CHAUFFEURS, TEAM. & H., ETC. v. NATIONAL LAB. REL. BD.

• Decision Date: 14 May 1956
• Docket Number: No. 11601.,11601.
• Parties: CHAUFFEURS, TEAMSTERS AND HELPERS "GENERAL" LOCAL NO. 200, AFL, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

233 F.2d 233 (1956)

CHAUFFEURS, TEAMSTERS AND HELPERS "GENERAL" LOCAL NO. 200, AFL, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 11601.

United States Court of Appeals Seventh Circuit.

May 14, 1956.

Saul Cooper, Milwaukee, Wis., David Leo Uelmen, Milwaukee, Wis., Padway, Goldberg & Previant, Milwaukee, Wis., of counsel for petitioner.

Victor M. Harding, Milwaukee, Wis., Whyte, Hirschboeck & Minahan, Milwaukee, Wis., Roger C. Minahan, Milwaukee, Wis., of counsel, for P & V-Atlas Industrial Center, Inc., Intervenor.

David P. Findling, Associate General Counsel, Norton Come, Attorney, N. L. R. B., Washington, D. C., Theophil C. Kammholz, General Counsel, Marcel Mallet-Prevost, Assistant General Counsel, Fannie M. Boyls, Rosanna A. Blake, Attorneys, National Labor Relations Board, for respondent.

Before FINNEGAN, SWAIM and SCHNACKENBERG, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

By its petition, the union¹ described in the title asks us to review and set aside an order of the National Labor Relations Board,² dismissing a complaint issued against Atlas Storage Division, P & V Atlas Industrial Center, Inc., hereinafter referred to as "Atlas". The complaint was issued by the general counsel of the Board, upon charges filed by the Union, and alleged that Atlas had unlawfully refused, upon request, to bargain with the Union, had discriminatorily refused to reinstate an employee who struck in protest against the refusal to bargain, and had restrained and coerced its employees in the rights guaranteed them under the act, in violation of § 8(a) (1), (3) and (5) thereof.³ A trial examiner found against Atlas, and the Board in general reversed the conclusions of the examiner that Atlas' conduct violated the act. As to one violation relating to one employee (Rodig), the Board, because of what it described as the isolated nature of said violation, held that it served no useful purpose to issue a cease and desist order based thereon. The Board dismissed the complaint.

For several years an association of warehouse companies of Milwaukee, including Atlas, bargained and entered into a series of contracts with the Union as bargaining representative of their inland warehouse employees. At least during the latter years of said period, the Association appointed negotiators to bargain with the Union but any agreement reached did not become binding on any employer member unless and until it signed it. The last of these contracts to which Atlas was a party expired on April 15, 1952.

On April 18, 1952, an Atlas employee filed a decertification petition with the Board alleging that a substantial number of employees no longer desired the Union to represent them and seeking a determination by the Board that the Union was no longer their bargaining representative. Atlas wrote the Union that in view of the decertification petition and a strong doubt whether a majority of employees wanted the Union to be their bargaining agent, Atlas did not think it proper to recognize the Union as bargaining agent until an election was held. Atlas also withdrew its authority from the Association's negotiators to bargain on its behalf. Atlas had no contract with the Union after April 15, 1952, although the Association did reach an agreement with the Union on July 30, 1952, providing for a wage increase.

On August 6, 1952, Atlas filed an application with the Wage Stabilization Board for permission to grant an increase to its employees equal to that provided in the contract negotiated by the Association.

On October 9, 1952, the Board dismissed the decertification petition. It did so on the ground that the unit proposed in the petition — i. e. one limited to Atlas' employees, was inappropriate. The Board pointed out that Atlas had not withdrawn from membership in the Association and had not indicated an intent to abandon its practice of bargaining jointly with other employer members through the Association for its waterfront employees.

On October 14, 1952, the Stabilization Board refused to approve Atlas' application unless the Union joined in signing it. The Union did so and the application was approved.

The Union's business agent, Lemke, proposed that Atlas sign the same contract entered into between the Union and the Association. President Vogel of Atlas, however, handed Lemke a contract prepared by Atlas and suggested that the Union agree to it. This proposed contract provided for recognition of the Union as the exclusive representative of Atlas' inland warehouse employees and differed in substance from that negotiated by the Association only in that it did not contain the same vacation clause. Lemke agreed to take Atlas' proposal to the Union to find out if it could be approved. Atlas heard nothing further from the Union with respect to the proposed contract.

At Atlas' 1952 Christmas party Vogel announced that Atlas was considering the inauguration of a profit-sharing pension plan for the benefit of all its employees. Because the plan would require Stabilization Board approval, Atlas asked for the signatures of the officials of Local 815, representing its waterfront employees, and the Union herein, representing its inland employees. The former signed but the Union business agent said that, since the Union's contract with the Association would expire in a few months and negotiations toward a new one would begin shortly at which the Union expected to propose a health and welfare plan, the Union was not interested in discussing a separate plan on behalf of Atlas' employees alone.

On January 19, 1953, Atlas withdrew from the Association and it was dissolved. The Board found that, as a result thereof, Atlas' inland warehouse employees alone constituted an appropriate bargaining unit.

On January 21, the Union sent Atlas and other former members of the Association a form letter stating in part:

"This is to advise you that we desire to negotiate changes in our labor agreement. This notice is given in compliance with the contract * * *. We shall be pleased to meet with you at your convenience. Hoping to hear from you * * *"

The Union sent a follow-up letter and requested a meeting. Not receiving a reply, the Union made no attempt to contact Atlas until May 25.

The Stabilization Board went out of existence and, on February 6, 1953, Atlas put into effect retroactively to December 31, 1952, its profit-sharing pension plan.

By April 15, 1953, when the last multi-employer contract expired, the Union and the various warehouse companies who were parties to it had been unable to reach an agreement on the terms of new contracts, and it became apparent that the Union might call a strike. President Vogel called a meeting of its five inland warehouse employees which was held on April 18, 1953. During the course of this meeting, he reminded the men that Atlas had not had a contract with the Union for over a year and then went on to discuss the profit-sharing pension plan adopted in February. At one point during the meeting, one of the employees said, "We want to know how to get out of the Union". In reply, Vogel told them that they could abandon the Union by writing Atlas a letter expressing their desire to do so. When employee Rodig indicated that the Union would hear about Vogel's statements, and that representative Lemke would call on Vogel, the latter assured Rodig that it would do no good for Lemke to come because Atlas would have nothing to do with the Union.

On April 20, 1953, Atlas received a letter signed by four of the five employees in the unit, advising Atlas that they wished to withdraw from the Union and were terminating its right to represent them. The letter was prepared and circulated by employee Busch and no Atlas official played any part in drafting, typing or circulating it. Two of the employees had paid no union dues since February and neither they nor the others who signed the letter paid any union dues after signing.

On May 8, 1953, most of the other former members of the Association and the Union reached agreement on a new contract providing for a wage increase. On May 9, Vogel held another meeting with the inland warehouse employees at which he again remarked that Atlas had no contract with the Union, adding that, in fact, "there was no more union in the place". He then offered the men a wage increase equal to that which the other former...