*1 £L7 not be mergers should idations assess- of discrimination basis of federal taxes. Affirmed. BOARD
NATIONAL LABOR RELATIONS CO., Inc. ACME AIR APPLIANCE
No. 120. Appeals, Circuit. Second
Circuit Court
Feb. *2 11, 1937, eight employes On October Acme, who then were members Machine Electrical Radio America, affili- union Workers of a labor O., ated with the C. hereinafter I. United, protest went on strike in refusing rein- dismissing Acme’s state two were members union, picketed plant. At the Acme, met invitation a union committee presented management with Acme’s management the United’s The demands.' promised reply to demands after the pickets pickets were were removed. The withdrawn, thereupon the demands to and the strikers United were acceded By returned to work. signed cards most of represent authorizing United to them “for purpose bargaining in re- of collective wages, working condi- gards to hours and year”, tions for a of one Oc- dissenting in CLARK, Judge, Circuit employes work- tober 74 out of 77 part. applied membership ing at its for appointed bar- it their United and had n agent. union held On October Gilbert, meeting organ- the union izer, shop and a was elected committee proposed contract 12, 1937, Gilbert drafted. On October place of business and came pres- attorney, manager and met the vice-president company. ident and then stated to the man- He that he testified representative of Local agement that as a had a consider- of United his union Counsel, Fahy, Robert B. Charles Gen. employes and majority of the Acme able Counsel, Watts, Laurence A. Asst. Gen. and exclusive to sole it was entitled Counsel, Gill, Lewis M. Knapp, Asst. Gen. all for Schleifer, Maurice Mary Lemon J. therefore, he, re- plant. He testified C., pe Nicoson, Washington, D. union as quested Acme titioner, Labor Relations Board. a time and bargaining agent and to set City Marks, New York Horace G. bargaining confer- place for a collective Siegel, M. Marks Milton (Horace G. replied management said that the ence. He counsel), City, of New York both give an an- position in a that it was not Company, Appliance Acme Air respondent, request or to his swer to Inc. latter have to and that SWAN, AUGUSTUS N. Before agreed said that it was wait. He also CLARK, HAND, Judges. Circuit conference until October wait would be retroactive as contract HAND, Judge. AUGUSTUS N. He further testified that at of that date. management meeting with the on Octo- proceeding to enforce an order a This is paper was handed a addressed to ber 14 he of the National workers, Acme, than the rather respondent, hereinafter called The already Acme had corporation engaged in recited that after York is a New to its selling manufacturing and air business of certain appli- demand immediate union valves, gauges and other air “met with the air “we cannot accede automobiles, recognition” and said in connection with ances used today and tomorrow be met products. demand bicycles related to one
é19
demands,
3, relating
of vember 1
with new
have the threat
and December
* *
day
wages,
every
a strike
and other matters.
over our heads.
hours
you parties
paper
finally
“Put what
said:
not reach
em-
your
wages
writing.
want
it to
increase of
Submit
other demands
over,
workers,
dis-
ployers,
time to think
various concessions
*3
themselves,
outside been made in
course
amongst
cuss it
seek
their favor
you
negotiations.
a reason-
But the refusal of
advice and then we can
open
management
any agreement
with
door
to make
able answer
leave the
and
the union was not withdrawn.
work-
reasonable discussion.”
December
men continued on strike
on
then-prepared
proposed contract
United
the strik-
company
notified some of
other con-
dealing
wages,
with
hours and
by registered
ers
mail to call and remove
employment,
which was mailed
ditions
company’s
they
left on
tools which
had
15 and was accom-
to Acme on October
posted
premises
about
same time
panied by
requesting Acme to set
a letter
a notice to the same effect on
-outside
early the next week.
a date for a conference
plant.
door of the
that he
said
On October
Gilbert
1, in a
communi-
On November
written
attorney
had made
Acme’s
asked
up
employes,
cation addressed to the
“ready
to sit
its mind as to when was
attorney
had ex-
reiterated
views
bargaining conference
down to a collective
concluding any
pressed on
29 as to
October
attorney
recognize the union” and the
union
said:
agreement with the
yet ready
it-
commit
replied it
time to “look into
self because- it needed
your pro-
have read and
“We
considered
attorney
reminded the
finances.” Gilbert
posed
relating
agreement
wages,
hours
possession
pro-
of a
had been
that he
working
conditions. We state at the
days
posed agreement
which in-
for 'five
always willing to nego-
outset that we are
matters,
than financial
things other
volved
you through any
tiate
they
begin to discuss
that
designated by
representatives
our em-
or
reply
attorney
that
said
things. The
said
ployes, even
one or more of
sitting
point
down to
“in
he could see no
representatives
representatives
piecemeal negotiations.”
Union,
any agreement
but
that we
you
be made with
malee will
Gilbert also
meeting
testified that at a
Consequently
paragraph
your
second
evening
held on the
of October 20
in-
he
agreement”
(which had
proposed
been
formed
of the attitude of Ac-
as to be between
the union so
drafted
in refusing
me
,of United) “must be
Acme and Local
place
set
a time
on
provide
agree-
that
so
redrafted
proposed agreement;
and that
there-
our em-
is made between us and
upon they voted to call a strike for Octo-
ployes.”
ber 21. The strike was
lasted
until December 22.
Ac-
notified
Gilbert
On
in-
declared a truce
that United
me
25 charges
On October
were filed
go back
work
structed the
United with the National Labor Relations
reemploy-
22 on the basis of
on December
Notwithstanding this,
on October
return and
ment of those who
29, negotiations
up by
were taken
United
granted
adoption of the concessions
adjustment
with Acme for an
of matters in
negotia-
company
the course
During
dispute.
negotiations
company replied
already had. But the
tions
“they
attorney is said to have stated that
pur-
not be
reemployment would
open shop
they
going to run
were
previous negotiations, all
suant to the
represented
employes,
care who
did not
failure,
added
had resulted
and.
they
any agreement
but
reached would be
had
of-
been
that since
company,
between
they were with-
rejected,
had
fered
any union.”
not with
Discussions were
drawn.
had as to terms of
and over
foregoing
In' addition
evidence
of the written
the details
proposed,
collectively
Acme refused to
the course of
United
United
attorney
1223 of
there
again reminded with Local
was tes-
which Acme’s
timony
“signing
that there were other acts
of inter-
Gilbert
ference,
restraint and coercion.
with the union.”
Mary Vangone, one of
tes-
Further
were had between
attorney
on
when the
and the
for Acme on No-
tified
Gilbert
respondent
large
signing
who
were
called witnesses
employes in
numbers
told
membership
story
gen-
a somewhat
and in
some
different
cards and
eral
discharge
alleged
two of
denied
acts
interference
strike because
signed though
them,
foreman,
enough
some
went far
she
her
complained
concede
card,
having
told
for the first time
her
Communist,
work,
gained
her
was a
the union.
joining
her
told
she
she would
if she went out on strike
plainly was
There
substantial evi
**
*
rocking chair” and
“get
have to
dence of
refusal to
thumbs”,
girls
her
“twiddle
bargain with it
and of interfer
they came
crazy and when
out were
went
ence, restraint
coercion
Acme’s em
jobs
get
hardest
ployes.
had. He
steady
work such as
*4
findings
The Board made
to that
up
sign
if
not
with
her that
she did
told
and it
effect
cannot be doubted that
the
given an increase.
would be
the union she
acts found would constitute unfair
labor
fix the machine
the foreman to
asked
She
practices under
8(1) and
of
(5)
Section
on,
was out of
working
she was
that
Act,
the
get the union
order,
he told
to
to
her
and
158(1, 8),
violations
C.A.
and
of
§
employe signed the union mem-
This
it.
fix
self-organization
bargain
of
collective
and
11.
bership application on October
ing
guaranteed to the
under Sec
the above em-
Vangone, a sister of
Anna
tion
157. Art
U.S.C.A.
Metals
§
11, one
that on October
of
ploye, testified
Const. Co. v.
Labor
Relations
her going
with
Acme officers interfered
the
Board, Cir.,
151.
strike
the
that
the lunch hour to see
out at
discharge
to
of two
on as
the
going
argued
It is
was
behalf of Acme
forelady
her not
to
employes. Her
told
bargain collectively
that it did
with United
and that those who
up with the union
sign
dealings
because
had
with it as to mat
would
get
dispute,
Act,
harder work and
would
ters in
the
in our opinion,
did
but
get steady
steadily, while she would
requires more
work
work,
than that
bar
the chosen
jobs
money.
and more
After
better
recognized
should be
card
she said
signed
messenger.
fully
the
on October
as a
United
a
she
was
accred
nagged her about- her work
agent
foreman
ited
with whom all
the
contracts were
Communist.
her a
long
made so
as its
to be
endured
treated
entitled to be
as such.
Burbulak,
employe,
another
Anne
like-
by
recog
Persistence
Acme
refusal
to
forelady
that
the
told
wise testified
the
the
nize
down
the
was
even
end
union,
“sign up with
that
girls not
the
by
abrupt reply
illustrated
the
of Acme’s
union,
will not
boss
the
the
lawyer
of
Gilbert’s letter
go
rather
out
he would
business
strike,
1937, calling
by
off
followed
**
* ”,
“if
up
also that
sign
she
than
with
its'
anyone signing the white card she
catches
reinstatement.
H. Ritzwoller
over
M.
fire
This employe
them”.
going
Board, Cir.,
National Labor Relations
card on
11.
signed her
October
permit
F.2d 432.
To
Carlson,
employe,
fourth
a
Florence
bargaining agent
go behind
chosen
forelady
that it
said
would
testified
employes individually,
negotiate with the
join
the girls
not to
be better
committees,
spite
with their
line,
picket
at
out
she
who
agent’s
fact that
revoked
raise
would get, would
get
would
authority,
would result in
but dis
job
they,
than
a better
given
arrangement
nego
of the mechanism
if there was
protection
violence.
receive
by
created
disparagement
tiation
signed
employe
the card on October
This
good
of the services of
endless,
bad,
friction,
acute,
if not
purpose
have
the evidence intro-
it is
avowed
Act
outlined
petitioner
mitigate.
was substan
on behalf of the
avoid or
There
duced
disregard
to show refusal
the union
(1)
by
in order
evidence that
tial
bargain
brought
Local
with
both to
and refusal
represen-
bargaining
exclusive
the strike of
United
about
persistent
it;
refusal
with
Board found.
tative
interference,
United
restraint
to treat
exclusive
(2) to show
co-
power to contract and
a
employer. agent
with
their
ercion
because
reemployment
declined
writing
sixth
right
conclude
(Garfinkel)
health;
seventh
poor
matter
party
was a
which it
it,
reemployment and declined
was offered
might well
aggravation
serious
eighth obtained
and
elsewhere,
the strike.
brought about
support of these
in’
evidence
no
sufficient
Upon
record there
There
the record.
appears in
assertions
men-
fact we have
findings
for the
basis
about
argument
and much
evidence
lawof
conclusions
and also for
tioned
of Helen Garfinkel
the case
engaged
by the Board
occupied but
job
packer that
as a
meaning
within
practices
labor
unfair
her work
remainder
time. The
of her
refusing, on October
8(5)
of Section
serving lunches
preparing
was in
thereafter,
bargain collec-
permitted
joba
employes. That was
other
repre-
exclusive
as the
tively
she
in which
one
but
within the
employes, and
sentative of
paid
hired
by interfering
8(1)
meaning of Section
appar-
latter
work
by Acme. Her
rights guaranteed
exercise
with the
time.
her
only half of
ently occupied
in Section
reinstatement
ordered
The Board
The tentative discussions between Gilbert
pay. The
employes with
eight
of all
representatives
involved
or
indicates
proof in the
recognition of
no
United as
bar-
collective
*5
10(c) of
under Section
justified,
was
der
agent
came to
definite.
time
at the
160(c),
U.S.C.A.
the
§
United,
the
haggling,
As a result of
futile
unproved
subsequent or
If
made.
it was
on December
voted to terminate
in
in whole or
a defense
events furnish
proceed
charges
the
strike
to
its
foregoing
the
part
the enforcement
to
the Board.
before
order for reinstatement
of the
provisions
About the middle of
Acme,
December
be-
affect
cannot
a defense
pay,
such
back
lieving
the morale of the strikers had
itself,
order
validity
the
the
weakened, sent telegrams to some of the
hearing and
time
the
the
speaks as of
employes to come
and, by
back to work
the
upon
before
is founded
the
21, twenty-five
of the strikers
in
are asserted
defenses
Board. Such
had returned and
accepted
were
by Acme.
interposed
a mo
to
may be
Acme’s brief
But others who had returned on December
to
punish a refusal
by
Board to
the
tion
22,
response
in
to the instructions of Gil-
the
this court
enforce
obey
order of
an
to go
then,
bert
to work
apparently found
back
reinstatement
order
Board’s
closed. On December 22 a com-
employes. We should
eight
pay
mittee of
met with the company’s
in
Garfinkel
Helen
add that
superintendent Longstreet
requested
to reinstatement
only
entitled
be
event
of all
reinstatement
who had not
ren
she was
such services
pay for
back
been taken back. He said he would take
strike of
to the
prior
dering to
them back as soon as the
ready.
work was
equivalent,
1937,
21,
or their
Thereupon picketing
upon
was resumed
loss of com
not be allowed
that she
protest
claim
a lock-
serving lunches
pensation for
But, by January 10, 1938,
out.
approxi-
mately forty-three
in
It
Acme’s brief that
contended
strikers had been
deal
question
reinstated
picket
ought
now
lines
we
again
were
decree,
performance
withdrawn. Between
of the
was done in
January 10th and
Labor Relations Board v. Yale &
Vangone, Mary
15th Anna
Vangone, Flor-
Co., Cir.,
Carlson,
Mfg.
114 F.2d
Burbulak,
ence
Anne
Towne
Amelia Wat-
son,
Colella,
that the
there affidavits
But
Christina
Helen
Garfinkel
finally
submitted
reinstated were
Zilinski
Genevieve
made
been
for re-
employer
on the
eight
a consent
instatement but none
been
order which
by
enforcement
reinstated
March 15
hearing
when the
whose
recited
proceeding
in this
was closed nor had
been
question reinstated and
in
attempt
were
open
been made
pay
back
given the
hearing
subsequent
to show
reinstatement
questions
perform
entitled,
rendered
justification
refusal
to reinstate.
Furthermore,
in that case the
moot.
While
asserts
ance
brief that four of
reopen
a motion “to
employer had
workers
were offered
toas matters
adduce evidence
March;
record to
February, 1938,
back
came
hearings”,
subsequent
occurring,
1938;
July,
a fifth returned in
denied,
which was
whereas
should be had before
enter
we
this,
steps.
took no
such
In addition
affirmative order directing
bar,
ques-
to bargain
agent.
case at
there are unsettled
with such
See
pay
tions as
due the Labor
amount
Relations Board v. National Lico
eight employes
Co., Cir.,
be determined
which must
rice
104 F.2d
affirmed 309
by proof
submitted in connection
with U.S.
60 S.Ct.
Na
L.Ed.
motion,
contempt
adjusted
unless
tional Labor Relations Board
American
v.
69;
parties.
Co., 2 Cir.,
Mfg.
Stewart
Casting
Die
Corp. v. National Labor Rel
delay
The Board found that Acme’s
ations
strikers,
reinstating five other
to wit: Kos-
Moreover, Acme’s answer to
Board’s
tiv, Racaniello, Crawford, Sobitus and
petition for
alleged
enforcement
Olesko,
discriminatory
because the
longer
Local 1223 was no
in existence
company began
hiring new
prior
present pro
to the institution of the
capable
per-
work which the five were
ceeding,
arbitrarily request
the Board had
forming
taking
instead of first
them back.
ed that Acme
with another local
objections
respondent
of the
United, designated
as Local
order
pay
for the back
of these workers
attorney
pro
had submitted to Acme’s
are met
of the Board that
finding
* * *
posed
(of
enforcement decree
“each of these
five
copy is attached to
answer)
to that
date,
reinstated
at
earlier
had the
effect. That decree differed in
from
terms
respondent
preference,
in each
given
only by
order of the Board
the sub
case, to an outsider.”
stitution of Local 475 for Local 1223. It
that there was
hold
substantial
attorney
stated
in a letter
support
evidence in
Board’s finding
Board sent during
prac
engaged
in unfair
labor
entry
of a consent
decree
his “real
within
8(3)
tices
of the Act
Section
in'dis
bone of
with the Board
contention”
criminating
regard to the
and ten
hire
*6
the provision
Local
ure
of
of the thirteen
bargaining agent.
475 as exclusive
mentioned above and that
its directions
know
cannot
pay
Local
them back
475 is
give
reinstate
con
simply another
for
name
Local
2(b)
tained in
or is
(c) of its order should
entirely
whether,
different
or
if
be enforced.
Local
defunct,
1223 is not
authority,
Board
ordered
further
The
originally,
was limited
has in fact
desist,
refusing
cease and
from
bar
prior
terminated
to the Board’s order. We
gain collectively
with United as
exclu accordingly
questions
hold
wheth-
representative
sive
of all its
and er Local 475 or Local 1223 is the union
upon request
represents
or whether
with United as such
represents them,
neither union
reached,
in the event an
is
to remitted to the Board so that it may deter-
accept
party
contracting
United as a
and mine the matter and make such order as
signatory thereof.
appropriate
premises.
shall be
in the
This
petition
answer
of
may
determination
by taking
be reached
order,
Board for enforcement of its
alleged testimony,
by holding
an election.
that enforcement should be denied because
The Board is
who,
directed to determine
n
the order
not
upon
based
substantial
one,
present
if
is at
the lawful bar-
allegation
evidence. This
already
we have
gaining agent
record,
held
however,
unfounded.
may
appropriate
make such order as
be
leaves us
doubt whether Local 1223 was in the premises. Enforcement of
pro-
on
date of the
Board’s order the au- visions of
the order
the Board is now
thorized collective bargaining agent of
except
granted
1(a),
contained in
cards 2(a)
2(e).
signed
limited
right
2(e) is modified as follows and enforce-
of Local 1223
to act
bargaining agent
thereof granted:
year,
to one
expired
(cid:127)
employe
1938. Where an
Immediately post
put
(e)
has
an ex-
notices in con-
press time limitation on
places
his
spicuous
collective bar-
in its
and maintain
gaining agent, we do not
think
sixty
for a
of at least
the such notices
authority
agent’s
presumed
can be
days,
to con-
(60)
stating
consecutive
the re-
longer.
tinue
proof
Further
agent’s
engage
will
spondent
practices
obviously represents
provision
de- 1226. The
which it
from
is ordered
cease
attempt by
give greater
an
stability
the union to
paragraphs
1(b)
(c).
sist
appearance
position.
to its
In
entering
.Before
a final decree
provision
so,
actually a
does
worker
modifying
setting
either
aside
affirming,
designation
can
at will.
still withdraw his
paragraphs 1(a),
2(e)
(2)
2(a)
event,
grant,
it is a
In
so far
it goes,
portions
the order
Board the
withdrawal,
power.
Here
trial
bargaining collectively
order relating to
report
filed
examiner’s intermediate
with Local
should
remanded
No. 1223
year,
well within the
and served
proceedings.
to the
for
further
Board
three months
Board’s order
some
When the
issue an
as a
Board shall
order
close;
if
though I doubt
year’s
result of such
shall
proceedings such order
in
that an
To hold
important.
dates
part
pend
supplemental
be made a
designed
terparty regulation of the
ing record for our final action and decree.
greater
affords
ex
it
National Labor Relations Board v. Somer
or at
least
cuse to the
evasion
Co., set Shoe
obligations under the
of his
lengthy contest
Ford Motor
Rela
decidedly anomalous.
seems to me
law
tions
rarely
yielded
demands
Very
have we
tional Ass’n — U.S. ations 311 . November 61 S.Ct. 85 L.Ed. M. R. R.
UNITED & STATES v. BOSTON
No. 3584. Appeals, Circuit. First Court
Feb.