*1 564 Holley, gineer subsequent ed Benefit of States for Use and and his reversal Cir., .707, regardless 10 154 F.2d Ardmore was caused the loss of the fact by
wrongly who held one that his directed second instruction corrected power give en- instructions and the first. here, contract, as force them. aWhen judgment is reversed with direc- provides productive results for certain judgment ap- tions to enter in favor of provides, of ob- that the method also pellant against appellees for the sum unqualifi- taining be results shall $5,867.11. subject ably third the direction monetary gain party bene- stands to who dictated, breach by no fits the method a failure of contract is occasioned entirely to which is attributable result v. United States faulty See directions. supra. Company, Dredging Atlantic and materialmen do not have Laborers against rights the United enforceable COPPUS ENGINEERING CORPO compensation, and can- States for RATION, Petitioner, public buildings, acquire lien on v. require 270a-270d U.S.C.A. §§ 40 but NATIONAL LABOR RELATIONS payment surety guarantee for ma- that a BOARD, Respondent. in construction. used services terials and No. 5138. Munsey ofCo. Trust v. United States C., 234, Washington, 67 S.Ct. 332 U.S. D. Appeals United Court States 1599, L.Ed. 2022. 91 First Circuit. The bonds here Heard involved con Nov. payment of all ditioned labor and Decided Jan.
materials used the construction of the rejected Air Base. If the Ardmore con although crete, presently part originally nor included the construction contract, required of Ardmore was construction, the contractor and for the surety payment upon are liable his and Benefit for Use United States it. Rushlight Davidson, D.C. Co. v. of W. A. 401; Idaho, F.Supp. United States Cooperage Co. v. of Baltimore
for Use McCay, 777; D.C.Md., United 28 F.2d Morley Const. v. rel. Johnson States ex Co., Cir., F.2d 781. John ease of A. In the Johnson & Sons States, for Use of v. United Baltimore Co., Cir., 534, recovery 153 F.2d Brick against the materialman allowed surety for extra bricks contractor replace required wrongfully bricks engineer. project
condemned Al- pointed though, appellee, out wrongful condemnation there was engineer pres- in the concrete case, the distinction be- ent untenable judgment mistaken of the en- cause *3 Anderson, Worcester, Mass., L. Ernest Lloyd whom Anderson and Ander- Howard, Worcester, son, & Anderson
Mass.,
brief,
petitioner.
on the
B.,
8(a)
(2) by assisting, supporting,
Atty.,
R.
Boyls,
§
N. L.
M.
Fannie
Theophil dominating
interfering
ad-
Washington,
C.,
with the
whom
D. with
Committee;
Counsel,
Mal-
Kammholz,
Marcel
ministration of the
Gen.
C.
(3) by
petitioner had
Counsel, Mar-
such conduct the
let-Frevost,
Asst. Gen.
B.,
with,
interfered
restrained and coerced
garet
Farmer, Atty.,
R.
N. L.
M.
rights
brief,
exercise
Washington,
C.,
D. were
guaranteed
thereby
had en-
respondent.
gaged
practices
in unfair labor
within
Judge,
MAGRUDER, Chief
Before
meaning
8(a)
(1);
(4)
HARTIGAN,
WOODBURY
practices
unfair
affected com-
n Circuit
Judges.
*4
meaning
2(6)
within the
merce
of
and
§
(7).
Judge.
HARTIGAN, Circuit
petitioner
only
Since
contests
conclu-
Engineering
Coppus
petitioner,
The
(2)
(3) above,
and
sions
we need dis-
10(f)
the
of
Corporation, pursuant to only
pertinent
cuss
the facts
them.
Act,
amend-
as
Labor Relations
National
chiefly
These facts as drawn
from the
seq.,
151 et
ed,
29 U.S.C.A. §
61 Stat.
examiner,
of the trial
in the
and
Act,
review
seeks
the
called
hereafter
light
Board,
most favorable to the
Re-
Labor
National
the
of
order of
an
as follows:
an
Board,
filed
Board has
the
and
lations
cross
petitioner,
corpo-
a
petition and also
to this
The
a
answer
petition,
Massachusetts
requesting en-
10(e),
ration,
engaged Worcester,
Mas-
under
manufacture,
sachusetts,
order.
its
of
sale and
forcement
turbines, blowers,
distribution of steam
petitioner to
the
ordered
Board
The
products.
air filters and related
It em-
assisting, domi
desist from:
and
cease
ploys approximately eighty
pro-
in its
contributing
other
nating,
or
financial
group.
and
duction
maintenance
interfering
the ad
with
to,
or
Committee,
September
or
of,
Shop
11, 1952,
the
On
United
the
ministration
organization;
America, C.I.O.,
otherwise
any
of
Steelworkers
filed
other labor
representation of
interfering
petition
the
with the Board
certifica-
with
organiza
through
bargaining representa-
employees
a labor
tion as collective
its
recognizing
choosing;
petitioner’s production
of
own
tive
the
and
tion of their
any
Committee,
employees.
Shop
petition-
or
successor
As the
maintenance
the
agree
recognize
representative
thereto,
as
er did
the Union
the
purpose
deal
representative,
employees for the
as
election was
an
concerning
terms
ing
petitioner
held
1952 in
Union
October
the
the
with
employment. Affirma
majority.
or
failed to
conditions
receive a
petitioner to
required
tively, the order
Shortly thereafter,
petitioner’s
the
recognition
all
withhold
and
withdraw
president,
George,
Jerome
a meet-
called
disestablish,
completely
from, and
production
and maintenance
there
Committee,
successor
Shop
or
George
plant.
at the
made a
any of its
representative of
to,
suggested
speech
short
em-
dealing
purpose
employees for the
ployees
permanent
“that
have a
concerning
terms
petitioner
grievance
with
committee,
if that is what
The
employment.
conditions
it,
grievances”
to call
to handle
wanted
adopted the
order
decision
in its
findings,
management. George then left the
recommenda
conclusions
meeting
nominated
examiner.
the trial
tions
Shop
to form a
candidates
among
examiner,
the trial
their number.
from
A
conclusions
ballot
The
(1)
up
days
adopted,
then drawn
and some
were that:
was
later
so
organization
plant.
held at
an election was
The
meaning
largest
2(5)
Act;
who received
§of
five
within
engaged
original
petitioner
votes constituted
(2)
had
unfair
number
Committee,
meaning
hereinafter
practices within the
called -labor
receiving
Committee,
employee
with the
admitted that most of
con-
the matters
serving
largest
vote
as chairman.
tained in the booklet were discussed
with the
Committee and that some
its establishment the Committee
Since
provisions
petition-
set forth therein
manage-
into
entered
discussions' with
plant
policies
er’s
rules and
resulted
concerning
ment
individual em-
from
the Committee.
hours,
ployee grievances,
wages,
but also
working
pensions, holidays
other
Committee at all times functioned
conditions.
provisions set
accordance with the
Moreover,
copy
forth
booklet.
pub-
February
In
1954 the
given
every
of this booklet was
new
expense
lished
own
and distributed
at its
employee
petitioner.
hired
booklet,
page
to all
eleven
title,
containing
cover
Elections of Committee
members
peti-
Policies,”
“Plant Rules and
year
plant during
held twice a
at the
book-
This
tioner’s name at
bottom.
period,
with the
knowl
petitioner’s rules
let
forth the
edge.
set
It can be concluded from the find
headings.
policies
topic
under six
ings of the
trial examiner
*5
appeared
petitioner’s name and address
solely by
elections were run
the em
page.
again
of the last
on the bottom
ployees
manage
any
without
member of
general
page
the
The first
contained
ment in attendance.
of the elec
Notices
Di-
heading
Policies.”
“Plant
Rules
posted by
tion results
the Commit
were
first
rectly
the
listed
under that was
bulletin,
plant
tee on
The
the
boards.
Shop
topic heading,
Committee.”
“The
employees
record shows
were
the
rules
topic were the
The contents of this
free to use the bulletin boards for
Committee.1
the
meetings
purpose. When the election
by
rules
Com-
These
were drafted
beyond
the
pe
ran
the one half hour lunch
by
approved
employees
mittee and
the
at
riod,
employees
the
re
in attendance
meeting
plant.
a
held at the
A witness
regular pay
ceived their
such
for
time.
approval
testified that without the
of all The trial
also found that what
examiner
voluntarily
employees
the
the Committee
equipment
ever facilities
involved
gave copy
management,
a
of the rules to
conducting
elections,
such as bal
the
why
but
did
did
he
not remember
typewriters,
lots
the use of
were ob
vice-president
petitioner
so. A
of the
plant.2
tained
Shop
“1. The
Committee
management,
discussion
with
up
“The
Committee is set
under
pertains
shop
to the
em-
welfare
following
rules:
ployees, excepting that information which
rep-
The
shall
“1.
Committee
act as
opinion
committee, may
in the
of the
employee
resentatives
prove to be detrimental
to the efficient
bargaining agents.
sole
operation of said committee.
powers
The
limitations
vest-
“2.
employment
“6.
In the
event
ter-
ed in the committee shall be determined
unexpired
mination,
term
aof
com-
majority
by
shop employees.
by
losing
mittee member
be
shall
filled
In the
that a
“3.
event
committee
largest
candidate who received the
num-
guilty
negligence
member is found
of
duties,
ber of votes.
performance
shall,
of his
he
report
“7. The committee shall
to the
majority
employees,
a
vote of the
be
very
next
scheduled
relinquish
position
asked to
a com-
working day following
meeting
a
member.
mittee
management
convey
to the
present
initial or
“4. The
committee
regarding
progress
information
period
year.
(1)
for a
serve
one
shall
being made in connection with tentative
expiration
Upon
year
date of
the one
agreements
upon by
reached
be
man-
present
period,
two of
committee
employees.
agement and the
shall be retained for
addi-
members
an
“The
Committee will meet once
period of six months.
tional
The remain-
regular
month
at a
time to be selected
positions
(3)
of the committee
three
management
and committee.”
upon
year period.
voted
for a one
shall be
subject
shall
2. The record
The cominittee
be
typing
“5.
shows that some
shop employees
report
by “somebody upstairs
to the
all matters
done
meetings
meetings
ployee
provi-
no
and of
rules made
Committee
The
meetings
using
management,
plant
general employee
The
facilities.
sions
vice-president
grievances
typed
to formu-
also
canvass
meetings
Such
in common.
minutes
the Committee
demands
late their
management
copy
meetings
usually
the with
furnished
held whenever
were
to the
committee members
Committee.
“the
chairman told
meeting. A
time” for a
it was about
The Committee had no constitution or
meetings were
testified that
witness
bylaws other than the
rules
Committee
every
three
two or
called in
manner
this
forth
set
ship
above. There were no member-
informed
weeks.
dues,
provisions
requirements
no
typed by
notice
employee membership
and no indicia
posted
him
chairman
membership
employees.
for the
These
plant
boards.
bulletin
on
point
To this
the facts recited concern
representative of
meetings,
background
case.
the instant
attended,
were held
ever
statutory period, upon
The sixth month
during
shop
petitioner’s machine
prac-
which the
of unfair labor
meetings the
period. At these
based,
April
tices are
commenced on
subject
brought up
mat-
like to have
would
ters which
management.
April 21,
Since
1955 the trial ex-
Committee discuss
agenda
found
up
aminer
that the
con-
drew
Committee then
tinued to exist and
function
all re-
to the
was submitted
which
vice-president.
spects in the same
manner as described
notified
He then
*6
suspension. Further,
its
above until
that
by
posted on the
a notice
Committee
petitioner
furnishing
the
continued
each
plant
time set
of the
bulletin boards
employee copy
Meetings
management.
a
of the
new
booklet con-
meeting with
a
taining
rules of
Committee
the
the
and
management
held in the Presi-
were
with
plant
policies.
and,
rules
working
the
and
during
hours
office
dent’s
found, they fre-
trial examiner
as the
Elections, employee meetings, and
beyond
quently
the normal
continued
management meetings were
at
held
following day
Com-
workday.
plant. The
in attendance
meet-
reported
results of its
mittee
regular wages
paid their
were
when elec-
meeting
management
ing
aat
meetings
beyond
and
ran
tions
the one
employees.
period,
half hour lunch
and Committee
meetings
employee
went be-
When
spent
paid for time
members were
meetings
regular
period,
yond
all em-
lunch
management
when the
ployees
continued to be
in attendance
meetings
beyond the normal
lasted
work-
wages
regular
pe-
for that
paid their
day.
existed
The Committee
without
by
parties
stipulated
riod.
It was
membership
provisions for
meetings ran from
of these
that some
generally
and without
regular
over the
fifteen minutes
five to
of revenue.
source
The Committee members
hour.
beginning
wages
statutory
regular
paid
for time
Since
were
during
21, 1955,
April
period,
on
spent at
management approximately
working
paid
a
six
time and met
hours and
discussing
variety
beyond
a
period
wide
terms
the normal
times
for the
half
workday,
employment.
The Com-
conditions
number work- or
the total
when
however,
forty. mittee,
requested
has above
for the week
hours
negotiate
petitioner
member,
sec-
to
written col-
as
who acted
A bargaining agreement.
typed
retary,
minutes
the em-
lective
paper, one witness
testified that
indicates whore
neither
It
office.”
scraps
paper
from,
by
have been
paper
came
it could
the Committee
that
used
typing.
for ballots.
As to the source
were used
did the
nor who
charges
Dry
by
Shipbuilding
Upon
Board v.
&
filed
the United Steel-
Sun
Dock
AFL-CIO,
gen- Co.,
America,
Cir., 1943,
15,
135 F.2d
25.
Where
workers of
findings
respect
Board
a com-
counsel of the
issued
the Board with
eral
10,
questions
plaint
January
supported'
The com-
of fact
dated
by
substance,
peti-
plaint alleged,
that
substantial evidence on the record
in
reviewing-
engaged
practices
unfair labor
considered as a
whole
tioner
contributing
dominating, assisting,
jurisdiction
to court has exclusive
“to make
interfering
enforcing, modifying,,
of,
support
with the
and
enter a
decree
setting
enforcing
modified,
After
of the Committee.
as
or
administration
so
31, 1956,
hearing
January
part
the trial
aside
on
in whole
the order
report Board,”
10(f).
provided by
issued an intermediate
as
Guided
examiner
§
was later
recommended order
standards we believe
and
adopted
supported
in its decision
Board
Board’s
are not
21,
May
order of
substantial evidence.
pro-
question presented in these
We turn now
the first
item
ceedings
evidence, specifically,
evidence of
whether substantial
the circum
is
whole,
surrounding
as a
stances
of the-
on the record considered
the formation
Act, supports Committee,4
provided by 10(e)
upon
relied
findings.
appears
rec
the Board’s conclusions
It
practices
1952, shortly
vio-
ord
after
unfair labor
October
committed
lost,
(1)
8(a) (2)
7.§
the United Steelworkers of America
lation
petitioner’s plant, presi
the election at
Initially, we note that substan
George
meeting
dent
called a
of the em
tial evidence “means such relevant evi
suggested
ployees
“that
have
might accept
dence as a reasonable mind
permanent grievance committee,
if
adequate
a conclusion.”
George
wanted to call it.”
what
Co.
Consolidated Edison
v. National La
meeting
then left the
and the
Board, 1938,
197,
bor Relations
U.S.
proceeded
form the
Committee.
217,
59 S.Ct.
573 Judge MAGRUDER, (concur- Chief out facts about ment round ring). concluded: Board “ * * * history sum, [petition- The record contains no of anti- In by company. union an elec- bias this At made functions has er] by by ena- tion the Board on October possible conducted (stated argument prop- bling place oral to on its at the them to take election”), have been erty, such facilities a “consent the use of needed, payments by for United Union win Steelworkers failed to as are during by spent after the bar- certification the Board as both time subsidies, gaining employees working By representative of hours. Engineering posi- Coppus Corporation. in [petitioner] in a remains charges This is over domination union which filed the tion to assure its proceeding. in the Committee.” instant forgotten company It use of must not be that that the We believe time, employee legitimate employer, too, property, for has a interest even having meetings, in this an of com- in the circumstances established channel case, evi- his not substantial munication between does constitute being support management, on the record as a whole limitation dence Mfg. Chicago employer Rawhide that is forbidden to use or domination. Bd., power way Relations his National Labor economic to fetter Co. v. supra; Board Relations the free National Labor choice Cir., 1954, F. Sugars, representative. Valentine v. shows more 2d 317. This evidence Therefore, after the had re- cooperation petitioner and a than jected union the outside at the election company possibility How- control. October, 1952, it does seem to prefer- ever, cooperation, “neither mere company open me that the was criti- possibility constitute nor of control ence president, cism when its in that later practices; and the Board labor unfair may year, suggested to the men that is violative infer conduct permanent form a committee with not, is from the Act conduct management might is deal. This basis, in unless there a substantial sug- quite apart from the fact that this reason, or inference.” fact gestion event which occurred Chicago Mfg. v. Rawhide Co. National filing prior more than six months to the supra, Bd., 221 F.2d at Relations Labor charges practices of unfair labor page 168. The of the Act be- sections present (see proviso case prohibit us were “not enacted fore 10(b) Act). friendly, penalize or courteous strong argument doubt, No could be part generous, even actions resulting Shop made that the employers.” National Labor Relations inherently bargaining rep- was an weak Sugars, supra, v. Valentine resentative, and a feeble instrument page 320. F.2d at conducting warfare, economic bitter many respondent cites contrasted a union affiliated with a decision of the eases organization. strong national But But, Board stated in its as the Board. conclusions, may it be that this [in field] “no two cases this particular plant did not feel the need altogether alike, each must be type bargaining rep- different totality judged of its own facts.” theirs, resentative. choice was many Here, opposed of the cases guarantees Act them freedom to totality by respondent, cited unimpeded choice, exercise that em- *10 substantial does not constitute evi facts ployer interference coercion. If or domination. dence freely should dif- choose a setting bargaining representative, entered A will be aside ferent decree there the Board. is no order of basis in the record for an inference drag company that the would its feet BURCH,Appellant, Lucille H. recognition of such a resistance to new bargaining representative, v. law re- quires. However, the statute does not READING COMPANY. duty employer, make it of the nor No. 11908. along Board, “baby” function of the Appeals United States Court of direction of choos- Third Circuit. bargaining an outside union as their Argued Nov. representative. Decided Jan. In view of the inherent weakness bargaining this representative Committee as a men, perhaps it can of the truly repre- be said that the any trump sentatives hold the cards in bargaining negotiations. But
collective
I do think that the evidence as not
whole warrants the inference
company dominated or interfered or administration of the the formation Shop meaning Committee, within the Therefore, 8(a) (2) of the Act.
part requiring the Board’s order company Shop Com- to “disestablish” the thereto,”
mittee, as the “or successor
recognized representative of its em-
ployees, certainly enforced not be should by this court. 8(a) (2) employ forbids an But also strength on to the scales er to throw contributing sup “financial or other organization; port” sup contribution of sometimes such a “domination,” amounting port, justify
may order Board remedial directing company negative terms prac from the forbidden
cease and desist furnishing See, support. tice Carpenter Co., generally, Steel (1948). 670, 671-74 N.L.R.B.
However, present case in- “support” relied on border on
stances trivial; and I whether the doubt any order have issued Board would
against company had it realized that go way whole and order it could Com- the disestablishment principle “de minimis” On the mittee. employer’s pe- I am content order in set aside the Board’s we
tition entirety, that the Board’s cross- of its order be for enforcement
petition
denied.