Cudahy Packing Co. v. National Labor Relations Board, 411.

Decision Date27 March 1939
Docket NumberNo. 411.,411.
Citation102 F.2d 745
CourtU.S. Court of Appeals — Eighth Circuit

Edward S. Stringer, of St. Paul, Minn. (Thomas Creigh, of Chicago, Ill., on the brief), for petitioner.

Charles Fahy, Gen. Counsel, National Labor Relations Board (Robert B. Watts, Associate Gen. Counsel, National Labor Relations Board, and Robert S. Erdahl and Joseph A. Hoskins, all of Washington, D. C., Attys., National Labor Relations Board, on the brief), for respondent.

William C. Green, of St. Paul, Minn. (Emil A. Feyereisen and Edgerton, Green & Edgerton, all of St. Paul, Minn., on the brief), for intervener.


STONE, Circuit Judge.

This is a Labor Board controversy affecting the workmen of petitioner at its meat packing plant located in Newport, Minnesota. A complaint issued by the Labor Board charged the Packing Company with unfair labor practices (1) in the discharge, because of membership in and activities in behalf of Packing House Workers Local Industrial Union No. 62 (hereafter called Industrial), of Arthur Maurer, Oliver Simpson and Leonard Weiss; and (2) in dominating and interfering with the formation and administration of Packing House Workers Union of St. Paul (hereafter called independent Union) and in contributing support thereto. The Packing House Workers Union of St. Paul was permitted to intervene at the hearings before the examiner and the Board. The Board found unfair practices as to discharge of Maurer and as to domination of, interference with and support of the Packing House Workers Union of St. Paul. From a cease and desist order,1 with certain required affirmative action, the Packing Company filed its petition for review. The Board responded asking, also, enforcement of the order. The independent Union was allowed to intervene and challenges the order in so far as it relates to it.

Petitioner presents here three points which are as follows: (1) No substantial evidence of domination or interference with formation of the independent union or of contribution to the support thereof; (2) even if there be found evidence of domination or support "at the inception of" the independent union, the evidence conclusively showed no domination at the time of hearing; (3) no substantial evidence of discharge of Maurer because of union activities in connection with the Industrial. Intervener supports points 1 and 2. We think the order should be approved with a definition as to the term "disestablish" (used in the order) and with a direction as to the inclusion of certain matter in the notice of compliance (required in the order).

First. Domination of Independent Union. For about sixteen years prior to April, 1937, there existed at this plant a "Plant Conference Board" which handled grievances of the plant workmen. This board was composed of equal employe and company membership. In April, 1937, two of the employe members were William B. Callahan and D. J. Peabody — the former representing the pork kill and cut, calf kill and cut and sheep kill and offal departments, and the latter representing the mechanical department. Each of them had been such member for many years and Peabody had, also, been chairman of the grievance committee of the employes for about ten years. Callahan was a butcher in the pork cutting department and Peabody was a saw filer in the mechanical department. On Friday, April 16, 1937, these two men met by chance in a hallway at the plant. Because both had been very active in settling grievances for the employes, and because "there was a great deal of talk of the Wagner Labor Act, 29 U.S. C.A. § 151 et seq.2 breaking up the company union" and because there was much talk of organizing unions in the packing industry, they discussed what should be done. They thought an independent union might be best and decided to take the matter up with the plant manager, Mr. Foster. The following morning (Saturday, April 17th), they went to see Mr. Foster. They asked him if the Conference Board would be done away by the "Wagner Bill" and Mr. Foster stated "that in all probability it would be". Then they explained what they intended to do and asked his opinion about it. He said that "neither could he encourage or discourage us, that at any time that we had fifty-one per cent of the employes that he would have to recognize us." Callahan and Peabody withdrew into another office where they decided an attorney would be necessary to help in organizing under the Act and determined upon William C. Green because they knew of his successful handling of several matters at the plant. They contacted Green and arranged to see him that afternoon. They then returned to Foster and asked if they could see him later in the day and suggested they would rather meet outside the plant. Foster "suggested that he get a room for us some place in town St. Paul and it was finally decided that he get a room at the Hotel Lowry" and that Foster would meet them about 2:30 P. M. that afternoon in the hotel lobby.

Callahan and Peabody got in contact with several men, and these two with three others went to the hotel. The five men were all employe members of the Conference Board (except one who was a "deputy" or alternate of Callahan on the Board). They met Foster in the hotel lobby and he took them to the room he had engaged. They explained to Foster "the possibilities of organizing an independent union." He read them the Wagner Act and explained there was nothing he could do to restrain them from organizing and that he would have to recognize them any time they had fifty-one percentum of the men. The men phoned Green and he came over to the room. They, and afterwards Foster, told Green "the boys had started organizing" and he was wanted as their attorney. Mr. Foster left shortly. The men talked over with Green what was necessary to be done to organize and arranged for Green to draw up membership application blanks and have them at the hotel next morning.

The committee (of five) met around 9 o'clock next morning (Sunday) and Green brought the application blanks. The five then started telephoning employes to come to the hotel and bring any others they could get. It was explained that they were forming an independent union and men were asked to sign membership applications. Two "straw bosses" were asked to join, did so and were active in getting others in.3 Callahan telephoned Foster to come down as some men were hesitant about signing up for fear of discrimination. Foster came and told the men there was nothing he could do to encourage or discourage them and that, if fifty-one percentum joined, he would have to recognize them. Mr. Challberg, assistant superintendent, was there. Mr. Rosenberg, head efficiency man, was there or around there in the corridors. The Sunday meeting and campaign at the hotel continued until about half past four in the afternoon. The next day (April 19th) the plant was closed for business reasons. During that day, the committee met at the hotel in the morning and continued the campaign for members during that day. Mr. Foster, Mr. Challberg and Mr. Rosenberg were there as on the day previous.

Mr. Green, the attorney employed by the committee, was present and active during these two days. Foster had rented the room, for the meeting on Saturday, requested by the men. On Sunday and Monday, Green rented the rooms. Green paid for rooms, liquor, cigarettes, cigars, typewriter rental, telephones, etc. The contract of employment provided for a fee of $150 to Green with no mention of expenses. After voluntarily paying the above expenses, Green had little left from the fee (which was later paid by the independent union). Formerly, Green had represented the company in a few cases — the last seems to have been in connection with the (so-called) N. R. A. In Martindale legal directory, the company was listed as a client of his firm. Also, he had represented individual employes of the company several times.

The solicitation of membership continued. By Wednesday (April 21st) a decided majority of the employes had signed applications for membership. These applications set forth that a labor organization of the employes at the plant was "being formed" to be known as "Packing House Workers Union" and that the applicant designated "such organization when formed (and until its formation, the employes' organization committee consisting of" named persons) as "agent for the purpose of collective bargaining". On Wednesday (April 21st), a letter from the committee was sent to the company wherein a membership of more than fifty-one per cent was claimed and recognition as exclusive bargaining agent demanded. Mr. Foster (manager of the plant) verified the membership sufficiently to convince himself that the applications covered more than fifty-one per cent of the employes and wrote the company headquarters at Chicago, sending copy of the letter from the committee and asking for instructions. On April 26th, the company (by Foster) wrote the committee according recognition as exclusive bargaining representative to the committee (interim) and to the above organization when formed.

April 27th, those signing membership applications held their first meeting — in a hall rented by the organization committee. The only persons present who were not workmen were Mr. Green and a Mr. Curtis. It seems Mr. Green was there to give such aid as might be required in organization and in adoption of by-laws. Mr. Curtis (a lawyer) had been requested to attend by one of the men for the purpose, mainly, of examining the by-laws. The meeting was largely attended (over 400 out of 650 workmen at the plant); one of the committee (at request of the committee) acted as chairman; there was extended discussion, resulting in adoption of by-laws and complete organization, except for signing of Ar...

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