Wallace Corporation v. National Labor Relations Board

• Citation: 141 F.2d 87
• Decision Date: 03 February 1944
• Docket Number: 5163.,No. 5135,5135
• Parties: WALLACE CORPORATION v. NATIONAL LABOR RELATIONS BOARD et al. RICHWOOD CLOTHESPIN & DISH WORKER'S UNION v. NATIONAL LABOR RELATIONS BOARD.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

141 F.2d 87 (1944)

WALLACE CORPORATION v. NATIONAL LABOR RELATIONS BOARD et al. RICHWOOD CLOTHESPIN & DISH WORKER'S UNION v. NATIONAL LABOR RELATIONS BOARD.

Nos. 5135, 5163.

Circuit Court of Appeals, Fourth Circuit.

February 3, 1944.

R. Walston Chubb, of St. Louis, Mo. (Brooks B. Callaghan and Wolverton & Callaghan, all of Richwood, W. Va., Charles S. Glazer, of Dallas, Tex., and Lewis, Rice, Tucker, Allen & Chubb, of St. Louis, Mo., on the brief), for petitioner.

M. E. Boiarsky, of Charleston, W. Va., for petitioner Richwood Clothespin & Dishworkers' Union.

Ivar Peterson, Asst. Gen. Counsel, National Labor Relations Board, of Washington, D. C. (Robert B. Watts, Gen. Counsel, Howard Lichtenstein, Asst. Gen. Counsel, Joseph B. Robison and Marcel Mallet-Prevost, Attys., National Labor Relations Board, all of Washington, D. C., on the brief), for respondents.

Before PARKER, SOPER and DOBIE, Circuit Judges.

PARKER, Circuit Judge.

These are petitions by the Wallace Corporation, a company operating a woodworking plant at Richwood, W. Va., and an independent union of its employees to review and set aside an order of the National Labor Relations Board. The Board found that the company had violated section 8(2) of the National Labor Relations Act, 29 U.S.C.A. § 158(2), by dominating, interfering with and supporting the independent union, had violated section 8(3) by discriminatorily discharging 43 employees, and in these respects and otherwise had violated section 8(1) by interfering with, restraining and coercing its employees in the exercise of rights guaranteed by section 7, 29 U.S.C.A. § 157. The order requires the company (a) to cease and desist from the unfair labor practices found; (b) to withdraw recognition from, completely disestablish, and cease giving effect to any agreement with the Independent; (c) to offer reinstatement with back pay to the 43 employees who were discriminatorily discharged; and (d) to post appropriate notices.

There is evidence in support of the Board's order to the effect that in July, 1941, a local union of the C. I. O. instituted a campaign for the purpose of organizing the company's employees and that officials and supervisory employees of the company made anti-union statements in discouragement of the campaign with threats that the president of the company would never recognize the union and that, if the employees did organize, he would shut the plant down and move it away. Early in September, the union claimed a majority of the employees and demanded recognition as bargaining representative. The plant manager refused to accept the application cards for union membership unless he were allowed to question each of the applicants individually and suggested that an election be held. The union refused to agree to an election unless an employee who had been prominent in organizational activities and who had been discharged were restored to his position. The company refused to accede to this condition and a strike was called which became effective on September 25th.

Following the calling of the strike, the independent union was organized. There is evidence from which it may be properly inferred that a foreman and employees who acted from time to time as assistant foremen had a part in its organization, and that the anti-union attitude of the company coupled with a back-to-work movement which the company sponsored was an important factor therein. The C. I. O. union filed a charge of company domination with the Board following the organization of the Independent; and this complaint was pending in January, 1942, when an agreement was entered into between all parties by the terms of which the charge of domination was withdrawn, it was agreed that an election be held to choose between the C. I. O. and the Independent as bargaining representative and the company agreed to enter into a "union shop" agreement with the winner in the election. An election was held on January 30th and the Independent received 98 votes and the C. I. O. union 83, although a total of 207 employees was eligible to vote. The Independent was thereupon certified by the Board as the bargaining representative of the employees.

Following its certification, the Independent demanded that the company execute a closed shop agreement with it and clearly indicated to the company that one of the purposes of such agreement was to get rid of employees who were unacceptable because of prior union activities. In a letter of February 28th to the company the agent of the Independent said:

"The `closed shop' will, therefore, give us some control in preventing the hiring of additional employees who are unfavorable to our interests and who would further jeopardize our majority. It would also provide us with a legal means of disposing of any present employees, including Harvey Dodrill whom our members have declared by unanimous ballot that they will not work with, whose presence in the plant is unfavorable to our interests because those who are so unfavorable will not be permitted to become members of our organization and without such membership they would not be permitted to work in the plant under a closed shop contract which we respectfully insist that we MUST have."

The company opposed signing a closed shop contract with the Independent, and its attorney strongly advised against such action, but notwithstanding his advice and notwithstanding the notice contained in the letter above quoted of the intention of Independent to use the closed shop agreement to discriminate against employees and cause their discharge because of prior union activities, the company signed the contract. Pursuant to the contract, it discharged 43 of the former employees who had taken part in the effort to organize the C. I. O. union because they had not become members of the Independent, although it knew that 31 of these employees had applied for membership in the Independent and had been rejected. Subsequent letters on the part of the company to the Independent, suggesting that these employees be accepted as members, show that the company understood that they had been rejected by the Independent because of the labor strife which had preceded the election. After the discharge of these employees additional charges were filed against the company, and the Board entered the order which we are asked to review.

In the absence of the consent election and the certification of Independent as a bargaining agent by the Board, there could be no question as to the correctness of the Board's order. The evidence as to anti-union statements by the company's supervisory employees, the assistance that these necessarily gave in the organization of the Independent and the participation of employees having supervisory powers in its organization is analyzed in the Board's order and need not be repeated here. It amply sustains the...