Wilson & Co. v. National Labor Relations Board

• Decision Date: 02 December 1940
• Docket Number: No. 469.,469.
• Citation: 115 F.2d 759
• Parties: WILSON & CO., Inc., v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Eighth Circuit

115 F.2d 759 (1940)

WILSON & CO., Inc., v. NATIONAL LABOR RELATIONS BOARD.

No. 469.

Circuit Court of Appeals, Eighth Circuit.

December 2, 1940.

James D. Cooney, of Chicago, Ill. (Marshal Wiedel and L. R. Simpson, both of Chicago, Ill., on the brief), for petitioner.

Edward F. Prichard, Jr., Sp. Asst. to the Atty. Gen. (Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, Laurence A. Knapp, Asst. Gen. Counsel, and Bertram Edises, and David B. McCalmont, Jr., all of Washington, D. C., on the brief), for National Labor Relations Board.

Before SANBORN, WOODROUGH, and THOMAS, Circuit Judges.

SANBORN, Circuit Judge.

The petitioner, Wilson & Co., Inc., asserts that an order of the National Labor Relations Board, requiring collective bargaining with United Packing House Workers, Local Industrial Union No. 51, through Packinghouse Workers Organizing Committee (hereinafter called the union), as the exclusive representative of the production and maintenance employees of petitioner at its plant in Cedar Rapids, Iowa, is invalid and should be set aside. Respondent asserts that the order is a valid order, and requests its enforcement.

Petitioner is a meat packer engaged in interstate and foreign commerce. It has various plants throughout the United States, one of which is located at Cedar Rapids, Iowa. The production and maintenance employees at that plant constitute an appropriate unit for collective bargaining. In 1933, some of these employees formed the union above referred to, which, at its inception, was affiliated with the A. F. of L. It later became an independent union, but since May 22, 1937, has been affiliated with the C. I. O. Since 1935 the union has represented a substantial majority of the employees at the plant. The petitioner has negotiated with the union since its formation relative to hours, wages, and working conditions at the plant. At no time has petitioner accorded formal written recognition to the union as the exclusive bargaining representative for all of petitioner's employees at the plant, and petitioner has not entered into any written agreement with the union.

In 1938, the business agent of the union filed with the National Labor Relations Board charges that the petitioner had engaged in unfair labor practices under § 8(1) and § 8(5) of the National Labor Relations Act, 29 U.S.C. § 158(1) and § 158(5), 29 U.S.C.A. § 158(1 and 5). The actual basis for the charges was the claim that petitioner had refused to bargain in good faith with the union as the exclusive representative of all of the employees at petitioner's Cedar Rapids plant. The complaint issued by the Board charged that petitioner "has refused to bargain with the union as the exclusive representative of all the employees in said unit for the purposes of collective bargaining"; that it "failed to bargain in good faith with the union, and did refuse and does now refuse to enter into an agreement with the union"; that the union presented a contract to the petitioner on three separate occasions in 1937 and 1938, and that petitioner stated to the union that it "would not enter into or sign any agreement with the union." A hearing upon these charges was had at Cedar Rapids, Iowa, before a trial examiner. The sole issue tried was whether the course of petitioner's dealing with the union constituted a violation of § 8(5) of the Act.

Section 158(5), Tit. 29, U.S.C., 29 U.S. C.A. § 158—§ 8(5) of the Act — makes it an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159(a) of this title". Section 159(a) provides: "Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: Provided, That any individual employee or a group of employees shall have the right at any time to present grievances to their employer."

At the hearing before the trial examiner, the Board introduced documentary evidence and the testimony of three witnesses. The position of the Board is shown by the following statement of its counsel, made at the close of the evidence: "I should like to say that we have at the beginning limited the issue in this case to whether here there has been a violation of section 8, subsection 5, of the Act. I think it is clear on the record that within that limitation there are two specific legal issues presented; first, whether or not it is collective bargaining for a company, an employer, through its agents, to meet representatives of the employees, talk with them at great length, and simply on various occasions and from time to time to announce company policies which may or may not be in accord with the suggestions made by the employees' representatives; the issue of whether or not collective bargaining does not require more than that, as one witness suggested it, a flexibility of mind on both sides of the table and a willingness to come to a real agreement; and the second legal issue, whether or not collective bargaining does not necessarily imply, or let us say good faith in collective bargaining does not necessarily imply at least in those cases where there is any complexity to the issues that any agreement that may be reached be reduced to the form of a written agreement in order to avoid that which collective bargaining is designed to avoid, the strife that results from uncertainty, ambiguity or lack of understanding."

The gist of the petitioner's position was stated by its counsel, quoting from the opinion in National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 45, 57 S.Ct. 615, 628, 81 L.Ed. 893, 108 A.L.R. 1352, as follows: "The act does not compel agreements between employers and employees. It does not compel any agreement whatever. It does not prevent the employer `from refusing to make a collective contract and hiring individuals on whatever terms' the employer `may by unilateral action determine.' The act expressly provides in section 9(a) that any individual employee or a group of employees shall have the right at any time to present grievances to their employer. The theory of the act is that free opportunity for negotiation with accredited representatives of employees is likely to promote industrial peace and may bring about the adjustments and agreements which the act in itself does not attempt to compel."

In January, 1940, the Board issued its findings of fact and decision, and entered an order requiring the petitioner to cease and desist from "refusing to bargain collectively with United Packing House Workers, Local Industrial Union No. 51, through Packinghouse Workers Organizing Committee, affiliated with the C. I. O., as the exclusive representative of the production and maintenance employees at its Cedar Rapids, Iowa, plant." The order also required the petitioner to take appropriate affirmative action to effectuate the policy of the act.

The order of the Board was based upon its findings: (1) that petitioner had refused to recognize the union as the exclusive representative of petitioner's employees at the Cedar Rapids plant for purposes of collective bargaining; (2) that it had failed to submit counter offers to the union at the time it rejected the union's proposals; (3) that it had changed work schedules and wage scales without consultation with or notification to the union; (4) that it had refused to reduce its agreements with the union to writing; and (5) that, by dilatory tactics, it had avoided entering into a binding agreement, and had thus made a sham of collective bargaining.

The question which it is necessary for us to determine is whether, under the evidence adduced, it was permissible for the Board to find that the petitioner had failed to comply with the act with respect to recognizing...