National Labor Relations Board v. BRASHEAR F. LINES, 477

Decision Date16 May 1941
Docket NumberNo. 477,477
Citation119 F.2d 379
PartiesNATIONAL LABOR RELATIONS BOARD v. BRASHEAR FREIGHT LINES, Inc.
CourtU.S. Court of Appeals — Eighth Circuit

Charles M. Brooks, Atty., National Labor Relations Board, of Washington, D. C. (Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, Laurence A. Knapp, Asst. Gen. Counsel, and Allen Heald and David C. Sachs, Attys., National Labor Relations Board, all of Washington, D. C., on the brief), for petitioner.

Stephen C. Rogers, of St. Louis, Mo., for respondent.

Before STONE and GARDNER, Circuit Judges, and OTIS, District Judge.

STONE, Circuit Judge.

This is a petition for enforcement of an order of the National Labor Relations Board directed to the respondent. The complaint herein was based upon verified charges preferred by the International Association of Machinists, District No. 9 (hereinafter called Union), affiliated with the American Federation of Labor.

The order of the Board required respondent to "cease and desist" from certain things and, also, to take certain "affirmative action". The cease and desist portions of the order were: (1) From discouraging membership in the Union; (2) from interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization for collective bargaining or other mutual aid or protection purposes. The affirmative actions required were: (1) To reinstate without prejudice and to make whole two discharged employees, Lupardus and Walton; (2) "upon application" to reinstate or place upon a preferential list certain striking employees and to make them whole under conditions set forth in the order; (3) to post and maintain notices that respondent "will cease and desist in the manner aforesaid"; (4) to notify the Board of compliance.

The response attacks the sufficiency of the evidence to sustain the findings of the Board which are the bases of the various provisions in its order; denies the power of the Board to issue the complaint; and the power of the Board to cause respondent to post notices that it "will cease and desist in the manner aforesaid".

Power of Board to Issue Complaint.

Since the power of the Board to issue the complaint strikes at the entire proceeding — in a jurisdictional sense and irrespective of the merits — we consider that contention first. The situation giving rise to this contention is as follows. The charge, upon which the complaint issued, was made by the Union. Therein, were stated interference, restraint and coercion of employees in the exercise of their rights under Section 7 of the Act, 29 U.S.C.A. § 157; discriminatory discharge of named employees because of their Union activities; and refusal to bargain with the representative of a majority of the employees. The complaint set forth the items in the "Charge" with more particularity and detail. As to the refusal to bargain item, the complaint set forth that a majority of the employees in the appropriate bargaining unit had designated the Union as their bargaining representative. The Board found that the Union had not been so designated by a majority of the employees in the unit and, therefore, determined there had been no violation of the Act in refusing to bargain with the Union.

In this situation, respondent contends that when the Board found that the Union, which made the Charge, did not represent such majority of the employees, "the proceeding should thereupon have been dismissed". The supporting argument seems to be that where a majority in a unit have not designated a bargaining representative, "the only procedure would have been for the dissatisfied minority group of employees to present their grievances to respondent as provided in Section 9(a) of the Act 29 U.S.C.A. § 159(a) * *", which gives the right to "any individual employee or a group of employees * * * at any time to present grievances to their employer."

This contention is not sound. The effect of the contention is that, until a majority of a unit had chosen a bargaining representative, the employer would be free to do whatever he wished to prevent the employees choosing such representative. Section 7 of the Act declares the right of self-organization; Section 8, 29 U.S.C.A. § 158, declares interference with that right to be an "unfair labor practice"; and Section 10, 29 U.S.C.A. § 160, empowers the Board to prevent "unfair labor practices". If a complaint covered only refusal to bargain with the Union, then a finding that the Union did not represent a majority of the unit would dispose of the entire matter on the merits and dismissal of the complaint would follow. However, where the complaint covers other unfair practices, such as interference, intimidation, coercion, etc., a minority have a right to protection to the end that they, as well as other employees of the unit, may have their full rights under Section 7. Such right is not affected by failure to establish a majority bargaining agent.

Cease and Desist.

Broadly stated, the cease and desist part of the order required respondent to abstain from all interference with free action of the employees in self-organization; and with particular reference to the Union.

This portion of the order was based upon four findings of the Board as follows: Hostile activity to the Union organization of employees by Oscar Grott, foreman of this maintenance department of respondent's business; spying upon such organization activities by Grott and by John A. Zenzen (shop clerk); avoidance and defeat of attempts by Union representative to carry on bargaining negotiations; and distribution of a circular entitled "A message to employees. Facts about the Wagner Act".

(1) As to hostile activities of Grott. He was foreman of this maintenance department, which was the unit for bargaining purposes declared by the Board and rightfully selected since this is a craft union. He did the hiring and firing of men in this department. The activities of Grott involved here consist of statements made by him to various employees. Very concisely expressed, these statements were: that the company would close its business before submitting to unionization; that he would discharge anyone joining the Union, if it were necessary to "hold his job"; that an employee, who had joined the Union, had better withdraw if he "knew what was good for him" or he "would be out of a job"; an intimation, to a Union member, that two men had been discharged for Union activity; an...

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