National Labor R. Board v. Service Wood Heel Co.

• Decision Date: 19 December 1941
• Docket Number: No. 3707.,3707.
• Citation: 124 F.2d 470
• Parties: NATIONAL LABOR RELATIONS BOARD v. SERVICE WOOD HEEL CO., Inc.
• Court: U.S. Court of Appeals — First Circuit

124 F.2d 470 (1941)

NATIONAL LABOR RELATIONS BOARD v. SERVICE WOOD HEEL CO., Inc.

No. 3707.

Circuit Court of Appeals, First Circuit.

December 19, 1941.

Louis Libbin, of Washington, D. C. (Robert B. Watts, Laurence A. Knapp, Ernest A. Gross, and Harry G. Carlson, all of Washington, D. C., on the brief), for N. L. R. B.

Walter M. Espovich, of Haverhill, Mass. (Dean E. Nicholson, of Haverhill, Mass., on the brief), for Service Wood Heel Co.

Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.

MAGRUDER, Circuit Judge.

This is a petition by the National Labor Relations Board for enforcement of an order against Service Wood Heel Company, Inc.,¹ dated May 21, 1941. 49 Stat. 454, 29 U.S.C.A. § 160(e). The order, which is in the usual form, was based upon findings by the Board that the respondent had engaged in unfair labor practices by dominating and interfering with the administration of Russell Employees' Association at the respondent's Plaistow plant, and by refusing to bargain collectively with the Wood Heel Turners' Local 12-A, United Shoe Workers of America (C.I.O), as the exclusive representative of its production employees at its Malden plant.

Before us, the respondent challenges only that part of the order (paragraphs 1(b) and 2(b)) requiring it to bargain with the aforesaid union as the exclusive representative of its production employees at the Malden plant. Respondent does not put in issue the appropriateness of the unit fixed by the Board. It does not deny that there was substantial evidence of its refusal to bargain. Nor does it claim that this refusal was based upon failure of the union to furnish it with satisfactory proof that the union had been designated as bargaining agent by a majority of the employees in the unit. See National Labor Relations Board v. Somerset Shoe Co., 1 Cir., 1940, 111 F.2d 681, 688. The sole point pressed by the company is that the Board's finding that a majority of the employees in the unit had designated the union as their representative is unsupported by substantial evidence.

At the hearing, counsel for the Board put in evidence a list, prepared by respondent, of all the employees at the Malden plant and their respective occupations, from which list it appeared that there were on March 1, 1940, 60 production employees in the unit. This list was verified by the testimony of respondent's bookkeeper who made up the list from the payroll book. To prove that a majority of these 60 employees had designated the union as their representative, the Board produced as a witness Fred G. Hutchins, one of said employees.

Hutchins testified that some of his fellow workers asked him to organize them and get them into the United Shoe Workers of America. In his own handwriting he prepared little slips of paper to be distributed among the men for signature, reading as follows:

"Date

"I, being an employee of the Russell Heel Company's Malden plant, petition the National Labor Relations Board to certify the United Shoe Workers of America of the C.I.O. as the bargaining agent for me, with my employer.

"Name _______ "Opperation Address ________"

He distributed these slips throughout the factory some time during the last week in February, 1940. Hutchins personally obtained the signatures of 12 or 14 employees in the plant. Arsenault and Guattieri, two fellow workers, assisted him in the distribution. The slips were "passed to individual members of the crew, and they were told that if they wanted to join the C.I.O., or have the C.I.O. represent them, to sign the slips and turn them in." The signed slips were all returned to Hutchins by the end of the last week in February. The batch of slips, after being identified by Hutchins, were introduced in evidence by the Board. A comparison of the names on the slips with the list of the production employees taken from the payroll reveals that 33 out of 60 employees in the unit had designated the union to represent them.

The respondent's point is that Hutchins of his own personal knowledge could testify only to the genuineness of the 12 or 14 signatures which he himself obtained; that the signed slips which were returned to him by Arsenault and Guattieri constituted only hearsay evidence.

But hearsay evidence is not incompetent in proceedings before the Board, 49 Stat. 454; the Board may consider such evidence and give it its rational probative value. It is true, "Mere uncorroborated hearsay or rumor does not constitute substantial evidence." Consolidated Edison Co. v. National Labor Relations Board, 1938, 305 U.S. 197, 230, 59 S.Ct. 206, 217, 83 L.Ed. 126. Such might have been the situation if the Board had introduced the slips without any explanation of where they had come from or how they had been obtained. The ultimate question of fact is whether the Board had before it such relevant evidence as a reasonable mind might accept as adequate to support the conclusion reached. If in addition to deciding this question of fact, the Board before making its findings must sift out the various items of evidence before it and reserve for special treatment those items which would have been inadmissible in a court of law under the technical and often debatable rules of evidence, we think there would be put upon the Board the very burden of which the Congress intended to relieve it by the provision of § 10(b) of the Act, 49 Stat. 454, 29 U.S.C.A. § 160(b) that "the rules of evidence prevailing in courts of law or equity shall not be controlling." Cf. American Furniture Co. v. Graves, 1925, 141 Va. 1, 15, 16, 126 S.E. 213, 216, 217; London Guarantee & Accident Co., Ltd., v. Industrial Accident Commission, 1927, 203 Cal. 12, 263 P. 196.

Here we have a small group of employees in a plant where everybody knows everybody else. Hutchins personally verified over one-third of the signatures. There is no reason to suppose that Arsenault and Guattieri forged the signatures of fellow works on the other slips. We have examined all the signatures and find no inherent indications of forgery. The signatures of Hutchins, Arsenault and Guattieri appear on the slips which they respectively signed for themselves, and any crude attempt at forgery of the other signatures would probably be apparent from a comparison of them with the signatures of these three employees who distributed and collected the slips. Further, it is quite unlikely that any such forgery would be attempted, in the circumstances, for this is hardly an effective way of getting one's fellow workers to join and support a union. We think there was sufficient corroboration in the testimony of Hutchins, in a careful inspection of the slips themselves, and in the surrounding circumstances, to render the evidence in its hearsay aspects trustworthy and to satisfy a reasonable trier of the facts that a majority of the employees in the unit had designated the union as their representative.

In National Labor Relations Board v. Remington Rand, Inc., 2 Cir., 1938, 94 F.2d 862, 873, certiorari denied 1938, 304 U. S. 576, 58 S.Ct. 1046, 82 L.Ed. 1540, referring to the provision of § 10 (b) of the Act, to the effect that "the rules of evidence prevailing in courts of law or equity shall not be controlling," 49 Stat. 454, the court said:

"* * * no doubt, that does not mean...