees through designated repre- their August, But there Labor Board in by voting sentatives and in the first nomina- record indicate that this nothing tions and elections held thereunder. Here altered the Plan ac- materially revision again, respect Maryland, -as Steel- 1, 1919; revised, and, cepted May ton, Plans, Lebanon record is silent Mary- like the its essentials Plan desig- as to the manner of selecting Plans, land, Steelton, and Lebanon representatives nated and as to the manner original Bethle- form of the followed the they accepted Again in which the Plans. King. plan Mackenzie devised hem barrenness of record cannot Plan, including «the Bethlehem Since thus evidentially fruitful. Only as- 1920,became effec- January, revision of sumption in these Plants repre- action of tive the result adopt did not desire to Plans but were employees and their com- sentatives compelled so nevertheless do Com- mittees, reasonably concluded cannot pany petitioner origin can a coercive upon foisted the em- the Plan was these Plans be out. snelled wishes, ployees consulting un- without Thus the statement the Board’s brief employees’ representatives less these were the Plans were and in- formulated upon unwilling forced em- themselves stalled without reference wishes ployees. The facts refute that —since these from the outset representatives were selected under Company, creatures find- auspices of the War Board. It ing the Board that the domi- to conclude would affront reason nated and interfered with the formation of plan unwill- Board forced the craft Plans, justifica- are seen to be without employees through representatives un- true, except tion. fairly have been selected. It will noted Plan in Bethelehem of which drafting concerning employees’ drafting partici- of the facts the statement committee pated, actually the Plans were not origin of Bethlehem Plan original drafted form Company, good faith the Bethlehem *40 they accepted the that em- by respect of the continuation after the Armi- ployees through representatives rather than principle bargain- stice the of collective by direct But the circumstance that vote. questioned ing, Labor War Board’s is, agreement one to an party drafted it of December letter was vindicated more, the without no evidence that by April 11, the Board its meeting at party accept forced to it. was And the fact employees through that repre- the acted As the Again directly predi- Cambria Plan: the rather than sentatives is no stipulated facts refute the finding the for an inference cate that the Plans were Plan, They Board. show that after them. Nothing forced in the Na- suggested being employees to the by a tional Relations Act Labor forbids em- posted right wage recognizing ployees through notice agents, act rather than bargain collectively inviting directly, agreement earners into an entering with plan representation adoption employer concerning adoption of a by interference Company, organization system free from of labor form negotiated between the bargaining. contrary, Cambria Steel collective On representatives Company and expressly of its presupposes through em- Act action ployees who had elected representatives. been all of may it If inferred that be employees purpose, Bethlehem, and that origin after of the Plans at the approved Steelton, an amendment it was Maryland, War and Lebanon Plants Board. Labor iniquitous peti- the Company because proposed ments, which, tioner employees, noted, it them to the to be relate would aspect equal solely organization with ease that the be reasoned to the labor position specifically would have Plans. more below I discuss defying contention direction War of the Board with proposed if it had not them. The the provisions concerning Plans Plans, facts origin concerning amendments. scrutinized, are, when dispassionately my (b) urged by It is ab- the Board that the opinion, unproductive reasonable in- sence in the provisions Plans of for initia- ference that the Plans came into being fees, dues, cards, application of, pressure upon, corruption result of provisions employees for meetings of the Indeed, employees. my will of the body departments, as a or by or for meet- view, the reasonably inference drawn 'be with, of, ings for discussion instruction from the concerning facts as a whole representatives, supports finding origin of the is that derived Plans and interference the ad- domination cooperative from a endeavor the com- ministration of the Plans. absence panies employees put into effect provisions Only these if the is colorless. employee wholesome organization and col- employees fact were that the desired lective bargaining ideas. provisions not, but could either because of (2) The structure of the Plans. The employer pressure or because of restriction argument of the Board structure amendments, of the Plans themselves on reasonably supports the Plans finding Plans, embody them in the would the find- through them have ing warranted. But the record does not dominated and interfered the adminis- Again, predi- show to be the fact. employees’ tration of the organiza- cate necessary Board’s conclusion ' tions, specifica- itself into several divides supplied by assumption. cannot be There Plans, tions : is no evidence that for lack of fees, dues, cards, application initiation (a) provi- contends operate. were unable to Prior Employees’ Rep- sions in the Plans limiting expenses amendments of employees resentatives to and thus exclud- defrayed by peti- Plans were representation persons employees ; tioner since then they have been borne organizations persons or by not em- themselves. It is not reason- Employees’ ployees, Repre- requiring ably provi- inferable from absence sentatives to adult citizens of the United meetings sions for the Plans did not employed by Company petitioner States operation lend themselves to free em- from year, 'for one evidences domination and in- ployer domination. of the fact view provisions my terference. These are in under each Plan were opinion respect. colorless in such There is particular plant concentrated at a and re- nothing inherently coercive of the will of community sided in the same —which provisions in such looked at apparent record —and had there- alone. Indeed it say would seem absurd to opportunity fore natural for discussion with just Employees’ Repre- because an each other and for consultation with their sentative is adult American citizen em- representatives, employees may ployed petitioner for a provisions meetings felt for formal unneces- year, represent qualified he is not the em- sary. readily It is least inferable from ployees. if Only been shown provisions meetings the absence of for such *41 employees in the case that evidence employees regard did not them as provisions desired to alter such in the Plans they necessary as it desired is that them. permit representation so as to by persons aspect equivocal In this evidence is by organizations employees per- not or therefore not substantial. employees, by minors, not or aliens or sons prevented argues provi- petitioners by (c) by but or for provisions equality of the Plans sions of the Plans of member- themselves from alteration, ship voting power such could it be Com- accomplishing Joint domination concluded there mittees evidence and interfer- reasonably domi- by the administra- nation or But ence interference. no evi- with view, prevention, predi- my tion of Plans. item in dence of such such a case, on the of rea- contrary domination the Board’s cate for an inference to cannot and interfer- supplied by assumption. provisions sonably proving domination be ence, probably oppo- an do not forbid such lends itself more the Plans amend- Manage- Employees’ Representatives and ordinary case all In the conclusion. site management does Representatives, bargaining ment’s collective done at can types of the three agents have a or voice committees between negotiations amend- question. Such respec of amendments employer, employees and chosen materially (i) would ments those which and at discussions carry on tively, is to the ad- provided for change procedure as far agreement. So reach an tempt might pre- grievances, (ii) or employee justment of independence of effectiveness operating as fair a method a Plan from concerned, arrangement vent bargaining collec- and of representatives equality selecting for Committee the Plans Joint materially might bargaining, (iii) tive provides power voting membership and upon the imposed obligation increase the em result a superior method. As a Company by a dif Plan. in adjusting real have a voice ployees policies. The Act determining ferences which on amendments limitation employees shall require not does change procedure for materially would power in preponderance voting have a or which grievances adjustment of more conferences bargaining obligation collective im- might materially increase have such employer to permits the is, think, clearly than it upon posed requires is the Act preponderance. a What requires proper Act Nothing a one. in the membership independence. Equality employees employers to submit to either ac Committees power on voting grievances or given adjusting method of a Joint for both em independence complishes they have con- given obligation unless a objects employer. The ployees and thereto; they if follows that sented Committee tie votes a obligation, a one method consented to Joint inability to Equally may action. block have no change therein would unilateral any collec action in agreement block reach force. re The Act conference.27 bargaining tive might prevent amendments which As to does bargaining, quires faith but good a method of as fair operating a Plan from agreements. The reaching require body representatives the whole selecting equal representation principle Joint method of collec- employees or a fair employers employees and Committees an amendment were bargaining: tive If Labor Board. recognized by the War proposed description mentioned in I have This fair thought might result method the Plans. structure of above Representatives or a Employees’ selecting bargaining, fair method of the Board that the asserted It is (d) not, view, bound under the my dominate would of structure as matter Plans except accept an amendment the Act to .the administration interfere with Although court. through the direction organizations because un- employees’ labor in the self- may not interfere employer provisions Company has a their der employees, he has of his organization amendment of the Plans. As voice certain asked deal when with description of the to be by the structure shown represent Plans, who assume them they provided, after those provided the Act a vote of two-thirds of manner amendment he is to representatives whom deal (or membership Body of the General entire fairly represent them. As said Representatives, shall as the Committee Gardner, Judge, in Hamilton-Brown under some of Circuit assembly thereof called Relations National Labor Plans), except Co. v. as concerns amend- Shoe Board, Cir., 104F.2d types, are not “We are three to he ments arbitrary that it would be approved of unfair, view until Com- effective Joint keeping and not either the Rules. leaves mittee on This Act, spirit require fit, letter or see free to amend Plans employer and its Company participation, far conduct without so through agency amendments, types negotiations except three re- all to, fairly majority of the em- representing are concerned. But since on the ferred *42 fair equal ployees.” is And as to methods of col- on Rules there Committee Joint bargaining, employer power obviously as representation and lective voting between forth, 27 set a tie do tbe Plans above vote It is to be tie votes noted Appeals may necessarily be a Joint Committee not action all re- block president appears spects Plans, for, the Com- to the of referred under the as pany. description of the structure of from the 686 types required by amendments action But proper interest them. has a Rules, employees is this Committee on the result of Board contends Joint as must under restraint Company be said to have judgment of the to make is and effect have That final criterion. restraint will is fair a to what If despite continued amendments. 1935 not, supportable contention. think, a argument This there is the em- because no by opinion fails between a difference proposed any Company arise evidence that amendments ployees should employees prior afterwards) disagreement (or point, that to respect a 1935 of such petitioner. opposed Company by courts were party to the either could taken be that, prior question whether But even assumed if it be for determination not free employees were changes, result 1935 proposed amendment would not they could would under because representatives who Plans the selection consent, em- still alter without represent them majority fairly collective it cannot concluded that ployees reasonably fair method of be and in a as agreement employees the four have become free in not bargaining view—in years the amendments case would between objectives. intervening and its a whole decision. of 1935 and the date the Board’s judgment for a de- declaratory orthodox be parties In of the strict enforcement rights of interested view claring the there- Act the liberal right, or attitude of a the absence contract —the Plans, construing Act, of, the courts in the amend- including under employers, frequency against put proposed strikes it provisions, such a ment Or, opposed and assumes putting oth- is to realities unin- into effect. amendment erwise, type telligence part of the proposed on the an amendment of this they employer are not free. by employees, contended contend that now if fair, not would not be effective because argues that the (f) Plans do a present dispute meaning as organization “severably” not a labor set up is contract —because what the contract agreement bargaining. for collective depend upon whether or would pointed discussion of But out effective as it.28 part amendment structure, regarded is if substance rather proposed that a amend- If a court concluded up than do set form the Plans labor or- rep- would result selection ment independent separate ganization with represent the fairly resentatives who would distinguished (as Committees fair collective and in a method of as well as a collective Committees) Joint bargaining prevent bargaining, the could organization labor system. A that a contract the amendment. fact “any of the Act is 2(5) or- under Section application contains a term kind, or-any ganization agency require interpretation court cannot plan, committee or employee representation be finally it. condemn It noted with employees participate and in which provisions respect the amendment purpose, part, or in in whole exists is no Plans that there evidence in case employers . dealing . . It .” petitioner opposed ever possible say on the seems to facts me not proposed any amendment the structure of Plans concerning changes or after the either before organization up set they do not provisions. the amendment to be And seen within that definition. description of the that, structure suggested also from the (e) the Board up do set provisions of the Plans even if the amendment of 1935 Committees. still, prior bargaining system in since proper, all Joint 3, Declaratory Judgment March as such.” reviewable Act The Federal 1911, 231, 274d, immediately provides, per as added Act of § far c. so
Act 955; 512, “(1) Stat. June c. tinent: eases actual contro August 1935, versy except Act c. amended tax Federal § 49 Stat. U.S.C.A. es courts United shall States 400(1). power upon petition, declaration, § complaint, appropriate plead or other accepted functions of de- One of rights legal ings declare re claratory judgment is to statutes afford party petition interested lations opportunity determination declaration, such whether rights liabilities contracts. prayed, relief is or further could Declaratory Judgments Borchard, See declaration shall have the force and- 405; p. (1934) § Am.Jur. judgment a final effect or decree *43 publications he requires that there para which I discuss in Nothing Act below organizations graph topic labor of this (e) separate (in charters connection with systems, or bargaining another contention the re and for collective Board which a lates single charter both to all requires Plans), in of the the that follow bargain- ing stipulated : a collective the organization grievances labor schedules Plans, each shall provisions together handled under each system the of the ing copies meetings separately minutes of stated. certain supplement admitted in evidence to these re- in Board contends (g) Finally, schedules; stipulation to the effect that that spect sub- Plans structure hearing, as of existing of the the close provisions of the identity stantial operated Plans respects in all material sub scheme of single evidences a various Plans respec in their stantially accordance with petitioner to dominate provisions; stipulation tive show of the the administration interfere with working that during employees. organizations all of its labor spare hours had the amount of time stated demonstrates Plans Examination of evidence, therein.29 This on contrary detail, al- in they not identical are of reasonably supporting an inference same in substantially are though they domination and interference with ad ob have the provisions which the essential employees’ ministration of the labor or organization and a labor ject forming ganizations at the Plants other than the bargaining. collective means providing Plant, reasonably Cambria supports only far evi- equivocal so as is identity But this an inference of freedom from interference. and interference domination dence of Plans, The structure of the as just I have support an said to it can be concerned. If pointed out, shows they domination, constitute a single scheme of of a inference organization labor which fulfills defini support be said equal reason it can with tion system Act' of collective and the em- inference that operate bargaining calculated to so sincerely as Plants were ployees various express employees. will of embodying interested cooperatively stipulation effect of the oper the Plans ideas wholesome Plans of the each ated respects in all substantially material organization and a labor for the creation accordance respective with their provisions agency which had bargaining a collective is, therefore, they operated as a of the War lawful direction source organization labor and that commented As has been Board. bargaining they express did equivocal above, will evidence of the employees. And -the effect of the stipula substantial. tion is further that the operated Plans with Board on the attack of Thus out against discrimination any employee be in- supporting as of the Plans structure cause his belonging or not belonging interference domination ference of union or other organization, employees’ labor without the administration opinion against my the discrimination organizations Employees’ fails. Repre they con- Plans shows that structure sentatives account of their as activities fulfills organization which stitute a such, that nominations and elections were system of col- of the Act and a the definition conducted themselves in operate so bargaining calculated lective prescribed accordance with the rules express the will as Rules, their Committee on with only such bargaining. with such connection management assistance might the Plans and operation (3) requested Committee, by that they petitioner rela- conduct were conducted secret ballot in such finding of them. manner as avoid interference with voters Plans all of the other than the so far as prevent fraud in casting concerned, oper- Plan Cambria ballots —for each counting of of the Plans and the conduct ation of the Plans provided against such discrimination and spell inter- Company with them for nominations provided so rest, elections ference, except copies insofar must other conducted. of the Bethlehem Review certain operation list items do with Plans or 29 I omit ref con- Company petitioner stipulations duct of tlie as to ori re- erence to gin, development spect history, them. Plans for the reason have not *44 688' (d) holding The Board claims that Board 'The contention con- nominations and at Cambria operation elections Plan of the Cambria respect Company property Plant and with ballot in Company petitioner duct of interference, by the boxes and booths furnished of it evidence domination that, this is specifica- evidences coercion. following I think divides itself into the equal be equivocal reason item. It can tions : practical it a matter inferred was urges fact that that the (a) The Board 16,000 employees. As convenience Representatives Special Management’s craft stated above the War Labor tim,e time to Plan from under the Cambria plan Plant at the Bethlehem election distin meetings (as attended Committees was held. thus evidences guished Committees) from Joint upon is based coercion. This contention (e) contended the Board It is partial is without of the facts. statement Company’s the Plans concerning statements provisions of the dispute that under the “Message,” “Ten in outside unions be such at Plan there was to Cambria Relations” and Progress Years’ in Human invitation, and there except tendance the Bethlehem Review evidence domination shows that the facts nothing is which and interference organiza- with the labor Representatives ever Special Management’s employees. tions is This contention except up meeting attended Committee made only in Cambria considered, is this on invitation. When Plans, respect of Plan but also in the other said is colorless. As the fact attendance stipulated since it matter was was this Railroad Com in Orleans Texas & New Ex- distributed at the other Plants also. Railway Steam Brotherhood of & pany v. which, publications, in amination of these Clerks, 1930, 281 U.S. 50 S. ship order that the character the statements 427, 1034, which Ct. 74 L.Ed. seen, I have set forth therein made IV, quoted pre topic in the Act does not in of facts some detail statement innocent vent normal relations and topic, the material con- discloses that employer and em between communications expression employer tained them is an ployee reasonable should re which men opinion. There is in the National nothing gard proper. than otherwise expressly for- Relations Act expressions opinion employers bids the Board that the (b) It asserted disputes, concerning the labor merits of new intro- manner like. organizations labor such If at the Plant duced to Plan Cambria expressions are forbidden Act iniqui- the foremen above is as described category because are within pressure upon can This item evidence tous. by the interference denounced coercion only by assumption Moreover, con- Act. if the Act should be point issue. the will very overriding If employers strued forbid to ex- proved, were otherwise themselves, press short statements of of course for foreman to inform an then such nature statements under such employee the Plan would concerning corrupt will circumstances as override and interfer- to domination introduce him employees, of their or of statements will operated lawfully, ence. But if the Plan character, of a defamatory Act would employees concerning new then to inform run afoul of the First Amendment Therefore, the would itself be lawful. fore- the Constitution. Court proves nothing. action alone men’s Alabama, 1940, 88, 60 Thornhill 310 U.S. v. holding attacks the (c) an- 1093, 84 L.Ed. Carlson S.Ct. Repre- Management’s nual conferences California, U.S. 60 S.Ct. Employees’ Representatives sentatives and made clear em- L.Ed. evidencing Plant as domina- the Cambria express ployees free themselves are con- interference. tion and absence of conferences, disputes through equal cerning it could with co- merits handbills, peaceful contended that the distribution mak- gency be peaceful cooperate bargain- speeches, picketing, refusing relationships. expressions holding The cir- that such ing activities Court view equivocal, by employees protected by thus First palpably cumstance protection no substantial constitutes evi- Amendment. therefore employers as well Moreover such conferences consti- extends dence. Amendment employees. As said Midland relations.
tute normal *45 689 rights qualified absolute, Rela- these Labor National are and not Products Co. v. Steel there are circumstances an an 800, 804: Cir., Board, F.2d 113 6 tions expression upon by policies view labor employer “ is within speech condemnation right is free . . . Unless constituting statute as employees, interference coer- by employers enjoyed as as -well situation, cion, present against and that futile, rights set guaranty is First Amendment background publicly opposition a declared basic fundamental is guaranteed it plant, Mr. Ford belong equally to the unionization of his the Constitution brings challenged publications wilhin ilio person.” every to ignore definition. We do not the view that Appeals Circuit Courts Several ‘any employer sort of influence exerted an not, and can upon employee, depending employ- Act does an ruled that his have very livelihood, may easily er for means be- employer an constitutionally, to forbid come undue in that it will coerce em- his em to express himself right ployee’s employer will in favor of what de- labor or of various merits ployees on against judgment.’ Virginian sires his better System express preferences be al., ganizations and R. Co. v. et 4 Federation No. 40 Cir., employer 84 holds the F.2d 641. This not over them, as he does long so tween suspect application practical forever and in National employees. his ride the will necessarily opinion must silence him whoso Pacific Union Relations v. Labor may informed, be the best no matter how hon- may 153; estly entertained, Cir., 1938, F.2d Inc., 99 his Stages, views or how 9 may truthful If his observations. the con- La National v. Company Box Continental cept employer’s opinion organ- that an labor Board, Cir., 113 F.2d 5 bor Relations organizers must, izations because of the National Products Co. v. 93; Midland Steel authority servant, nearly of master over al- ways prove coercive, Board, supra; National validity, Relations ever had it is Labor say, difficult now to view National La- Motor Com Ford Board v. Relations Labor adjudication Act, bor Relations as constitu- 905; National Cir., 114 F.2d pany, 6 tionally valid, its strict enforcement Na- Corporation, Falk Board v. Relations liberpl Labor Board, tional Labor Relations construing 383; Elec Cir., 1939, attitude of the courts it F.2d 102 so 7 Jefferson great best to effectuate its social and economic Relations National Labor v. tric purpose, concept still a sound is one. Board, Cir., 1939, 102 These F.2d 949. 7 longer The servant no has occasion to fear the right variously sustained courts authority master’s frown or threats of dis- express activities, crimination for union representatives: im- employer or his or ex an plied.” page [114 914.] F.2d general opinion employee press a that an publications The statements in the advantage it more to his would find the Board has interdicted in the instant ;30 to a union to read a statement to belong praise accomplish- case the Plans and their employees, shortly the conduct his before ments and contrast the Plans and their ad- election, forth the em setting a consent vantages advantages with the claimed including ployer’s points on various policy disadvantages outside unions and with the subject subjects normally several of outside unions described the Com- negotiation there where bar pany. anything I unable to see am cor- opposition gaining, expressing his rupting overriding nature in this mate- shop;31 say closed financial rial. And is no there evidence that the pub- men in the secretary of union that lications distributed under were such cir- “disgusted employer’s employ cumstances as would cause them to override their and “have lost all of in unionism” corrupt employees; the will of the ;32 express centive work” good do no contention that the statements employer’s preference defamatory or untrue. Therefore the local over outside In an union.33 National right petitioner had a to make Labor Relations v. Ford Motor Com it the statements that did and making pany Mr. Ford distributed to his em them an practice unfair labor ployees pamphlet containing his on views evidence think an interpre- thereof. refusing to labor. In sanction Board’s tation of Act which would hold the prac this was an labor finding that unfair making of such statements he unfair tice, Appeals said Circuit Court : practice or evidence thereof would in the National Labor “Nowhere Relations unconstitutional, render to that extent Act is there sanction an invasion of invasion of the of free speech guaranteed liberties to all citizens the First by the First guaranteed Amendment. urges however, Amendment. 32 Labor Relations Board National Midland Steel Products Co. v. Na Stages, Union Pacific Inc. tional Relations Board. Continental Box v. Nation- National Labor Relations Board v. Corporation. al Labor Relations Board. Falk only rangements, ruling are not direct but There has ap- Employees may Vir- means. indicate question by the Court. proval System by other The annual vot- ginian Federation conduct. Railway Co. v. Cir., 1936, conclu- F.2d Cir- not be instant case No. sive, persuasive Appeals but and therefore affirmed decision Court cuit of the *46 ignored. (D.C.E.D.Va.1935, District Court cannot Railway vio- F.Supp. had 621) the 11 significance It is of further distinct in circulating by Railway the Labor Act lated respect the case of domi- the issue under statement, signed by employees a among superintendent, that, despite nation and interference the the employees to the urging upon freedom Board’s from restrictions subject give consideration careful subpoenas, despite use of fact the bargaining, representation for collective operation the Plans been in sub- Railway preferred indicating years, Board, stantially twenty so the far independent asso- choose a certain them to other the Plants Plant than Cambria representative rather than ciation their concerned, many among are called from This of Labor. Federation American testify thousands of none to upon points in Vir- case affirmed coercion, acts of intimidation dis- Federation, System Railway Co. v. ginian by Company against crimination em- 515, 592, 1937, 81 L.Ed. S.Ct. 300 U.S. 57 ployees Employees’ Representatives. “It consti- Court decision 789. The pro- party well settled that if a fails dis- question on the ruling tutes no cussion.34 testimony duce the of an available witness cause, may on a material issue in testimony, presented, several contentions inferred that his if thus seen that the structure, party adverse fails origin, would be who Board—that Plans, together 192, call operation the witness.” 187. and the 20 § Am.Jur. 115, 55; Company petitioner 22 Jones, And 1 conduct of the see Evidence with the § C.J. them, and (4th ed.1938) domination relation to show far as the Cambria in So § concerned, with the by petitioners Plant is at which alone there interference 16,000 the labor employees, and administration were the Board formation called witnesses,35 employees fail, organizations of four testified one of whom — inspector 1937, told finding with them fails ultimate his him to vote subject, that his Board on lack of substan- another foreman had done the same 1935, support tial evidence. and two more testified that who paymaster respectively they and foreman insubstantiality of the Board’s case they could get had been told to vote before clear even more when the relied is upon facts testimony pay. But of these wit- support finding Board in by the of its flatly contradicted nesses was in- light are of other items in the viewed paymaster ques- spector, foremen and apparently of which the record did tion,36 and the Board in its decision ac- undisputed not take account. I refer to the cepted the contradictions true and made as respect policy petitioners continuous over a finding voting. of coercion period years twenty approximately points to no The Board other witnesses bargaining, collective favor of the absence testify coercion, acts called period during same of discrimination or discrimination the Com- intimidation pany against against employees on account of union ac- employees Employees’ Rep- tivities, accomplishment under the Plans at the Plant. resentatives More- Cambria uninterrupted employment and of whole- II, over, pointed topic I have out in conditions, some labor and the annual ex- testimony offered excluded pression employees, adop- since Representatives Employees’ Plans, approval of their tion of of the super- they subjected had never coer- that cion. same thereunder. Board voting elections one means of determin- vised employees’ satisfaction with labor or- Board’s order disestablishment. was no evidence substantial ganization ar- bargaining Since seq., es 34 Lewis There is the National under the title Volume H. Van Illinois XXXV, helpful Law Dusen, “Freedom of Review, December, review No. Jr. Relations pp. Speech Act,” cas- et Edgar ter). William (foremen), Louis Jose Rupert, Marley, Jaime, F. Midderhoff Michal Lawrence Houston George Singel M. McDowell Fetzko. Underwood, (inspector), (paymas- or of subsidiary findings the for- interference domination and based, questions Plans, only and administration mation first, ruled were the Board had for the order whether in the case there is no basis power under the Act disestablish an em- Disestablishment them. disestablishing ployees’ second, and, association whether Supreme Court which the a measure findings under the disestab- Board if power of the held within necessary Upon lishment was warranted. review policy of Act to effectuate legislative Act, history including, or restraint employeesfrom coercion free as known Texas Congress, New& self-organization will in of their and collective Orleans Railroad through repre- Brotherhood bargaining Clerks, 1930, Railway Steamship & choosing. National sentatives their own U.S. L.Ed. Pennsylvania 50 S.Ct. Board v. Labor Relations *47 261, disestablishment a local associa- 1938, which Lines, 58 Greyhound U.S. 303 appropriate preventing tion as an 831, 307; means 571, A.L.R. L.Ed. 115 Board v. S.Ct. 82 secured em- rights interference with Pacific Labor Relations National ployees Railway Labor under the Act of Lines, 1938, 272, Greyhound U.S. 58 303 upheld, held as 1926 was Court phrased in the L.Ed. 838. As S.Ct. question first that disestablishment was an case, employeesmust released from latter within the instrument the Board armamentarium of impulse employee’s “compulsions,” “the the meaning within Section which would organization most seek the Act, 10(c) of the Relations National Labor him” effectively represent set must free. directing any person the Board finds that when case, is if, instant there no in the But engaged an unfair labor has in impulse employees’ had evidence that the practice, cause “shall to be issue corrupted, coerced, then overridden or person requiring served on such order predicate for disestablishment factual person to cease and desist from such has failed. practice, take labor and to such af- unfair upon relied Board. authorities firmative action ... will effectuate principally relied in the nothing find cases I policies .” . As to this Act. . requires a upon by Board result which question, held that the second the Court which reach in this from that different findings made in the case the topic. cases are: National Labor Such sup- Board’s order of disestablishment Pennsylvania Grey Board v. Relations short, merely portable. Court held In above; Lines, National cited Labor hound law, that as a matter disestablishment is Newport Ship v. News Relations Board authority Board within the aas Dry Co., 1939, building & Dock 308 U.S. effectuating policies means of 219; 241, 60 Westing S.Ct. L.Ed. Act, where domination and in- and that Mfg. Electric house & National Co. La v. with the formation adminis- terference Board, Cir., 1940, bor Relations 657, 112 F.2d organizations occurred, of labor tration per affirmed curiam disestablishment warranted. Court Court, March S.Ct. not, findings did because the of domination cases, of these -. each dises L.Ed. tablishment In challenged, pass and interference were not employees’ the Board of an upon what constitutes domination and in- affirmed. association was case, Therefore terference. far as so concerned, National Relations is of holding actual no aid its Pennsylvania Greyhound Lines determining in whether in instant case Pennsylvania Greyhound found that the had the inference domination and interfer- Inc., Lines, Greyhound Manage- ence drawn Board from undis- affiliate, Company, engaged “had puted subsidiary ment in supportable. facts is is. practices interfering with, labor unfair remarked that the Court that the sub- true restraining, employees in coercing findings sidiary of fact sustained the ulti- guaranteed by 7, rights, exercise of Greyhound their finding mate the Lines and § they had dominated interfered Management engaged “had formation and administration of practices, by participa- active unfair employees, organization of their organization a labor Employees tion of the and administration Pennsylvania Association, Association Employees they to, Inc., Lines, Greyhound and had throughout history, contributed dominated support other to it in support they financial and violation financial had whose con- challenge ; 8(1), (2).” There with,, tributed had interfered § in¡ case either of these ultimate findings employees in the restrained and their coerced had, there- could have rights confirmed 7 different states37 and § exercise fore, con- organization, only opportunity for occasional a labor form for themselves through repre- representatives their or even collectively sulting bargain and to pro- employees, choosing.” in with some And fellow so sentatives of their own disseminating information the facts cedure for question whether discussing the representatives communicating of disestablish- the order found warranted representatives ment, emphasized that: the ideas of the Court essential, Management might have been whereas Greyhound Lines and case, employees under for or- instant where the project Company had initiated single company each in a employees under are concentrated Plan ganization of the community, plant all live domination, through officers same promot- consulta- opportunity is natural representatives been active Association, and for dissemina- between urging tion ing the repre- organization, and their of ideas between them join, in preparing details instant by-laws, over or- sentatives. Under the Plans presiding including the up taken electing employee being first grievance, case a after meetings ganization foreman, sub- employee’s in with is next an absence representatives; there was depart- superintendent provisions for by-laws of mitted to the the Association employed, procedure employee or for a meetings members ment *48 rep- stage, this whereby their and if fails in sub- employees instruct satisfaction could them; reports Management’s from be made to the or receive mission resentatives may Special Representative, could not be Plant then the by-laws grievances under the Employees’ through committee the appealed joint reviewing manager, and a then Representative em- joint to the Committee a submission unless was Joint representatives; management Appeals, finally, not if a settlement ployee and employer by-laws satisfactory employee, without consent effected there the change of president may precluded Company be notified required because amendment the was arbitration, if joint of the reviewing a two-thirds the matter be referred to vote repre- up president majority of the was made the equally committee which of Ap- management employee representatives; on the sentatives Committee on Joint present record peals agree. Again, on the only the Association functioned to settle merely in- the function to grievances, individual and on re- the Plans settle only also employees sought grievances but differences corded occasion when the dividual re- employees with wage representa- concerning the company groups increase work, consideration; hours, prevented spect wages, conditions of tives its and when no employees Further, there is here organized the and the like. certain of a local union, against other company A. F. of L. officials evidence of discrimination employees against against organizations employees and labor warned joining relationship same, discharge they respect them with if to the threatened and no evidence that surveillance car- join, kept meetings was should the union ried on in a manner an unfair constituting under surveillance. Finally, practice. labor under the Plans The material differences these between provisions case the the instant for amend- present items and the facts under consider- require no con- Company ments since 1935 ation are obvious: the instant In case the except respect categories sent of three aegis Plans initiated under the were which, I have concerning amendments of shown, 1918; Labor Board War had a Company not to be and Cambria Plans the em- Bethlehem consent, respect unless in bound without ployees duly representa- elected their own category of one a court otherwise ruled. Plans, adopting tives to respect act far the other Labor Relations Board v. and so Plans concerned In National representatives showing Newport Dry Shipbuilding there is no News & Dock adoption Board’s acted in of their order disestablishment who were Co. duly employees; employees’ organization, labor elected and the of known Employees’ organization Representative facts over as the Com- presiding show mittee, findings meetings by petitioners; officials ultimate based was Greyhound Pennsylvania in- case had dominated and the em- throughout ployees many scattered terfered formation and adminis- were appear appear but it does from the This does from the face record Supreme Court, the case. decision Committee, entire em- contributed be two-thirds had vote of tration representative committee, ployees’ but the support, and was financial to its dominating could amendment from findings prevent still at the time becoming by disapproving con- it with- Committee effective interfering days in fifteen (2) passage. Act. trary after 8(1) Section propriety The sole issue was as plan plain that the foregoing makes sub- order of disestablishment. Newport materially in the was case News not the sub- findings were fact sidiary instant different from case. but the ultimate controversy ject of serious Newport during all of the News case attacked findings were above stated period plan between the institution subsidiary justified by as not changes were in 1927 until the 1937 following findings. latter (and very up until the time was plan originally insti- effect: As was filed, complaint when the Board’s June was vested in tuted in administration 1937), had nothing repre- joint consisting five committees separate organization nature by sentatives elected independent which they over control. by management among five from chosen joint The entire was by administration employees; for the arbi- provision calling committees, and even after creation in operative only tration differences became 1937,of employees’ representative com- Company presi- upon concurrence finality respects mittee action was all dent; required plan ei- amendment of the subject to Company consent. In the instant ther of two-thirds of an affirmative vote separate case there has been a labor or- joint membership the full committee ganization the administration on rules or an all of the affirmative vote within control of the employees’ representatives representa- beginning. Newport Under the News management tives an annual confer- plan employees’ representatives were *49 ence; employees’ representatives the were paid by the Company for acting as such. compensation paid per year extra $100 There payment was no such extra in the acting a revision as such. Under Again, instant case. provi- the amendment plan placed in administration was in in sions the instant have case been free joint in general committee —instead of any proper from objection since 1935 when composed of two joint several committees — the National Labor Relations Act went into representatives elected the em- by to be effect, Newport whereas in the case News ployees department and an from each during ten-year the period whole of the equal management representa- number of up mentioned filing Board’s Company, appointed the tives ma- by the charges, plan the could amended in representatives jority con- of each class of any respect if disapproved the Company quorum; was also an ex- stituting a point the especially amendment. This was ecutive consisting committee five elected emphasized Supreme by the Court employees’ representatives repre- and five Newport News case. The Court said that finality management; sentatives of of ac- such control of the form and structure of general the committee joint was de- organization deprived employees the the pendent upon Company the the approval complete guaranteed the of action freedom president; plan required to amend the justified the Act the order of dises- general two-thirds entire joint vote the tablishment. The case therefore as decided upon the facts shown the record supports committee in and amendments were to become plan fundamentally disestablishment of a only upon effective approval of the Com- the different from the Plans instant case. pany president; compensation extra the paid employees’ representatives was opinion reduced that It is true the the Court annually. plan that, the hearing $60 was after a states Circuit again amended with the following Appeals, features that court had been ad- Court significant: placed Newport administration was plan a brief that the News vised employees’ representative an been amended by striking committee had out the ob- general joint was substituted for the upon restriction jectionable amendments committee and the committee had executive ex- that the lower court therefore con- isting form; finality under the 1931 prior that its existence was ac- cluded imma- representative tion taken employees’ the said Court terial. that the possible only Appeals committee was could not consider if the Com- Court pany agreed; fact, plan case decided on amendment the had the was employees organized true a local of the I. Board. O. C. record certified remarked later secured a charter. After the Su- nevertheless also that Court preme al- an Court in National Labor Relations did disclose such if the record Laughlin Corpora- disestab- Steel plan, the order of & teration of Jones tion, erroneous; above, cited had declared Act con- not be held lishment could stitutional, Westinghouse Company it- for ten existed organization where an and, way self decided that unlawful years plan was functioned and has through plant manager, announced to Representative Employees’ Committee “joint conference committee” under functioned, joint control vested had plan longer men, would no the effects management and support discontinued; it and that it would be be eliminated practice could not long plant entirely was manager free act that he stated employees rendered complete plan employees initiative, interested in upon their without what own adopted state- their business. plan. But This disestablishment of —that dictum, however, since it as- announcement was not made to ment, is but a Company. generally a fact which the existence of sumes organized then not be themselves had could considered Court stated “Independent” petitioned the deciding case is not union which the case. The instant recognition Board for as exclusive upon the basis dicta bar- be decided ^ upon agency attempted and also se- parties gaining to a decision Moreover, failing* recognition Company, dic- cure from the holdings. basis of actual however, recognition distinguishable obtain from either* is based facts tum complaint un- Board filed a charging case. the instant Under those in practices Company and fair labor facts assumed the dictum hearing specific findings- after a Newport had three News never case against of discrimination local'. Circuit C. I. O. hearing after free until findings These that: in a talk were between- Appeals adopt of or- form Court Company superintendent wished, president representation they ganization superintendent- of' the I. O. local C. amendment restriction because the it; forbade president job asked the whether was: the em- his in the instant case whereas important union; more than the the- to have such to him ployees free after fit, refused O. organization allow C. I. saw form concerned, local to use room- representation recreation far and so *50 organizer for upon an address a I. be- any amend- C. O. restriction were free of employee, although cause he was not an the- except in cate- ments to the Plans three “Independent” which, had been allowed to that- have use gories of as I amendments rooms; Company and other had demonstrated, require Company properly permit Also, refused to the use- is in C. I. O. local to part consent. the based dictum record, its in bulletin boards. The Board its deci- upon there the fact was that sion the also criticized the constitution of plan aspects the in all the beginning provided it “Independent” that an- because management in joint control vested of a committee- shown, governing officer or member has been This, have never as
men.
I
employee
Company
with-
beginning
an
must
from the
the instant case:
true in
that,
discharged,
ipso
he
facto,
the' result
if
separate
organization
labor
has
position on the governing
his
lost
commit-
solely
of which
the
was
administration
Appeals-
The
tee.
Circuit Court
found
employees through
the control
the
within
the,
criticism,
in this
in
material
nothing
Committee,
distinguished from
as
Joint
use of the
refusal
allow
boards.
bulletin
Committee, action.
other two
did confirm the
items of dis-
Mfg.
Electric &
v.
Westinghouse
Co.
In
however,
crimination,
saying,
they
that
Board the
Labor Relations
Com-
National
support the-
be insufficient to
Board’s
would
organized
“plan”
pany had
except
the
order
for
decision
the Su-
up equally
committees made
governing
Newport
preme
News case.
Court
representatives
employees
of the
of elected
upon
case
Commenting
.that
the Circuit
employees” appointed
“management
and of
Appeals
theory
that
said
the
is
Court
Company’s
Company.
share in
the
that:
management and direction was
plan’s
the
“
.
where
.
.in
eases
.
unaf-
.
an
.
opin-
apparently
not detailed in the
is—it
large
to the
union seems
filiated
at
as
National Labor Relations
ion—such
the
joint organ-
of an
evolved out
earlier
to have
March
some
employer
employees,
Act forbids.
In
ization of
the Boardl
fact which
the
must be determined
datum,
of satis-
it
take
as
the absence
contrary,
factory
the em-
that
evidence
the
facts in
as
each case
it arises. None
ap-
company
ployees
suppose
will
that
the
Supreme
decisions in the
constitutes
Court
old,
proves
new,
and that
did
the
it
the
precedent.
in my
a binding
view
free
not as
that
reason
their choice
substantial
statute demands. How
the
Ship-
urges
The Board
also Bethlehem
say; upon
is,
really
it
us to
fear
building Corporation
National
may insist
the Board
how much evidence
Cir.,
Relations
ployees’ Representatives with the the Cambria they your provisions extent that Plan to spent by Plant for time them in Plan ac- Employees’ pay require tivities, they engaged whether in con- regular Representatives under Plan Management’s Representatives ference working during wages hours time not; Representatives permitted use confer- shall Employees’ that performance Management ring with the Representatives meetings attend Plan subject, Plan, under their duties hours, during permitted employees working may regulations course, any rules and to take time to pay vote without loss published Labor Board. be made expenses hours, Plan which during permitted working “As to the the hold- pay, I I think cannot the Act ing of nominations and elections on Com- - believe do not I add that should will be found burdensome I believe pany property furnished voting booths employees and charge; boxes without ballot prepare pro- Com- you able will your amendment put provided, Plan pany charge, into without to be visions rooms expenses at a com- of such that will take care headquarters office in Company garage employee. per paratively I have small cost Plan, printed for the building and dis- inquiry been done as to what made some expense tributed at Company schedules among plans em- in effect under other companies ployees meetings and have been ad- dates of Body, for the General of other employee charge per un- vised that the total furnished the services' of to write clerk plans der some of the has been low as One up the minutes of the meetings Committee year. Dollar ’ meetings Body;38 the General your again carefully “I have read Plan of at an conference annual Em- between light Employees’ Representation Supreme ployees’ Representatives Management’s decision of the Court J. & L. discussions I have case sel coun- Representatives followed banquet, necessary believe will Company paid cost of banquet. you adopt amendments Plan than those to which I have referred April After when the you above, may strictly make it order Court decided in National Labor Relations provisions comply the Labor with the Re- Laughlin Board v. Corpora- Act. & lations Steel Jones you “It, however, well be that the Act was constitutionally ap- *52 Employees’ Representatives other it will think plicable such a to manufacturing business changes your to in advisable make some petitioners, as that the inquiries written provide Plan, instance, as, such for moneys by Treasurer by under the Plan and how held received the Company petitioner were paid may him .” out . . . employee Plans, officials from under the re- questing expressed information as to the the in effect re- accordance with views In Supreme explained Court decisions, including cent this as has been in letter and the Laughlin decision, description topic V, the upon & structure of their in the Jones inquiries These the Plans. stated all the other than Rankin that it Plans Plan was the desire of the as shortly provide amended that that the Plans were so as should be in contention was exercised to what There is no that the min produce written them. utes thus did an ac improper record that curate control operate. stopped defray cannot payments and That which Company make already by permitted ended. the extent expenses “only to was the Rankin Plan Although law.” VII amended, Company advised so formally TO COMMITTEE CONTBIBUTIONS CITIZENS’ under Representatives THE the Committee MáYOB per- TO OF except to the extent AND THE that Plan JOHNSTOWN dispute case that be- is without further law, no would make mitted 28, 1937, tween expenses. July Com- no further defray payments and June pany petitioner paid to a Commit- amendments, this state- Citizens’ and after After the $32,078.25, Johnstown, Pennsylvania, tee of respect of the ment Rankin Mayor paid July that on Plan, all contributions $4,372. Board’s decision The except law- ceased, as were the Plans Johnstown stated, respect of the Commit- the amend- Citizens’ after Plant ful. At Cambria tee, prime was that of “its function paid ments, the Plan organiza- vilifying the union O.W. space garage C.] [S. office headquarters building engendering public tion and hostility the use of a clerk and for opposition respect of to the stinkers.” In preparation of minutes. payments Citizens’Committee given advice The Board attacks decision was stated “The of “other printed letter a form above thus implementing strengthening This support.” 8(2). attack Section agency was to defeat the seeking not, think, opinion my sustainable. organization efforts of the union properly be construed to the Act cannot destroy organization creating hos- employer prohibit party collective tility toward it.” The made an ulti- Board that, bargaining agreement advising his mate Section finding violation Act, 8(1) Company, making he, “the employer, what above, payments has inter- described agreement. lawfully do under the may not with, restrained, fered and coerced em- its stated facts above show rights ployees guaran- in the exercise had, indirectly, Company petitioner con- teed the Act.” The deci- Section 7 support prior the Plans financial tributed particularize Board did sion their amendment time of Company, making manner in which payments under the Ran- discontinuation described, with, payments interfered Plan, sup- therefore do and the facts coerced restrained or rights in their kin port that the Com- finding self-oi-ganization, collective bar- support.” “has petitioner contributed guaranteed pany gaining and concerted activities support they do not the conclusion expressly of by But And the decision Section 7. engag- “are respond- do not stated: find that “We practices” by in unfair labor contribut- participated ents induced or ing [petitioners] Plans, support because con- in the formation the Citizens’ Commit- April shortly ceased after tribution 1937. tee.” Moreover, the facts show that the contribu- upon Board’s The facts which the state- faith, or in not covert bad but was justified tion was ments and must be in this finding obligations accordance with the of aspect are largely made the case dis- without prior their amendment. Plans Since pute A and are in substance follows: true, and since contribution was strike was called S. O. C. W. June promptly discontinued determination Cambria at the Plant Com- that the Act was con- by the Court pany petitioner at Plant Johnstown. applicable to stitutionally such a business partly partly is situated Johnstown petitioners, is in my boroughs. population there in adjoining predicate in the opinion boroughs case for cease these was at that Johnstown 125,000 persons, desist order in of contribution. approximately time bad 70,000 the contribution was not faith city itself. There were Since promptly 16,000 Plant, once employed discontinued at the Cambria settled, earnings no basis for two monthly in- of over and one- law *53 repeated. city might be ferring that And dollars. The and sur- half million dependent been no boroughs largely there has contribution were rounding since prior years two to Board’s for existence continuous than economic more present practice operation act or Plant. The residents and order against Johnstown, repre- which a cease and desist order can officials city member, minister in dent of of Beth Johnstown, who became a committee and who lawlessness under control. On Johnstown, by the Citizens’ Committee.” the idea of tarily violence and induced by zens not ployees residents Hotel. lice threatened with June the Governor of Committee, by beating erend work; employees The strike as such of the factors biles automobiles time in beaten ous erty Pennsylvania strike commenced June nois, martial accompanied by had reason to fear from lence. by hardship sentatives of adjacent boroughs, including of the characterized consin, charge cope Committee, strikes at other department gates upset; Board found damage recently work were Michigan and New organized borough Plant, John as Company. The members law should continue to work. July. Employees were stoned Violence Zion Ohio, a and by Francis C. who Johnstown connected operations at the Cambria of the Citizens’ calling United States newspaper reports of violence to the residents and closed automobiles toured continued until H. carrying Temple State called endeavored to Rabbi Abram M. Carl leading Pennsylvania, and the sheriff met community of Johnstown personal injury disorder emergency, extreme the event that such stoned apprehension Stanton, at on their in citizens and their Other Plant; occupants that “the existence of Police described Geis, Pennsylvania declared Committee was volun- Johnstown continued until some- steel with the connection group S. employees to and the Cambria Plant. Martin, vice-presi- the Fort Stanwix Johnstown, himself became and some automo- a business strikes which National the formation chairman W. O. disorder and violence did together way plants located and the York, street cars and respectable citi- strike who enter the vari- June families attacking Indiana, petitioner Presbyterian purposes was unable of violence petitioners. on Granowitz, Johnstown community; C. conceived were two the Rev- had been bring would The and Bank city and Sunday, to form vicinity in Wis- Sunday inman county police Plant, prop- when were vio- Illi- em- and po- in Reverend and order keep licity violence, lowed to members, bria mittee Mayor to ful. during the purposes; do vertisement the Citizens’ Committee on we as inducing ated for one the cessation he Thursday, officials to the auditorium about necessary addition on the advertisements collected and radio terested day of the and to wanted to stitutional Johnstown and Committee ers of those the First ously “ “ “To maintain “ “ “To form an public During the we were the strike continued martial referred to the fact everything had to take a . . . . of W. O. means evening, the situation Plant programs and the that. [39] . . . expressed: . city give S. same directed Committee’s in meeting at the who The fundamental . . thought .we .to publication of statements and of go the Governor money efforts to maintain law work, right. . meet Lutheran and to public to maintain law and emergency. The whereby George June in law. provide police protection the Citizens’ Committee was and it furnished attempted every by revoking specific function, to work because of . day. After wanted to [*] # [*] [*] [*] in our June come period rights organization vicinity felt . .” law which we expenses holding strictly its efforts we rights relations firms violence man C. papers, the persuade Committee peaceful Johnstown together W. 14. It we and order of the one Church, were, power from the formation of methods spent # sjc ought [*] [*] [*] and to foster the peacefully and Central that men were might help neutral work, we were as Nicely, Elks’ Club on Mon- employment control violence persuade regarded held June that would his reopen published on in the same and consider largely to public state and local Committee purpose [*] [*] sjs [*] [*] to June money sponsoring other, order, and also party solicited and keep June Johnstown, proclamation course Democrat High in Johnstown do included, maintain law to he incurred minister of do and meeting threats as the Cam- work something the lead- meetings so. much towards as prepare and that order in his orderly. support School was an ad- for its to the not al Mayor peace- Com- strike rights vari- until pub- ways held long con- cre- who and in- to Nicely the Reverend de- Her© Stanton. scribing a statement the Reverend *54 several out distance and speeches. hearing The within copy radio and
advertising statements, assured that advertisements, hearing and be and distance speeches know Business; it following: like, Citizens Committee means exemplified are Order; and preserve meeting means to Law on At a Citizens’ Committee June procla- endorsed a preserve the Reverend lives of Stanton means to Johnslown- below, Mayor, to referred mation well ers; its streets to make as it means heart went out and stated that his Mothers, Fathers, as safe for its its homes being and were to work men who wanted obliga- is the Daughters and That Sons. deprived right and that neces- of that it was tion of the Citizens Johnstown Mayor preserve and sary up back to taking the lead to Citizens Committee gave pub- right to work. The Committee obligation!” uphold that American prevailed dur- to the conditions licity ing which Mayor’s activities: On closed the strike and when Governor Mayor proclamation issued page full advertise- Plant. A Cambria June printed newspapers, which was Committee stated: ment the Citizens’ citizenry “arousing” spoke and “It which he “We Will Preserve Law Order!” responsibility,” sense re- “proper to to a Right every is the Constitutional man of our com- if ferred to “men not residents he so there is work work if desires disturbances,” and stated City! munity creating for him.” Is Our “Johnstown Johns- Is Our uphold that his “oath officeto Con- town Is Our Home! Johnstown Pennsyl- stitutions the United Greatest Interest! You States Allow Out- Will protect your lives, to It?” An- vania” bound him “to Destroy siders Come In and properties against by the be- all foreign other advertisement Committee homes print proclamation for enemies.” gan: Keep “We Safe I in full Will Johnstown margin.40 ohnstowners,” the Mayor and ended “Let all the ears On June J mayor All forces headed Law Order Must Prevail the sher- Times, Mayor Declares iff coordinated. Assuming leadership “The men who which carne head the same here to handling present they given movement of the emer- have his assurance characterized gency permit following will Johns- outside which arose influences to Mayor promote to come late Johnstown to or March stimu- Flood of town Daniel present himself labor disturbance. J. has addressed Shields “However, people for the benefit of Johnstown relative of the citi- County, zens of Johnstown said: and Cambria steel strike. He major policies my your set existence 1 mayor. forth of a herewith “Because industry fall, strictly I shall rise or but which labor disturbance adhere, policies: community, to these the backbone of our it be- right present every necessary “FIRST —It is the me comes you you your citizen to arouse American our streets facts traverse highways responsibility. proper without molestation. sense of not residents of our number of men “A right every is the “SECOND—It community here for some been any organiza- join —have citizen American organ- representing certain labor months tion, fraternal, of his or her They seen fit call have izations. choice. principal manu- steel in our cessation right “THIRD —To me the anof Amer- facturing plant. of this discon- Because worship citizen to ican he sees fit is tinuance, disturbances have taken certain inalienable. place mini- so of a far mayor “FOURTH —Your will insist character. mum any person shall cause none to be- my capacity mayor I “In official any labor, a member come fraternal warning you justified that trouble feel of religious organization by use of coer- appears inevita- a serious character cion, throat intimidation. uphold oath of took office to I ble. the Constitutions regard right “FIFTH —I as sacred United States employment go my Pennsylvania. Particularly does that my earn a brow livelihood to sweat provide protect binding me to make oath my and comforts for necessities against properties lives, your homes children. wife and foreign enemies. all dastardly independent term it a “SIXTH —I act am “Unencumbered attempts part of man de- who prepared the task before fullest undertake my family mayor prive your to feed me of In this me. cooperation threats, high- Boyle, in- he uses coercion M. J. when of Sheriff seeking objective. county. his peace timidation officerin the Efforts est *55 population tries and been en- industrial have among made a address in radio joying prosperity for time seven first things he stated: years. They just recovering are from the loss- peace es of the 1936 flood is es- and industrial ago gentlemen a to our “Some months came sential to business revival. insure the need To presence, community his and as result of simply preservation order.” of law and many today, homes are sad and these homes up gloom rise will continue in that until we by There was no the Board that finding things Ameri- and do the that all red-blooded the petitioners over the an- any assumed control do. . and cans should . . Cemmunism today archy city . are in our in evidence Committee members over or its or desiring their clothes men have had to work Mayor. representative petition- No naked forced to stand taken from them and suggested repre- ers any that or member your principal As ... streets. thoroughly mayor, majority opposed do, sentative of or the Citizens’ Committee I am convinced are and of our citizens want work refrain from doing, in connection anything Were dictation to the of outsiders. public with the issuance of statements or undesirables, peace by Johnstown not invaded speeches advertisements or or solicitations reign this time .... From at this would expenditures funds, will moment a ‘Back Work Movement’ activities. on wives, gain mothers, and sis- You momentum. by This was members testified to both workers, not. Idle fear of our steel ters representatives the Committee and cowards, being made, by let me but threats are petitioners. evidence Additional po- your mayor, I, you in a am assure Communist, lawless, accessory sition to crush and homes of effect was no connec- protect preserve anarchist, Committee and between Citizens’ good you citizens . . . offered, but, was I II, pointed topic rejected Evans, general mana- out in an assistant D. was S. Plant, examiner and the stated at Board. ger Cambria on meeting Citizens’ Committee June The contributions received the Citi- keep decided had peti- zens’ Committee the Company strike because of open during Plant tioner $32,078.25, totalling were made on responsibilities who wanted 18 and July 9 and 28 in various June work, and because it was fair to the amounts and all were made through D. S. citizens Evans also issued of Johnstown. Evans. He conditioned the contributions press following release terms: upon the being preser- used money vation of plant payment law order. The D. Evans “S. announced: The is con- operate tinuing departments. in all Em- $4,372 on July Mayor, was ployes given proper protec- work and want 'to Ellicott, made R.C. general manager of going jobs, tion be no difficulties. This is the to and from their there should Plant, the Cambria Mayor to meet bills the responsibility every community. public said paid. would have citizen Mayor to be given authorities have ployes assurance that the em- attempted Martin, to reach the chair- protected persisting bewill in their man of Committee, the Citizens’ but he was general rallying work. The to to their citizens are Ellicott, out the city connection support and we have been assured groups of Evans, various citizens that efforts of money S. D. furnished repelled a shut-down outsiders force will be Mayor. The detail of the bills does not by a united effort. some There was disorder appear, although the record does show night the turn last but conditions are much Mayor deputized large spe- number of improved morning. interrupt- this Work was only department. ed in some one division police cial equipment them, secured departments today we have more men rented number taxicabs and other any time than at classes of products, since the strike started. automobiles, and that at least some of these material made here include wire expenses paid city. plates, bars, cars, No ac- wheels axles. operation plant The continued is essen- counting Committee peo- tial ple the welfare of Johnstown and its Mayor expenditure. as to items of There products plant compe- as all are in no evidence money fur- elsewhere, many mills tition with which are nished either to the Committee or to the near to the market. located Johnstown’s indus- today “SBVENTH —I deem it “At a within conference here Governor my rights neighbor brother in- Earle made available a sufficient number provided any cause, maintaining terest me of State Police to assist gentlemanly, orderly process is law- order all times. mayor your city ful. “As I am deter- prevail mayor city mined that law and order shall “Your members earnestly your impartial, unprejudiced in Johnstown. operation.” seek co- council present neutral far as the situation concerned. *56 except Mayor order, any the to law to purpose was and Mayor for maintain used was protect right the to the and order. both work and preservation of law join right to and or strike the to prime that the finding a basis for its As join any organization. not to success- If was the Committee Citizens’ function of fully purpose into carried effect such a organization the vilifying union that of accomplish opposite would the interfer- of op- and hostility engendering public with, employees restraining coercing or strikers, its Board in position the the rights the in the exercise of their mentioned in the article referred to decision opinion my no Act. And there in show- is by I, written topic have been assumed directly by ing in case either war- or Andrews, appeared on the which one H. G. any inference that of rantable will Democrat page of the editorial Johnstown employee group employees cor- or of was months eight February of some or rupted by or overridden the utterances place. had taken after the strike of the Committee and advertisements in that the statements Board emphasized equipping Mayor by deputizing or was Committee article that Citizens’ special taxicabs police, renting or the of of breaking organized purpose Mayor, or by the automobiles of the Bethle- D. Evans strike and that S. per- by attempts of the Committee point IAs of this. hem knew to control suade the leaders of S.W.O.C. in I, was admitted topic article out in this In connec- violence members. this its limited for the evidence the examiner it to be noted that Board itself statements proving that purpose dismissed: and not had been therein contained truth of proving the purpose for the " allegations complaint . . . in those hearsay and cannot pure the same. n allege [petitioners] respondents that . . for the . the streets of a foundation caused Johnstown therefore constitute surrounding patrolled to be communities finding. purpose with, interfering armed for the men apart Despite absence coercing restraining employees; evidence — in- peaceful picketing contributions, terfered their strik- from circumstance ing employees; caused union members or- de- they be evidence —and if said ganizers unjustly arrested, to be detained finding of a spite the absence sentenced; union members to be caused the ac- petitioners controlled or directed brutally attacked and beaten its Johnstown in plant or the . Committee the Citizens’ . . tivities of discussing the in Mayor, assume I will points that, evidence The Board case that the aspect charge this in particularizes which, in no instance activi- responsible petitioners were employees any- employee group or did possible it think ties. I nevertheless they or thing which he or wished not do forth, conclude, above set under the facts doing he anything refrained from petitioners guilty were vio- any- do or desired to result of of law. lation Committee thing or either the said done charge 8(1) is a violation Section Mayor. not un- saying or the 1 am it of the Act which an unfair declares Mayor’s mindful reference in the with, restrain, practice or labor to interfere proclamation “foreign enemies” or of coerce in the exercise of the he the statement his radio address that self-organization, rights bar- collective lawless, position to “crush engagement ac- gaining and in concerted Communist, anarchist.” But purpose for the tivities bar- nothing facts which indicates gaining protection, other mutual or or aid reasonably of these use terms he guaranteed by Nothing Section 7. in the intended, reasonably or could have been expressly Act makes it unfair an intend, employees, thought to describe practice employer contribute were coerced action into funds aid activities of a citizens’ refraining into action his use of public committee official. There- persons terms. That lawless were these can guilty fore the a vio- clear; community facts make only lation of the Act if the activities nothing to and there is show Mayor actually the Committee state untrue communists with, interfered restrained or coerced the also bear in mind anarchists there. their rights. exercise of Mayor his radio the statement “ Work Under the ‘Back to Movement’ pur- evidence address case pose Act gain Nothing momentum.” the Citizens’ Committee will and of the generally. outside the ticipating press restore are ments Labor Relations Act and dispute, been false and at the Cambria tee of freedom of ercise lations Act to coercive tee and the union ers] offered inducements to engendered the Committee to defeat the ances and lawlessness tion it mittee, their is to be noted further that since the utter- ever of the Act ganization by restrain, show an effort union utterances mittee, effort employees organization tility ducted a so-called ‘baek-to-work’ it: than it self less Committee was that of forbids " “ If the fortiori Concerning the nothing strikers as such. And the facts do this is . protected by case subject Citizens’ Committee or the coercively dismissed: committed, employees themselves was to restrain violence . organization of the organization allege unlawful law and seeking to defeat the efforts of my disabled a back to must and prevents . warrants such or prime not to they opposition advertisements of concerned, again the Board it- affirmed a decree of those In National Labor Relations I . if opinion Mayor coerce unlawful public false and defamatory state- protection rights guaranteed . have express defamatory whomsoever in a manner to advertisements of the induced. are not disabled creating join Plant whether union or not. order. the Constitutional vilifying . against function .work allegations activities, of the merits of a labor same statements engendering were not shown their at the time pointed was, through the Com- the National and to and to nothing purposes been to violence and speech. or hostility strike to the activities, they were not themselves, short of respondents movement assist petitioners through vilifying the union statements. employees If violence. to certain of hostility Moreover, character or of destroy destroy out in they they movement, committed, not the National coercive, efforts If of interfere the Citizens’ strikers, said to movement public hos- participat- Labor were the Board union; Mayor employers efforts toso were not any more Board v. the law in the ex- whomso- 7 Section Commit- topic V, complaint *57 [petition- it. The facts of towards that or- guaran- opposi- so far There strike Com- were have have they par- with, their Re- con- ex- un- of ployees their own for collective National 13 construed or diminish But L.R. National Labor Laughlin was itself a resentatives tive self-organization 33, conduct employer gress of the owner zure and conversion foundations sabotage. force S. officers of tents in the contested to commit acts of violence or to seize employer’s plant. spoiling of its justify such conduct because of the existence essentially in order saying tion. The seizure had the duct of the deprived tice would be to be tain labor The Court said: members ployees lose the their unlawful Appeals and conducted in strike, of “We "... reasonably set aside a labor provides that construed as participation in principles 57 S.Ct. employer to meet protection extent bargaining Corporation this persons 1352]. instead also practices 306 U.S. think protection because thus right even the efforts of it of its is not Steel for the Seventh Circuit insofar recognition so as who had been recognized Court held that But A.L.R. different from an assault volition because of the dispute force of respondent, But of their own 57 S.Ct. protected Fansteel page questions as bargaining. wrong apart clear. To assure to strike but society. in [*] injury employing company, property of its from lawful Corp. though could Relations Board in its order without permitted Relations reprehensible law of an legal compliance and to the selection of compelling to interfere legal rights their nothing put a the true to reinstate conduct; 622 or We union .of protection way a sit-down and order which property. respondent Congress lawfully legal . remedies and to subvert lawlessness, [*] holding the men to resist evic- [81 employer, employ or other Metallurgical there is no may put. on one side actuated restraint or coercion. premium right lawful . the Board ‘the right S.Ct. activity discharged because to the choosing Associated Press v. purpose Board v. they L.Ed. the Act is not aspect with demands. To from . demands. Section Circuit Court of goods, plant unfair possession the Act discharge employers L.Ed. to right that where as was with or right of the [301 [*] cease was intent protection, conduct. certain regardless had no of [1937, unlawful an outlaw or circumstances strike. The any strike, on 893, is by unfair or the sei- 953]. or ground U.S.] for collec to strike.’ possession failure employees the em- to strilce’ directing 83 L.Ed. lie at that con- initiated Jones & resort agitation work buildings ‘shall Congress its con- his the de- acts ousting impede 301 U. —-that license is not Corp., to Court prac- Con Act. their page rep acts em up re- of A. to of strike, activities, contemplates plainly purpose ex concerted —the lawful quit unquestioned work. ercise bargaining or other mutual aid ” pages supplied] [306 U.S. at . . . [Italics protection,” in violation of Section page 495, 496, S.Ct. at read in 8(1) connection with Section 599.] A.L.R. L.Ed. The Board did find that re information employees of Accordingly, if activity organization lating to union in un- participating were actually petitioners, obtained activities connection lawful but in its decision refers to evidence im- strike, they no more Cambria reports the effect that were delivered community anyone else in the mune than Comp Agency representatives by citizens the exercise of efforts any.41 purpose For the discussion of to restore law and order. and officials topic, supportable will assume a finding I think the of the Board that the reports finding that were so delivered and with, petitioners interfered restrained or relating information contained *58 Plant, the Cambria employees coerced its activity organization. union The the through Committee and the Citizens’ employees Board did find that the knew rights self-organization, Mayor, in that were under surveillance and that ac- bargaining and concerted rights un result the exercise of their guaranteed them Section tivities any way with der the Act was in interfered Act, support rational is without restrained, were, employees or or that the case, think therefore and I the facts through and the knowl such surveillance Board that the conclusion of the that petitioners, thereof, any edge coerced in manner interference, restraint rights, the exercise or coercion, 8(1) had violated Section or obtained petitioners any used information And warrant in law. the Act is without anything an unfair labor constituting to do the Board’s decision I think that aspect practice. effect The Board’s decision in unwarrantedly assumes case upon no evidence conceded there was right partici- deny employer the to to an to based, might finding be which such public citizens and officials in the pate with there was none.42 preservation of law and order. aspect In this of the case there is there- single question of law: Does fore VIII securing an em- mere of information SüBVJBITjLANCE detectives, ployer, through the use con- em- Board found “that cerning organi- (including union activities Detective ployed Pinkerton’s National zation) constitute under the Act an unfair alia, Inc., purpose, inter Agency, practice question ? I think this labor should relating obtaining information to union negative. be Act answered does organization,” that thus activity prac- terms it an unfair labor make employer information, “interfered with the em- secure tice for self-organization, ployees right otherwise, in their through or either detectives con- form, join, organizations, Therefore, cerning or assist labor union activities. through bargain collectively representa- securing of information can become an un- choosing, practice engage only own tives of their fair other act labor previous topic employer In a referred uses the information ob- findings form tained do the defective surveillance some- thing difficulty thereby presented in an unfair un- constitutes labor to derstanding dealing practice. respondents this case. then state with employees in this case no appears from The concession the fol knowledge employment lowing excerpt from the Board’s deci Agency and that the record does not sion: respondents used in- show respondents [petitioners] con- “The Agency formation obtained from the hiring respect tend, with practice. unfair commit labor way agency, in no the Act detective to union forbids surveillance with “These contentions without merit. per argue They view, se. that such our activities of union surveillance or- ganization contravention surveillance can constitutes an interference only employees (1) employees’ seif-organ- if the Act know the they with and, though ization, showing are under as a re- surveillance even is no exercising sult, specific into are intimidated information obtained exercising any refraining used the commission an unfair guaranteed Act, rights (2) practice.” if
70á
A.L.R,
642, 630,
can, wit, by operating
alone or 57 S.Ct.
either
81 L.Ed.
1152;
concurrently
other
to interfere
and National Labor
acts
Relations
Co.,
with,
Friedman-Harry
Clothing
coerce
Marks
restrain or
guaranteed
645, 630, 81
rights
exercise of the
U.S.
S.Ct.
If,
example,
knew
Act.
they
L.Ed.
43 Cir., 1540,
F.2d
“
Corporation
Early
respondent
whether the
.
.
case
.
hired
duty
detective
whoso
it was ‘to
out
ferret
illegal purposes
informa-
use
keep
union activities of
respondent
the men’ and to
“.spy,” whether
by the
nor
tion obtained
respond-
This,
informed.
as the
“spy,”
employees knew of the use
president
stated,
ent’s vice
trou-
to avoid
keep
steady
rule
not therefore
ble and ‘to
and the case does
flow of business.’
purposes
deception,
For
and in order
without
surveillance
question
whether
eligible
make the
membership
detective
practice.
more is an unfair labor
respondent
Union,
gave
employment.
him
joined
v. Na-
Edison
In Consolidated
He
the Union and
became its treasurer.
He thus obtained a
all
list of
the members of
nothing
tional
Relations
frequent
reports
the Union. He made
to re-
ex-
of detectives
concerning
use
said
cept
spondent
and with the
thus
lists
obtained re-
following:
spondent’s
superintendent went about
the fac-
“
tory from time to time and
espion-
warned various
With
to industrial
.
.
.
employees against union
companies
say
employment
result
age,
activities.
suspicion,
these measures ‘caused
agencies’
unrest and
investigating
sort
of ‘outside
among
employees.’
confusion
voluntarily
prior
...”
to No-
been
discontinued
had
vember,
pages 54, 55,
page
U.S. at
rightly urges
L301
57 S.Ct. at
the Board
but
81 L.Ed.
resumption.
108 A.L.E. 1352.]
its
...”
it was entitled to bar
page 217,
page 230,
[305
U.S. at
S.Ct.
found
prac-
Board had
unfair labor
126.]
L.Ed.
use was made of
appear what
tices
It does not
committed and the
Court said
whether or
investigating agencies,”
findings
supported
“outside
were
the evi-
them,
any,
if
excerpt
information secured
dence.
opinion
from the
shows
commission
as a basis for the
was used
information
obtained
the detec-
practice, whether the em-
labor
tive was
unfair
used
interfere
surveil-
ployees
knew
with union
part
activities on
em-
again
ployees
therefore consti-
lance. This case
whose
names
obtained
holding that surveillance
se
per
Obviously, therefore,
tutes no
him.
this case does
practice.
pass
an unfair
not on
facts
question
whether surveillance without more is
*60
un-
an
National Labor Relations Board v.
In
fair
practice.
labor
only
Pennsylvania Greyhound Lines the
follow-
reference to surveillance is
In National Labor Relations
v.
of the Court:
ing statement
Friedman-Harry
Co.,
Marks Clothing
“
day [July
.
.
. Before and after
that
only
opinion
reference
of the Court
5,
spondents’
passage
Act],
of
of the
re
1935 —the date
is
surveillance
this:
warning
officers were
active
em
against
ployees
joining
and in
the union
threat
“
president
.
.
. Statements of the
of tlie
they
ening
discharge
join,
if
them with
should
respondent
showing
antagonism
his
un
to the
meetings
keeping
and in
the union
under surveillance.”
quoted by
ion were
the Board. At one time
page
[3
at
U.S.
58 S.Ct.
03
group
employees
he stated
to a
of
that he
page 576,
307.]
A.L.R.
L.Ed.
discharge
every
would
one that
attended the
Examination
the record of
case in
meeting.
union
Similar statements were made
by respondent’s
secretary. Respondent’s man
Supreme Court shows that the
agement
‘has maintained'
over
surveillance
un
Companies
that the
“threatened such
found
meetings
ion
[301
and activities.’
...”
employees
discharge
they
if
became
page 75,
page 647,
U.
atS.
708 goes proper purpose thus so seeks to 8(3), The order which the Board (4) (5). by can terms far restrain commission acts achieve the inclusion of those accomplished “agents,” (refusal bargain through collective be the term charged even ly 8(5), dis appears also order. National of Section violation —a against Hopwood em Retin- an v. charge of or discrimination Labor Relations Board ning parte Co., Cir., 1938, 97; charges or testi Ex ployee Inc., has filed 98 F.2d he 2 because Cir., Lennon, 1894, 320, af- Section fied the Act—a violation of 64 F. under re charged firmed, 1897, 548, 658, 41 but with 8(4) ), acts 166 U.S. 17 S.Ct. and also charges dismissed spect term which the L.Ed. 1110. Even without by against em attempt order (discrimination “agents” an evade the membership discourage corporate order ployees in utilization of the formation or -of per- organization would, principles violation a labor form familiar —a fiction, of the Su 8(3) ). mitting corporate The decision disregard of Section preme Publishing Express Gilpin Except Court for United be ineffectual. beyond puts 1937, doubt Company Corporation case I think Colo. Wilmore, v. too case is 456, instant 453, persuasive, that the order in the think which I P.2d held similarly phrased order A was broad. of the cases cited none Press this court in support too broad terms Board to the inclusion of the Board, Decem Relations assigns” v. National ber holds in the order “successors that such inclusion is 9, 1940,-App.D.C.-, F.2d proper.47 1118,85 —. L.Ed. certiorari denied 61 S.Ct. paragraph Thé order of the Board in ap- phrased of the Board is apply The order (a) “any is drawn as to other so Beth- ply “Bethlehem Steel organization employees.” Assum- labor them, each of Corporation, and lehem Steel record for an order a.foundation successors, officers,agents, and as- and their or dominating cease and desist from There signs (Italics supplied) ..” . interfering . administration of finding charge, Plans, agree, no evidence or language is, permitted I any. or as- case effect that successor Supreme ruling Court petitioners sign had committed above Express Publishing case practice, labor or that unfair to. In its context the reference referred purpose part peti- any plan on the or mean is intended to Act “Dominating the strictures of tioners to evade the-petitioners. To forbid „ pe- assignment or of the forma- order interfering or . . Indeed in their Plants. titioners’ interest labor or administration finding in charge, evidence there was the employees” organization of assigns concerning successors case forbid “other related acts” unlawful requires 10(b) of the Act all. Section permitted ruling Express as Publishing Company engaging in prac- unfair charge of labor An order sim- case. tices, 10(c) requires the orders and Section ilarly including within its “other restraint upon based Board to be evidence approved organizations” was in Na- Moreover, principles due findings. Relations v. Swift & tional Labor making process preclude Cir., the Board 988, cited Company, 7 108 F.2d persons affecting as to whom an order Express Pub- Court in the no evidence in the record and who there is case. lishing Company of, op- not even afforded notice X proceeding portunity in, to be heard CoNOi/crsiON the Board which the order before my duty tó discuss I have believed City National Bank Chase based. Norwalk, many think were errors detail the 431, 54 291 U.S. S.Ct. hearing48 during the extended 894; committed Donald, Scott v. 78 L.Ed. *63 they my preju- case. In view in this dicial to the 262, 107, 41 648. More- 17 S.Ct. inclusion of successors L.Ed. U.S. petitioners and of rights of the over, assigns or associations, employees’ intervening necessary. Any not order within the 1939, Cir., Colten, 6 47 Board v. City Relations National Bank of Nor- Chase v. 179, supra; Sidway F.2d walk, 183. 105 Land & v. Missouri typewritten original 48 record filed C.C.S.D.Mo.1902, Co., 116 F. Stock Live pages. 21,717, 390; this court consisted of 381, G. & Merriam v. C. Co. Saal printing designation Cir., 927; 1911, record field, 190 National 6 F. 11,072 printed Hopwood record of in a resulted Board Re- Labor Relations pages. tinning; supra; Co., Inc., National Labor 709 although a reservoir. Unless the out rights substantially, passes water also — through canals, laterals, intervention, smaller involved—of still not formal precision petitioners’ Plants. channels it a employees in never with reaches particular True, were the tract to make fruitful. Furthermore, think the errors land I it may many, far-reach- be product fundamental and channels made too of such long, tortuous, part too seep or too ing misconceptions on the Board and the water thus judicial evaporate subject com- before it ought the land be reaches correction, that con- toward in order which it has been But is ment and directed. it public equally that, part litigants in a if true channels fidence on the are no only through may flow, ultimately effective sanc- which tribunal —the it it will never impaired. Likewise, be reach that land. its orders—shall not the substantive pass through law must the channels misconceptions The fundamental to which pleading, procedure and evidence so that refer, apparent I think are and which may precisely apply itself to the solution record, point of from the are two : a view particular controversy of which part that was not apt. figure it adjective Like these those regard proceedings bound to its es- may channels also be over-refined. law; requirements adjective sential Congress But while avoid —minded misconception and a part on the —by largely committing discretion principles Board of the of substantive law of the Board ceedings pro the manner in which its case, governing the declared Con- on, should carried pro stitution, decisions, judicial Nation- viding that in those proceedings the rules al Relations Act itself. of evidence should controlling, not be necessity From duty the Board both evinced its intention proceedings of obliged regard require- the essential informal, Congress the Board should be procedure pleading, ments of the rules not to taken intended to re comprised evidence are obligation lieve Board from ap adjective congeries law. That law is ply adjective require minimum dispensable technicalities; on the necessary con- hearings ments if be or are to trary, in apply derly art assumes accomplish and thus effective to efficient, principles justice. substantive in an order- ends process And the due ly impersonal indispensa- manner, it Constitution, clause of the Cotigress Every has, ble. art addition to substan- could applying relieve the from aspect embracing organized tive adjective information the essentials of law because in and principles, technique through which them are safeguards the essential embraced the same carried into effect.49 The hearing. to fair guarantee Because of the 0 substantive law be likened to water in 5 process the due clause, a comrnis-
lic Utilities Commission of 301 life, plish istry; through forms which ples be of no avail medical art arts can the suffering coal are made effective. No more than other devised. ground devices, mands which the through formulae, blueprints, anatomy, physiology, cedures therapeutic, [49] 50 U.S. Cf. wore it these must be of mathematics, become Ohio through engineering mere 292, 304, 305, *64 necessity. air, Only engineering change surgical Bell juristic knowledge bridge satisfy thus fabric. which such prolongation Telephone principles for exact myriad art and sanitation physics, art carried art does iron raw 57 S.Ct. does not relief of human pathology human escape has in Again, battleship, matter Ohio, Co. v. into action and chem- diagnostic, measuring principles of human processes practice biology, the de- 724, accom- princi- wants, would 1937, Pub pro- into at proper powers L.Ed. Gas Co. v. Public Utilities Commission the exempt insistent been expert signed Co. v. 1) orable missions have been invested with broad Corp. S.Ct. judicial proceedings constitutional straints pages 730, 731, (No. 2), 1935] realm bestowed so 316, 320, 773; v. Railroad Indeed, to them Public Utilities Commission judgment deference safeguard’ within the have reached is the Court 294 Los administrative been restraints. West Ohio Gas U.S. S.Ct. much supervision 79 L.Ed. 81 L.Ed. U.S. said; Angeles need, when with due exacts from freely, Commission, obeyed. law. Even in sphere (St. “Regulatory 761; courts 1093, Gas & Electric Joseph informed and S.Ct. submission to if All discretion is page 70, power West receives a those re whore the ‘inex do duty when it within quasi- L.Ed. Stock more Ohio com (No. U.S. has as 55 710 my mistakenly sion. view legislative action sion, though relieved the National Labor Relations construed rules strict so-called application membership equality Act depart to: forbid evidence, must nevertheless power joint voting bar- and on collective preserve “obligation to imperative from the committees; employer gaining deny an to which of evidence rules
the essential voice, subject direction a ultimate Inter- defended.” are asserted or rights court, of a amendments of collective Louisville v. Commission state Commerce materially plans bargaining would 93, 1913, 88, 33 S.Ct. 227 U.S. Co., R. & N. adjust- procedure for grievance change 431; Abilene v. 185, United States 57 L.Ed. prevent a 274, ment, might plan from 44 or which Railway, 1924,265 U.S. & Southern selecting fair operating representatives method of as a 565, 68 L.Ed. S.Ct. bargain- and collective my opinion failure inwas materially ing, might increase or regard instant case Board in the employer’s obligation plan; under a the require separate law adjective requirements of essential organi- for labor charters following errors: resulted iii which Entry bargaining systems, and collective zations Board after order separate single charter statement in a biased ex- hearing before a conducted provisions relating of ganization to labor or- upon illegal restrictions aminer and bargaining and the exclusion subpoenas; the use respectively; arrangements, condemn peti- competent offered evidence friendly cooperation, relations, and normal them; charges against to refute the tioners innocent communications between em- findings proper draw failure to employers, ployer employees; deny form; follow the omission to those estab- Amendment contravention First principles logic reasoning lished Constitution, of ex- that freedom dependability which test of inferences pression concerning merits of labor evidence; substantiality of disputes organizations which has been (under case on the merits decision guar- recognized Court as interference, issues of domination and employees; employer forbid anteed disestablishment, contribution to the Citi- participate public citizens Mayor of zens’ Committee and the town, Johns- preserve in efforts to law and officials surveillance) substan- without order; employer from restrain upon assump- tial the basis of evidence— conjecture purpose securing information for the and without refer- proof ence to the burden of Board; protection aiding in the issuance of against an order property against violence. support contributing to the Plans when implicit Finally, the decision long such contribution ceased, since theory Act condemns Board is when there probability and repetition; was no such, compels local unions as the issuance of a final or- without destruction reference to the will binding der against employees,, requiring of affected the lat- future commission charged acts neither ter, all, organized to be if nor found been committed. join being national union. no There As substantive all evidence the case of domi- law—like tri- substantial system, bunals under our bound interference' nation or formation the Board is Plans, expressed concepts order administration Constitution, judicial justification of disestablishment can find statutes deci- States, quirement. 38, Co. Yards v. Co. Pub United West Ohio Gas v. 298 U.S. 73, 720, 735, 1033) 1), (No. 2), (No. 56 S.Ct. lic 80 L.Ed. Utilities Commission open hearing Hill, supra; he Brinkerhoff-Faris v. 281 maintained Co. fair integrity. 673, Morgan 682, States, in its L. 59 74 v. United U.S. S.Ct. 468, 480, 481, 906, Norwegian Nitrogen 911, 298 U.S. Co. 56 Ed. 1107. Cf. S.Ct. 1288; 294, [1933, 80 L.Ed. Interstate v. States U.S. Commerce United 350, Co., Commission v. & 77 L.Ed. There can be 796]. Louisville R. N. S.Ct. [1913, footing compromise U.S. S.Ct. of con L. hearing expediency, 431]. Ed. to such a venience or or because harassing play’ one ‘the de rudiments desire to be natural rid fair (Chicago, requirement Ry. Polt, lay, M. & St. P. that minimal Co. when ignored.” sup neglected (Italics 232 U.S. 34 S.Ct. L. 554) every litigant plied) Ed. assured Fourteenth Amendment aas minimal re-
711 762, “A union view, stated: This, my where the court theory alone. in such a single em- only Not limited to the Act. is unwarranted ployer legal other....” local terms condemn the Act not does associations, but, im contrary, on the dissatisfaction record evidences This In Sec pliedly warrants their existence. part of the present Plans on the with the organi “labor 2(5) definition of employees, no election —which representa “employee zation” includes conduct may within its discretion plan,” and Section tion committee Act —to deter- 9(c) of under Section bar given the employees are per- employees desire to whether the mine representatives collectively through gain Plans. Cer- petuate or to discontinue the Moreover, choosing.” “of own their purpose Nation- tainly primary said, involving case Supreme Court in a was to make Labor Relations Act al assume that union: “We a local criterion will of the the sole Board would in which are situations the character of for determination of concluding that there not be warranted bargain- organization labor of em for withdrawal occasion ing arrangements. premise to, existing union recognition of an ployer competent workmen are Act by employees under before an election themselves, § govern and that 9(c), though it had ordered the em even free, right, and should be made to do ployer practices. cease unfair ...” Yet, will of the employees without the so. National Relations Board v. Penn Labor consulted, having local associations Greyhound Lines, sylvania 303 U. destroyed. ordered L.Ed. S.Ct. S. order I think that the of the Board ac- And see A.L.R. 307. Ballston-Still injustice complishes petition- both for the Knitting National water Co. Re employers employees, and for the ers lations F.2d set themselves should be Cir., aside.