Bachman Machine Company v. NLRB, 16122.

• Citation: 266 F.2d 599
• Decision Date: 15 May 1959
• Docket Number: No. 16122.,16122.
• Parties: BACHMAN MACHINE COMPANY, a corporation, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

266 F.2d 599 (1959)

BACHMAN MACHINE COMPANY, a corporation, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 16122.

United States Court of Appeals Eighth Circuit.

May 15, 1959.

Harold A. Thomas, Jr., St. Louis, Mo. (Carroll C. Gilpin and Fordyce, Mayne, Hartman, Renard & Stribling, St. Louis, Mo., on the brief), for petitioner.

Fannie M. Boyls, Atty., N. L. R. B., Washington, D. C. (Jerome D. Fenton, Gen. Counsel, Thomas J. McDermott, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D. C., and Fred J. Hahn, Atty., N. L. R. B., Washington, D. C., on the brief), for respondent.

Before SANBORN, WOODROUGH and VAN OOSTERHOUT, Circuit Judges.

SANBORN, Circuit Judge.

This case is before this Court upon the petition of Bachman Machine Company, a Missouri corporation, herein referred to as Bachman, for a review and reversal of an order of the National Labor Relations Board dated October 10, 1958, which dismissed a complaint issued by the General Counsel of the Board, on its behalf, (based on charges filed with it by Bachman) against Warehouse and Distribution Workers Union, Local 688, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union. The order of the Board and the findings and conclusions upon which it was based are reported in 121 N.L.R.B. No. 165.

The complaint was issued on January 22, 1958, by Ralph E. Kennedy, Regional Director of the Board for the Fourteenth Region (St. Louis, Missouri). The complaint charged, in substance, that, in connection with and in furtherance of a strike called by the Union about September 23, 1957, and maintained against the Plastics Molding Company, a Missouri corporation, herein called Plastics, for the employees of which the Union was the certified bargaining representative, the Union on or about December 9, 1957, commenced picketing Bachman (the employees of which are represented, for collective bargaining, by District 9, International Association of Machinists, AFL-CIO), with the object of forcing those who normally did business with Bachman to cease dealing with it. The complaint also charged that the acts of the Union in that regard constituted unfair labor practices affecting commerce within the meaning of Section 8 (b) (4) (A) of the National Labor Relations Act, as amended, 61 Stat. 136, 141, 29 U.S.C.A. § 158(b) (4) (A). That section provides:

"It shall be an unfair labor practice for a labor organization or its agents * * * (4) to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is: (A) forcing or requiring * * * any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person * * *"

The Regional Director, pursuant to Section 10(l) of the Act, 29 U.S.C.A. § 160(l), on February 20, 1958 obtained from the United States District Court for the Eastern District of Missouri a restraining order, and on April 18, 1958 a temporary injunction, enjoining the Union from picketing Bachman's premises. The injunction was finally vacated following the Board's dismissal of the complaint.

The Board based the dismissal upon the ground that the relationship between the two corporate employers was such, because of common ownership and actual common control over labor policies, that they constituted allied employers and were, for the purposes of Section 8(b) (4) (A), a single employer. In its brief the Board says: "The sole issue before this Court is whether the Board properly found Plastics and Bachman so allied in interest as to become a single employer for the purposes of Section 8(b) (4) (A) of the Act. For, in the absence of such allied relationship, it is undisputed that the Union's picketing of Bachman premises would fall within the secondary boycott proscription of Section 8(b) (4) (A)."

The question, then, is whether there is an adequate evidentiary and legal basis for the Board's determination that the two corporate employers were so closely allied as to constitute one employer for the purposes of Section 8(b) (4) (A).

The evidentiary facts are largely undisputed, and it is apparent that the Board's dismissal of the complaint was based mainly, if not entirely, upon its finding that William N. Bachman, who was President and a majority stockholder of each company, was in actual control of the labor policies of both.

In order to present a fairly accurate picture of the situation out of which the problem arises, it is necessary to state the facts in considerable detail.

Plastics and Bachman are separate legal entities. They are engaged in different lines of business. Plastics makes plastic parts for industrial customers. It employs unskilled labor — molders and finishers, classified as laborers. It conducts its operations in a building at 4211 Broadway, in St. Louis, Missouri. Bachman manufactures tools, dies, jigs, molds, and special machinery. It conducts its business in two buildings, one of which is on Broadway, about 650 feet from the building occupied by Plastics; the other, 4301 North Eleventh Street, about a block and a half away from Bachman's other building. In the Eleventh Street Building, designated as Bachman No. 1, the employees are highly skilled tool and die makers. In the other building occupied by Bachman, designated as Bachman No. 2, the employees are semiskilled mechanics who produce metal stampings, assemblies, and the like, and are classified as production workers. Bachman employees have for many years been represented, for collective bargaining, by District 9, International Association of Machinists, AFL-CIO. The employees of Plastics are, as already stated, represented by the Union involved in this case.

William N. Bachman, Sr., is the President of and majority stockholder in both Bachman and Plastics. Each is a Bachman family corporation. The officers and directors of both companies are members of the Bachman family. The buildings occupied by Bachman and the building occupied by Plastics are owned by William N. Bachman and his wife. Each company maintains its own books and records, attends to its own business, and is operated as a separate enterprise. Neither company does, nor is equipped to do, the work of the other. They have no employees in common, except a bookkeeper who keeps the books for both companies and whose salary is divided between them. She shares an office with William N. Bachman at the Eleventh Street building. The companies do not interchange employees. They have no common supervisors. Each is a customer of the other in so far as each needs what the other produces. Bachman, when it requires plastic parts for use in its business, buys them from Plastics, and Plastics buys molds from Bachman when needed. Each company invoices the other for what it buys from it, and payments are made by check. During 1957, sales and services to Plastics from Bachman amounted to about $80,000, and Bachman bought plastic parts from Plastics at a cost of about $70,000. Plastic parts obtained from others by Bachman amounted to about $10,000. Bachman's total sales in 1957 were about $451,000. Plastics obtains about one-third of the molds it uses in its business from its customers, and about 80% of the remaining two-thirds comes from Bachman.

William N. Bachman has been in the tool and die business for about 31 years and is an expert in making tools, dies, fixtures, and gauges. He knows little about the production of plastic items, and therefore in 1953 hired Robert McDorman, a chemical engineer, as general manager of Plastics, to direct and control its operations. According to the testimony of Mr. Bachman, McDorman can hire and fire employees of Plastics, has full authority as its manager, is in charge of formulating labor relations policies at Plastics, does not have to consult with Mr. Bachman, as President, in that regard, and is "authorized to go as far with the Union as he can at any time, because he knows his own costs."

McDorman testified that he conferred with Mr. Bachman as to labor matters, and obtained his advice, but could make decisions, could hire, fire, give increases, and set labor policies at Plastics, and that is was he that negotiated with the Union. It was Mr. Bachman's testimony that he was present at every bargaining session with the Union during the strike against Plastics because "as President of the company" he liked "to hear what goes on * * * to get it first-hand, if possible"; that he made no decisions as to whether some particular demand of the Union should be granted or rejected; that most of the talking was done by McDorman and a Mr. Gilpin, a legal adviser for Plastics.

Edward C. Brown, a representative of the Union, testified that, at the first bargaining session, Mr. Bachman and Mr. Gilpin were present; that there were seven such meetings at the Plastics plant, at each of which Mr. Bachman was present, and that he made decisions as to whether or not he would "give a certain demand"; that Mr. Bachman would ask McDorman for facts and figures as to wage rates and how many people were in a certain department, and about the hours of work; that answers to demands of the Union or counter-proposals were made by Mr. Bachman on behalf of Plastics; that Mr. Gilpin, counsel for Plastics, said that he was there to represent Plastics from a legal point of view and to give legal advice, and that any decisions were to be made by Mr. Bachman.

Tom Ryan, a business representative of the Union, testified that he was present at two or three negotiation meetings with representatives of Plastics, who were...