EI Du Pont De Nemours & Co. v. NATIONAL LABOR R. BD.

Decision Date27 December 1940
Docket Number4697.,No. 4674,4674
Citation116 F.2d 388
CourtU.S. Court of Appeals — Fourth Circuit


Robert S. Spilman and Hawthorne D. Battle, both of Charleston, W. Va. (Clyde M. Spargo, of Wilmington, Del., on the brief), for petitioner in No. 4674.

M. E. Boiarsky, of Charleston, W. Va. (Charles Ritchie, of Charleston, W. Va., on the brief), for petitioner in No. 4697.

Gerhard P. van Arkel, Atty., National Labor Relations Board, of Washington, D. C. (Robert B. Watts, Associate Gen. Counsel, Laurence A. Knapp, Asst. Gen. Counsel, Bertram Edises, and David C. Sachs, Attys., National Labor Relations Board, all of Washington, D. C., on the brief), for respondent.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

The E. I. du Pont de Nemours & Company (hereinafter called petitioner) has petitioned this Court to review and set aside an order issued by the National Labor Relations Board (hereinafter called the Board) against petitioner pursuant to Section 10(c) of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C.A. § 151 et seq. (hereinafter called the Act). The Association of Chemical Employees at Belle Works of E. I. du Pont de Nemours & Company (hereinafter called the A. C. E.) has also petitioned this Court to review and set aside this order. A. C. E., in addition, has requested a review of a Direction of Election which the Board issued in the consolidated proceeding under Section 9(c) of the Act. In its answer to the petition in reference to Section 10(c) of the Act, the Board has requested that its order be enforced. Furthermore, the Board has filed a motion to dismiss the A. C. E.'s petition insofar as it requests a review of the Board's Direction of Election, or of any other action of the Board in connection with the representation proceeding.

Petitioner is a Delaware corporation engaged in the manufacture and distribution of chemical products. It operates seventy-eight plants located in twenty-seven states and admits that it is engaged in interstate commerce within the meaning of the Act. The instant controversy concerns petitioner's Belle plant, located at Belle, West Virginia, about ten miles East of Charleston. There are over one hundred buildings and over 2,000 employees at the Belle Plant. For the past twenty-five years, the Belle Plant (like all the other plants of petitioner) has not been subjected to any labor strikes.

The first of the three successive unaffiliated labor organizations formed at the Belle Plant was the Works Council, created in June, 1933. The Works Council was part of an employees' representation plan devised and suggested by petitioner in all of its plants. Under the suggested plan, the employee groups were to elect a representative from each of the departments into which petitioner's operations were divided; furthermore, an equivalent number of representatives were to be appointed by the management. The representatives were known as "councilmen" and composed the Works Council through which the plan was administered. The plan provided for automatic membership of the employees; no dues; all expenses to be borne by petitioner. No provision was made for meetings of the general membership. The plan was adopted after a secret ballot of the employees in which 562 votes were cast in favor of, and 168 votes were cast against, the plan. Thus, for the first time in the history of the Belle plant, an employees' organization was introduced. Petitioner provided a meeting place on its premises and also furnished a secretary for the Works Council.

In the early part of March, 1937, an organizational campaign was begun at the Belle plant by District 50, Chemical Division of the United Mine Workers of America (hereinafter called the U. M. W.), a labor organization affiliated with the Congress of Industrial Organizations. To meet the challenge of this new group, the president of the Works Council, Seibert J. Toney, called a special meeting of the council for the purpose of selecting a committee to modify the existing organization so "that the Council would be in a stronger position." A committee of six, made up of three representatives appointed by employees and three management-appointed representatives, was designated to revise the plan. After working until midnight of the day of its appointment, this committee submitted a revised plan, designated the Employees' Council plan. The new plan was presented at a special meeting held the next day, March 12, 1937.

The Employees' Council plan differed from the Works Council plan in one material respect: namely, management-appointed representatives were eliminated. However, like the Works Council, it made no provision for any general assembly of the employees. The general manager of the Belle plant, J. L. E. Cheetham, advised the council that he would approve of the plan provided it was voted upon and accepted by the employees. The new plan was then explained to the employees on March 15, 1937 (the day of the annual Community Chest meeting), and an election was held among the employees on March 16-19. The election resulted in a vote of 2,418 in favor of, and 262 against the new plan. After ratification by petitioner on March 22, the Employees' Council plan was put into effect. The plan functioned actively until August 31, 1937.

The Board pointed out in its decision that contemporaneously with the efforts to revamp the Works Council, petitioner granted the employees a substantial wage increase. The Works Council had made a request on March 10, 1937, for a general increase of 10 per cent. On March 11, the U. M. W. organizational drive was announced in the newspaper, and as the Board stated, petitioner "forthwith announced an increase, not of 10 per cent, but of approximately 12.2 per cent, effective March 16, 1937."

In May, 1937, shortly after the decision of the United States Supreme Court in National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352, which upheld the constitutionality of the Act, the members of the council began to wonder about the legality of the Employees' Council plan. Several councilmen approached the assistant general manager of the Belle plant, C. H. Doherty, and asked him to get them copies of the Act. The request was complied with in June, 1937; but, in answer to questions about the legality of the Employees' Council, Doherty told the councilmen that he could give them no advice, that (as he testified) "if they needed advice, to get an attorney because * * * (he) was neither competent nor permitted to interpret the plan for them." Cheetham called the Employees' Council into an informal session on June 10 and told the councilmen that petitioner's legal department in Wilmington, Delaware, was considering the validity of the Employees' Council. He further said that as manager of the Belle plant, he was perfectly willing to recognize the Employees' Council as the bargaining agent of the employees until more definite information could be obtained.

Oddly enough, the Board seemed to place emphasis on the fact that the councilmen were extremely concerned over the question of the legality of the plan. As the Board stated in its opinion: "Despite their outward manifestation of confidence in the legality of the Employees' Council plan, the councilmen apparently still were not fully convinced that their activities were `legal.' They meanwhile studied the plans of other duPont councils and other unaffiliated organizations at their meetings in an effort to dispel their uncertainty. They also continued to question Cheetham and Doherty to determine whether or not there was any further information on the matter from Wilmington." Nevertheless, in order to have more concrete evidence of membership, the councilmen arranged in July, 1937, for the general registration of all the employees in the Employees' Council.

Shortly after the registration, the U. M. W. filed a complaint with the Board to the effect that petitioner was dominating, interfering with, and lending support to, the Employees' Council. A field examiner of the Board, Ronald D. Stevenson, called on Doherty during the week of August 9, 1937. He told Doherty that the Employees' Council was under investigation and that some of its members had been questioned. Doherty gave him full information about the functions and operations of the council. Before speaking with Doherty, Stevenson had conferred with Toney, the president of the Employees' Council, and had advised him that it appeared that the plan was being maintained in violation of the Act. Toney later repeated this to Doherty and asked him for advice. As the Board noted in its decision, Doherty advised Toney: "I can give you no advice, as I told you when we gave you these copies of the law. I can't interpret the law nor can I give any information or advice on the Employees' Council Plan. If you men need an attorney you will have to get one."

A special meeting of the Employees' Council was called on August 16, 1937, at which time one of the councilmen reported the results of Toney's conferences, first with Stevenson and later with Doherty. A resolution was then adopted that a committee be appointed "to revise the Employees' Council plan, to gather any other information necessary to bring the plan into conformity with the Wagner Labor Act." A committee of three members was appointed, and, on the following day, the committee left the plant during working hours to consult with M. E. Boiarsky, an attorney. He advised them that since they were in his office during company time, he could not discuss the formation of a new organization. He also stated that he could not consult with them as a committee of an organization which previously had been...

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