*1 OF MACHIN- ASS’N INTERNATIONAL ISTS, MAKERS LODGE AND DIE TOOL LABOR RELA- NO. v. NATIONAL TIONS BOARD.
No. 7258. Appeals for the
United States Court of District of Columbia. Nov.
Decided
SO
*3
employer
engaged
in unfair
8(1),
practices
meaning
within
of Sec.
(2),
(3)
(S),
2(6)
(7),
and Sec.
Wagner
order
Act.2 The
directed
to cease'
desist
S.
Joseph
Padway
and Herbert
A.
practices
specified
and to take
Thatcher,
C., for
Washington,
D.
both
general,
affirmative
action.
remedial
petitioners.
findings
sustained the conten-
and order
Fahy,-
Counsel,
B.
Robert
Gen.
Charles
Briefly,
re-
the order
tions
Watts,
Counsel,
Laurence
Gen.
Asst.
quired
giving
cease
effect
*4
Knapp, Atty. National Labor Relations
A.
alleged
to an
closed-shop
with
contract
Board;
C., for
re-
Washington,
all of
D.
toolroom;
covering
I.A.M.
deal
spondent.
with
bargaining
U.A.W. as the exclusive
GRONER,
Justice,
Chief
and
Before
agent
employees,
toolmen,
including
of
MILLER
RUTLEDGE,
and
Associate
buffers,
excluding
super-
polishers,
visory,
employees;
and clerical
to desist
Justices.
practices
various
from
of
and
assistance
RUTLEDGE,
encouragement
Associate
to I.A.M. and discrimina-
Justice.
against U.A.W.;
tion
and
and
to reinstate
Corporation,
Ohio,
The Serrick
of
has
employees improperly
make whole
Muncie,
certain
Indiana,
in
in which
discharged.
employer
accepted
screws,
manufactures bolts
The
automobile
has
moldings, refrigerator
complied
prin-
parts,
with
stenotype
the order. The
cipal
engaged
portions
machines.
It
issues
in
involve the
interstate
findings
commerce
has an
in
order
pay
annual
roll
which
to the
relate
held,
million
excess
one
dollars.
Its
toolroom. These
in substance,
relations
that
organizations,
with
labor
three
which we I.A.M.
received unlawful
from
assistance
designate
below,1
employer
ques-
as indicated
in organizing
are in
the toolroom
tion here.
appealed
securing designation by
bargain-
I.A.M. has
from and
it as
findings
ing agent;
and an order of
that for this and
the National
other reasons
(8
621).
appropriate
Labor Relations Board
N.L.R.B.
the toolroom was
a unit
findings
bargaining
purposes
were to the effect
collective
or other
that
§
merce” and
an
will
ment is
former
involved
some
International
Polishers.” This
and American Federation
No.
ed “A.F.L.”
spective numbers,
as
Polishers, Buffers,
liated
tion
and Production
zation,
International
be called
ed
text
“It shall be an unfair labor
2 29 U.S.C.A. §
Affiliated also with
Lodge
152(6), (7). The
employer—
Machinists,
Automobile Workers
Local
specifically designated by
be referred to
clearly
with
provide:
which
Machinists,
required.
the evidence.
No.
here, except by
Congress
will be called
“U.A.W.,”
the International
“affecting
indicates
Union.
we
Union,
Lodge
International
Lodge
158(1), (2),
call
as “Local
International
for Industrial
Tool and
Platers
through
latter define “com
No.
except
Local
“C.I.O.”
Both
No.
.A.E.L.
commerce.”
reference to the
“I.A.M.,”
Labor,
separate
35 and
America,
reference
Union,
are
Die
(3), (5),
practice
it with
as
Association
designat-
the con
affiliated
Associa-
are affi-
Helpers
Makers,
Buffers
Organi
is not
except
which
Metal
Lodge
treat-
Unit
-will
re-
covered
subject
vided in
representative
therein,
preclude
condition
hire or
labor
ing
other statute of
(a)
term
established, maintained,
agreement
courage
formation or administration of
organization
other
erce
rights
title.
[*]
“(5)
“(3) By
“(2)
“(1)
of this title.”
appropriate
action defined
organization:
support
To refuse to
To
To interfei-e
guaranteed
labor
this
if such
[*]
representatives
condition of
tenure of
section
an
dominate
discourage membership
discrimination
chapter,
or contribute
practice)
to it
of the
provisions
employment
collective
a labor
agreement
in the exercise of the
-159(a)
in
in this
with,
Provided,
or
employment
* *
United
bargain
or in
section
employment
organization
interfere
[*]
organization (not
or assisted
restrain,
of section 159
*.
his
in
chapter
when made.
require
this
* * *
States,
financial or
membership
making
collectively
That noth-
employees,
regard
[*]
any
with- the
title,
as
or
of this
in
to en-
is the
as
or
as
labor
shall
unit
pro-
any
any
any
co-
an
an
Furthermore,
Act;
consequently3
fected or
of the
effected
them.
in- case
not one in
which
at the
with I.A.M.
contract
time
hearing
Board
im-
valid.
doubtful or
I.A.M. contends that
properly constituted,
employer’s
as
arbitrarily
respects:
(1)
two
acted
aid or
ineligible
inclusion of
members.
aid
finding
I.A.M. received unlawful
may
Whatever
be the
when such de-
rule
or,
employer,
stating the matter
from the
exist,4
presump-
fects
in their
absence
otherwise,
was no substantial
there
freely
tion arises that the
established ma-
findings
to sustain
jority continues until
opportunity to make
has an
Board
respect;
holding
tool-
(2)
In its
its decision.5
appropriate
was not
room
an
unit.
discretion it
hear additional evidence
challenges
portions of
also
majority’s
as to the
continued existence.
require
the order
presumptions,
But these
when sustained
repre-
exclusively
deal
with U.A.W.
facts,
prevent
should
its refusal
to do
production employees.
sentative of
being arbitrary,
against
so from
mere
This is
done because the
refused
parte
ex
self-serving
'and
that a
assertions
prior
hold
an
election
to its decision
Any
shift has occurred.
other
rule
27, 1938,
defer
its decision
merry-go-round
Act,
make
since
pending
election,
notwithstanding it was
*5
representations
like
could
made
turn
be
on July
advised
I.A.M.
23 that ma-
a
following
each new
contending
one
the
production employees
of
the
jority
had
prevent
delay
in order to
a
unions
de-
affiliation
U.A.W.
shifted
to I.A.M.
from
contrary
interests,
cision
their
with no
hearing,
the
between
which
ended
proceed-
other result than to maintain the
15, 1937,
November
and the
of the
date
ing
suspension
in a state of indefinite
and
disposed
This
order.
contention
of
indecision. This
no more than af-
view does
briefly,
turning
principal
before
to the
is-
opportunity
ford
a
the Board
reasonable
sues.
perform
'its functions
the
It
under
Act.
deprive employees
power
does not
stipu
hearing
I. At
it
the
was
representatives
select
by choice of
lated
applications
held
of a
U.A.W.
majority.
If
changed
the
conditions have
large majority
production
of
em
the
majority
join
and a
now wish
a local
Furthermore,
ployees.
the
shows
I.A.M., they may
of
call
do so and
for an
majority
that
early
had been
as
this
created
election.6
preceding
August.
as
10th of
No
attempt
was
I.A.M. at
hear
Upon
issues,
made
II.
principal
first a
ing to show that such a shift had then preliminary
complete
then
and
a more
Nothing
occurred.
indicates
record
statement
of
of
circumstances out
place.
it
controversy
took
of
I.A.M.’s
required.
Notice
which this
arose are
subsequent change
given
claim of
was not
Corporation
organized
Serrick
under
days prior
to the
four
to its
authority
Board until
the laws of
with
to do
.Ohio
made,
decision. No effort was
pursuant
plant
in Indiana.
It has a
in De-
business
Section 10 (e),
fiance, Ohio,
29
with
160(e),
U.S.C.A.
which we are
con-
§
apply to a
acquired
court for leave
in 1936
cerned. Late
it
busi-
adduce addi
tional evidence.
Company,
In addition to
to ness Acme Machine Products
failure
of
judicial
Indiana,
remedy,
Muncie,
1937,
exhaust
January,
and in
two consid
support
Company,
Board’s
erations
of Indian-
refusal to call
Lees
John
present
an
brought
Company
election in
apolis.
It
as-
circumstances.
Lees
First,
nothing
personnel,
including
there
of its
indicate
the sets and some
practices,
employees,
managing
which the
(as
Board
both
officers
and
and
appear)
will
existed,
operated
found
we have
were Muncie. Thereafter
it
the busi-
companies
remedied until
order
after the
ness
from
two
as a
entered.
derived
Therefore, any
in majority
enterprise
shift
under
single
single
roof as
affiliation
between
hearing
decision,
employed
and
had the “Acme-Lees Division.” It
occurred, presumably
persons,
approximately
whom
must
af-
800
have been
some
3
proviso
870,
supra,
869,
158(3),
862,
denied,
See tlie
to §
cit.
F.2d
certiorari
2,
576,
1046,
9,
1938,
note
and text circa note
infra.
304 U.S.
58 S.Ct.
82 L.
4
1540;
Cf. National Labor
v.
Relations
National
Board
Ed.
Labor Relations
Metallurgical Corp., 1939,
Co.,
Fansteel
Biles-Coleman
v.
Lumber
Cir.,
U.S.
F.2d
S.Ct.
198.
83 L.Ed.
Cudahy
Packing Co., 1939,
ployees’ organization, the Acme detail, company later in failed in its Association, company sponsored, oppose use of Acme Welfare to weekly checking wages off dues from and abándoned it union greatly protest who did not too about part July. latter middle or taking part through active in its affairs At the group same time a em- executive officers. Funds were used ployees began promote or- to discuss purposes social operation and athletic ganization of that room I.A.M.' Their plant. aof cafeteria located in the At the meeting efforts resulted or- following merger, time ganizer July 28, at which a I.A.M. on unorganized, Muncie Serrick signed narrow toolmen Corporation kept Associa- Acme Welfare rapid nego- cards. succession followed predecessor tion in existence much as its management, recognition tiations with the done, by including expanding signing contract brought members Muncie covering toolroom on 11. Indianapolis. contract was antedated company began In March setting officials forth Before further essential subject facts, Association on the to address the more concrete statement of the unions, adversely latter, of “outside” appropriate. basic issues is The nature although same time importance issues, together made a collective contract with the division between the Board *6 May Buffers and Polishers. Local trial examiner8 that within court and began plant-wide them, intensive require regarding a more detail- also campaign employees, except enroll all than ed examination of the evidence ordi- supervisory clerical ones buffers narily necessary. and and is polishers, ineligible and all of whom were III. Two basic issues are involved. membership. employer immediately The Wagner closed-shop Under Act a con the converted Acme Welfare into an active only tract is valid it is if made with a union to hold in line organization “not (1) labor lished, maintained, which is estab keep and them out of U.A.W. The com- by any or assisted” un pany’s opposition was and strenuous de- practice; repre (2) fair labor the is During early termined. July June appro sentative of the persistent numerous and prac- unfair labor agreement priate unit covered the when perpetrated; Nevertheless, were tices U. Appropriateness made.9 unit and the campaign gained in A.W.’s effectiveness union essential freedom the are and in during June, July, August, Sep- and even in dependent conditions. tember. acquired On 10 it had power eligible employees appro clear all The to determine priateness of the is demanded exclusive unit vested the rights' for them, Board, employees, including the not toolroom. the trial On petition 16 U.A.W. filed Board a examiner or the courts.10 The Board de employer for certification under Sec. termines also whether has 9(c) of the Act, representative produc- exclusive unlawful aid comfort given presented tion workers.7 The climax are came in union. Both issues here. charged October aminer heard other obligatory On October swered against October 5 the Board [7] The to include toolroom things, denying petition 18 November 15 the trial ex employees. discharge under the 14 I.A.M. corporation production evidence, and in was amended it charges, of the toolmen was issued intervened. From workers charging, employees. corporation improperly September February, complaint contract. alleging among dis an On Board examiner pra, posite stantially complete able to I.A.M.’s tions to the see note See the His 29 U.S.C.A. § note 2. respect made was unanimous view. As to findings infra. proviso Ms Board. findings the toolroom were favor- and recommendations 159(b). agreement. contentions, Board As to other § taking were matters, recommenda- (3), cit. nature, sub- op- su gave They partially not co- overlap unlawful its but are aid to I.A.M. and show incapacitates a that appro- terminous. Unlawful aid labor decision concerning the statutory repre- priate unit arbitrary. union to act as not appro- sentative. It is relevant also question, V. As first we unit, so priateness perhaps far of the required determine, preliminarily, are force, cer- it vitiates tile of its unit own what should taken into ac be tainly does the extent support count. To organ view that arbitrarily considering not act it in ization of the toolroom for I.A.M. was an determining- appropri- whether tile unit is entirely spontaneous free and movement ate. But aid absence of such not does toolmcn, by any uot aided unfair appropriate itself render a unit or a de- practice, labor argued it is that what oc so, cision of the Board that is curred in the toolroom between arbitrary. Independently any finding August 6, con concerning practices, the sented to the closed-shop provision, was empowered Board is unit determine the wholly separate and disconnected from appropriate which is circumstances remainder long plant-wide of the case. controversy; place that what took else before, where in the during and ques IV. In the decision of period after this bearing up brief has fact, no tions findings Board’s are on negotiations upon conclusive, I.A.M. or supported by made evid agreement ence,11 man which must be substantial.12 But agement. petitioner As argu states convincing, lawyers’ evi ment, “the record clear that there required. dence which not in The Board is kind, no activities of coer limited prevailing to rules of evidence otherwise, operating any way cive equity.13 courts lawof The evidence to assist the International must Association of might as a reasonable mind in acquiring accept, membership prior Machinists though other might like minds 28th July. Since at that statutory do so. time dispensing mandate the I.A.M. had obtained an uncoerced judicial with binds ma procedure technicalities jority, any subsequent activities on reviewing court to ex the same part are tent as it either irrelevant does the Board. The review is permissive or are under Act.” In of tion ef action administrative taken direc *7 fect we are asked to confine our own Congress and according of to administra the Board’s consideration tive, not judicial, procedure. the evidence review The to occurrences in the toolroom during a ing reweigh court cannot the evidence in nine-day interval. We are scales which unable a trial court would use separate artificially so events from their deciding whether to admit it. We are re 14 background consequences, and quired and from to sustain findings, Board’s general contemporaneous minds, current unhampered by precon reasonable ceptions which integral parts. were To do derived from the technical law only so would significant ignore be not evidence, the most might differ as to conclusions record, evidence in the presented. be drawn from the evidence go also plain counter to the mandate Nor can we from exclude consideration of the statute. on review which evidence to take into entitled account. We think episode VI. The toolroom merely clearly the tain evidence sufficient to phase sus one plant-wide of a controversy finding Board’s May lasting from to October. The tool- 11 Id., 160(e). 261, § 571, 303 U.S. 58 S.Ct. 82 L.Ed. 12 831, Consolidated Edison Co. 307; v. National Wheeling 115 A.L.R. Steel Board, 1938, Corp., Relations 1936, Labor 305 U.S. 709, 699, N.L.R.B. en 197, 229, 230, 206, forced, S.Ct. Cir., L.Ed. 126. 1021; 94 F.2d 160(b); 29 U.S.C.A. § Consolidated National Labor Relations Board v. Na Bearing Edison Co. v. National Labor Relations tional Co., Cir., Motor supra Board, 652; cit. note 12. 105 F.2d Hamilton-Brown Shoe consistently Board, The and with Board, Co. v. National Labor Relations judicial approval, Cir., has considered “back- 104 F.2d 52. Subse practice ground” quent similarly in unfair cas- occurrences have been particularly es, when, here, it disclos- taken into account. National Labor Re prior employ- Bearing es a hostile attitude lations Board National v. Motor Pennsylvania Greyhound Inc., Lines, supra. Co., er. 1, 23, affirmed, 1938, 1 N.L.R.B. merger, At the Serrick Cor- productive time closely geared room was poration inherited from Acme Machine and function, physical location work in Company (Muncie) Products and job, described Its associations. human John only Company keep (Indianapolis) Lees production,” was to beginning “the will, plant, equipment good and but also working order. machinery in plant’s managing employees, and as well space officers rectangular in a It was located employees’ as the then “social” innócuous single large room the center organization, Among ex- Acme Welfare. entire housed shape which similar Murphy, president ecutives were and vice remain- plant set off from and was general Westlund, manager, works man- work- Toolroom a wire fence. der Wise, ager, supervisor, who came tool pro- constantly among came ers went and Lewis, per- Company, from Lees and the The toolroom workers. duction John president (also sonnel of Acme director ad- physically department production were Welfare), who came from Acme Com- func- intimately jacent, associated pany. Significantly, among Lees affected interdependent. What tionally John long Company employees inherited a'fter repercussions immediate one had Murphy, with service Westlund and Wise operations or other, in mechanical whether McCoy, Indianapolis, toolroom were interdependency Such human relations. Shock, foreman, Byroad, Fouts, Bak- mere- outweighed disregarded cannot be er, Dininger, (except Bolander and who toolmen, ly of the fact reason open McCoy) organizers became the chief whole,15 highly skilled more were Sharpe, the toolroom tool- for I.A.M. All production workers. paid than room committeeman for Acme Welfare plant parcel same part and (until July joined U.A.W.), when he came long-continued process, and Lewis, boyhood with his schoolmate enveloped whole. labor conflict friend, from Acme Com- Products Machine be- toolroom In these circumstances the upon alleged inde- pany. bearing As labor contro- “key point” in the came pendence freedom of the toolroom employer’s compliant versy. If with domination, pressure and opportunity desires, gave I.A.M., up lining interference with general cam- possibly defeat resist and the relations between these executives undesired scrutiny. paign organize employees require The most close evidence, open organizers summarized I.A.M. were active “invaders.” Bolander, Shock, Fouts, Byroad findings, in its shows the Board assisting. first Dininger Baker and other opportunity when employer seized the also, Sharpe, together were ac- four employer’s close had failed. The means Welfare, union, Acme tive with the connection contemporaneous- up” almost until it “blew strenuous and (1) its is shown ly entry All four had of I.A.M. May campaign from to Oc- unrelenting Mc- Murphy, worked with Westlund every part *8 keep U.A.W. out of tober16 to periods extending Coy, three of them for employees’ regardless plant, its years, Bolander for from ten to fourteen kind every known by almost and wishes years. these facts least four With at physical practice short of unfair summary main course of a of the mind force; given to (2) affirmative assistance question the light on will throw events manage- directly openly and I.A.M. independent- freely and whether acted repre- subtly through its ment and more employer. ly minions or as effort in the toolroom. Without sentatives stated, merger, as has been After against distinguish “misfeasance” U.A. unorganized, except plant continued I.A.M., positive a chron- W. aid before, continued as Acme Welfare events, summary, principal ological role, maintaining per- his dual Lewis upon showing emphasis the true facts with president. In director and sonnel Acme employee organizers active relation of the and Poole February March Lewis I.A.M., or manage- Lodge No. through Acme predecessor) (Westlund’s the existence of ment, show not will warned and practices, but also their connec- Welfare otherwise unions, at same but “outside” against toolroom relevance to with and tion collective bar- company made the organization. time the indicated, produc all dates otherwise record shows that some Unless The wages equal in 1937. were received referred to tion generally paid in the toolroom. those toolroom, organizing No. successful Local agreement with gaining affiliate, ap- company Polishers, sign collective bar- refused a A.F.L. Buffers and Acme, because, ac- objection gaining resistance.17 contract with parently without Lewis, actively organize cording to tendered with the began May U.A.W. suddenly argument a “offensive” responded with company plant. The keep violent, keep would campaign to C.I.O. out. vigorous, almost life, under Lewis’ came to it out. Acme Contemporaneously “fade-out”' union, company vivifying power, as part during Acme the latter Welfare Executives, avowedly to resist in, July, efforts through faded Murphy Stillwagon, including Byroad, Fouts, Shock, etc., in the tool- Lewis, inter- superintendent, as well as success, Following room. Production vened, meetings of Acme Wel- publicly at Lodge 1200, I.A.M., No. the lists entered employees into privately, urging fare early in August to contest with U.A.W. dis- threatening and warning, Acme and representation production employees. for leading joining charging them for Fouts, Shock, Baker, Byroad aided dis- were officials U.A.W. Five U.A.W. Dininger, actively organized Bolander and union late charged one week June Lodge the toolroom and I.A.M. No. Board, on evi- activity, sufficient as the company property, soliciting on time and his then dence, has found. Lewis had vote,19 taking strange making straw up Sharpe, efforts to line protégé, redouble McDonald, organizer, contact with A.F.L. op- company’s for Acme. toolmen negotiations conducting concluding plant and all position covered the entire for the management polishers. Its employees except Byroad’s reported per buffers cent contract. campaign survey in- anti-C.I.O. continued with I.A.M. on the straw July, August vigor June, signers eligi- of 63 creasing during turned out to be 34 out plant, September, throughout meeting ble when the the toolroom from July thirty-four became less obvious in held 28. The included July organizers. 6. active Shock, alleged majority, Fouts, With this Sensing Acme Welfare the failure of Byroad Bolander, accompanied by Mc- purpose, July accomplish its about McDonald, Coy Keil, and one as well as reorganize decided to it. opened Sharpe negotiations with Westlund and Shortly Lewis asked before new sign up Murphy proposed toolroom for a associa- con- tion, saying, going reorganize provisions “We are tract contained for a 40-hour organization.” week, Fouts knew of (not specified wages finally in detail did, reorganization Sharpe intended before August 11), shop. until and a closed De- he, Byroad, and spite Murphy’s frequently expressed Shock time hostil- at beginning others to talk I.A.M. It ity toward “outside” unions and his con- Byroad, Fouts did not materialize. sistent refusal before after this time began discussing recognize Shock A.F.L. affiliate as bar- a C.I.O. July. Shock, At gaining agency, supported by about middle Mc- resigned time Lewis as Acme Coy, single the same “convinced” him in a confer- president com- lasting Westlund’s for an a half two Welfare’s ence hour and mand, company having accept shop discovered he should closed hours that finally wage provisions. union. From He that it was a and blank asked for week, faded out 44-hour was assured then on Acme Welfare there *9 that, At about and organization.18 be little trouble reserved picture as a labor Serrick, becoming right to submit the contract to July, just I.A.M. end of as was 19 Byroad allegedly this, go- agreement conducted involved This was not ing man, asking prefer- being questioned proceeding, from man to his in this C.I.O., parties. ence between and A.F.L. record- none ing by tally 18 Except “votes” mark on his for tender the collective n paper. bargaining July, In sheet of view last of tlio final contract-the alignment, it is to its former status unbelievable association reverted 80% organ- preference purely indicated the toolroom men for of a “social” and “welfare” Byroad incorporat- A.F.L., through September as broadcast it was ization. ed, many taking corporation room, unless of them did its assets so with over suspicion knowledge or of his relation charter and functions from which the to management specifically activity and fear a labor of the conse- excluded quences of other answer. union. Davis, company’s president, representative, and local regarding York. in New the discharge toolmen, pro- August approved On' the con- of U.A.W. a Serrick posed tract, agreement compensation except 44-hour insisting for for to them on a week, upon by Murphy. practically for their without no- its first dismissal submission tice, recognition and telegraphed latter to West- of U.A.W. as bar- The lund, passed news gaining He agency production for communicated Shock. workers. who to again on the results meeting an I.A.M. of the conference were on at to ac- August At another on evening August which voted inconclusive. morning Murphy cept reported the 44-hour week. next is said to have that Ser- “gave On rick of the vote. him for agreeing Westlund was notified August hell” to proposed compensation charter discharged 9 I.A.M. issued for tool- a men, recognize and the toolroom local. also Serrick representative U.A.W. only as for its mem- - or- had continued Meanwhile U.A.W. bers. naught. conference came to This also major- large secured a ganization and had August Between and 20 a field ex- production August ity of the workers. On attempted aminer bring for the Board Collins, organizer, 10, Clark, U.A.W. and about a settlement and secured consent Westlund, employee, conferred with of U.A.W. I.A.M. to an election and Stillwagon, demanding recog- Lewis and nition for U.A.W. production among Murphy workers. re- agency bargaining separate agree, demanding fused to elec- toolroom, including plant for the tions for what he called Lees polishers. John and Westlund excluding buffers (cid:127) “division” W. the Acme U.A. “division.” he noti- says following conference this, agreed but I.A.M. declined. by telephone. Signifi- Murphy of it fied Obviously, Murphy following here otherwise, closed-shop cantly the I.A.M. policy conquer,” of “divide as he had signed on contract for the done in amending the toolroom and August antedated August 11 and polishers’ August on buffers’ contract notified, employees were Toolroom attempts failing, 14. All at settlement 20, perhaps than who August more August U.A.W. called a strike on 25. The I.A.M., join discharged.. were refused plant was two weeks. The cor- closed for joined others then A few or later poration recog- refusal maintained its jobs or reinstate- preserve their secure questioned Murphy nize U.A.W. ma- its company 14 the amend- August On ment. jority, members, list of its demanded a ed with A.F.L. Local No. its contract give him, U.A.W. declined Polishers, provide Buffers closed rejected counterproposal compari- its shop. membership cards the com- son pany’s payroll by regional director of precipitate In contrast with the may be This conduct contrast- Board. nego these execution of are contracts his, and Westlund’s un- ed with Serrick’s August with U.A.W.20 tiations On acceptance of questioning McDonald’s representatives put U.A.W. off with proof furnish that he would statement inconclusive answers ar indefinite toolroom, I.A.M.’s their subsequent for a rangements conference. closed-shop provi- acceptance signing after On contracts with so. sion before he did two A.F.L. within affiliates previous days, Murphy On the four distributed sued injunction against phrased pick- for an among violently all the state court attacking U.A.W., judge trial secured truce and eting. The ci rcular21 C.I.O. and reopened September specific the sequent 7. Sub- without mention of their names. high” “run between Feeling began to and threats conferences U.A.W. inability appeared. Apparently naught at the executives came of a strike Fox, agree wage State rates continued refusal Labor Medi instance ator, Murphy recognize and Westlund conferred on of the U.A.W. as agency. Clark, president, exclusive August 17 tiating sidered tions ence Brown unions That or Board, is Shoe assistance, evidentiary *10 comparison contracting National Labor v. Co. 1939, 8 other acts, at in Cir., of showing least with speed see 104 F.2d when con contending Hamilton- in interfer Rela nego 53; National Motor tional Labor Relations Cir., Cir., See note National 105 F.2d F.2d 87. 24, Labor Relations 652; infra. Bearing Co., Swift & Co. Board, Board v. 1939, 1939, v. Na was almost July unanimous for In The final conclusive Acme. he under asked company’s purpose Armstrong to circulate an adamant Mona of paper among is Acme recognize production solicitation circumstances to U.A.W. no pro “If August her, this by you in it in workers. In he told found answer filed * * got papers *, had signed that C.I. charged Portions those ceeding. of it you a na- working.” in would U.A.W.) engaged be still He warned (and Kitchen, plants employee, Mrs. conspiracy seize cafeteria illegal tion-wide button, wear including her parts country, saying C.I.O. in various Murphy it, “they col- or Westlund should plant, guise of see Muncie under the * * * Properly just would feel it activity.22 bad about lective waving flag like red in front in- a of a bull.” purpose preventing stricken Benn, them, discharged He told Levi from the testimony troduction sustain August 13, “Benn, sorry toolroom on record I am they stripped be cannot from the happened. pur- When this thing was first company’s admissions of the fixed as pose. started it for a change bluff only by That a and the fel- was altered lows called the bluff and we had management go after on which occurred and do it.”23 He advised hearing Witmer herein. Sharpe join I.A.M., July in order to recital events principal This mere organization” “have one the toolroom. sufficiently employer’s deter- discloses Sharpe His having join- statement to about purpose, relaxed, have never mined ed A.F.L. there is money “because more use nothing do with U.A.W. it,” may jocular, been have in view of keep out of the tool- 1.A.M. to previous all these facts and their hut then replete plant. room and the The record relations, Sharpe altered understood Lewis’ by with evidence of other acts executives meaning. intended view. and foremen sustain this In Murphy’s activities, addition to stated warned, cajoled Lewis and threatened above, Sharpe’s undenied statement that “out- against C.I.O. “invasion” and July Shock told him that he had known meetings at side” unions Acme Welfare Murphy boyhood, Murphy from and that early he and otherwise. recognize said lie would not June a C.I.O. meeting of Acme commit- told a Welfare union and plant would close the rather teemen, “Boys, don’t C.I.O. we want U.A.W.; than (Murphy) deal with that he plant. things I in this know of a lot vacation, get hadn’t had a on his going plant, that * * on out and yacht fishing trip. nice take a This is * got couple spotters I up have a Murphy’s by confirmed statement to Clark every meeting to the C.I.O. hall between 11 and “Let them To the have.” association he it get system said that strike and out of * * * “merely coming just up C.I.O. a union into call me and I will close plant management. plant our to take over get settled,” down until we nothing We don’t want like in here. similar followed statement to the gets your privileges If it in to this police. all chief of most conclusive evi- away you.” taken will be anAt as- of his is found in dence attitude the circu- party” women, put “beer signed sociation he lar which he distributed all guests his taking days feminine record four rising “preference” one, respectively, vote between signing after Welfare, and Acme har- agreements C.I.O. after with I.A.M. and the buffers’ against anguing polishers’ them The result C.I.O. union.24 been dissatisfaction outsiders. feeling * * ment *** and continued: “We The circular Of. note Of. note spirit brought * * * frankly of dissatisfaction loss of business to the Should * * ® * employees’ “high cooperation” continuance about will believe this we be confronted infra. infra. deprecated It result -must the activities inevitably change be moral “a company. displace- unrest,” obvious general * * [sic] has promised be strangers creases * * * stop operations. advantage You entirely, * * operating * * * necessity fooled * operations We the assets continue have come to definitely wages would bo sincerely hope you secure It loss, these making is our unprofitable * * * * and other assured we ceasing operations promises. ** definitely you * * * you choice between understanding rather certain in- * * * and have will not benefits. will not salvage *' * * than *11 io apparently agreed, Westlund, close-mouth- Serrick instantane apparently, was I.A.M.; shop re ously, closed for Wise, By- ed, Murphy, but he came with proved Murphy strong for con in terms road, Fouts, Shock, Lees etc., from John senting monetary a with settlement Company, negotiations and part took in the toolmen, finally discharged though he U.A.W.; sup- conferences with I.A.M. agreed pressure two payment under unreservedly; ported Murphy angrily re- wages, which, however, weeks’ never Sharpe “ringing
proved Keil for made; recognize at all refused times to out” to with discuss C.I.O. except own bargain for U.A.W. him, and it after- continuing for to discuss Alli members. line with these facts company Clark, property ward on with Shimer, by night testimony, denied son’s “By -, saying, up- let them meet superintendent, the latter’s statement At his town.” with recognize conference U.A.W. on 26 that Serrick would organization, C.I.O. representatives but not a on A.F.L. August his steno- one.25 operator type present to take down said, precaution what was equally in taken record contains abundant any conference of executives ob assistance to I.A.M. During a Sep- by in conference at his home to U.A.W. minor struction foremen and officials, tember he supervisory said he “did not think who at reflected they signed purpose once management. a contract would abide titudes and it,” expressed preference great A few instances are summarized in the McDonald’s Clark’s. margin.26 attitude over time, any (production), Allred, at this or in future ment said who time any you agreement, discharged August 25, enter into or written on “If irresponsible verbal, organizations, enough d- fellows leave had sense place badges off, or associations. in our There is no those I. [O. O.] picture groups only you.” Earl whose method of would not so hard be securing production Gregory, foreman, desired Mar- results is the use of asked lawlessness, jorie property rights, August violation of Stoker about be- if she any any longed kind, yet, or violence of operate we will that union and said unions, plant, if two “A. condi- F. L. best.” these ” * * * prevail. inspector Lynch, tions and assistant foreman stenotype department, Reference will one John told made superintend join general Hefley, get Stillwagon, act of “If we A. F. L. we Mary place.” production King, Griffin, ent. He told of her some Edward in view sign punch refusal card for Acme Wel foreman the third shift press any organization department, you Collins, fare: “There wasn’t told L. “If get join you going such as the C.I.O. to tell will A. F. L. ten them can shop, they run how to cents more on wards, knew how to the hour.” Ed- Marvin it, they any help; Greg- run didn’t who acted need as foreman for * * * just ory away, gen- engaged it was stubbornness when he was sign go home, L., we would either or for A. eral solicitation F. and said to you sign, Gordon, up sign we went home refused to Jacob “If don’t up L., would have to man take it F. A. there liable to be a strike agement you O., as to whether we would here the C. I. liable are .not work.” three lose four weeks’ work.” Night Superintendent night Truax, Shimer’s state assistant foreman in shop production department, ment that “the like foremen don’t the C. bolt accompanied by 0.,” antagonistic I. assertion that made remarks to C. I. O. be- “going lay-off” quite ginning May, 1937, there was to be solicited for Acmé go first, July, and that the C. I. O. would made as late as the Welfare last of July 26, days September two I. before A. M.’s F. L. A. even after organization meeting, according testimony was borne strike of sev- witnesses, deny, out facts. eral and did not Leet, production foreman, charged by Joseph Warren Conner, told so he Armstrong Mona about 18 to directed had been so- badge join take off her C. I. O. for A. F. L. licit Lewis testified Wright, A. F. L. characterized Truax had the title of assistant foreman supervisory cafeteria, “boss” Bessie Price told functions. and Mrs. Kitchen to take off C. I. witnesses Three testified con- without buttons, discharged immediately O. and later both for tradiction prior Fouts, C. I. O. affiliation and Ped- activities. the strike as- Theodore low, handforming depart- handforming foreman in the foreman sistant de- *12 long they got as enough in to beat them company with of the The connection out, out,” unworthy help we could is not all for I.A.M. toolroom of the of belief.27 of the clearly by the relations shown most organizers, principal management principal organizer Shock was a Baker, Dininger Shock, Fouts, Byroad, president. I.A.M. He and became its Bolander, ac- and the nature Company in worked for Lees In- John in tivities its behalf. dianapolis years going for fourteen before Fouts, Sharpe, According to Muncie. he ad- frequently “assist- described as I Murphy depart- having mitted known “since charge ant of the roll foreman” in Westlund, was kid —from what he told me he abso- ment, Murphy, worked under lutely etc., would C.I.O.” Company recognize Lees for twelve John acknowledged acquaintance Westlund close years. repeatedly for Acme He solicited than ten dating with Shock back more Welfare, suddenly then to active shifted for years they together worked Sharpe A.F.L. re- solicitation for Before Company. solicited for Lees Shock also as committeeman signed John for he turned Welfare, knowledge of Acme Welfare before Fouts had Acme during the plan He Bunch reorganizing He re- told Robert Lewis’ it. part July, “Murphy made ported how latter that he “didn’t see Lewis would that before the C.I.O. Associa- statement the hell can sell the Welfare we there, they shut come in would down in the toolroom when tion plant.” saying at the confer- himself didn’t He denied believe the committeeman Murphy August (when join on soliciting In Levi Benn to ence in it.” shop) that asked, Benn, Murphy “if to the closed A.F.L., according to consented he that my “after job if I far he was concerned think it would be so as I didn’t why tear settled, they could these facts join.” light trouble was didn’t him, contract,” Murphy confirmed up Fouts told that statement Stevenson’s Keil, present was who Acme Welfare his denial. But soliciting in him first for invitation, Murphy’s testified I.A.M., apparently wanted him at that he later for statement, C.I.O.,” “just directly order to beat the that Shock made join in testimony other witnesses go in and didn’t want of three “if I would and the and that right, just support Keil’s assertion.28 strong as stay, gives all what lander] place F. L. John Lees member late July, told “the old A. F. L. at signing up O. pear clearly brothers in wage licited each tion, partment of A. M. common cause. board act as strikebreakers speak during offering ers McCoy, I. doesn’t least Stevenson testified Cf. open A. F. Sliarpe during “If the C. I. O. representatives, increases will well, and other emoluments to on behalf note is not allowed to hire or any, them additional twelve foreman of the solicitation in (production), say anything.” are Bolander go L. members Company in blood, anticipated to Walter from the record. join man, twenty-four going them infra. June, years, of the hell,” toolroom, A. they doing repeatedly, complained F. L. gets “because an Acme Welfare come and tell me solicited them to do, aided and assumed to toolroom, permitted employee Fonts, Indianapolis strike. pay management so. His early part hut the C. I. hours does not immediately shop as well as Sharpe here, organizer promised he because He so- If remain active fire,” rela- [Bo- oth- day ap- an A. in I. veloped All this ified the the text ion on statement, ollection of who discharged the statement was made.” contract ment no, they asked I could man, C. 1. representatives ed contract had not asserted was over F. L. would beat strong after told They A. too.” Stevenson there,” direct belonged originally him for a O. out of to Benn M., testified that on the conference said if Westlund as into plant, supports denial drop up, Maynard, gotten supra, with, they that Acme Welfare “later de- (cid:127) Muff” confirms the hearing examination, just I. they August 13, it as soon as “the C. 1. O. was not they A. M.” I would in thought. by saying on Westlund as note whether the statement of cross-examination presenting wouldn’t need Maynard. Westlund, they TJ. A. W. committee- them plant, kept contract C. I. O. mentioned. could on many to U. A. September and later * get he had easily. replied, “Well, denied Keil’s the I. A. just that “it was Lewis’ state- * * going words, in that “after quoted testimony them tear W., no rec- * * * got no The A. propos- * * * trouble joined Benn, Fouts to do qual- un- hut out M. he as *13 Again, forcibly conflict in evidence was mind Lewis’ assertion that he had for couple spotters Board to resolve. “a up every at C.I.O. at meeting.” Whether the statement was Byroad history has a more interest- even made Byroad’s July before or after ar- He, ing than those Fouts and Shock. "rival, part his was with consistent too, in Company worked for Lees John function management’s and with evi- Westlund, Indianapolis, McCoy, while and willingness performed. dent to have Wise, supervisor, tool were connected From per- the evidence the inference McCoy and far company, with the with as missible for brought that he was in both employed back 1916. was as Whether he purposes espionage upon and to C.I.O. Company continuously by the Lees John organize the He for I.A.M. year was removed until just came when Acme was break- Welfare rate, appear. to not At Muncie does ing through down. motions He went early he there as employed was as lining up with it and to solicited others February to and first went Muncie on shifted, nominally, do to so. Then he week, leav- only He remained one C.I.O. him- suddenly shunted he Just July. early ing returning in and not until self to All I.A.M. occurred within this Immediately coming signed . he on back three weeks. He steadfast to remained card, Acme then first an Welfare a C.I.O. the last He in shift. leader or- but, card, quote words, “gave his own ganizing for I.A.M. and became com- money.” According to no them [C.I.O.] complete given mitteeman. He was almost Keil, Byroad for C.I.O. also solicited carry freedom to on activi- organizing his there, he, in for came but “when he first Mc- property. ties on time and other, dropped reason or the C.I.O. some Coy’s single reproof and none harsh too organizer sort of for and became a lightly came and late ears. When to his days few affiliate.” Within a after A.F.L. completed employ- the task left he C.I.O., up discussed lining with he apparent ment without intention of return- Baker, Shock, Fouts and with situation ing negotiations and after which resulted became, possible exception of and job in tender of another his home at old Shock, vigorous active solici- the most only Indianapolis. He after back came spending 75 to A.F.L., as much as tor for hearing begun and at Baker’s had this, according at of his time per cent solicitation. All consistent only He testimony. not to some of the exercising rights his of a free with continuously extensively solicited independent other On the laborer. toolroom, in the but company time hand, the inference is not unreasonable where he work- the bench dues at collected arbitrary that his activities behalf employees, in- some He threatened ed. company’s activities and I.A.M. were jobs if Keil, loss of cluding practices.' constituted unfair labor A.F.L., up with cursed sign not they did - (Levi Benn),and doing só others concerning Little further need be said what knows [McCoy] Sharpe: “Mac told Bolander, Dininger Baker. Bolander doing. Mac an old A.F.L. man I am shift, as foremán the third acted A.F.L., in the get He us wants himself. McCoy at when was absent. night, worked anything to us to have want don’t he years for worked for four likewise He. He the so-called took with the C.I.O.” do Company going Mun- Lees before John reported the about vote straw He, Welfare, too, joined at Acme cie. for I.A.M. per preference cent alleged Sharpe McCoy’s solicited instance testimony con- on cross-examination His McCoy’s (Bolan- him. statement he reported between contrast cerning the right now der) sign “will because he majority of 34 which percentage and fire,” hire and Mc- allowed shows least, say was, actually materialized Coy’s recognition of status as Bolander’s conferring with After embarrassing. McCoy’s night shift foreman Baker, “delegat-. he was Shock, Fouts and absence, McCoy though also shows that so. did organizer A.F.L. an find ed” to disqualify Bolan- consider this did not membership. permitted He peculiar relations der for Wheel- Byroad’s pass A.F.L. out of his to solicit and blanks circumstances var- er. the management, Dininger departures, na- foreman’s desk. also acted and the arrivals ious toolroom, question foreman ac- night raise activities his ture of power McCoy’s statement had employee cording fide bona he was whether meh, apparently “lay though representative off” employer’s actually an' employee. They discharge He not ac- call them. guise ing McCoy, in organizing soliciting tive and he Bolander dis- purported manage- charged speak night but ment duties of foreman rating promising good McCoy day shifts. Shock shift, acted for Fouts, join the A.F.L. when he Bolan- was absent. der and Dininger authority to make summary, Byroad, Shock, Fouts management recommendations to the con- *14 and Bolander themselves combined in the cerning quality performance of work capacities (1) employ old and trusted by men working McCoy under them.30 Murphy, Westlund, ees under Wise and little, any, power. himself had further McCoy Company in Indian Lees John According evidence, “hiring all ; apolis (2) soliciting agents active and and firing” primarily was the function promoters gave of Acme Welfare until Lewis, rarely superiors. more of his A up ghost; organizers (3) principal of suggestion employment for discharge by or I.A.M.; (4), toolroom for as foremen closely and subforemen so con- shown, except will be Byroad, for minor nected management potent, is as supervisory company. officials of Ac practically, power as to “hire and fire.” disappeared me Welfare the scene as A required VII. further word is con- a “labor” was organization just as I.A.M. cerning antedating of the contract efforts, though entering through their Throughout negotiations a written contract management conflict of the with U.A.W. contemplated. was The wages schedule of rising continued with bitterness. Contem finally was August not settled until 11. I. poraneously change with this the former prior August A.M. had no charter 8 or took from Lew Lees over executives John is, 9, hence could make no official contract un- Corpo Products who came from Acme til that August time. The vote taken 6 to ration, important direction of accept Serrick’s condition of the 44-hour policies negotiations. With Lewis’ week was not communicated com- friend, eclipse, Sharpe, boyhood sick his pany August until day, Byroad 7. On that his and refused to ened of servile role acquiescence with Westlund’s announced authority. for the new But in it continue company sign closed-shop that the Byroad, Shock, Bolander Fouts and for Murphy contract when returned. The con- required. loyalties no transfer of was specifically provides tract it shall be company was union. It Acme Welfare a that effective from the time of execution. Yet necessarily leading pro its follows signed August it was when on it was representatives. were moters Men accustomed to such antedated is contended It submission sel agreement that this was done because the independence overnight. The regain dom really However, day. was made on that one, interval, required was if there recognition U.A.W.’s demand was made Fouts, by Byroad, allegiance transfer equally 10. The inference is Bolander from Acme Welfare Shock and permissible that the motive was to circum- company to I.A.M. was too brief and the demand, despite vent this denials Mur- loyalty. disruption of the old and basic Westlund, phy negotiated who supports the conclusion that The evidence unions. both continued, disrupted, though not it was obvious but more effec manifested in less practice antedating The con they did, therefore, is All that tive form. legitimate or tracts otherwise ac company. imputable their Without varying cording to circumstances. What I.A.M., nominal, majority for efforts’ no parties, between rights ever its effect otherwise, would have been cre or assisted parties third of versely, particularly should be affected ad prior other time or at ated they when involve in them, majority August 11. With was important so terests and controversial as freely independently created. shop. and the collective closed stamp approval practice management judicial To relations to also Their they questionable view that would invite evasion of had so give substance to actual, though protections. officiallynominal, super- ques intended statute’s regarded important Fouts in relation to visory capacity.29 tion assistance employer during Dinitig- foreman. as assistant rendered inter workers men, antedating. prac- authority “lay off” accord- covered val er had See note told Lewis Collins assistant infra. foremen who acted the absence of foremen “recommend to hire and fire.” áá discharges entirely tice Either legalize retroactively the toolroom unaffected cannot it, controversy raged about given and other aid no con- all at a time when that con actually very tract employer or it flict; center of or not an exists. Whether having were legally either can assist a union intimidation, contract, pressure free from given his aid openly constantly applied by none the chief exists is a contract unlawful. Such consequences throughout 'executive involves for minorities far officers elsewhere plant, they as were all more serious than for collective bar- victims one others; Shock, Byroad, Fouts, et al.
gaining. These
make the
either
considerations
suddenly
practice
independence
antedating inappropriate
recovered
aft
serving
proper
management
stat- er
far
fair and
administration
union,
their sub
could in
ute.
they turned to
*15
servience continued when
therefore,
view,
the con
In our
Only by
all
occurred
ignoring
I.A.M.
that
prior August 11.
to
did
take effect
tract
not
except
May
from
to October
given
be
It follows that assistance
place
took
in the toolroom between
what
July
August 6 was unlawful.
tween
date and
that
of in
August
28
the one set
6 is
company’s acquiescence, gener
a
theWith
possible,
only question
then
ferences
al,
informal,
though
announcement
ably
judicial
of
vision
so. Such limitation
the
(by Byroad)
made
7 that
revealing and
eliminate the most
would
such
contract when
sign
a
,in
It
convincing evidence
the record.
put
Murphy
This
the
returned.
merely
employer
to
permissible for
an
It constituted
openly
the side of I.A.M.
unions
express
preference
between two
job
every
of
non-member
a threat to the
of
position as
contending freely for
otherwise
full
Byroad
toolroom.
took
I.A.M.
advantage
the
representative, although this has
vigorous
the
solici
of
threat
and the
dangers and limitations
obvious
August 6
tation between
he
But
authority
so held.31
final
has not
keep
helped to
the
doubt the threat
Without
hand, openly
go
lend a
further and
cannot
line,
to increase
tenuous
not
covertly,
The
one
the contestants.
or
of
U.A.W.,
man
In its zeal be rid of
the
it.
agement
off”
far
policy
Act is “hands
so
basic
Permitting
itself.
overreached
statute,
we think
concerned.
as he is
prohibited
premature
gave
announcement
particular
purposely, does not define
The conse
and comfort to I.A.M.
aid
employer
by
agents
or
which the
methods
cannot be overcome
quences
its haste
of
unlawfully.
it done
Had
may intermeddle
employed.
artifice
easy
opened
so,
escape would have been
Nothing
provisions.
it
the Act’s
think
VIII. We
therefore that
be limited
representation
fully
requires that such
of
findings
sustains the
particular
having any
kind or
employer unlawfully
officials
Board that the
as
“hiring
authority,
as
of
such
degree
organize the toolroom and
I.A.M. to
sisted
“disciplinary power” or even “su
firing,”
closed-shop contract. The evi
secure
of
capacity.”
pervisory
These evidences
possible
open to two
inferences.
dence is
recognition
emphasized
be said
cannot
in Con
tions seek
that
31 It
is to be
practice for the em-
to be an unfair
Labor
labor
v. National
Edison Co.
solidated
merely
express preference
Board,
197,
ployer
1938,
of
Relations
U.S.
Supreme
126,
other,
206,
one
over the
rea-
L.Ed.
S.Ct.
policies,
merely
purposes
assumed,
of
former’s announced
for'
son of the
Court
any.
refuting
argument
attempts
discussing
of
in the absence of
at
in-
an
coercion,
counsel,
an unfair
timidation
or
think
it would not be
we
that
that
employer merely
practice
for
there was still substantial
evidence that
labor
attempts'
preference
express
made in
case.”
between two inde
such
were
seeking
employees performing
supervi
organizations
pendent
rec
labor
That
sory
having
power
duties,
language
ognition.
court
but
no
fire,” represent
page
page
“hire and
(305
at
at
S.Ct.
U.S.
they engage
referring
in conduct
amount
126),
a state
83 L.Ed.
ing
practices
established
is
executive of the com
made
ment
-
meeting
Corp.,
pany
Zenite Metal
5 N.L.R.B.
that
at
any
516, 518, enforced,
absolutely
509, 515,
join
(cid:127)they
National
la
free to
v. Zenite
Labor Relations Board
Metal
organization, was:
bor
Corp.,
Cir.,
assuming,
102 F.2d
“Despite this statement
Board,
companies urges,
decisions of
in
numerous
for
counsel
Semet-Solvay
cluding
Co., 1938,
organiza-
independent
7 N.L.
two
where
concealed,
cptly
aid
comfort
connection
authority
plain
more
make
preferred
look
other. The Board
employer,
but
the actor
merely
picture,
single
of whole
not
detail.
preclude
existence
does
absence
arbitrarily.
doing
so it
not act
required
did
connection. What
stich a
ac-
that the
show
substantial evidence
has
IX.
It follows from what
acting
position,
tor,
his official
whatever
find
been said that
did not
arbi
Board
employer,
on behalf
fact
trarily
ap
the toolroom was not an
that, by what-
only, and
himself or others
propriate
pre
unit.
In the circumstances
means,
ever methods
vailing,
subjected
same
unit
upon his
brings pressure to bear
pressures
deprived
unlawful
union
independ-
deprives
free
them of
capacity
representation
and the
here
the evidence
ent
think
choice. We
validity.
That fact
contract
ac-
finding
sustains the
proper
Board to consider
Bolander,
Shock,
Fouts,
et
organizers,
tive
apply
determining whether
its own so-
al.,
independ-
supervisory capacity,
“Globe
Whether
doctrine.”
called
ently
the ultimate
pressures
of that
it also sustains
the existence
of its own
unit,
deprived
force
for and on behalf
vitiated
finding that
acted
apply
Board’s refusal
the “Globe doc
employer.
there was much
Here
expression
preference.
arbitrary
char
more
mere
trine”
element
than
*16
here,
peculiarly
in
hostility
That was
There
sustained
acter.
true
were violent
one, precipitate
employer’s
that
and view
fact
the
assist
obstruction toward the
only
inevitable)
(as
in-
not
aided
union before the
though
ance
the
consistent
lations Board,
1938,
197,
520,
511,
Mount Vernon Car
305
59
U.S.
R.B.
206,
Mfg.
1939,
126,
Co.,
In
L.Ed.
500.
S.Ct.
83
where
evi
11 N.L.R.B.
the
employer
National
Co.
dence
interference and co
Shoo
v.
Hamilton-Brown
although
Board,
Cir.,
sufficient,
1939,
104
8
ercion was held to
Relations
be
Labor
49,
in
much
pervisory
the Board
of this interference was
“su
F.2d
court sustained
the
employees”
attributing
employer
an
who
acts of
were not
the
findings [1937,
town,
connect
shown
Board’s
not
officious citizen
by employment
power
ed, openly
rate,
71]
N.L.R.B.
hire and
have
finding acquies
taken, apparently,
company,
fire. The view
in
Knitting
support
v.
in
conduct
Ballston-Stillwater
Co.
Na
cence
through
of his
activity
super
subsequent
Board, 1938,
tional Labor
Relations
Cir.,
employee
visory employees, who,
turn,
758,
98 F.2d
must
that the
authority
discharge
power
clearly
hire
have
hire
shown
to have
charge
employer
1938,
opinion,
order
with his
and fire. See the Board’s
contrary
Ferry
appears
Virginia
acts
be
to the au
9 N.L.R.B.
In
above,
Board,
and,
Corp.
thorities cited
reasons
Labor Relations
v. National
stated,
approved.
1939, Cir.,
cannot be
court held
101 F.2d
employer responsible
When other evidence of
the actor’s
for statements
agency
that,
Jacking,
despite
ship’s captain,
for the
is
“su-
the fact
of its
pervisory”
“disciplinary”
authority
from the
so far as could be ascertained
supplies
authority
findings,
have
it. But
lack of such
did not
Board’s
he
necessary
power
makes
it
& Co.
to show
to hire
fire.
Swift
ways.
agency
nega-
Board,
in other
It does not
Relations
v.
Labor
National
possibility
agency may
Cir.,
tive the
it does
F.2d
where
opin
appear
exist.
from either the court’s
[1938,
opinion
its
The doctrine takes
name from
ion or the
of the Board
N.L.R.B,
Stamping
“supervisory
of Globe Machine
Matter
&
269]
Briefly
Co.,
power