Coppus Engineering Corp. v. National Labor Rel. Bd.

• Decision Date: 16 January 1957
• Docket Number: No. 5138.,5138.
• Citation: 240 F.2d 564
• Parties: COPPUS ENGINEERING CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — First Circuit

240 F.2d 564 (1957)

COPPUS ENGINEERING CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 5138.

United States Court of Appeals First Circuit.

Heard November 7, 1956.

Decided January 16, 1957.

COPYRIGHT MATERIAL OMITTED

Ernest L. Anderson, Worcester, Mass., with whom Lloyd Anderson and Anderson, Anderson & Howard, Worcester, Mass., were on the brief, for petitioner.

Fannie M. Boyls, Atty., N. L. R. B., Washington, D. C., with whom Theophil C. Kammholz, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Margaret M. Farmer, Atty., N. L. R. B., Washington, D. C., were on the brief, for respondent.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

HARTIGAN, Circuit Judge.

The petitioner, Coppus Engineering Corporation, pursuant to § 10(f) of the National Labor Relations Act, as amended, 61 Stat. 136, 29 U.S.C.A. § 151 et seq., hereafter called the Act, seeks review of an order of the National Labor Relations Board, and the Board has filed an answer to this petition and also a cross petition, under § 10(e), requesting enforcement of its order.

The Board ordered the petitioner to cease and desist from: assisting, dominating, contributing financial or other support to, or interfering with the administration of, the Shop Committee, or any other labor organization; otherwise interfering with the representation of its employees through a labor organization of their own choosing; recognizing the Shop Committee, or any successor thereto, as the representative of any of its employees for the purpose of dealing with the petitioner concerning terms or conditions of employment. Affirmatively, the order required petitioner to withdraw and withhold all recognition from, and completely disestablish, the Shop Committee, or any successor thereto, as the representative of any of its employees for the purpose of dealing with the petitioner concerning terms or conditions of employment. The Board in its decision and order adopted the findings, conclusions and recommendations of the trial examiner.

The conclusions of the trial examiner, so adopted, were that: (1) the Shop Committee was a labor organization within the meaning of § 2(5) of the Act; (2) the petitioner had engaged in unfair labor practices within the meaning of § 8(a) (2) by assisting, supporting, dominating and interfering with the administration of the Shop Committee; (3) by such conduct the petitioner had interfered with, restrained and coerced its employees in the exercise of rights guaranteed in § 7 and thereby had engaged in unfair labor practices within the meaning of § 8(a) (1); (4) that these unfair labor practices affected commerce within the meaning of § 2(6) and (7).

Since petitioner contests only conclusions (2) and (3) above, we need discuss only the facts pertinent to them. These facts as drawn chiefly from the findings of the trial examiner, and in the light most favorable to the Board, are as follows:

The petitioner, a Massachusetts corporation, is engaged at Worcester, Massachusetts, in the manufacture, sale and distribution of steam turbines, blowers, air filters and related products. It employs approximately eighty in its production and maintenance group.

On September 11, 1952, the United Steelworkers of America, C.I.O., filed with the Board a petition for certification as collective bargaining representative of the petitioner's production and maintenance employees. As the petitioner did not agree to recognize the Union as such representative, an election was held October 7, 1952 in which the Union failed to receive a majority.

Shortly thereafter, the petitioner's president, Jerome George, called a meeting of the production and maintenance employees at the plant. George made a short speech and suggested to the employees "that they have a permanent grievance committee, if that is what they wanted to call it, to handle grievances" with management. George then left the meeting and the employees nominated candidates to form a Shop Committee from among their number. A ballot was then drawn up and some days later an election was held at the plant. The five employees who received the largest number of votes constituted the original Shop Committee, hereinafter called the Committee, with the employee receiving the largest vote serving as chairman.

Since its establishment the Committee entered into discussions with management concerning not only individual employee grievances, but also wages, hours, pensions, holidays and other working conditions.

In February 1954 the petitioner published at its own expense and distributed to all employees an eleven page booklet, with the cover containing the title, "Plant Rules and Policies," and the petitioner's name at the bottom. This booklet set forth the petitioner's rules and policies under six topic headings. The petitioner's name and address appeared again on the bottom of the last page. The first page contained the general heading "Plant Rules and Policies." Directly under that was listed the first topic heading, "The Shop Committee." The contents of this topic were the rules of the Committee.¹

These rules were drafted by the Committee and approved by the employees at a meeting held at the plant. A witness testified that without the approval of all the employees the Committee voluntarily gave a copy of the rules to management, but he did not remember why they did so. A vice-president of the petitioner admitted that most of the matters contained in the booklet were discussed with the Committee and that some of the provisions set forth therein as petitioner's plant rules and policies resulted from meetings with the Committee.

The Committee at all times functioned in accordance with the provisions set forth in the booklet. Moreover, a copy of this booklet was given to every new employee hired by the petitioner.

Elections of Committee members were held twice a year at the plant during the lunch period, with the petitioner's knowledge. It can be concluded from the findings of the trial examiner that these elections were run solely by the employees without any member of management in attendance. Notices of the election results were posted by the Committee on the plant bulletin boards. The record shows that the employees were free to use the bulletin boards for any purpose. When the election meetings ran beyond the one half hour lunch period, the employees in attendance received their regular pay for such time. The trial examiner also found that whatever facilities and equipment involved in conducting the elections, such as ballots and the use of typewriters, were obtained at the plant.²

The Committee rules made no provisions for general employee meetings to canvass their grievances and to formulate their demands in common. Such meetings were usually held whenever the chairman told "the committee members that it was about time" for a meeting. A witness testified that meetings were called in this manner every two or three weeks. The employees were informed of such meetings by a notice typed by the Committee chairman and posted by him on the plant bulletin boards. These meetings, which no representative of management ever attended, were held in the petitioner's machine shop during the lunch period. At these meetings the employees brought up the subject matters which they would like to have the Committee discuss with management. The Committee then drew up an agenda which was submitted to the petitioner's vice-president. He then notified the Committee by a notice posted on the plant bulletin boards of the time set for a meeting with management. Meetings with management were held in the President's office during working hours and, as the trial examiner found, they frequently continued beyond the normal workday. The following day the Committee reported the results of its meeting with management at a meeting of the employees.

When employee meetings went beyond the regular lunch period, all employees in attendance continued to be paid their regular wages for that period. It was stipulated by the parties that some of these meetings ran from five to fifteen minutes over the regular lunch hour. The Committee members were paid their regular wages for time spent at management meetings during working hours and were paid time and a half for the period beyond the normal workday, when the total number of working hours for the week was above forty. A Committee member, who acted as secretary, typed the minutes of the employee meetings and of meetings with management, using plant facilities. The vice-president of petitioner also typed the minutes of the Committee meetings with management and furnished a copy to the Committee.

The Committee had no constitution or bylaws other than the Committee rules set forth above. There were no membership dues, no provisions or requirements for employee membership and no indicia of membership for the employees.

To this point the facts recited concern the background of the instant case. The sixth month statutory period, upon which the findings of unfair labor practices are based, commenced on April 21, 1955.

Since April 21, 1955 the trial examiner found that the Committee continued to exist and function in all respects in the same manner as described above until its suspension. Further, that the petitioner continued furnishing each new employee a copy of the booklet containing the rules of the Committee and the petitioner's plant rules and policies.

Elections, employee meetings, and management meetings were held at the plant. The employees in attendance were paid their regular wages when elections and meetings ran beyond the one half hour lunch period, and Committee members were paid for time spent at meetings with management when the meetings lasted beyond the normal workday. The Committee existed without any provisions for membership of the employees generally and without any source of revenue.

Since the beginning of the...