Westinghouse Electric & Mfg. Co. v. National LR Board

• Decision Date: 10 June 1940
• Docket Number: No. 289.,289.
• Citation: 112 F.2d 657
• Parties: WESTINGHOUSE ELECTRIC & MANUFACTURING CO. v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Second Circuit

112 F.2d 657 (1940)

WESTINGHOUSE ELECTRIC & MANUFACTURING CO. v. NATIONAL LABOR RELATIONS BOARD.

No. 289.

Circuit Court of Appeals, Second Circuit.

June 10, 1940.

Harold Smith, C. A. Reinwald, Donald C. Swatland, and Roswell L. Gilpatric, all of New York City (Cravath, De Gersdorff, Swaine & Wood, of New York City, of counsel), for petitioner.

Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, Laurence A. Knapp, Asst. Gen. Counsel, and Ruth Weyand, Mortimer B. Wolf, and Morris L. Forer, all of Washington, D. C., for National Labor Relations Board.

Before L. HAND, SWAN, and CHASE, Circuit Judges.

L. HAND, Circuit Judge.

This case comes up upon a petition by the employer to review a "cease and desist" order of the Labor Board; and upon a petition of the Board for an order of enforcement. The conduct which the Board found unlawful principally concerned the change from a "Plan" of collective bargaining, instituted before the National Labor Relations Act was passed, to the formation in its place at the respondent's Bloomfield plant, of an unaffiliated union, called the "Independent". The company's position is that the "Independent" was the result of the spontaneous and free agreement of its employees; the Board's, that the company's influence continued apparently to pervade the new organization so as to dominate it within the meaning of § 8 (2) of the Act, 29 U.S.C.A. § 158 (2). An outline of the facts found, all of which have "substantial" support in the evidence, is as follows: In 1933 the company organized the "Plan", so called, for dealing with matters which might arise between its employees and itself. It is not necessary to go into the details more than to say that the governing committees of this organization were made up equally of elected representatives of the employees, and of "management employees" appointed by the company. Though the company does not appear to have had control, at least it had such a joint share in the "Plan's" management and direction as the statute now forbids. In March of 1937 some of the employees began to organize a local of the C.I.O., and later secured a charter; on April 12, 1937, the Supreme Court declared the National Labor Relations Act, 29 U.S. C.A. § 151 et seq., constitutional.

The "Joint Conference Committee" of the "Plan" was its authoritative governing body, and it held a meeting on April 21, presided over by the superintendent of one of the company's "divisions". Apparently the company was still in doubt as to how far the "Plan" was unlawful; but the committee appointed a sub-committee to revise it, four of the ten members being "supervisory employees" Conselyea, then chairman of the newly formed C.I.O. local, refused to join this sub-committee; but Newton, who later became president of the local, did join, and appears to have taken part in its deliberations. A majority of this sub-committee wished to exclude all management control, though not to affiliate with any national union; but, although it met about five times, it never made any proposals, and appears merely to have faded out. By May 12th the company had decided that the "Plan" was unlawful, and the plant manager, Madden, called another meeting of the "Joint Conference Committee", and declared that the company would no longer support the "Plan"; that it would be discontinued; that he was not interested in what plan the employees adopted; that it was their business; and that he would not, and could not lawfully, even answer any questions about it. He and the "personnel manager", who was also present, then left the rest — all elected members of the old "Joint Conference Committee" — and they began to examine an informal poll of employees, taken in the plant by elected representatives, to find out what was the general feeling towards affiliation with a national union. They concluded that eighty per cent. of the employees were against it, but apparently did nothing further except to ask Madden to keep on dealing with the old representatives until some substitute might be organized for the "Plan". Madden answered that he would be glad at any time to meet any group of employees; but from then on the "Plan" ceased to function, and never revived.

On the 20th one, Hennelly, a former elected member of the "Joint Conference Committee", called together twenty employees, all but two or three of them former members of the committee, and they deputed two of their number, Donnelly and Shepard, to draft a constitution for a new unaffiliated union. Donnelly had been chairman and vice-chairman of the "Joint Conference Committee", and Shepard had been secretary of all committees under the old "Plan". They finished the draft by June 4, using as its basis some of the notes taken of proposals put forward at the meeting of May 12th, and also a mimeograph of an amended constitution which was considered at the meeting on April 21st. There is no evidence, and the Board does not find, that Donnelly and Shepard conferred with any of the company's officials in drawing up this constitution. Cards were circulated among all the employees, by which a large majority of them agreed to "abide by and uphold" the constitution, and to subscribe for its support. On June 21st the "Independent" held an election of officers and representatives, and on the 23rd the company began to deal with them as representatives of its members, but of the members alone. On August 10, 1937, the "Independent" petitioned the Board for recognition as exclusive bargaining agent for the employees; it also attempted to secure similar recognition from the company. In both cases it was unsuccessful, and in December it held an election under the auspices of disinterested outside persons, which resulted in an overwhelming majority in its favor of those voting. The Board, which had refused to hold any election, filed its complaint on March 8, 1938.

So far, it does not appear that the company had tried in any way to influence the employees in the formation of the "Independent", or against the local. To the "Joint Conference Committee" Madden had explicitly dissociated the company from the new organization, and told the men to do as they pleased; nevertheless, the "Plan" had never been openly "disestablished", and to it the "Independent" succeeded without any line of fracture, at least on the surface. To supplement this lack of positive evidence of "domination" by the company, the Board made three specific findings of discrimination against the C.I.O. local. The first of these was a talk between Thoms, a company superintendent, and Conselyea, president of the new local. Conselyea had got leave from Madden to hold a meeting of the C.I.O. local in May, 1937, and had held it. Thoms summoned him later on the same day to his office, and asked him whether his job was...