National Labor Rel. Board v. Botany Worsted Mills

Citation133 F.2d 876
Decision Date18 January 1943
Docket Number8133.,No. 8132,8132
PartiesNATIONAL LABOR RELATIONS BOARD v. BOTANY WORSTED MILLS. BOTANY WORSTED MILLS v. NATIONAL LABOR RELATIONS BOARD.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

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Howard Lichtenstein, of Washington, D. C. (Robert B. Watts, Gen. Counsel, Ernest A. Gross, Associate Gen. Counsel, Gerhard P. Van Arkel, Asst. Gen. Counsel, Joseph B. Robison, and Armin Uhler, Attys., National Labor Relations Board, all of Washington, D. C., on the brief), for National Labor Relations Board.

Frederic R. Sanborn, of New York City (Putney, Twombly & Hall and William C. Treanor, all of New York City, on the brief), for Botany Worsted Mills.

Before BIGGS, MARIS, and GOODRICH, Circuit Judges.

GOODRICH, Circuit Judge.

This case is before the Court upon petition of the National Labor Relations Board for enforcement of its order against the Botany Worsted Mills and upon petition by the latter to set aside the order of the Board.

On March 8 and June 25, 1940, the Textile Workers Union of America filed with the Board's Regional Director petitions for investigation and certification of representatives at Botany's plant at Passaic, New Jersey. The Board conducted the appropriate proceedings and on October 7, 1940, issued a decision and direction of election and subsequently on December 13, 1940, a certification in which it found that the union represented a majority of the employees in a unit appropriate for the purpose of collective bargaining. Thereafter, upon charges filed by the union, the Board issued its complaint against respondent alleging that it had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of §§ 8(1) (5) and 2(6) (7) of the National Labor Relations Act, 29 U.S.C.A. §§ 158(1, 5), 152(6, 7). After requisite proceedings under § 10 of the Act, 29 U.S.C.A. § 160, were had, the Board, on May 25, 1942, issued its findings of fact, conclusions of law and an order requiring respondent to bargain collectively with the union. The Board thereafter petitioned this Court to enforce its order and Botany petitioned to set it aside, moving to consolidate the petitions and for leave to adduce additional evidence.

Jurisdiction.

The first point made by Botany is that there has been a failure to show that the Board had jurisdiction over it. This contention is clearly without merit.

The complaint, after stating that Botany Worsted Mills is a New Jersey corporation engaged in that state in the manufacture, sale and distribution of woolen and worsted products, alleged that a substantial amount of the material and products used in its business were transported in interstate commerce from and through the States of the United States, other than the State of New Jersey, to the Passaic plant and that a substantial amount of the products manufactured by Botany were sold to be delivered in interstate commerce from the Passaic plant. These allegations were not denied. Under Article II, § 10 of the Rules and Regulations of the Board, promulgated pursuant to Congressional authority under § 6 (a) of the Act, 29 U.S.C.A. § 156, an allegation in a complaint not specifically denied in the answer is deemed admitted and may be so found by the Board. Botany contends that the allegations are legal conclusions and do not have to be denied. We do not agree. We think these allegations state facts as to the receipt of material by Botany, for manufacture, from sources outside New Jersey and facts that the manufactured products are shipped to points outside that State.

Furthermore, a similar finding had been made by the Board in the representation proceeding. It was founded upon a stipulation between the parties relative to the first six months of 1940 which stated that during that period Botany had purchased 5,000,000 pounds of raw material, substantially all of which was shipped to it from points outside the State of New Jersey and that it had sold approximately 1,500,000 pounds of finished products, approximately 95% of which Botany shipped f. o. b., from Passaic, New Jersey, to points outside the State of New Jersey. Botany maintains that this stipulation is not available in this proceeding since, when made, it had been limited to the representation proceeding alone. We think the representation and the complaint proceedings cannot be so separated. The provisions of § 9(d) of the Act, 29 U.S.C.A. § 159(d),1 indicate the contrary. As the Supreme Court said in an analogous situation in Pittsburgh Plate Glass Co. v. National Labor Relations Board, 1941, 313 U.S. 146, 158, 61 S.Ct. 908, 915, 85 L.Ed. 1251, "The unit proceeding and this complaint on unfair labor practices are really one."

Either of these answers is sufficient to establish the Board's jurisdiction. It is well settled, of course, that its power is not limited to cases where actual industrial conflict has already begun. National Labor Relations Board v. Bradford Dyeing Association, 1940, 310 U.S. 318, 60 S.Ct. 918, 84 L.Ed. 1226.

Bargaining Unit.

Botany complains of the size of the unit chosen. It consists solely of persons designated as sorters or trappers in the Passaic plant. The Board found that the company employed in that plant 5000 workers.2 At the time of the election only 32 employees were in the unit designated as appropriate.

It must be borne in mind that the selection of the appropriate unit under the statute is vested in the Board. § 9(b). If the determination is not arbitrary or capricious it is not to be set aside. Pittsburgh Plate Glass Co. v. National Labor Relations Board, 8 Cir., 1940, 113 F.2d 698, 701, affirmed 1941, 313 U.S. 146, 61 S.Ct. 908, 85 L.Ed. 1251. This Court did veto the Board's designation in National Labor Relations Board v. Delaware-New Jersey Ferry Co., 3 Cir., 1942, 128 F.2d 130, because we felt that the public interest had not received sufficient consideration. However, we still recognize fully that the choice of the appropriate unit is, within the area designated by the statute, one for the expert judgment of the Board.

Objections raised to the Board's designation are several in number. One is that the provision of the Act (§ 9(b) is unconstitutional because it lacks sufficient standards for the Board's guidance. This question of law we think has been settled by the Supreme Court in the Pittsburgh Plate Glass Co., case, cited above, adversely to the contention of Botany. Another objection is that of convenience and impracticality because it would be impossible to bargain with so large a number of small groups. This point is answered by language used by the Board in another case.3 "The respondent does not consider it impractical to bargain with every single employee separately; it is surely no more impractical to bargain collectively with a group of 13 as a unit."

Again, the choice of the unit is attacked because of an alleged absence of testimony, in the representation proceeding, signifying the desires of the employees concerned. Their desire is admittedly one of the factors in determining an appropriate unit. Pittsburgh Plate Glass Co. v. National Labor Relations Board, supra. But there was evidence of this desire on the part of employees before the Board. There was an election held under Board auspices in which the choice of the union was manifested by a majority of those entitled to vote, and they were the sorters and trappers only.4 At this election the question of representation by a named union was categorically put to the voters.

Another objection is based upon the action of the Board in Matter of Arlington Mills, 1941, 31 N.L.R.B. 21. It is contended that the action in that case was inconsistent with what the Board has done in the case now before us and that such inconsistency, ipso facto, constitutes arbitrary or capricious action. Even if the legal conclusion were accepted as sound, we think the facts of the Arlington case were different. (1) There were two competing unions proposing different units one of which included approximately 58 employees, the other, approximately 1800 out of a total of 6500. (2) Both unions were engaged in extensive organizational campaigns covering the entire plant and admitted that a plant wide unit was most appropriate. (3) A substantial number (1000) of the employees who were neither sorters nor trappers were union members.

The Board in its opinion approving this unit considered significant the extent of organization for collective bargaining among Botany's employees. The evidence before the Board showed that at the time a majority of the sorter-trapper group manifested its desire for collective bargaining through union membership, the majority of the other employees of Botany did not belong to any union and that no labor organization had petitioned the Board for certification as the representative of the employees on a plant wide basis. The Board expressed the belief that the rights of the unit selected as appropriate should not have to be contingent upon what other employees in other parts of the plant did. There was evidence indicating that the unit designated was sufficiently distinct from other groups of employees so as to make its selection as a separate unit feasible. The sorters or trappers work in a part of the plant entirely or partly set apart for the process in which they are engaged and this department has its own supervisors. There is no interchange of employees engaged in sorting or trapping, except to the extent that when the process was changed 12 former sorters were transferred to other departments. We do not see any basis upon which the designation of the bargaining unit by the Board in this case should be interfered with by this Court.

Matters Subsequent to Election.

An election was held pursuant to the direction of the Board on November 8, 1940. The form of ballot used in the election was:

"Do you desire to be represented for the...

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