International Association of Machinists, Tool and Die Makers Lodge No 35 v. National Labor Relations Board

• Decision Date: 12 November 1940
• Docket Number: No. 16,16
• Citation: 85 L.Ed. 50,311 U.S. 72,61 S.Ct. 83
• Parties: INTERNATIONAL ASSOCIATION OF MACHINISTS, TOOL AND DIE MAKERS LODGE NO. 35, v. NATIONAL LABOR RELATIONS BOARD
• Court: U.S. Supreme Court

311 U.S. 72

61 S.Ct. 83

85 L.Ed. 50

INTERNATIONAL ASSOCIATION OF MACHINISTS, TOOL AND DIE MAKERS LODGE NO. 35,

v NATIONAL LABOR RELATIONS BOARD.

No. 16.

Argued Oct. 24, 1940.

Decided Nov. 12, 1940.

Rehearing Denied Dec. 9, 1940.

See 311 U.S. 729, 61 S.Ct. 314, 85 L.Ed. —-.

Mr. Joseph A. Padway, of Washington, D.C., for petitioner.

Messrs. Robert H. Jackson, Atty. Gen., and Robert B. Watts, of Washington, D.C., for respondent.

Mr. Justice DOUGLAS delivered the opinion of the Court.

There are two questions here for decision: (1) whether on the facts of this case the National Labor Relations Board was without authority in finding that an industrial unit was appropriate for collective bargaining purposes to the exclusion of a craft unit; and (2) whether the Board had authority to require the employer to bargain with that industrial unit, despite a claim submitted to the Board by the craft unit before the order issued that the latter then had been designated by a majority of all the employees. We granted certiorari, 309 U.S. 649, 60 S.Ct. 721, 84 L.Ed. 1001, because of the importance of these questions in the administration of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C.A. § 151 et seq., and because of an asserted conflict between the decision below, 71 App.D.C. 175, 110 F.2d 29, and Hamilton-Brown Shoe Co. v. National Labor Relations Board, 8 Cir., 104 F.2d 49, on the second question.

The Board found, in proceedings duly had under § 10 of the Act, that the employer, Serrick Corporation, had engaged in unfair labor practices within the meaning of the Act. It ordered the employer to cease and desist from those practices and to take certain affirmative action. More specifically, it directed the employer to cease giving effect to a closed-shop contract with petitioner¹ covering the tool room employees; to deal with U.A.W., an industrial unit,² as the exclusive bargaining agent of its employees, including the toolroom men; to desist from various discriminatory practices in favor of petitioner and against U.A.W.; and to reinstate and make whole certain employees who had been improperly discharged. The employer has complied with the Board's order. But petitioner, an intervener in the proceedings before the Board, filed a petition in the court below to review and set aside those portions of the order which direct the employer to cease and desist from giving effect to its closed-shop contract with petitioner and to bargain exclusively with U.A.W. The court below affirmed the order of the Board.

Abrogation of petitioner's closed-shop contract. The Board found that the closed-shop contract between petitioner and the employer was invalid under § 8(3) of the Act³ because it had been 'assisted' by unfair labor practices of the employer, because petitioner did not represent an uncoerced majority of the toolroom employees at the time the contract was executed, and because for this and other reasons it was not an appropriate bargaining unit. We think there was substantial evidence that petitioner had been assisted by unfair labor practices of the employer and that therefore the Board was justified in refusing to give effect to its closed-shop contract.

Since the court below has confirmed the findings of the Board there is no need to review the evidence in detail. National Licorice Co. v. National Labor Relations Board, 309 U.S. 350, 357, 60 S.Ct. 569, 574, 84 L.Ed. 799. It is clear that the employer had an open and avowed hostility to U.A.W. It is plain that the employer exerted great effort, though unsuccessfully, to sustain its old company union, the Acme Welfare Association, as a bulwark against U.A.W. And it is evident that the employer, while evincing great hostility to U.A.W. in a contest to enlist its production force, acqui- esced without protest in the organization by petitioner of the toolroom employees. The main contested issue here is narrowly confined. It is whether or not the employer 'assisted' the petitioner in enrolling its majority.

Fouts, Shock, Dininger, Bolander, By-road and Baker were all employees of the toolroom. Four of these—Fouts, Shock, Byroad and Bolander—were old and trusted employees. Fouts was 'more or less an assistant foreman', having certain employees under him. Shock was in charge of the toolroom during the absence of the foreman. Dininger and Bolander were in charge of the second and third shifts, respectively, working at night. Prior to mid-July, 1937, they had been actively engaged on behalf of the company union. When it became apparent at that time that the efforts to build up that union were not successful, Fouts, Shock, Byroad and Bolander suddenly shifted their support from the company union to petitioner and moved into the forefront in enlisting the support of the employees for petitioner. The general manager told Shock that he would close the plant rather than deal with U.A.W. The superintendent and Shock reported to toolroom employees that the employer would not recognize the C.I.O. The superintendent let it be known that the employer would deal with an A.F. of L. union. At the same time the superintendent also stated to one of the employees that some of the 'foremen don't like the C.I.O.' and added, with prophetic vision, that there was 'going to be quite a layoff around here and these fellows that don't like the C.I.O. are going to lay those fellows off first.' During working hours, Byroad conducted a straw vote among the employees and under the direction of Fouts and Shock left the plant to seek out an organizer for petitioner. Fouts solicited among workmen in the toolroom stating that his purpose was to 'beat' the U.A.W. For a week preceding August 13, Shock spent much time, as did Byroad, going 'from one bench to another soliciting' for petitioner. Baker likewise solicited. Dininger offered an employee a 'good rating' if he would join petitioner. Not less than a week before August 13, the personnel director advised two employees to 'join the A.F. of L.' Byroad spent considerable time during working hours soliciting employees, threatening loss of employment to those who did not sign up with petitioner and representing that he was acting in line with the desires of the toolroom foreman, McCoy. This active solicitation for petitioner was on company time and was made openly in the shop. Much of it was made in the presence of the toolroom foreman, McCoy, who clearly knew what was being done. Yet the freedom allowed solicitors for petitioner was apparently denied solicitors for U.A.W. The plant manager warned some of the latter to check out their time for a conference with him on U.A.W. and questioned their right to discuss U.A.W. matters on company property. The inference is justified that U.A.W. solicitors were closely watched, while those acting for petitioner were allowed more leeway.

Five U.A.W. officials had been discharged in June, 1937, because of their union activities. The known antagonism of the employer to U.A.W. before petitioner's drive for membership started made it patent that the employees were not free to choose U.A.W. as their bargaining representative. Petitioner started its drive for membership late in July, 1937, and its closed-shop contract was signed August 11, 1937.⁴ On August 10, 1937, the U.A.W., having a clear majority of all the employees, presented to the employer a proposed written contract for collective bargaining. This was refused. On August 13, 1937, all toolroom employees who refused membership in petitioner, some 20 in number, were discharged. On August 15, 1937, the management circulated among the employees a statement which, as found by the Board, was a thinly veiled attack on the U.A.W. and a firm declaration that the employer would not enter into any agreement with it.

Petitioner insists that the employer's hostility to U.A.W. cannot be translated into assistance to the petitioner and that none of the acts of the employees above mentioned, who were soliciting for petitioner, can be attributed to the employer.

We disagree with that view. We agree with the court below that the toolroom episode was but an integral part of a long plant controversy. What happened during the relatively brief period from late July to August 11, 1937, cannot properly be divorced from the events immediately preceding and following. The active opposition of the employer to U.A.W. throughout the whole controversy has a direct bearing on the events during that intermediate period. Known hostility to one union and clear discrimination against it may indeed make seemingly trivial intimations of preference for another union powerful assistance for it. Slight suggestions as to the employer's choice between unions may have telling effect among men who know the consequences of incurring that employer's strong displeasure. The freedom of activity permitted one group and the close surveillance given another may be more powerful support for the former than campaign utterances.

To be sure, it does not appear that the employer instigated the introduction of petitioner into the plant. But the Board was wholly justified in finding that the employer 'assisted' it in its organizational drive. Silent approval of or acquiescence in that drive for membership and close surveillance of the competitor; the intimations of the employer's choice made by superiors; the fact that the employee-solicitors had been closely...