Kansas City Power & L. Co. v. National Labor R. Board

• Decision Date: 21 May 1940
• Docket Number: No. 445.,445.
• Citation: 111 F.2d 340
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: KANSAS CITY POWER & LIGHT CO. v. NATIONAL LABOR RELATIONS BOARD (ASSOCIATION OF EMPLOYEES OF KANSAS CITY POWER & LIGHT CO., Intervener).

111 F.2d 340 (1940)

KANSAS CITY POWER & LIGHT CO. v. NATIONAL LABOR RELATIONS BOARD (ASSOCIATION OF EMPLOYEES OF KANSAS CITY POWER & LIGHT CO., Intervener).

No. 445.

Circuit Court of Appeals, Eighth Circuit.

April 25, 1940.

Rehearing Denied May 21, 1940.

COPYRIGHT MATERIAL OMITTED

Irvin Fane, of Kansas City, Mo. (Thad B. Landon, Ludwick Graves, and Johnson, Lucas, Landon, Graves & Fane, all of Kansas City, Mo., on the brief), for petitioner.

Fred Ruark, of Kansas City, Mo. (Ruby D. Garrett, of Kansas City, Mo., on the brief), for intervener.

Samuel Edes, of Washington, D. C. (Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, Laurence A. Knapp, Asst. Gen. Counsel, and Mortimer B. Wolf and David Persinger, all of Washington, D. C., on the brief), for respondent.

Before STONE, SANBORN, and THOMAS, Circuit Judges.

STONE, Circuit Judge.

This is a petition for review of an order by the National Labor Relations Board requiring petitioner to withdraw recognition from and to disestablish the Association of Employees of the Kansas City Power and Light Company as a bargaining agent for the employees; to cease and desist from giving effect to a contract between it and the Association (governing wages, hours of employment and working conditions); to pay back to the members of the Association dues deducted from wages for the use of the Association; to offer to Clyde Acock transfer to his former position in the Northeast power plant, without prejudice to seniority and other rights and privileges; to reinstate Thomas H. Gregg and Carl J. Nordstrom without prejudice to seniority, etc., and to make them whole for any loss of pay from date of discharge; to offer reinstatement (under conditions set forth) and to make whole losses in pay to eight other named employees; to post certain notices; and to give notice to the Board of compliance. Also, the order dismissed a petition of the Association for investigation and certification of representatives. The answer of the Board seeks enforcement of the order. The Association was accorded intervention both before the Board and here.

I. Validity of the Association.

The complaint charged petitioner with fostering, encouraging, sponsoring, dominating and interfering with the "formation of a labor organization known as `Employees Representation Plan' called Plan hereinafter and its successor, `The Association of Employees of Kansas City Power and Light Company' called Association hereinafter", and with giving financial and other support thereto.

The Board found (a) that the Plan was company initiated, promoted and supported; (b) that the Association was a continuation (in somewhat different form) of the company dominated Plan; (c) that there was company interference and domination in the formation and administration of the Association.

(a) Domination of the Plan.

The evidence is not only substantial but is convincing that the Plan was company conceived, initiated, promoted and financially supported. While entirely lawful until the National Labor Relations Act became effective, it was clearly unlawful thereafter.

(b) Association as Continuation of Plan.

It is necessary to outline briefly the history of the Plan and of the Association. As early as the latter part of 1931 and continuously up to the hearing on the complaint, petitioner employed undercover men who were to report upon matters they observed while working with and as employees. Among other things, they reported upon the labor activities which they observed.

In August, 1933, an American Federation of Labor Union began a drive to organize certain of the powerhouse workmen. This movement met rather ready response from the men. This continued for some weeks until the Plan took control and put an end thereto. During September, 1933, petitioner had its attorneys draw up the Plan. September 30, 1933, petitioner submitted the Plan in explanatory letters sent its employees. The Plan divided the employees into "departments" with departmental councils and a general council — each council was made up of equal representation of petitioner and of the employees. There were no dues. Secretaries for the councils were appointed by and paid by petitioner. Membership in the Plan seems to have been compulsory, or, at least, it worked out that way. In connection with the Plan, petitioner established a Director of Employees Relations who acted as chairman at the meetings of the joint representatives under the Plan and seems to have been the active constant agency of petitioner in maintaining proper touch with the employees. Alec E. Bettis acted throughout as this director.¹ Petitioner's answer to the complaint admits that it contributed by paying for printing the Plan and by paying the wages of the employee representatives while engaged in performing their duties under the Plan. The evidence leaves no doubt that the Plan was initiated, promoted and, so far as necessary, financed by petitioner.

The Plan functioned until April 12, 1937, when the validity of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., was upheld. National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352. It was not formally abandoned until the constitution of the Association was ratified by two-thirds of the chapters of the Association between June 23 and July 1, 1937. No meetings were held during April or thereafter. The labor matters seem to have lain dormant without action by petitioner or the employees until May 29, 1937. Apparently, both petitioner and at least some of the employees recognized that the Plan was not valid under the Act.

On May 29, 1937, W. R. Kent, who had been an employee for 21 years and was then a "trouble man"², acted. Kent had been considering the situation since early in May. Some years before he had, as he thought, an unfair experience while a member of a local of the A. F. of L. Recently, he had been threatened with violence by members of the C. I. O. He resolved to try to form an independent union of all of the employees, below supervisors, of petitioner. He made some inquiry among the employees and thought them favorable to the idea. May 29th he started to put his idea into execution. First, he told the head of his department (Dysart) of his intentions. Dysart refused to discuss the matter saying the men were free to do as they pleased without danger to their status. Kent asked Dysart if he had any objection to his taking up the matter with Mr. Bettis and asked him to make an appointment with Bettis. Dysart said he had no objection but Kent would have to make his own appointment with Bettis.

Kent then called a fellow workman, Hamarstrom, to whom he communicated his plan. They called on Bettis. Kent told Bettis that he was under the impression that the "old Plan was dead"; that he intended to form a new union; and asked Bettis (who was vice-president of his department) to call a "meeting of the employees under the old representation Plan for the purpose of disbanding that organization." Bettis refused to call a meeting or to have anything to do with the matter, saying that "as far as he was concerned, the Association Plan ceased to exist"; for Kent not to discuss it with him and that Kent was free to join any union he wanted to "the C. I. O., the A. F. of L., or anything else." Bettis said "he did not want us to use company time, hold any meetings on company property, or expect any legal advice from the legal department, or assistance from the company in any manner."

Later in the same day, Kent and Hamarstrom went to the law office of Col. Garrett, a friend of Kent, and told him they wanted a constitution drawn up for a new union. They had with them a copy of the Plan and either had or sent for copies of several constitutions of independent unions, including that of the Association of Plant Employees of the Southwestern Bell Telephone Company. Mr. Ruark, partner of Garrett, took charge of the matter. He was told to draw up a constitution following the Telephone employees plan.³ About noon next day, the draft was completed and was taken to a printer who delivered 3,000 copies several days later. Kent had blank membership cards printed, which were delivered May 29th or 31st, probably on the 31st.

June 1st, after work hours, Kent had two young women⁴ run off copies of the constitution on a "ditto" machine belonging to the company. There is testimony that this machine was used by the "employees" but whether this was for their own private purposes or only on company business is not clear. This work and the stationery were paid for by Kent.

Kent and Hamarstrom called a meeting of the employee representatives under the Plan for the evening of June first at a place removed from company property. A majority of such representatives as well as several other employees (including Kent and Hamarstrom) attended. The idea of the new union and the proposed constitution were submitted and discussed. There was determined opposition to the entire matter by representatives of the two councils⁵ from the power plant departments.

Apparently, the others approved.

From this meeting until organization of the chapters, there was an intensive membership campaign. With the exception of one instance, none of the solicitors acted on company time or property — two men were thus solicited while they were working with the solicitor but without knowledge of any superior. There was some solicitation of men out on line jobs on streets when the solicited were on company time. There were several instances of men asking for membership applications and filling them out during working hours. Apparently, most of the solicitation and filling out of application was off company property and out of hours. During this solicitation period, various meetings were held by those active in organizing work. These meetings were at night at the homes of employees.

The applications for...