Keystone Steel & Wire Co. v. National Labor Rel. Bd.

• Decision Date: 27 June 1946
• Docket Number: No. 8887.,8887.
• Citation: 155 F.2d 553
• Parties: KEYSTONE STEEL & WIRE CO. et al. v. NATIONAL LABOR RELATIONS BOARD et al.
• Court: U.S. Court of Appeals — Seventh Circuit

155 F.2d 553 (1946)

KEYSTONE STEEL & WIRE CO. et al. v. NATIONAL LABOR RELATIONS BOARD et al.

No. 8887.

Circuit Court of Appeals, Seventh Circuit.

April 2, 1946.

Rehearing Denied June 27, 1946.

Theodore C. Baer, Arleigh Davis, Harry E. Witherell, Shelton F. McGrath, and Edwin V. Champion, all of Peoria, Ill., for petitioner.

Alvin J. Rockwell and Malcolm F. Halliday, N. L. R. B., both of Washington, D. C., Jack Evans, Asst. Gen. Counsel, N. L. R. B., of Chicago, Ill., David A. Morse, Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, and Dominick L. Manoli and Emily Cronheim, Attys., N. L. R. B., all of Washington, D. C., for respondent.

Before EVANS, SPARKS and KERNER, Circuit Judges.

SPARKS, Circuit Judge.

By this petition plaintiffs seek to review and, in part, set aside an order of the National Labor Relations Board of June 22, 1945. The Board petitions for its enforcement. The parties will be referred to as Keystone, Alliance, the Board, and the C. I. O. Union.

The complaint which resulted in the order was filed on April 8, 1944. It was based upon charges filed by the C. I. O. Union on February 15, 1943, that Keystone was guilty of unfair labor practices under Section 8(1) and (2) of the National Labor Relations Act, 29 U.S.C.A. § 158(1-3), referred to as the Act, in that it had dominated and interfered with the formation and administration of Alliance, an independent Union, all of whose members were in the employment of Keystone. On July 13, 1943, the charges were amended by also alleging Keystone's violation of Section 8 (3) of the Act, by discharging seven of its employees because they were members of the C. I. O. Union. On July 14, 1943, the charges were again amended by adding the name of another employee, who, as alleged, was discharged because of his membership in the C. I. O. Union, in violation of Section 8(3) of the Act. On April 8, 1944, the charges were again amended by further alleging that in September 1933, Keystone formed, instigated and thereafter supported, financed and interfered with the administration of the Keystone Employees Association, an independent labor organization, referred to as K. E. A.; that in 1937, Keystone instigated and formed the Independent Steel Workers' Alliance as successor to K. E. A., and since that date has dominated and interfered with the administration of Alliance, and illegally recognized and dealt with it as the exclusive bargaining agency of all Keystone employees, and encouraged membership in it; and that on or about June, 1942, and thereafter, Keystone interfered with, restrained and coerced its employees in the exercise of their rights to join and assist the C. I. O. Union.

On April 12, 1944, Alliance, by permission of the Board, intervened and filed its answer to the complaint. On June 7, 1944, the charges were again amended by further alleging that in December 1940, Keystone violated Section 7 of the Act by promulgating a rule prohibiting all forms of solicitation for labor organizations upon the Keystone's property, which rule was used by Keystone to protect Alliance and to impede the C. I. O. Union in its organization campaign.

The complaint was amended to consist with the charges and its amendments, and petitioners denied the material allegations of the complaint. At the conclusion of the Board's evidence, Keystone and Alliance each moved to dismiss the complaint, which motions were denied. At the conclusion of all the evidence, like motions were made by the same parties and denied. The Board filed its intermediate report in which it made special findings of facts, and in substance recommended that Keystone should:

1. Cease and desist from:

(a) Contributing support to, or dominating or interfering with the formation or administration of Alliance, or any other labor organization of its employees.

(b) Giving effect to any and all contracts with Alliance.

(c) In any other manner interfering with any of its employees in the exercise of their rights to self organization, to form labor organizations, to join or assist the C. I. O. Union, or any other labor organization, 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 in section 7 of the Act, 29 U.S.C.A. § 157.

2. (a) Withdraw all recognition from Alliance, as representative of any of its employees for the purpose of dealing with Keystone concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and completely disestablish Alliance as such representative.

(b) Rescind immediately the rule against solicitation on employees' own time.

(c) and (d) Give the usual notices required by the Act.

The Board further recommended that the complaint be dismissed as to the eight employees alleged to have been discharged by Keystone because they were members of the C. I. O. Union.

The recommendations follow the findings rather closely. However, the legal questions presented to us, for the most part, are whether certain findings are supported by substantial evidence.

The dominant question before us is whether there is substantial evidence to support the Board's finding that Keystone dominated and interfered with the formation and administration of Alliance. Under respondent's theory, an answer to this question involves historical facts relating to K. E. A., which was organized in September, 1933. From about that date until the early part of April, 1937, K. E. A. was the bargaining agent of its members with Keystone.

The Act here involved, which provided for bargaining agents, became effective July 5, 1935, and was first declared constitutional by our Supreme Court, April 12, 1937. National Labor Relations Board v. Jones & Laughlin, 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352.

The Board found that in the fall of 1933, W. C. Buchanan, then an officer of Keystone, who has not been connected with this management since April 1935, urged its employees to form a union of their own, because they could get along with the company better than if they had an outside organization in the plant. At that time no other labor union had sought or was seeking applications for membership in any labor union. Thereupon the employees organized K. E. A. Their plan of organization was submitted to and approved by Keystone, and a membership campaign was conducted in the plant during working hours. Certain joint committees were appointed on which were representatives of both labor and company management, the latter appointing its own members thereon. K. E. A. required no dues or initiation fees, and it functioned through departmental representatives elected by the employees of the various departments, who in turn selected their own officers and arranged their own procedure, among other things, for collective bargaining. Keystone contributed financial support to and furnished a meeting place and office equipment for K. E. A., and outfitted a baseball team and furnished materials for a ball field and grandstand on Keystone's property. For a year or two the team charged admission to its home games and had confectionery concessions at the ball park, and K. E. A. was permitted to raise funds during working hours by selling tickets for dances and other events. From these sources K. E. A. had in its treasury in April, 1937, the sum of $228.53, in which Keystone had no interest or control.

None of these activities were unlawful prior to July 5, 1935, when the National Labor Relations Act became effective. However, subsequent acts of that nature were unlawful and prohibited by that Act. Prior to the Act, Keystone was under entirely different management and was represented by different counsel. The Board found that within a few days after the Supreme Court had upheld the Act on April 12, 1937, Mr. Sommer, Keystone's vice-president and general manager, had a meeting with the officers of K. E. A. and informed them that the Company would no longer bargain with or recognize K. E. A. as the bargaining agent of its employees because, as it existed, it violated the Act. (This finding was based on oral testimony as to the date occurring eight years before, notwithstanding there was in evidence the 48th Annual Report of Keystone for the fiscal year ending June 30, 1937, including a letter from its president to its stockholders in which it was stated: "In March 1937 * * * K. E. A. was disbanded and employees organized their own independent union, The Independent Steel Workers Alliance.") At this meeting no one discussed or suggested a new labor organization. Within a few days after this meeting the officers of K. E. A. reported at a meeting of its General Committee the result of their meeting with Mr. Sommer. At this meeting the General Committee, which was the governing committee of K. E. A., with representatives from each department in the plant, voted to dissolve K. E. A., and its former officers were instructed then and there to notify the company of such dissolution. At this meeting there was some discussion of a new organization but no action was taken. When this meeting adjourned no one present was charged with any duty or was selected to do anything on behalf of any new organization of employees. This record does not disclose any action by any former committee or officer of K. E. A., subsequent to such dissolution meeting. On the following day Mr. Sommer was told of such dissolution at which time some cabinets and equipment, owned by the company and used by K. E. A., were turned back to the company together with the key to a small room used by K. E. A. as an office. The record discloses that the representative of each department on the General Committee was requested to notify each member of K. E. A. in his department of such dissolution and the reason therefor, and these facts were openly discussed among the...