American Smelting & R. Co. v. National Labor R. Board

• Decision Date: 12 March 1942
• Docket Number: No. 12070.,12070.
• Citation: 126 F.2d 680
• Parties: AMERICAN SMELTING & REFINING CO. v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Eighth Circuit

126 F.2d 680 (1942)

AMERICAN SMELTING & REFINING CO. v. NATIONAL LABOR RELATIONS BOARD.

No. 12070.

Circuit Court of Appeals, Eighth Circuit.

March 12, 1942.

COPYRIGHT MATERIAL OMITTED

W. C. Fraser, of Omaha, Neb., (W. M. McFarland, of Chicago, Ill., and R. Worth Vaughan, of New York City, on the brief), for petitioner.

Roman Beck, Senior Atty., of Washington, D. C., National Labor Relations Board (Robert B. Watts, Gen. Counsel, National Labor Relations Board, Laurence A. Knapp, Associate Gen. Counsel, Ernest A. Gross, Asst. Gen. Counsel, David Findling and Dominick L. Manoli, Attys., all of Washington, D. C., on the brief), for respondent.

Before GARDNER, SANBORN, and WOODROUGH, Circuit Judges.

GARDNER, Circuit Judge.

Upon complaint filed against petitioner alleging that it had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2) and (3) of the National Labor Relations Act, 29 U.S.C.A. § 158 (1-3), the National Labor Relations Board, after hearing, issued an order requiring respondent to cease and desist from (a) discouraging membership in Omaha Smeltermens Union No. 461, International Union of Mine, Mill & Smelter Workers, or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire or tenure of employment or any terms or conditions thereof; (b) in any manner dominating or interfering with the administration of Employees Representation Plan or Omaha A. S. & R. Company Employees Association, or with the formation and administration of any other labor organization of its employees, and from contributing support to Employees Representation Plan or Omaha A. S. & R. Company Employees Association, or to any other labor organization of its employees; (c) recognizing Omaha A. S. & R. Company Employees Association as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of work; (d) in any other manner interfering with, restraining or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed by Section 7 of the Act, 29 U.S.C.A. § 157. The order required petitioner to withdraw and withhold from Employees Representation Plan and Omaha A. S. & R. Company Employees Association and any successor thereto, all recognition as representatives of any of its employees for the purpose of dealing with respondent, concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and to disestablish said associations as such representatives; to offer Laurence Behney immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges; to make whole Laurence Behney and Orville Johnson for any loss of pay they have suffered by reason of the respondent's discrimination against them, by payment to Laurence Behney of a sum of money equal to that which he normally would have earned as wages from May 31, 1939, to the date of offer of reinstatement, and by payment to Orville Johnson of a sum of money equal to that which he normally would have earned as wages from September 8, 1939, to the date of reinstatement, less their respective net earnings during said periods. The order directed the posting of notices throughout the plant for a period of sixty days, and to notify the Board's Regional Director of the steps taken to comply with the order. The order contained provision that the complaint be dismissed so far as it alleged that respondent engaged in unfair labor practices with regard to one Richard Knutzen. The order was based upon findings that petitioner had dominated the Plan and the Association, in violation of Section 8 (1) and (2) and had discriminated against Laurence Behney and Orville Johnson in Violation of Section 8 (1) and (3) of the National Labor Relations Act.

Petitioner seeks review of this order and asks that it be set aside as not sustained by substantial evidence. The Board has answered, praying that petitioner's petition be dismissed and that the order be enforced.

Petitioner is a New Jersey corporation, but maintains and operates mining, smelting, refining and distributing plants in various states, including a plant at Omaha, Nebraska, where it normally employs about 125 men. The Omaha plant alone is involved in this proceeding. In 1933, petitioner furnished printed pamphlets to the employees in its various plants, containing an outline of a Plan for employee representation. The stated purpose of the Plan was "to provide means and facilities for securing cooperation and agreement in respect to conditions and terms of employment." Such an organization was then formed at the Omaha plant (referred to in the record as the "Plan"), and thereafter, through its employee representatives, dealt with the management on labor questions. Under the Plan, grievances were lodged with a committee and the plant manager, who enjoyed "the full privileges of any other member to take part and enter into considerations and discussions," except the right to vote. Petitioner's plant manager was to be furnished by the committee with a copy of its proceedings. The Plan made no provision for dues or for general meetings of the employees. Its expenses were borne by petitioner. Its elections were held in the plant during working hours, without loss of pay to the employees, and employee representatives were paid for the time spent on Plan business. Meetings of the committee were held on company time and property, attended by petitioner's personnel manager. The Plan continued to function from its establishment in 1933 until approximately two years after the National Labor Relations Act became effective on July 5, 1935. Its last meeting seems to have been held in August, 1937. On April 13, 1937, the management expressed doubt as to its right to be represented at any meeting or to permit the Plan's representatives to meet on company property, and the Plan's representatives expressed doubt as to its legality.

The constitutionality of the Act was sustained by the Supreme Court on April 12, 1937, in 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, and companion cases. Petitioner took no positive steps to dissolve or disestablish the Plan. The plant manager suggested to certain employees on April 13, 1937, that the Plan might properly continue to function provided no company representative attended its meetings. There was evidence that a meeting of the representatives of the Plan was held August 10, 1937, for the purpose of deciding whether to drop the Plan, but this meeting was apparently without knowledge or participation of the management. At that meeting, the Plan leaders discussed the effect of the Labor Act as construed by the Supreme Court and decided to hold a general meeting of employees outside the plant for the purpose of putting the proposition of forming an organization of employees independent of any outside labor organization before the body. Following this meeting of August 10, the plant manager expressed to certain employees the desire to cooperate with and assist an independent union, advising that he was opposed to and would not cooperate with any organization affiliated with the A. F. of L., or C. I. O., and it would therefore be to the advantage of the employees to form an unaffiliated union, rather than join an outside organization. A witness, referring to the plant manager, testified:

"And he said he wanted it kept an independent union, that if it was an independent union he would do everything in his power to help us fellows; he would co-operate with us 100 per cent if it was an independent union, but if we affiliated with the A. F. of L. or C. I. O., he would do nothing to help us, that he would wash his hands of the whole thing and would only give us what he was forced to do. * * * He explained that it was better to keep control of the organizations in the hands of the plant employees than to let it get on the outside. He figured an independent union could do more for us than an outside organization — that he was willing to do more for us if it was an independent organization."

The manager a few days later said to the secretary of the Plan committee that he could go a long way in helping the employees if they would refrain from outside affiliation and would stick with an independent organization.

On August 19, 1937, a meeting of employees was held pursuant to notices posted on the plant bulletin board. The chairman of the Plan committee presided. An attorney was in attendance at the invitation of the Plan committeemen, who addressed the meeting with reference to the Labor Act. The employees voted to form an independent organization and designated a committee composed of former Plan committemen to assist the attorney in preparing a constitution for the new organization. This constitution was adopted at a later meeting, and the new organization was called Omaha A. S. & R. Company Employees Association, and is referred to in the record as the "Association." In September, 1937, before the completion of the Association organization, the plant manager called to his office the Plan committeemen who, reporting the progress made in the new organization, requested the manager's criticism. The manager thanked them for the manner in which the new organizing activities were being conducted, and informed them that he was attempting to secure a general wage...