*1 R57 solvent, pros- entirely step plan has neither nor future lawful assets of a pects justify higher reorganization. valuations than reported by the Commission. In view appellants The contention of pro- of the ¡borough investigation of the posed plan by involving cessation of business im- plan it is that has been made Congress (a solvent corporation) a fraud is possible a correct us to reach more minority on its stockholders is just questions of than solution of fact plan merit. That the be effectuated aided by has been the court below reached Congress comply must with the of laws expert weight by witnesses of has State of under which it is or Delaware report by as well as of the Commission. ganized. There is to indicate that Congress lawfully carry cannot out the ob procedural The technical and proposed transfer of its assets or that its jections order be with to the also seem to minority plan any just stockholders have argued out merit. is does It grievance of only a because such a transfer. In reorganization not constitute a opinion they our likely are thus pro realize liquidation method of because it —this more stock than in other their vides for the immediate sale debtor’s corporate way. is for authorities asset, principal namely, interest in Con its stockholders to sanction transaction gress, liquidation of and for the ultimate see fit. remaining reorganized assets plan ultimate involving But a A proposed plan recognizes Class of liquidation contrary to the terms requires to an extent which Stockholders reorganization provisions of the Bank the ruptcy accept a their bondholders to of Chapter (10) 216 Act. Section in stock of a transferee claims provides plan reorganization X that a years of their to wait to realize 90% debtor sale or trans include “the receiving cash, in meantime claims any part property fer of all or by Consolidated upon the notes issued corporations one theretofore or more other reserved of interest than that rate lower organized; organized or thereafter to this, in view original their debentures. All merger of the debtor or consolidation findings of the of report court below corporations more other one or Commission, indicate seems to sjj í*í open plan doubt if the Corporation, In of over Funding Re be because Central doubt would Cir., plan pro- F.2d A liberality dealing we held that a Class viding liquidation for ultimate of all the Stockholders. assets of corpora- a debtor a transferee affirmed. Order tion did liquida- not make the transaction a reorganization. tion rather than a Con- Refining tinental Ins. Co. v. Louisiana Oil Corp., Appeals 89 F.2d the Court of plan re- upheld Fifth corporation organization wherein another acquire was to all the assets assume all liabilities whereby of the debtor and preferred the preferred stockholders should receive WESTINGHOUSE ELECTRIC & MANU corpora- stock the purchasing FACTURING CO. v. NATIONAL LA exchange holdings. for their These BOR RELATIONS BOARD. persuasive sup- decisions are authorities in port of order of tile District Court No. 289. the case at bar. Appeals, Circuit Court Second Circuit. It is argued further appel June lants that the power District has Court over the assets of Congress. This corporation unless that enables them be brought reorganization into the to the ex tent of plan thereof. The so far as 81.8% the debtor is concerned is the essential equivalent of sale of its shares of the Congress. stock of This would surely have
658 City
all of New York (Cravath, De- Gers- dorff, Wood, City, York Swaine & of New counsel), petitioner. Fahy, Counsel, Charles B. Gen. Robert Watts, Counsel, Associate Gen. Laurence Knapp, Counsel, A. Weyand, Asst. Gen. Ruth Wolf, Mortimer B. and Morris Forer, C., L. Washington, D. all of National Labor Board. Relations HAND, SWAN, CHASE, Before L. Judges. Circuit HAND, L. Judge. up upon petition by This case comes to review a “cease and desist” Board; upon peti- order of the Labor tion of the Board for order of enforce- ment. The conduct which the Board found principally change unlawful concerned the bargaining, from a “Plan” of collective instituted before the National Labor Rela- passed, tions Act was the formation in respondent’s place Bloomfield plant, of an unaffiliated called the “Independent”. position company’s was the result of spontaneous agreement and free employees; Board’s, pany’s continued influence organization so as to pervade the new (2) of meaning of 8 it within the dominate § Act, (2). An 29 158 out- U.S.C.A. § found, of which have of the facts all line evidence, support in the is as “substantial” In 1933 follows: the called, “Plan”, dealing might arise between its matters which necessary employees and itself. It say than to more go into the details organiza- committees of this governing repre- up equally of elected made employees, and of “man- sentatives dissenting. Judge, SWAN, Circuit appointed by employees” agement pany. Though ap- does not control, pear have had least joint share in the “Plan’s” such a man- direction as the statute now agement and In March of 1937some of the em- forbids. organize a ployees began to local of the charter; C.I.O., later secured a on 12, 1937, Supreme April Court-declared Act, Labor Relations the National U.S. seq., constitutional. 151 et C.A. § Conference Committee” of “Joint “Plan” was its authoritative governing body, April 21, a meeting on held Reinwald, superintendent Smith, presided over Harold A. Don- C. company’s Swatland, Ap- “divisions”. Gilpatric, Roswell one of the ald C. L. ograph pamitly company was still in doubt amended constitution which unlawful; April to liow far the “Plan” was considered at appointed evidence, sub-com- 21st. There is the committee and the Board find, Donnelly Shepard mem- does not revise four of the ten mittee to employees” conferred being “sitpervisory company’s Con- of- bers *3 newly up formed selyea, drawing ficials then chairman of the this constitution. local, join among sub-com- Cards were refused to this circulated all the em- C.I.O. mittee; Newton, ployees, by became large majority who later which of them but appears local, president join, agreed by uphold” and to of did “abide and the con- the stitution, A support. in its deliberations. and to subscribe for its to have taken “Independent” wished to majority sub-committee On of this 21st the held an June control, though management representatives, of officers and exclude all election and union; any national company began on the 23rd the to not to affiliate deal times, it but, five although representatives met about it with them as its mem- of appears bers, and any proposals, but of members never made the alone. On Au- May By 10, 1937, 12th gust “Independent” out. merely petitioned to have faded the that the “Plan” company recognition had decided the the Board as exclusive bar- unlawful, plant manager, agent employees; gaining was it also meeting of Madden, the attempted called recognition another similar to secure Committee”, de- and Conference from the cases it both was “Joint longer company unsuccessful, would the clared that and in held an December it “Plan”;' dis- it would be support auspices that the of election under the disinterested continued; interested he was not persons, that outside which resulted in an over- adopted; that plan the whelming majority what favor of business; that he would Board, was their voting. it The which had refused to lawfully, even answer not, not any election, complaint could filed on hold “per- the questions it. He and about any March present, also was manager”, who sonnel far, appear not So it does that the com- of elected members rest —all left the then pany way had tried in to influence the Committee”—-and Conference old “Joint employees in the formation of “In- poll informal of they began examine to dependent”, against the local. To the rep- by elected plant employees, taken Conference Committee” Madden had “Joint explicitly resentatives, gen- was the out what to find company dissociated the from na- affiliation feeling towards eral organization, new and told the men to eighty They concluded union. tional nevertheless, they pleased; do as cent, against employees were of per openly had been “Plan” never “disestab- except further to did but lished”, and to it the suc- dealing with the keep on to Madden ask fracture, line of ceeded at substitute some until representatives old supplement To least the surface.’ this Mad- “Plan”. might he positive of “domination” lack of glad at be he would den answered company, Board by made three employees; any group meet any time to specific findings of against discrimination to func- ceased “Plan” on the from then but the C.I.O. local. The first of these was tion, never revived. Thoms, company super- a talk between intendent, one, Hennclly, Conselyea, president a former On Conselyea got Conference new local. had leave from elected member “Joint together twenty Committee”, em- Madden hold a called of the C.T.O. May, or three them former local in and had held it. Thoms but two ployees, all committee, day aud de- summoned him later on the his same members number, office, puted Donnelly job and asked him whether his was of their two important him for a new more than the draft constitution union. The Shepard, to Donnelly company had been seeks to minimize significance union. liated unair this, justified but the Board was and vice-chairman chairman “Joint Conselyea Committee”, Shepard holding that would naturally had Conference indicating remark as secretary of all committees under take the that his union putting job They activities were his in jeopardy. finished the draft old “Plan”. second discrimination was using its basis some the The the com- June to let proposals put pany’s forward refusal the local use taken *4 right company was in to Board and the had done ated union. The two, separation and the between the too as discrimination. mark treating this deprive of the company’s publicly refusal the successor the to was third instance fa- bulletin continued advantage local use its the C.I.O. to to allow any there sub- in that case nothing of It is true that can find vor. boards. We separation Madden between support charge; less this was somewhat to stance refused case at the boards was new than in the use of and the testified that the old alike; company bar; merely “re- so, a if the was form both unions union in to the “Plan”, its Finally, Board con- the earlier and rights. vision” of the was within “Independ- any part in prepared of the had been the constitution stitution criticizes .at But rate; an officer or provided that the it executives of ent” because commit- which governing the the circumstance not member that was it; employ, company’s counted, it was in must be the as we understand tees ipso large he facto not discharged, employees at had if he that the that rather wholly provision company the was place. a lost Such his advised they joined union new local of a national the charter of the whether indifferent probably that, might, evidence of be some as it and would indeed and old, domination, the it does seem to of the did, but not successor pany appear to abe plain, in the case of made ordinarily such separation to be should have us Unless such a union. continued an unaffiliated with it the discontinuance require employment employer. as the large to is so countenance from the officials, model this, the natural most theory of full-time is in cases such as where that members, employees the officers from to is to choose union seems the an unaffiliated inevitably cease to be officers earlier must to have evolved out of an large who company’s employ. they leave the em- joint if organization of opportunity datum, for here There is indeed as ployees, the Board take it domination, no more than is satisfactory but company evidence to the absence members sup- union whose contrary, employees inevitable the the that employees. company company approves new, are confined to pose the the that do not therefore count at bar we old, the as it the choice did that their is the over of domination as a factor this “Independent”. that free as reason not as the statute de- How really such fear mands. substantial is, upon say; not for us to how it is much to de the Board’s order had If the Board insist to make upon, two acts discrimin pend alone the public change, the court did not the de- local, we have con which against the ation firmed, here; clare; we the nor need credulity our would tax it somewhat any effort pany did not make to make if effect substan suppose that their was to employees generally plain that to the not, put our tial; not, and do we need but revision, “Independent” seems was for it ground, decision that amendment, Na “Plan”. On the of the is ruled us the situation such, Newport to be it Board v. it seemed surface Labor Relations tional Company, representa- Dry Dock from the old emanated elected Shipbuilding & News tives, ap- 84 L.Ed. that alone established an 60 S.Ct. 308 U.S. two, pearance continuity between the a “Plan” in there had been also There speech May only partici Madden’s 12th was representatives company had which representatives; company after which became unlawful pated, equivalent Act; it or its there also “Plan” seek to broadcast passage 2,500 way compels L.Ed. to confirm the us —about appears, was content far it all. So as personnel Board’s There order. assume, true, manager general manager let them what the em- ployer out of took had arisen in the “revision” of the quite “Plan”; believe, na- “Plan” drafting and to as of a constitution done, preferred turally might it have union. Effective action just required agreement by local form- union company to the C.l.O. the successor course very feeble. and the constitution could not be amended ing, and still Continuity no dif- disapproved. would have made if be- possible recently declared itself tween tlie old “Plan” and ference meeting; plain. That to all Madden did union was is not important how Board was to decide true at bar. On in the case_ been; certainly employee members of the that would have Madden told the question for us. Committee that old Conference Joint FTe withdrew “Plan” was discontinued. Therefore, quite aside from the two dis- everything done from the company against criminations formulating charter and thereafter local, the “In- the “disestablishment” of “Independent” was done by-laws of powers. dependent” was within the Board’s *5 employees suggestion or might before election insist any company representative. advice from place, decks should be take should employees If who were former commit- “Independent”, because it cleared cannot teemen take the initiative in form- path untrammelled of an stood in the independent ing an then it is dif- suggestion examiner (The that the choice. imagine how a valid organiza- ficult to local hearing give a fair formed; they can ever be tion are the allusion.) more than this not deserve does among employees, natural leaders disturb no reason therefore to We see they would otherwise not have been order, except or not enforce Board’s representatives under the old elected “Plan”. particular. post To in one notices that any employer how I do not see could have has “disestab- more, scrupulously than did acted more West- lished”, say may well announcing inghouse after employees lead the to conclude that un- longer be rec- the “Plan” would under same affiliated union fall ognized. That announcement un- same reason which han. The demands spread doubtedly among employees by rigid impartiality “disestablishment”' — employer those to whom was organizations made. If an kinds of between all —de- keeps gives employees off and public hands declaration that after it has mands plete organize they please, “disestablished”, freedom to the field will be employees’ the mere fact that some open choice of form they prefer. (a) For reason Article II organization infer from the character by adding the order will be modified local union will formerly existing that a employees are following suffix: “but the management than' one please the better choose, organize free body, labor should a national affiliated with or is affiliated with a whether not it national finding of domina- justify a modified, union”. As order is af- my opinion In there coercion. firmed, and enforcement order was no substantial entered. pany domination or coercion of the “In- as modified affirmed. Order dependent”. approving the Board’s or- Newport authority on the der News SWAN, Judge (dissenting). pushing we T-think are dicta of agree Newport opinion unnecessary I cannot News undesirable case, supra, 308 U.S. 60 S.Ct. extremes. notes 12th, Room for an address a C.I.O. meeting of and also a Recreation mime- employee. had been succeeded an unaffiliated organizer he was because union; though, bar, unlike the The of course have case would quarters, retained of control justified in some measure refusing the use purpose over not, for the amendments to its constitution. Recreation Room or whatever; thought enough but it court this factor to con- electioneering union, “Independent” was demn the did not its deci- it rest do -this. alone; for that rooms sion held allowed to use that other “disestablished”, treatment, ought be even equal in the successor purpose, and presupposed if this were removed. The reason feature of an affiliated that, new representatives although affiliates for from officers and formed, lawful, freely ac- offices should national would be or from the organization, unaffili- the earlier of an fact arisen out of rights of officers corded the