*1 19á BOARD RELATIONS
NATIONAL LABOR MOTORS, ELECTRIC v. STERLING Inс. No. Appeals, Circuit. Ninth Court of Circuit Jan. *3 HEALY, Judge, dissenting Circuit
part. Counsel, Fahy, Robert B. Charles Gen. Watts, Counsel, Associate Gen. Laurence Packard, Knapp, all of and Russell A. C., petitioner. Washington, D. for Horwin, Horwin, Leonard Hardy & Cal., Hardy, Angeles, all of Los W. Jack respondent. MATHEWS, DENMAN, Before HEALY, Judges. Circuit
DENMAN, Judge. Circuit National Labor Relations Board
petitions
disestablishing
decree
our
Motors, Inc., Employees
Electric
Sterling
Association,
the finds
hereinafter described as
subdivisions
violation
Section
Association,
Rela-
(1)
Labor
(2)
a so-called “inside union”
the National
respondent’s employees.
Act,
question
tions
majority
49 Stat.
452. No
also seeks
their self-or-
raised
character
frustrating
our
interstate
contract,
ganized
writing,
respondent’s
nor that
evidenced
commerce
bargain-
as their
commerce would
affected if the
creating
Association
violation
agent,
charged
proved.
by ordering the
had been
cease
desist
recognizing
order of
Board’s
disestablishment
bargaining.
collective
are asked
respond-
provides
the Association
though
parties
take such action
none
all
“(a)
ent shall
Withdraw
participated
to the contract
party
Inc.,
Motors,
from the
Electric
Sterling
proceeding.
Employees
representative
as a
*4
purpose
The situation differs
in the of
its
any
from
of
of
recent case
National Labor
with the
dealing
of the
Rela-
grievances,
tions Board
disрutes, wages,
Cowell
Cement
labor
rates of
v.
Portland
Company,
Cir.,
198,
pay,
employment,
108 F.2d
or
9
28, 1939,
decided
hours of
other con-
par-
employment,
where one of
ditions of
dis-
completely
November
party
repre-
ties to the frustrated
was a
establish
contract
said Association as such
proceeding.
Board
There we re- sentative
fused our
a closed-shop
destroying
decree
employee-members
The
Asso-
recognized in
8(3)
contract
Section
of the
others, being
ciation are mechanics and
49
Act,
National Labor Relations
29 U.S.C.A.
percent
engaged
about
of the men
70
158(3), because in
absence of
one
§
appliances.
the manufacture of electrical
parties
of its
as a party
proceeding
self-organization
Their contract of
was in
the decree would have been a violation of writing, later set
forth
full.
Asso-
The
employees.
one of the civil liberties of the
representa-
ciation had a committee as its
Here the
contract and tive to secure the Association’s
self-organizing
organization
bargaining agent.
so formed
Board
The
not
which,
invalid,
employee
the character
unless
did
make any
not
or
Asso-
have
special protection
2(4),
party,
of Sections
ciation a
neither the
gave
but
men
2(5)
Act,
of the
pro-
7
nor
any
29 U.S.C.A.
the Association
notice of the
§§
5),
sought
152(4,
ceeding,
less that
much
what was
their
was the destruction of
dis-
again
clear
here
we are asked
responsible
establishment. The
officers of
deny
the civil
liberty freely
contract
mechanics, employees
the Association were
and to have the benefit of the contract un-
respondent,
facility
hence there was
til
illegal
competent
held
aby
tribunal
service,
joinder
in any case that
after notice and
opportunity
of a full
pertinent
abe
matter.
hearing, protected
and fair
by the due
process
of the
Neither
one
clause
Fifth Amendment
nor
appeared as a
the Constitution.
the Association
below.
party
asserts
Board
this denial
no one
practice
has
its
There was
below and
is no
established
there
speak
here
appearing
one
their ad-
administering
a§
National Labor Rela-
tions Act and cites
vocate.
some of the cases
proving
assertion.
protec
Such men have none of the
The Board earnestly
claims
it has
advice
tion and
of the skilled labor or
justification
Supreme
in decisions of the
ganizers
counsel of the
nation-wide
and other courts. Because of the obvious
federations and
associations.
It is true
importance of the
propri-
assertion
com
mechanic-members of the bargaining
ety
practice
such
in seeking to accom-
but,
called as
mittee were
witnesses
as we
plish
purposes
the legisla-
beneficent
held
National Labor
Relations
tion we
legality
claim of its
Co.,
Board
Cowell Portland
9
v.
Cement
our extended consideration.
198,
Cir.,
28,
108 F.2d
decided November
1939,
charged
In. addition to our
are not
decree thus in
witnesses
effect
against
knowledge
pleadings
and their
relief
labor or-
ganization,
Motors,
Sterling
sought.
right
has a
Electric
Nor
witness
participate
Inc., Employees Association,
any right to
in the
counsel nor
Board
petitions for
cross-examination
in
requiring respond- proceeding by
our decree
or the
testimony.
ent
to cease
desist
certain other
from
troduction
acts,
discussed,
later
intervene un-
which the Board “discretion” of the
Co.,
308,
Act,
22 S.Ct.
der
29 U.S.C.A.
U.S.
10(b)
§
Section
for the L.Ed.
160(b),
more
substitute
and hear-
complaint,
service of
case also cites
Consolidated Edison
litigation where
in any
than it
would be
approval
point
Mal-
same
person
is to
affected
not
party
Hinde,
page
low
L.Ed. 599: “We
Wheat.
by a judgment.
put
upon
do
this case
upon
ground
jurisdiction,
consideration
Later we
in detailed
show
equally
broader
which must
ground,
much
hearings
help-
how
equity,
apply to all courts of
whatever
protect
laborers
were to
less these
jurisdiction.
structure
rights of
contract
their Association and the
put
ground
that no
can ad-
on the
court
frоm their
each
of the Association
person’s
judicate
upon
right,
directly
and,
effect,
destruction
frustration
being
without the
either
party
actually
trials is
disestablishment.
In no class of
”
* * *
constructively before
court.
parties
presence
of counsel
property
recently
This
sought
deprived
court
has indicated its atti-
to be
of their
proceedings tude
situations arise in
required
more
than in these
where
Na-
tional Labor Relations Board v.
before the Board.
Cowell
Co., supra.
Portland Cement
Cf. Wallace
In such a situation a
court
Co., Cir.,
v. Hudson-Duncan &
98 F.2d-
*5
Anglo-American justice
required sua
is
985, 992; National Labor Relations Board
sponte
meticulous care
to examine
671,
Oregon
Co., Cir.,
F.2d
Worsted
v.
9
94
equity1
an
by
treatment
a court
administrative board or other tribunal of
attitude,
in
the Board
Realizing
persons
may
from each of whom
absent
argument sought
and
to
its
justify
brief
Here the
rights.
be taken fundamental
help
and
disestablishing
order
the absent
rights
They
character of
obvious.
ground
on
did not
less Association
liberty
regard
are
to contract with
to the
destroy
of value which the em
anything
employment in
which most
creative
urged
ployees
that the
possessed. It
Asso
spirit
spent,
effort of
worker’s
body
destroyed
it could
ciation was not
still have social
because
creating
in
property
the contract
enjoyments
its
mem
organization
the labor
which leads to
thеy
to
their
continue
“drink
beer”
bers
had at one
employ
and betterment of that
security in
meetings.
their
a contention. The
We find
Supreme
early
Court
ment.- As
said
“self-or
in
merit
ganization”
such
year
case,
cited last
that court in
protect is
Congress seeks to
Edison Co.
Consolidated
National
v.
“employees” in
self-organization of
Board,
197, 233,
Labor Relations
305 U.S.
“employer”
regard
dealing with
206, 218,
126,
L.Ed.
83
refer
59
S.Ct.
working
wages and
conditions. The de
to
destroyed
labor
to the
contract
ence
destroys all
sought
not
cree
from us
of the Board: “The
the order
estab
em
of the Association with the
contact
practice
purposes
equity
of courts of
but asks some
lished
dis
for these
ployer
namely, disestablish
thing appears
plaintiff’s
bill
miss
that to
addition—
ment,
of the Association for
destruction
injurious
prayed
the relief
grant
would
—a
Section 7.
purposes recognized by
all the
persons materially
ly affect
interested in
that probably
shows
the evidence
Here
subject-matter
par
who are not made
different
entirely
drift
labor
into
would
suit,
upon
founded
clear
rea
ties
organization.
sons,
court,
may be enforced by
plead
regard
sponte, though not raised
to the destruction of
With
sua
right
suggested by the
his
ings
employee’s
or
Shields
to contract and
counsel.
130,
Barrow,
158;
How.
15
cites
property
17
L.Ed.
his contract it
National
v.
Babin,
271,
Pennsylvania
278,
Hipp
19 How.
15 L.Ed.
v.
v.
Labor Rеlations
Lines, Inc.,
Winnipiseogee
261,
303
at
635;
Greyhound
Parker v.
U.S.
633,
Lake
571,
Co.,
576,
545,
271,
page
82
L.Ed.
page
Woolen
2 Black
58 S.Ct.
&
17 L.
Cotton
says,
831,
307,2
Minnesota Northern
court
333.”
v.
Securities
115
A.L.R.
where
Ed.
reversing
1
day,
decision,
our
Motor Co. v. National Labor
same
Ford
Re-
the
ap
Board,
364,
opinion
373,
not mention the fact
305 U.S.
does
59
lations
S.
opinion
308,
pearing
(page 460,
301,
L.Ed.
in our
F.
Ct.
458)
“The Drivers’ Association
National Labor Relations Board
2d
In
party
Greyhound
proceedings”
Lines,
272,
made a
Pacific
U.S.
hearing.”
given
not notified of the
82 L.Ed.
and “was
58 S.Ct.
against
broadly regulatory measures
"As
order did not run
the As-
istration of
impairment
interest,
and in
or
public
to notice
such
sociation
not entitled
necessary deprivation
presence
hearing.
justified
necessary
was not
Its
because
attain
public
Board to determine
the desired
What
in order
benefit.
enable
respondents
necessity
possible pub-
whether
violated
stat-
enforcement
appropriate
against
lic gain
ute
to make an
order
with reference to the beneficent
objectives
Lake
them. See General Investment Co. v.
Relations
National Labor
Co.,
Ry.
Congress
required
&
Act could
Shore M. S.
see
U.S.
deprivation
106, 116,
(Em-
43 S.Ct.
hound case established
ciples
pretended
ab- to a fall” in a
defense
justifying the destruction
organization or
liberty
contracts.
to con- union’s
sent Association and the civil
employees,
over-
it is
tract of the absent
In
Edison
the court
the Consolidated
case
principle
Morgan
ruled in
v. United
required
apply
principles of “fair
States, supra.
and,
question
play” to the
there in
contract
protection
concerns the
So far as
dictum,
distinguished
from the
in a
Act,
by Section
Greyhound
Pennsylvania
contract
distinguish
principle be
are unable to
distinction,
making
case.
In
by the
tween the contract made
opinion
the order
Edison
fails
note that
employer in
Edison Co. v.
the
National Labor Relations
Consolidated
up-
aside in
Edison
set
case
Board,
U.S.
Greyhound
against”
“ran
held
case
L.Ed.
S.Ct.
only.
employer
It “did not
run
*7
considered.
the
the contract here
self-organization
Here
in
absent association
against” either the
7
sought to be
of Section
earlier or the absent Brotherhood
destroyed
of a
in which
consisted
contract
order de-
later
If failure of the
the
stroying
case.
by
employee to
surrender
each
Greyhound
is a
con-
there
association’s
majority group of his in
self-organization
associated
run
of claimed
tract
right and
creation
bargaining
it,
justifies
dividual
then the
against the association
majority
power of collective
greater
Edison case should
order set aside
9(a),
provided for in Section
bargaining
held valid.
have been
In the
159(a).
29
Consolidated
U.S.C.A. §
like
We
Greyhound
here a contract
by
contract
Edison case there was
that,
hold
case and we
in the
through
bargaining agent
employees
made a
was neither
the Association
since
employer creating rights of em
with the
opportunity
nor
party
to be
ance
and that we cannot
by
recognized
ployment also
principles of civil
Act.
heard,
not treated in accord
it was
liberty
involved in
concepts
play
of fair
with the basic
contracts,
of these
in the Con
destruction
solidated Edison case
disestablish
order the
of one
in the absence
by
formed
Association
ment
Grey
contracting parties,
in the
contract.
them,
the same
of all
are
hound cases
for both.
regard
If we be in error with
regarding
present
in the
the civil liberties
do not
dissents of
law
concur
Jus-
power
has
employees,
the Board
Black in
Consolidated
tices Reed and
of
to
250,
them,
nothing
case,
page
any
supra,
destroy
305 U.S.
Edison
requires
126,
Greyhound cases which
226,
that because
page
83 L.Ed.
S.Ct.
thought
458,
Lines,
Cir.,
it was so clear
we
reversed
F.2d
unnecessary
give
detailed con-
82 L.Ed.
U.S.
S.Ct
opinion.
of this
error of assum-
sideration
we
where
they
shows
In dustrial
The census
units.
always
exercised.
power
must he
majority
of constitute a
of the manufac-
an abuse
vast
that was
this case it is clear
turing plants
country.
join
discretion to fail to
the Board’s
proves
contact of the
here
the intimate
member-employees whose
or its
betterment
seeking
no-
give
Sterling
or to
agent it became
bargaining
hours,
wages and
with their
right
be in
hearing
tice of the
with the
intimately
foreman
and as
directly
heard.
manager
superin-
and the
general
with the
of the Board’s
Subsequent
making
men and
tendent. This dilemma for these
providing for the
a rule
order it enacted
everywhere
in the
men
United States
as the
organizations such
service on labor
plants has three alternative
these smaller
complaint
copy
Associаtion here of a
solutions.
employer
appear where
and notice to
para-
alleged.
second
domination is
inter-
join
great
alternative is to
One
graph of
Article
of its rules
Section
II
give
These
nationals or associations.
complaint
provides:
con-
“Whenever
power
correct abuses which
added
often to
allegations
employer
tains
domination]
[of
How-
could not
remedied.
otherwise
be
Act,
8(2)
any
under Section
ever,
by
control
they may have a remote
organization
allega-
referred
in such
men,
power almost auto-
sometimes with
duly
copy
shall be
served with a
of'
tions
particular
cratic but unfamiliar with
.
plant
complaint
hearing.
and notice
problems.
larger
They
small
collect
organization,
any labor
not the
Whenever
sympathetic
dues,
support general
often to
subject
allegation
any 8(2)
of the com-
of the in-
strikes
plaint,
party
to any
contract with the
sympathy,
dependent plant
may have
put
legality
of which is
spent
in aid of office
sometimes to be
allegation
complaint,
by
issue
opposed.
Into
seekers to
are
whom
organization
such labor
shall
be made
plant
larger
the small
associations
these
proceeding.”
party to the
employees are
forced
outside
sometimes
actual
picketing
and sometimes
violence.
position,
effect,
The Board’s
bargaining
collective
When so forced their
Congress
intended such a rule re
designated
agent
be
methods as
service
quiring
and notice to
a matter
choosing”
from “their
remote
own
of the Board’s grace
and not of
employer
or dominates
where
influences
grace
because such
was not extended
their choice.
Company’s employees
to the Sterling
cannot consider they
denied
Another
alternative is the so-called “in-
liberty.
indicated,
civil
As
we do not
exposed
be
side union”.
pos-
While
Congress
regarded
lieve that
employer
civil
sible
domination
in-
very
liberties of
plant activities,
small
making
timacy of the
where
maintaining
organizations
of labor
properly organized
it has
Sec
normal
“the
rela-
subject
tion
Act
7 of the
to their
tions and innocent communications which
deprivation
discretion of the Board.
part
intercourse,
of all friendly
albeit
National Labor
Cf.
Relations Board
employer
employee”
*8
recog-
between
Co., supra.
Cowell Portland Cement
approved
Supreme
nized and
by the
Court.
Railway
Texas & O.N.
R. Co. v.
& S. S.
In this situation we would
entitled un-
548, 568,
Clerks,
427, 433,
281 U.S.
50 S.Ct.
der the decision in Ford Motor
Na-
Co. v.
L.Ed.
74
1034. In these normal relations
tional
Board,
Labor Relations
305 U.S.
employees
learn
plant
often
364,
301, 306,
whether the
373,
221,
59 S.Ct.
83 L.Ed.
prosperous
or
pursue
is running
the course
by
followed
us
such
loss
wage
Cowell Portland Cement case and
remand that
increase
factor of
case
permit
joinder
of the Asso-
the cost sheet makes certain the shut-down
ciation or its
if the
members
Board deemed
plant
department
of the
or in
entirely
proceeding.
it wise to continue the
How-
larger
figures.
red
showing
ink
That
ever,
analysis
our
of
shows
say,
employees
is to
pres-
know what
purpose
that no
by
be served
sure for their betterment
will
what
gives
a remand.
we have before us
What
employment
the loss
will not cause
of
of
support
no substantial
for the disestablish- all or of some of them. Obviously such a
Board here
ment the
seeks.
bemay
small union
far
advantageous
more
compel
case
the con-
than one
facts of this
to members
under the remote
confronting
sideration of
dilemma
the control of
makers
policy
thousands of
employees
independent
away.
in-
of these smaller
miles
202
ment
tion
activities
claimed violation
“units”
ent but
tempt
alternative
Electrical Workers
does
to create one.
tional
properly may lead the
sought
tion that
equal
prohibiting
zation,
Labor Relations Board
islation to have
company’s employees’ choice of the second
with its
favoring
with the
ganization at
nationals
deemed to be
U.S.
789,
tions” between
mal
protection
Congress in
National Labor Relations
scribed above
struggle for
ceeding
plant
Steel
such contract of
Ry.
construes
remain
right
sideration of courts and
ther of the other two. That
.[11]
The evidence
Commencing
L.Ed.
the men
protection
Co. v.
relations
515,
which
seems
Corp.,
value
join
Labor Relations Act
prefer
to
unorganized.
and a
The third
seeking
Each of these
affiliated
choose
of the Association.
puts
individual
on behalf of the unit and the
contend, and could not on
557,
employer.
began a
of collective
be disestablished.
did not
or create or
employees are
System Federation No.
do not
respondent of the Brotherhood
finally
enacting
almost
301 U.S.
predecessive
International
power
aiding
into the Association. The
regarding
all,
that Asso- on one of the June which he claimed ber of the “unit” in organi- organizers, this ciation’s tendered existed, his struck out majority petition for rec- agreement zatiоn with its the Broth- percent of the claim. Since Harder, superintend- ognition plant “to union, appeared complaining ent, erhood as the promised that it and see who took to majority existed it is obvious if such The management.” that was proven. Mendenhall have been plant superintendent it would is the executive clos- recognize to accepted nor declined neither mere to the workers and no doubt a est his em- agent of signatures Kelly bargaining as the reading showed the cre- of the which cov- conference agency. ployees during majority ation of the bargaining Kelly Mr. However, days ered several other matters. here three or four were with respondent returned to Mr. Mendenhall to char- never majority determine the Board’s brief agency representation proof of his acter before of the June that he entitled accepted bargaining disavows claim was it was as the when agent. recognition bargaining as a agent. lasted with Mendenhall The interview 6, 1937, The three committeemen June fact that in circum- hours. The tzvo these respondent’s Johnson, met with President recognized nor refused he neither stances Manager Mendenhall, Super- General Kelly’s Board’s recognize claim the intendent Harder. After some discussion “evasion”, hold an have us brief would plans, nature of the committee’s disregarding” the great union’s “completely Bueter, committeemen, one Mr. claim, “imme- contrasted with the to be recognition. asked Men- diately” recog- “precipitately taken” inquired Company denhall whether un- the inside union at least three nition of ion were committee one or temporary days admittedly after true written whether it had been permanently or- right had majority bargaining ganized. “they He told by Bueter that was presented. not, temporary were merely this was committee; them, recognize if we would this hold there no merit in they meet and finish up would their or- which, contention of the Board in its ef ganization”. supplied). (Emphasis Since fect, Congress, in is that Sec enacting Superintendent Harder had had three or tion of the Act days signers four to determine whether “self-organization” “join” or to either employees, his were was choice, intended a differ a union of their president general after granted ent criterion in the consideration of the manager counted the names on the docu- employer action of this toward “self-or ment. ganized” inside associations toward an international as the Broth urges The brief strongly Board’s seeking to have the erhood days’ management action of the after four “join” one its units. the Association’s bar- majority “immediately” gaining agency according agree We are also.unable recognition; “preciрitately significance, the Board that there is pretense diligence without taken ex- Association, destroying reference a determination of amining requiring temporary committee’s statement conflicting majority the two claims to organize perma the “committee” would representation,”. recognize it, nently Company Company’s recognition. followed apply here us to asking organized could different criterion of the em- entirely through a committee act otherwise. recognize bargaining ployer’s duty majority status Association re is an “inside” union from agency where recognize Company it at quired applied to the national Brotherhood. once. Brotherhood’s national 26 the or- May On Kelly, The fact three committeemen ganizer, a Mr. organize he claimed indicated would not them- he Mendenhall Mr. against percent respondent’s employer’s permanently selves represented 90 *10 strong recognition asked that the em- employees and as their is wishes organiza- agent. aided ployer He offered Mendenhall had not them bargaining kind, verbal, nor had ever in- written or tion of the Association proof in no examiner, favoring of the so- of his claim and trial dicated to them support derstandings.” later shows after hall stated: and the office idea. contention national Brotherhood of ence to great what trouble, be so trouble with his Brotherhood. called mands for prior ment of dominance respondent’s the men. pany, to take the not willingness ers, conferred, there ment. Here the had not would intended that into consideration son’s if Congress ployer an domination and recognition view us above gress ciple On some for a Likewise Since Nor- do we it had you be the unwarranted, more acquiescence warranting employer which this —I statement, of the that was an obvious is A. F. financial embarrassment of did not organize and elsewhere5 in our at arms not equally without “inside union” attempt had charge against disestablishing not contrary, independent organization employees resisted, been with the Associatio employees have been antagonists that it improved not to also was said, uncontradicted you impropriety mean the office will outside “I in connection that he L. stated, agree intend to establish splendid way. adverse it. Of as What length against after the Association of 49 men.” We “We will like this exact reverse is true. is this statement get union “You there would for, organize” men employer’s organize into , no merit in financial difficulties over the men significant improper organize, unions, together with that labor conditions. truth happened cannot seeking to the Association with a majority of their seeking against course, are in for a position into its outside as much Electrical presumed they we have stated “To all company President evidence of the concerning employer probably with do or had shown properly state opinion for the employer word to convert a disestablish the Board’s to bring would n not believe if the em eight days employers. than their un- go Menden- brief an their have the seems to organize them, grounds to them always Work- Inter- mere refer- While ahead John- argu Com prin their must organization will Con fight gain men time men take de all employees in it, It a bined -week and past overtime. press its hour present rate of time and a through method work as at tendent work paid of their However, seeking ever, starting schedule will continue to chose to bring granting ployees’ wages over company derstanding Therefore, express the committee for on the follows: agement tion, “The “Those “The On such a violation of “completely remuneration, hours, conditions, etc. “seemingly forty submission whenever and a half overtime for at has been day claims that the statement with other [*] basis: evasive June was submitted to the company company forty and manner which conference for at proposition from 8:00 a. problems Friday. the Board plant of a employees admiration for the commendable working and its company due and passed forty basis hours 8:00 m. present time [Emphasis supplied]. the rate beginning operate forty [*] hours be the willingness posted duly to this representing will substantial false” and the Board finds easing along and working about an amicable solution a. of the 40-hour week and innocuous of time and a and a half for violations, question at this hours be means “Notice All time over the per half. and also future as it has in the but will be on the second shift will hour employees. change desires at considered problems of a on finds [*] per notice same as at time Company’s superin- time m. week. The Thursday, their 4:30 m. time desires to ex- per week will be hourly upon Saturdays, week, arises to deal forty (40) gain over to schedule to 12:00 noon. being Act hope it warrants the your [*] p. Monday described the week at conditions, betterment. paid for of the of both the this time half. How- itself”, They that, Committee it will be pertaining a half for better favorably. organiza- overtime, the man- present; the em- July *» excess piece eight daily com- your hour time paid men also un- its its as Brewery America, International of Team Workers of Brotherhood ed etc. sters, Cir., v. International Union of F.2d etc. Unit
205
representations
made.
In
is
had been
view
It
disestablishment
the Association.
in the
case we
holding
fraudulent
Columbian
that
claimed
effect of
Congress did
em- are constrained
hold that
misrepresentation
persuade the
is to
self-organization
intend
not
referred
prefer
and not
ployees to
the Association
to in Section
of the Act
be frustrated
7
Brotherhood’s
join
unit.
or
lesser
disestablished on
amount
This claim of
fraud is not
evidence.
complaint, much less
in the
mentioned
The introduction of the notice
evi-
charged
practice.
as an unfair labor
Not
proposal
dence
by
that such a
was made
charged
not
nowhere in the
only
The
does not assert
Committee.
fraud
course
the trial
made to
that the
meeting
Committee had a
with the
appear
support
as an issue
fact to
either
management
proposal
at which the
cease
the disestablishment or the
and desist
made,
eight
and it
obvious
charge
orders.
that without
Assuming
days between the first
meeting
Com-
be
can
made
basis of disestablishment
management
post-
and the
mittee
order,
or
a cease
desist
substantial
were
notice there
other
many
Relations
(National
Labor
Board
ways,
Columbian,
customary in
relations of em-
Co.,
292, 299,
306 U.S.
v.
etc.
ployee
employer,
for the
501,
40-hour week
6606)
support
83 L.Ed.
59 S.Ct.
proposal
and overtime
to be
submitted.
order must have the substance of other
letter,
might have been
by a tele-
misrepresentations.
cases
fraudulent
phone request,
on
or in
one of
a call
employers
Act has not
abolished for
managers
committee,
accepted
universally
оne
presumption stated
'through one of the
who
bosses
took
California
straw
Code Civil Procedure
management.
1963(19),
“private
Sec.
transactions
regular,”
been fair
and by this
Nevertheless the entire case of fraud is
conduct,”
as “in favor
integrity
court
up primarily
built
theory
that only
Sugar Co.,
&
9
Co. v. Anaheim
Jenkins
Cir.,
meeting
st a
between the Committee and
958, 961,
L.R.A.1918E, 293,
247 F.
management
proposal
could such
requirement
or the
Supreme
stated
submitted.
concerning
representa
Court
fraudulent
indicating
Without
were at-
presumed,
that “Fraud
tions
is never
tacking
truth of the statement
alleged
where it is
the facts sustaining it
proposal
notice that a
had come
somehow
must be
(Emphasis
made out”.
clearly
Committee,
from the
various witnesses
Reeder,
supplied)
505,
Clark v.
158 U.S.
happened
asked what
at meetings
were
be-
523, 524,
849, 857,
15 S.Ct.
would Bueter, fraud, up com- looked a and had a meeting one the that hall [after mitteemen, the posting (Emphasis but that effect it has notice].” if supplied.) torn question and are one answer question and answer context. probative This loses all its when force are: preceding read with Bueter’s answer Now, testimony, first his “Q. meeting preceding succeeding this following footnote, management, did the em- in full which con- what with do, do with tains all ployees you did cited testimony or what refer- interrogation A. on this issue.7 employees’ associationf ence to Bueter’s was organization A. hall] in, tinctly further Bueter, They A. if meeting? meant some ular so recognition? another principal he company testified: testified: told Association.” up ing? tion discuss or in the them. plant? ing” meeting about testified: charter bargaining. “that At Johnson, Broadway, “Q. Warner, “Q. What “Q. What “Q. “Q. “Q. —a anything, Well, Nothing. The little thought any changes by me, something them of the date when and “at say kind of was Were said Anything meeting”: What was discussed What A. The by-laws. testimony little There mind, for this A. confining organization asking one meeting of June about topic meeting at I take about a A. myself. no; anything There Association, President the Association possibly * * do was charter; relative to has did he another member after was Bueter that No, A. No. charter, petition to talk up you they of conversation organization. they recognized this, in the demands else discussed Having relied on later discussed phrases was nothing *. with not of June time” time other charter, charter After mean committeemen, might brought they go committee testified [Manager Menden- committee of the the same organizations about.” nothing.” later after was and for collective was us I operation with the any wage through further referring they regards “at more remembеr dis- at that have to at at might presented brought realizing Association. got through they really respondent, Committee, that meet that wished to anything? ‘charter’? than for upon the discussed italicized member, in that whether organiz- brought petition arrange Board: certain partic- of the obtain excep- scales get meet- knew time, in. he I' .that A. Then meeting, what A. tion, cers, was with start we Warner, membership conditions? should meeting ment erence to Manes.” ditions in ployees talked a this that would else. and had [*] to do. whether we nothing more, only rules and [Note ognized “Q. “Q. “Q. “Q. “Q. Who was “Q. “Q. Concerning “Q. “Q. “Q. “Q. “Q. “Q. “Q. “Q. [*] Well, Mr. negotiate did we organization. management, first time. you did then happened with. [*] Who was nominated What Who What I After You Was When, Now, following How Who they Did Consisting What judge recognize your do, Manes, don’t remember it. Mr. I you little While management, have described? A. meeting meeting. with reference to the regulations looked you got busy done? is ‘we’? or what did that presided? started told them I could company.] * * * would many nomination of officers. A. I don’t think we the second happened between 30 and 35. else certain happened Mr. Mendenhall Broadway meet with the first factory, nominated “at that locate one? might and there was meeting employees’ September up did Bueter with the were A. thing to nominate relation to and looked Employees’ A. The a hall? A. changes elected? abоut you have sat that We A. I this the end what A. whom? who it association, after meeting”: to have you meeting, present? held? we testified as talk about nothing you adjourned first opened president, myself. committee. do loith general management A. management did associationt opened There that? A. was. president? first there up they somebody meeting? the first Yes, one. find out said A. Associa- Yes, manage- working met the em- meeting A. Mr. A. Mr. about A. it. thing what Yes. con- rec- hall ref- was offi- sir. sir. un- got he at at I proposi- of of is that the “organization” confined to the Harder’s further made at to tion the 40-hour week was Association. had no reference *13 there, made manage- and not meeting the the that Association’s relation to it was regard sub- it as we do not ment. that what nevertheless There was no intimation inference the warranting was reference to stantial evidence under discussion was with proposition man- that the was not submitted any proposal the submission of prior subsequent agement likely meeting and the the mentioned various the posting To make it the of notice. eight days posting the channels in the the before lie, of a fraudulent finding basis of of the notice. respondent, is the integrity damning lawyer Even in trial trained work support general for unwarranted as guess would not have likely that or the disestablish- cease desist order questions anything these and answers had of ment the Association. prove to do purpose with the undisclosed Even Harder’s statement representation fraudulent in the notice of give undue credit deemed intended 14. much -How less mechanic June it, committee, regard not taken we do Bueter, testimony later his found —who else), (our analysis nothing alone shows steps organizing em- such action as warrants establishing as ployees’ Association the basis for an order cease desist order. Such disestablishment, and their that all fu- of from the de novo consideration takes ture relations with the Company Board court and makes matter of hampered management would be by a contempt employer’s relations future apprehension contempt pro- constant of unrepresented the absent and Asso ceedings general under a cease and desist National Labor Relations ciation. Cf. order. Cf. National Labor Relations Lines, Cir., Greyhound Board v. Pacific Greyhound Board Lines, Pacific Cir., v. pres under 106 F.2d 871. When 106 F.2d 871. possible contempt proceedings sure un proof burden of the fraud a general desist order the der cease representation ulent has not been main employer to refuse dis likely any will be tained such a showing concerning the with his conces cussion “meeting”, whether or more dragged sion for fear of being before than in cases where issue is not one just charges on court are made question of fraud. The vital hap what respondent’s here.9 While the brief states pened eight days between the meet “perhaps arguable” it is that such an ing and the notice. here, since order be made such an made, is further upon order, What relied to prove if unjustifiably affects the em uncharged and employer, ployee undisclosed as much as re contention of fraud, Superintendent testimony argument in favor solve of the un Harder company’s hampered that the friendly statement con- relations between “proposition” cerning the employees, 40-hour it and its Association or posted it, week cooperation was as “directly in their mutual result”8 out (emphasis supplied) production of electric meeing motors. Cf. June Teamsters, obvious It is reasonable International Brotherhood of inter- pretation phrase of this is that International Union “propo- etc. of United Brewery, etc., America, Cir., sition” came as a direct result Workers meeting. F.2d Assuming one construction 106 meeting. hourly piece- til after the third tice to all you basis, 14, 1937, signed “Q. did When meet with the man- work dated June agement? Well, Superintendent,’ Harder, A. let’s see. That ‘W. C. has was that say along posted by you? Yes, sir, been —I would A. that was September. part posted personally. latter on the clock me present meeting? Employees “Q. “Q. Who after Was Harder, Mendenhall, manage- Mr. Mr. A. had met Mr. Committee Maries, Heinze, Yes, Mr. Mr. Warner ment? A. that was after first myself. management. with the posted “Q. “Q. A. as a What was discussed? Was result first of that thing brought up meeting growing ap- meeting? that was was the out of that — question.” prentice directly A. That was a result the. 8 Superintendent testimony meeting, yes.” (Emphasis supplied). Harder’s eight . is: And cases from six other Respondent’s supra. This cited in footnote “Q. Exhibit No- circuits analysis adopted subsequently The Association careful and meticulous Our by-laws Board’s its officers no other upon in the elected relied purpose management act of claimed argument for the brief and attempt Board helplessness mechan- dominate it. of these showing the against attempted ics destruction contend that re- does not counsel their Association without spondent 8(5) of Act violated Section had the proceeding, assuming they even bargain collectively by refusing and to introduce to cross-examine organization. other labor further evidence. support contends disestablish- *14 ment of the Association that re- absent Act, the it Under 7 of is Section spondent hostility had an of shown attitude Board as an ad as much the the duty of organization seeking to another protect the self-or to body ministrative membership employees which, of con- its prop it is ganization of where cooperativе with its later attitude trasted exercised, a destroy to union erly as is Association, the towards evidenced re- to domination. Cf. it has submitted where spondent’s attempt em- to influence its States, Cir., Yuen Lau Hu United representative. ployees’ choice of their It protec is such F.2d A fortiori is claimed this shown hostility by Mr. required where, here, the Board tion as May month of Mendenhall’s failure in the oppor the given has not the Association repeated telephone calls of to answer a protect to itself. tunity Kelly, representative international of Mr. protection by given only could Such be Brotherhood of Elec- the International the three members a frank of questioning Workers, Fllicott, and Mr. business trical on the Association’s Committee the manager of Local affiliated with the as, “Did subject you concealed claim of the Brotherhood. person- telephone you or one of write organize trying These men were to all through to boss submit the ally or a straw respondent’s employees in a “unit” of a management proposition 40-hour the They Local of Brotherhood. claim half for overtime?” and time and a week explain they trying only were to to Mr. party Association been Had the organization Mendenhall nature represented counsel, and if he had persuade they which were to attempting to seeking was estab- guеssed join. to Kelly Mr. testified: fraud, he well have asked may lish such efforts, in beginning any “My or- questions such a submission direct about management to contact ganization, days eight intervening argu- and in attempt management explain to to the emphasis proper laid a ment organization, the aims and of our ideas proof. Board’s burden prior Mondays, calls on the and those Yet, anyone without disclosure May, in last week an were without contention of fraud and such to establish relations effort friendly questioning, for six frank management.” (Emphasis supplied). has been frustrated months Board’s subsequent Ellicott In a letter Mr. wrote likely, Quite de- disestablishment order. purpose of these Act, spite all that the 7 of em- Section telephone past calls was: “For the several self-organization ployees gained by their weeks, Representative Kelly International dissipated. tendency order’s has been The undersigned attempted to ar- have percent majority to cause the be would appointment you an range for disappear and the to drift affairs, Industry discussion unions, one larger into some outside arrangements.” make such unable to been prefer. did they which not telephone calls received were Even if fraud of such the em telephone operator stenographer. and a proved, coming had been ployer it did Though to that effect Association’s free and unaided after persons assume that making we organization, ground not would explained operator calls To hold disestablishment. otherwise stenographer desired to they discuss place power any it in the would em the character Mr. Mendenhall of their to disestablish union which ployer organize his em- intent pretense. opposed by of such a means was ployees. acceptance an unsolicited evidence, Assuming, evidence of the Association’s without benefit not Mendenhall, repeated to Mr. subservience. can failing filed Act. violation of the of the Act can see no violation or- irritated of this nothing remark appointment with the to make find support de- did man to telephone unjustly accused ganizers. they calls In the conference, struction claim, of the Association. in a later they did chosen as the seeking that the testimony is uncontradicted they, men, as representatives of good financial Company had not been fact, record. shown are not to be condition felt able to and that it had not represent that there they Nor did were employees for meet all demands its sought correction. grievances of wages increased of hours. shortening situation, the Brotherhood In this since improved This and was the condition had men organize merely seeking reasоn 40- granting approval or unit, into Mendenhall’s its hour week in the following June. deemed his offer assist time six to time in preceding the Brotherhood vio- favoring months demands of granted some op- statement of Any of the Act. lation employees. part May, latter In the position been deemed would have evi- also period which the during cannot deem this dence of a violation. We attempting organize Brotherhood was *15 respond telephone calls as failure to the to union, granted the it pay a raise to several support a destruction tending evidence to department. winding men its raise of the Association. negotiation came direct the af- by between employer. fected and the doubt event a failure We whether singles Board pay out all the raises from appointment response to to make an improve- preceding six months this telephone organizer or calls of a labor employees’ of condition the by ment the anyone else, there no emer- is sudden where respondent as evidence that it was en- in- gency, is a of the Act. violation In to frustrate the of deavoring formation life, dustry every-day and in if the tele- sought the unit Brotherhood. by the procure appointment phone fails to an importance, a a matter of one writes are unable see the selection how and, stating if lettеr the writer’s business particular of this one of a succession of authority addressee, not known to the his employees, long concessions the some proposed desired to act action in the agitation, antedating Brotherhood meeting. evidence warranting the disestablishment of the Association. It is true that in Na- Manager actually When Business Ellicott tional Labor Relations Board American v. representative ex- became of several Cir., Corp., Potash F.2d & Chemical a letter wrote 488, 494, held concession to that Mr. in- Mendenhall for an asking him union, to be dominated by shown em- concerning for a terview them well ployer, attempts after fruitless for over a affairs,” “discussion of the inter- Industry year concessions, obtain such warranted day. on the view occurred On following em- the inference that it was due to the prior day the letter was delivered and ployer’s to “head off” formation desire charges Ellicott filed interview of a rival of the American Fed- union respondent’s employees two of had been eration of Labor. No such showing discharged for union These activities. attempt an made here. If the inference of charges by were later dismissed the Board. permitted to violate were under Act pro- In the Mendenhall interview Mr. case, employers all circumstances against tested of violation of the claim im- granting be in terrorem would discharge the Act in men. On employees’ provement in their conditions n it was an “A. of L.” discovering F. attempts, long' period in which during not a as- “C. union that had so I. O.” unions, rival were made to being often sailed for the inter- waiting him without do not organize them. We believe stated, requested in letter he view Congress intended such a construction you consider lesser of “Well we will laboring to benefit the conditions of an act charge two The effect of such a evils.” men. injustice against to his an impair above in manager industrial would him We have considered men, of the Board’s seriously in his relations the contentions dividually with his might discharge present argument. his his them as Reviewing lead to brief sup employer employment. to see that they future unable prevent whole we of dominance the Asso- charge port finding At that time there was other appellate an its affairs. ciation or In mediate Board is obvious. interference with court language persuade Labor Rela- may Supreme National Court etc., Co., supra, Columbian, ac- tions Board our union that quired inside had holding the page page organization 306 U.S. 59 S.Ct. labor status of a “enough and, is not L.Ed. evidence prior to 6 is absent erroneous June justify, jury, if trial were to re- ground alternative consideration of the the conclu- fusal to direct a when decision, verdict our Board’s enforcement is one of sought sion to be drawn it This be directed. order should jury.” we order set fact for Hence result, though desist aside the Board’s orders cease party might that the shown well have "respect respondent’s (a) dominat- statement was its committee true that Association; interfering ing or single letter, telephone verbally by a bar- (b) recognizing the Association as representative actually re- submitted the Also, agent employees. gaining quest for the 40-hour week. since is no such substantial persuade Likewise practice the re- any unfair Supreme the facts Court that spondent, general we set cease aside telephone requests grant failure to order with reference to other desist an inference that interview warrant practices. unfair labor act adverse the failure was an employees’ Brotherhood and in aid of the suggested since self-organization. Cross-examination practice shown “the unfair labor does * * * might counsel well disestablishment, justify purpose shown that the real of the tele- unnecessary consider effect [is] phone calls was for an opportunity to make the Asso formally the failure *16 employer the favoring coerce into the deter party.” ciation This is not case the opposing Brotherhood and Association. congressional a contention that mining is statute violates Constitution. It thе justification, no based on .an merely administrative conduct construing assumption infallibility of our with re- judicial with reference “the cherished spect evidence, to the ignoring value concepts of embodying tradition the basic question the the denying em- law play” Morgan fair as in the case of v. right op- ployees’ union to notice and the supra. States, United portunity heard arising from the un- be questioned fact of the absence of such statute The fact has opportunity. notice and powerful responsi grave Board this set Order aside. rights of protecting bilities in ployees em great has had difficul and to meet HEALY, Judge its Circuit (concurring ties in nationwide establish creating ment, it, court, part part). and dissenting not make does before this litigant just on the more than another sup- I the evidence insufficientto think denial liberty issue of of a of these civil port the order directing withdrawal small mechanics Association. recognition, satisfied the dis- am do believe intermediate Hence we Association establishment of the practice appellate should abandon its court to effectuate tendency policy Supreme basing that of the Court10 agree Accordingly the act. I that the ground on one its decisions more than respects order Board’s in these should record shows there two ex where set aside. preváils litigant who in favor of isting n It grew Assоciation is clear that the out appeal. regard Here we viola spontaneous movement for collective tion of the Association’s and participated majority bargaining, para opportunity heard respondent’s employees, culminating of in the designation rights. mount of its of the violations petition for and the wrong The of the committee. At absent time petition upon this case such a acted favorably result from de- practice parture management meeting from of this inter- at their 10 303; City Vide, & United Pacific Co. v. Mason States v. Title Ins. Union 166, Co., 485, 472, 486, Co., 160, 19, 44 26 265 199 U.S. S.Ct. 50 Trust U.S. 1110; 621, 134; Davis, 32, 68 L.Ed. Richmond 305 S.Ct. L.Ed. Davis v. U.S. 26, States, 40, 41, 3, L.Ed. Anchor Co. 59 83 118 v. United 275 S.Ct. A.L. Screw 340, 194, R. U.S. S.Ct. L.Ed. con- had, discussion regard as irrelevant I committee on June required proof quantum practical acquired cerning purposes, for all under proceeding in establish fraud. A organization as defined status of a labor not a fraud Labor Relations law National the act.1 epithets application of action, and the mere employer There was no domination employer against an charged to conduct Labor Rela- formation. National Cf. pro- to make it such. does not serve Newport Shipbuilding tions Board News act and the statutory is purely ceeding Co., L.Ed.-, Drydock & S.Ct. provides that lays rules. down its own December occurred after- What upon taken the “if all the matter; ward is another think but I person opinion shall be of the em- subsequent interference with the in or complaint engaged has named in the ployee enough nor neither union was vital practice, it labor in” an engaging unfair long-continued to warrant sufficiently findings issue and shall shall state its so measure extreme as disestablishment.2 person cease and such requiring order think, however, I that the later interference practice. U.S.C.A. desist § from justified cease and desist order issued supported findings, if 160(c). Board’s by the Board. evidence, are conclusive. substantial days eight On after the first June purpose legislation The declared management between the and the protect practices unfair workers committee, respondent posted the notice part employers; and I can on the of their quoted opinion, in the main that the stating effective method of no more conceive proposition— had submitted committee purpose than the erection of nullifying this acceded to 40-hour a—for proof those artificial standards week time and a half for overtime. opinion. up in main I venture set Both the trial examiner and the Board interpolations of this judicial suggest that found that the statement was a fabrication. safeguard civil way in no sort tend opinion rejects majority finding, population. laboring liberties of the appears further to hold that even if charged respond- complaint The Board’s posted statement deliberately false domination and interference ent with prac- did not constitute an unfair Association, administration of tice. *17 improper it general in terms lending with seriously itself does not quite probable support. that It question finding. only It contends that know, in advance of the did not practice the unfair was of such charac- trial, proof might precise form the take. justify ter disestablishment of the surprise is claimed of lack because Where Moreover, respondent Association.3 does precision allegations in it is doubt- of surprise request not claim no for of examiner and practice the trial less the leave to adduce further evidence on the reopen the for the inquiry Board to of the point; proof nor has it intimated that court, was This of further evidence. taking proposal available of an actual by the com- too, liberal, been and should continue has proof which the Board’s malevo- liberal, sending in cases back to the to be mittee — lence left undisclosed. In these circum- any party affected or- Board where stances, majority’s labored der, employer refinements or a labor it whether .be testimony of seem less organization, prejudice calculated of claims because truth uncover the than to specific establish thesis. or otherwise. But pleading lack of (5): (5), 29 U.S.C.A. “The § § and desist order but no of cease order organization’ any disestablishment. ‘labor term means or- 3 Respondent’s (pp. 11) any any brief ganization agency states: kind, or or “ * * * perhaps arguable employee representation committee [the constituted an indirect notice] inter- plan, participate in which by management ference with ad- purpose, exists in whole which Association, ministration continu- dealing employers part, of in pre- ance which interference grievances, disputes, by proper order vented to cease de- pay, wages, employ- rates of hours of justifica- it cannot constitute sist. But ment, or conditions of work.” dissolving for an order of the Board tion appears bargaining rep- properly to have been the view This constituted employees.” examiner, the trial who of the recommended resentative respect aside, prejudice all no sub- company union. Men whose depends holding matter arose either out of the form sistence on continued charges jobs suggestions or of of conduct- of manner take inquiry. far peremptory. less Under the re- duty law Turning finding, there to the Board’s spondent to neutral and to refrain from no hint in the committee expressions way conduct or tending any proposition men- sort made a to influencе its choice of notice, tioned in or that had made representative. dissent from bargaining I request any ognition. proposal except rec- other approval putting court’s its seal the com- The three members of practices. these dissembling mittee, together respondent’s Johnson, president, the committee’s opinion testified that Being the unfair recognition. practice demand only disestablishment, was for does not justify activities the committee were ensuing I believe it unnecessary to consider the related in detail and there is no discernible effect of the failure formally make the gap Indeed, point. party. the evidence on the bearing Association a The cease and desist produces record as a whole protect order calculated the em- certainty ployees, tion; conviction to a amounting not to their Associa- overthrow prior no further bargaining presence hence the of the latter is posting the date of of the notice.4 prerequisite view to its enforce- Superintendent Plant Harder testified ment. posted that the notice was after the com manage mittee’s first ment, and a direct result that it was meeting. Had action of the man agement outgrowth, or in whole conference, part, other or of demand or any from the committee of its members, it is ratiоnal believe that MARYLAND CASUALTY STARK. CO. v. Harder earlier There said so. were stirrings of discontent No. among readily account for the Appeals, Circuit Court of Ninth Circuit. concession,5 but to attribute it to de the formed committee Jan. newly mands of the ais that, totally different matter. is clear to the efforts crediting of the committee the shorter overtime, and extra pay work week management stepped beyond propriety the bounds of and truth. *18 notice, nature of the misleading to- gether language, laudatory evi- an attitude deliberately dence calculated persuade to shun other unions and to adhere to the Association. To joined those had not who Association, and to those its member- ship might who been inclined union, affiliate with the the im- competing
plication plain enough was that their best lay interests the future direction up testimony management particularly taken See Bueter’s part September. quoted opinion. until latter in the main His Bueter employee group. Mendenhall, is corroborated chief actor respondent’s interrogated manager, who testified He was testified concern ing meeting no further activities was held committee subse quent meeting. Sep committee of These he the Association until said plans completing tember to do with or ganization, This basis first which was on which re- spondent attempts explain specifically held on June He states the mislead- working matter statement. conditions