Cabot Carbon Co. v. National Labor Relations Board

• Decision Date: 09 June 1958
• Docket Number: No. 16734.,16734.
• Parties: CABOT CARBON COMPANY and Cabot Shops, Inc., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

256 F.2d 281 (1958)

CABOT CARBON COMPANY and Cabot Shops, Inc., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 16734.

United States Court of Appeals Fifth Circuit.

June 9, 1958.

H. H. Hillyer, Jr., Richard C. Keenan, New Orleans, La., Kullman & Lang, Milling, Saal, Saunders, Benson & Woodward, New Orleans, La., of counsel, for petitioner.

William W. Watson, N. L. R. B., Stephen Leonard, Associate Gen. Counsel, Jerome D. Fenton, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Fannie M. Boyls, Atty., N. L. R. B., Washington, D. C., for respondent.

Before JONES, BROWN, and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

This case is before the Court on the petition of Cabot Carbon Company and Cabot Shops, Inc.¹ for review of an order of the National Labor Relations Board.

The question presented is whether employee-management committees formed for discussion of matters of mutual interest rather than for bargaining purposes are labor organizations within the meaning of the National Labor Relations Act (the Wagner Act), as amended. 61 Stat. 136, 29 U.S.C.A. § 151 et seq. If these committees are labor organizations, there is no doubt that Cabot interfered with them in violation of Sections 8(a) (2) and (1) of the Act.

Stated a little differently, the basic question is whether Congress intended to make it a violation of the law for employees to talk with their employer about production, working conditions, grievances and other matters of mutual interest, except as representatives of a labor organization. Cabot pitches its case on the legislative history of the Labor Management Relations Act of 1947 (the Taft-Hartley Act), amending the Wagner Act. Reliance on legislative history to support the validity of the employee committees is new in this type of case.

I.

The Court must examine the why of these particular committees at Cabot plants, how they were formed and operate, the subjects they discuss with management — if we are to determine whether the Act permits such groups of employees to exist, and even co-exist alongside of certified labor unions.

Employee committees are not new. During World War II, the War Production Board encouraged war industries to institute "Employee-Management Committees" to promote increased production in critical industries.² In 1943 a representative of the War Production Board met with Reno Stinson, Cabot's Director of Industrial Relations, to discuss organizing employee-management committees and to supply literature on such committees. Stinson notified Cabot's plant managers to send elected employee representatives to a meeting, for the purpose of drafting a set of bylaws for submission to the employees. By-laws were drafted using the War Production Board material as a guide. These were approved by a vote of the employees. The War Production Board was furnished a copy and approved the form of the by-laws. Later, the by-laws were published in the Cabot Guide, a company policy manual. Except for minor revisions these by-laws are still in effect and are recognized as part of the company policy.

The by-laws state the purposes of the committees, as follows:

"1. To bring about a better understanding between employees in every branch and service of our Company to the end that each will have a better insight to the other\'s problems.

"2. To provide a definite procedure for considering employees\' ideas. As an example the following problems are of mutual interest to employees and management:

"a. Safety.

"b. Increased efficiency in production.

"c. Conservation of supplies, materials, and equipment.

"d. Encouragement of ingenuity and initiative.

"e. Grievances (nonunion plants or departments)."

The "rights and duties of committees" are also set forth:

"It is understood that the Employee Committees do not in any way detract from the authority and responsibility of the supervisory force but should serve to assist plant management in general in solving problems of mutual interest. It shall be the Committee\'s responsibility to:

"1. Meet with plant management at regular monthly meetings called by management and to attend any special meetings called by management.

"2. Work with management on those problems of mutual interest as set out under "Purposes".

"3. Make recommendations on the Suggestions from the employees in accordance with the Suggestion Plan.

"4. Call meetings of the employees if in their judgment this is necessary, and the Committee may invite management to attend if they think advisable, but all such meetings will be optional as far as management is concerned and will be on the employees\' time.

"5. Handle grievances at nonunion plants and departments according to grievance procedure set up for these plants and departments. It shall be the duty of the Committee to call to the attention of management any troublemakers or acts of disturbance which would tend to lower morale, and it shall be the duty of the Committee to insist that gripes, grumbling, trouble-making among the employees either stop or be taken up under the regular grievance procedure at the plant."

The by-laws do not provide for any formal organization. There are no membership requirements, no dues, no officers, no funds. Employees at each plant elect a committee annually. The outgoing committee conducts the election. Monthly meetings are held with representatives of plant management. These meetings are called on company time and premises. The management assists in holding elections, calling meetings, preparing and posting minutes of the meetings, and defraying all expenses necessary to the operation of the committees.

Once a year, a meeting is held of the "Central Committee". This is composed of all the employee committeemen. There is no provision in the by-laws for a "Central Committee". Cabot contends that this is simply an annual, general meeting of the management to which employee committeemen are invited as guests. There is a morning session of speeches (some by outside speakers) and announcements (sometimes on proposed wage or benefit increases). There is no audience participation. In the afternoon the various plant managers and their assistants meet with top company management; the employee committeemen meet with Stinson. There is no negotiation or bargaining at these meetings. The Trial Examiner and the Board regard the Central Committee as a top-level or division-wide Employee Committee. They do not recognize the distinction petitioners draw between a morning management meeting and an afternoon session of the employee committeemen with Stinson.

Cabot argues that it has never recognized any of the committees as having the right to represent its employees for purposes of collective bargaining. It has never negotiated with any Employee Committee any agreement concerning wages, hours, or working conditions. As a matter of fact only Reno Stinson has authority to negotiate any such agreement; management representatives at committee meetings, at most, can only listen — so far as bargaining is concerned. Of course, Cabot says, the company cannot gag its employees, and would not want to gag the committees. But committeemen themselves know that they cannot engage in any collective bargaining. The committees handle grievances only at the nonunion plants.

Over a period of years co-existence of Employee Committees and unions at Cabot plants has presented no serious problem. Cabot contends that prior to this proceeding, no union had ever objected to the committees; the unions handle all the bargaining functions. The Board admits in its brief that: "Employee Committees * * * have coexisted * * * though not always without friction. The Committee functions under such co-existence, however, generally have been limited to the handling of grievances for employees outside the bargaining unit and matters divorced from collective bargaining, such as plant efficiency and production problems. * * * In the event of conflict, the Employee Committees have customarily yielded to the artificial bargaining representative." Some committeemen are also members of the bargaining unit and the certified union. The Examiner found: "The Committees have never attempted to negotiate a contract with Respondents, and all benefits, privileges, or concessions to employees resulting from such conferences depend entirely upon company policy or magnanimity. Thereby all aspects of collective bargaining are either frustrated or entirely absent."

Employee Committees have discussed, complained about, or made recommendations concerning: seniority, transfer of employees, job classifications, job bidding, improvement of working facilities, overtime records and time cards, the merit system, layoff and makeup time, working schedules, vacation and sick leave, holidays, and allocation of company houses. The Trial Examiner, summarizing his findings, concluded that Cabot's dealings "avoid the usual concept of collective bargaining, but provide a forum for discussion of mutual problems, exchange of information, presentation and consideration of employee suggestions and recommendations, including the adjustment of grievances and the improvement of working conditions". This, says Cabot, does not make the committees labor organizations; such discussions between management and employees are contemplated in the 1947 Act.

The Board concluded that the Employee Committees and the Central Committee were labor organizations within the meaning of Sections 8(a) (2) and 2(5) of the Act. The Board found that the committees constitute "an integrated employee representation system established as company policy throughout the Southwestern Division". The Board found — and there is not much doubt about it, if the committees are labor organizations — that Cabot interfered with the administration of the committees, and assisted and supported the committees unlawfully. The Board ordered Cabot to "cease and desist from assisting, dominating, contributing...