National Labor Relations Board v. Remington Rand, Inc.

• Citation: 94 F.2d 862
• Decision Date: 14 February 1938
• Docket Number: No. 153.,153.
• Parties: NATIONAL LABOR RELATIONS BOARD v. REMINGTON RAND, Inc. (CENTRAL EXECUTIVE COUNCIL OF REMINGTON RAND EMPLOYEES' ASS'NS, Intervener).
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

94 F.2d 862 (1938)

NATIONAL LABOR RELATIONS BOARD v. REMINGTON RAND, Inc. (CENTRAL EXECUTIVE COUNCIL OF REMINGTON RAND EMPLOYEES' ASS'NS, Intervener).

No. 153.

Circuit Court of Appeals, Second Circuit.

February 14, 1938.

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Charles Fahy, of Washington, D. C., Robert B. Watts, Philip Levy, and H. Gardner Ingraham, all of Washington, D. C., for the National Labor Relations Board.

Bond, Schoeneck & King, of Syracuse, N. Y. (George H. Bond and Tracy H. Ferguson, both of Syracuse, N. Y., and John A. W. Simson, of Buffalo, N. Y., of counsel), for Remington Rand, Inc.

Bernard A. Kosicki, of Hartford, Conn., and John Holley Clark, Jr., of New York City, for intervener.

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

L. HAND, Circuit Judge.

This case arises upon a petition filed by the National Labor Relations Board under section 10(e) of the National Labor Relations Act, 29 U.S.C.A. § 160(e), for an order of this court to enforce the Board's order, passed on March 13th, 1937, in a proceeding before it against the respondent, Remington Rand, Inc. This was begun upon a charge, filed with the Board by the Remington Rand Joint Protective Board of the District Council Office Equipment Workers, on which the Board filed a complaint, alleging that the respondent was engaging in "unfair labor practices." The respondent answered, and a trial examiner was appointed who conducted hearings during November and December, 1936. The respondent appeared at these hearings, cross-examined the witnesses, but put in no evidence of its own except a few exhibits. The decision on which the order was issued is extremely voluminous, covering more than 200 pages of the printed record; it is rather in the nature of a discursive opinion than of specific findings of fact, but it ends with certain conclusions of law followed by the order, a copy of which is annexed at the end hereof. A summary of the more important facts stated in the decision is as follows. The respondent, a Delaware corporation, manufactures typewriters and general office equipment, and has a great number of plants scattered all over the world; it is engaged in interstate commerce. This controversy concerns six of its plants, i. e. those at Tonawanda, Ilion and Syracuse, in New York, at Middletown, in Connecticut, and at Marietta and Norwood, in Ohio. (At Tonawanda there are strictly speaking two plants, one at Tonawanda, and the other at North Tonawanda, but these have been treated as one.) A number of the maintenance and equipment workers in each of these plants had by 1934 organized into one or more local unions; in Ilion there were five, at Syracuse three, Middletown four, at Norwood five and at Marietta and Tonawanda one each. These locals were affiliated with general craft unions under the direction of the District Council of Office Equipment Workers, which the Metal Trades Department of the American Federation of Labor chartered in March, 1934; the Council was made up for the most part of workmen in the six plants, and was superseded in February 1936 by the complainant here, Remington Rand Joint Protective Board, which we shall speak of as the Joint Board. The Labor Board has found that this body represented a majority of the employees in the six plants, which together constituted an appropriate bargaining unit under section 9(b) of the Act, 29 U.S.C.A. § 159(b).

The controversy dates back to the autumn of 1935 and had its origin in rumors and newspaper articles that the respondent was about to set up a plant at Elmira, N. Y., and dismantle corresponding producing units elsewhere. It had developed a new typewriter — "Madame X"; had bought the plant of the Elmira Precision Tool Company; and began shipping machinery thither early in 1936. The Joint Board first wrote the respondent upon the subject on January 11, 1936, speaking of information which they had received about the new project, and asking for a conference. Ross, the plant manager at Ilion, met them later in that month and declared in a written statement that the respondent had no intention of manufacturing in Elmira, which must have been deliberately false. This did not satisfy the Joint Board, who after some correspondence secured a second conference, this time with Anderson, manager of the Cincinnati plant, on April 24th and 25th, at which they insisted that it would be a breach of an agreement made with the union in 1934 for the respondent to farm out any part of its production to the Precision Tool Company at Elmira. Anderson professed ignorance of the Elmira project, though he let out — in curious contradiction — that the respondent planned to move the Norwood plant to that place. A wage increase was also demanded, which Anderson refused, and thereupon the conference broke down. The Joint Board had asked to confer either with James H. Rand, Jr., the respondent's president, or with Benner, a vice-president; but although Benner had at first agreed to see them, he did not appear. Annoyed by this failure to meet any higher official, and at the refusal of the wage increase, and concerned over the proposed change to Elmira, they decided to take a strike vote of the locals in all six plants. The ballot authorized them to call a strike for the three reasons just mentioned, and the vote, which was taken by locals, resulted in a total of 3768 votes, out of which 3200 were for a strike. This result being known on May 10th, the Joint Board wrote to Rand personally, saying that the results of the conference with Anderson had been most unsatisfactory, and asking for a personal conference to go over the matters with which he had not had authority to deal. Rand did not answer; and on the 21st the respondent announced that it would take a strike vote of its own in the six plants, which it proceeded to do on that day. At Tonawanda, Ilion and Syracuse, members of the Joint Board, or other union officials, actively interfered with the taking of this vote; at Tonawanda a committee complained to Hart, the plant manager, and when he would not stop the ballot, told the men not to vote; at Ilion, one, Beer, a member of the joint Board, went through the whole factory, dissuading them; at Syracuse the union leaders stopped all work and the vote as well, whereupon the manager closed the plant for two weeks. What happened at the other three plants does not appear; nor have we the complete vote, if indeed there was one. All we know is that at Ilion there were 70 votes in favor of a strike, 911 against it, and 637 blanks, out of a total of about 2000. The figures at Tonawanda are not given. On the 22d the respondent discharged seventeen men at Syracuse by identical letters which gave no reason for so doing; all but two of these were union officials, and several had been active in interfering with the vote. One employee was discharged at Tonawanda; he too was a union official. In accordance with the authority given them by their own strike vote, the Joint Board thereupon called a strike on the 23d to take effect on Tuesday, the 26th, and the men went out in all the plants on that day.

It had been apparent for some days that a strike was probable or inevitable, and Rand made several public statements on the subject. On May 19th he had an interview in New York with one, Allen, a merchant of Ilion, and Boote, an employee, who afterwards became the leader of a "back-to-work association"; Rand said to them in substance that he would have no further dealings with the American Federation of Labor. On the 21st after discharging the men whom we have mentioned, he told the mayor of Syracuse that he would not treat with Crofoot, a member of the Joint Board, or any of the other union officials, whom he regarded as "radicals." In Middletown the respondent published a news advertisement which contained a statement that the union represented a minority of the men, and that there would be no use in dealing with it any further. After the strike was on, various offers of mediation were made, one by the Commissioner of the New York State Department of Labor; Rand's secretary answered that the Syracuse conference with Anderson had been unavailing, and refused any further negotiation. The Connecticut Board of Mediation asked Rand to meet Anderson, the Joint Board member from Middletown; no reply was received. In July Governor Cross tried to arrange a conference between three governors and a union representative, but Rand refused, and declared that never again would the respondent treat with any "outside" union officials. On July 24th, the respondent wired the Associated Press that any rumor was false which said that it would deal with "any union official either labor or otherwise."

The strike was vigorously contested on both sides, the respondent engaged the services of well-known strike-breaking agencies, between whom and the strikers the usual collisions took place with mutual recrimination; but although a very large part of the Board's decision is made up of the details of these activities, we do not see their materiality to the issues before us. An exception is the emergence of two company or plant unions as a result of "back-to-work associations" which sprang up at Ilion and Middletown; the formation of a similar union at Syracuse need not concern us for the order does not include it. These two unions are still in existence; their common representative has intervened in this court, but no justiciable issue arises about them except over Section I(b) and Section II(a) of the Board's order, which enjoin the respondent from "dominating or interfering with" any labor union, or "contributing" to its support, and require it not to recognize, but on the contrary to "disestablish," the two unions. This presupposes that the respondent took a hand in fostering their creation; the evidence is purely inferential. The only reasons to infer that the respondent had any hand in creating the union at Ilion,...