Cupples Co. Manufacturers v. National Labor R. Board

• Decision Date: 12 September 1939
• Docket Number: No. 426,426
• Citation: 106 F.2d 100
• Parties: CUPPLES CO. MANUFACTURERS v. NATIONAL LABOR RELATIONS BOARD (MUTUAL RELATIONS ASS'N, Intervener).
• Court: U.S. Court of Appeals — Eighth Circuit

106 F.2d 100 (1939)

CUPPLES CO. MANUFACTURERS v.NATIONAL LABOR RELATIONS BOARD (MUTUAL RELATIONS ASS'N, Intervener).

No. 426, Original.

Circuit Court of Appeals, Eighth Circuit.

August 1, 1939.

Rehearing Denied September 12, 1939.

COPYRIGHT MATERIAL OMITTED

Luther Ely Smith, Jr., and Victor B. Harris, both of St. Louis, Mo. (Luther Ely Smith, of St. Louis, Mo., on the brief), for petitioner.

Malcolm F. Halliday, of Washington, D. C., Atty., National Labor Relations Board(Charles Fahy, Gen. Counsel, National Labor Relations Board, Robert B. Watts, Associate Gen. Counsel, National Labor Relations Board, and Mortimer B. Wolf, Allen Heald, Richard C. Barrett, and Norman F. Edmonds, all of Washington, D. C., Attys., National Labor Relations Board, on the brief), for respondent.

Wilder Lucas, of St. Louis, Mo., for intervener.

Before GARDNER, SANBORN, and WOODROUGH, Circuit Judges.

SANBORN, Circuit Judge.

This case comes to this Court upon a petition of Cupples Company Manufacturers, a Missouri corporation, to review and set aside an order of the National Labor Relations Board entered December 5, 1938, and upon the answer of the Board praying that its order be enforced.

On August 3, 1937, Matchworkers' Federal Labor UnionNo. 20,927, andInternational Association of Machinists, DistrictNo. 9, filed petitions with the Regional Director of the Board for the Region including St. Louis, Missouri, alleging that a question had arisen concerning the representation, for purposes of collective bargaining, of employees of the Cupples Company Manufacturers (hereinafter referred to as the Company or as petitioner) and requesting an investigation and certification pursuant to Section 9(c) of the National Labor Relations Act,49 Stat. 449,29 U.S.C. §§ 151-166.Charges having also been filed with the Board by the Matchworkers' Union above referred to, alleging that the petitioner had engaged and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(1), (2), (3) and (5)andSection 2 (6), and (7) of the same Act, the two representation cases and the case involving the charges of unfair labor practices were consolidated for hearing and were heard as one case before a Trial Examiner appointed by the Board.

The complaint against the petitioner charged: (1) That it had, since June 25, 1937, fostered, dominated and interfered with the formation and administration of a labor organization formed by a majority of its employees, known as the Mutual Relations Association, and that the petitioner had given financial aid and other support thereto; (2) that on July 14, 1937, the petitioner had laid off or discharged thirteen employees at one of its plants for joining the Matchworkers' Union; (3) that since July 17, 1937, the petitioner ceased the manufacture of penny matches for the reason that some of its employees, engaged in that operation, had assisted the Matchworkers' Union and had become members of it; (4) that the petitioner had kept under surveillance the meetings of the Matchworkers' Union, and had advised its employees against becoming or remaining members of that Union; and (5) that the petitioner had refused to bargain collectively with the Matchworkers' Union, although it represented a majority of the petitioner's employees within an appropriate unit.

The petitioner, while admitting the jurisdiction of the Board, denied that it had engaged or was engaging in any unfair labor practices, denied that its match department was an appropriate unit for collective bargaining, and asserted that it was without knowledge as to whether a majority of its employees in that department had, prior to July 17, 1937, designated the Matchworkers' Union as their representative for collective bargaining.

The Mutual Relations Association on November 24, 1937, petitioned for leave to intervene with respect to the allegations of the complaint charging that the Company has fostered, dominated or interfered with the formation and administration of the Association.Leave to intervene was granted.

A hearing of the consolidated cases was held before a Trial Examiner commencing November 29, 1937, and ending December 14, 1937.The Board, the petitioner, the intervener, and the Machinists' Union were represented by counsel and participated in the hearing.At the hearing the Mutual Relations Association was also granted leave to intervene with respect to the allegation of the complaint that production and maintenance employees of the match department of the petitioner constituted an appropriate unit for collective bargaining, but it was denied such leave with respect to the allegation that a majority of the employees in that unit had designated the Matchworkers' Union as their bargaining representative.During the hearing, the Board was permitted to amend its complaint by alleging that the petitioner had discharged Daisy Whiteman in order to discourage membership in the Matchworkers' Union.

At the conclusion of the Board's case, the petitioner and the intervener moved for a dismissal of the complaint.The Examiner dismissed the allegation that a majority of the employees in an appropriate unit had designated the Matchworkers' Union as their representative, but otherwise denied the motions.

The Trial Examiner on February 7, 1938, filed his Intermediate Report, in which he found that the petitioner had engaged and was engaging in unfair labor practices within the meaning of Section 8 (1), (2) and (3)andSection 2(6) and (7) of the Act.He recommended that the petitioner be ordered to cease and desist from such unfair labor practices, to refrain from dealing with or recognizing the Mutual Relations Association as the representative of its employees, to disestablish that Association as such representative, to offer immediate and full reinstatement to the employees found by the Trial Examiner to have been discriminatorily discharged, and to make whole such discharged employees for losses of pay suffered by them from the time of their discharge to August 17, 1937.The petitioner and the Mutual Relations Association filed exceptions to the report of the Trial Examiner, and the case was argued before and submitted to the Board.

The Board sustained the report of the Trial Examiner.It found that the petitioner had dominated, interfered with, and contributed to the support of, the Mutual Relations Association.It found that the Company had discriminatorily discharged eleven of its employees.It ordered the Company to disestablish the Mutual Relations Association as a bargaining agency for its employees; to give no effect to the contract which it had entered into with the Association; to offer to the discharged employees full reinstatement; to make them whole for loss of pay; and to place those of them for whom no employment was available or could be made available, upon a preferential list.

With respect to the question of representation, the Board found that the employees of the petitioner in its match department, with certain exceptions, constitute an appropriate bargaining unit.The Board said: "The only organization which has organized the employees of the respondentCupples Company on an industrial basis for the purposes of collective bargaining we have found to be supported and dominated by the respondent.The Matchworkers' Union has organized only the employees of the match department.These employees should not under the facts presented be denied the benefits of the Act, merely because the other employees of the Company are not organized."The Board found, however, that the six machinists, belonging to the Machinists' Union, who sought recognition as a bargaining unit should not be established as such.

The Board determined that an election by secret ballot should be held in the match department to determine whether the employees in that department wish to be represented by the Matchworkers' Union.No time for holding the election was set, and, so far as we are advised, no election has been held and no representative for the employees in that department has been chosen or certified.

There are no questions growing out of the representation cases now before us for review, for the reason that the Board has made no final order with respect to representation in the match department.We have already so ruled in disposing of a motion of the petitioner for a commission to take depositions of members of the Board and others.SeeCupples Company Manufacturers v. National Labor Relations Board, 8 Cir., 103 F.2d 953.

The questions which we are called upon to determine are:

1.Was the hearing before the Trial Examiner so unfair as to constitute a denial of due process?

2.Is the finding of the Board that the formation and administration of the Mutual Relations Association was fostered, interfered with and dominated by the petitioner, and that it received support from the petitioner, sustained by substantial evidence?

3.Is the Board's finding that the petitioner discharged eleven of its employees for joining or assisting the Matchworkers' Union supported by substantial evidence?

The evidence is contained in a typewritten transcript of approximately 3,000 pages.It is manifestly impractical to include a complete detailed synopsis of the evidence in this opinion or to state every fact, established by the evidence, which is regarded as significant by each interested party.We shall attempt to make a fair statement of what we consider to be the important facts disclosed by the evidence, keeping in mind that, while the burden of proof was upon the Board, it is entitled to have the evidence and all reasonable inferences which may be drawn therefrom viewed in the light most favorable to its conclusions; that questions involving the weight of evidence and the credibility of witnesses were for it to determine, but that evidence which merely furnishes grounds for suspicion and conjecture proves nothing, and that the...