Elastic Stop Nut Corp. v. National Labor Rel. Board

• Decision Date: 01 May 1944
• Docket Number: No. 12740.,12740.
• Citation: 142 F.2d 371
• Parties: ELASTIC STOP NUT CORPORATION v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Eighth Circuit

142 F.2d 371 (1944)

ELASTIC STOP NUT CORPORATION v. NATIONAL LABOR RELATIONS BOARD.

No. 12740.

Circuit Court of Appeals, Eighth Circuit.

May 1, 1944.

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Charles E. Whittaker, of Kansas City, Mo. (Henry N. Ess and Watson, Ess, Groner, Barnett & Whittaker, all of Kansas City, Mo., on the brief), for petitioner.

Guy Farmer, Associate Gen. Counsel, National Labor Relations Board of Washington, D. C. (Alvin J. Rockwell, Gen. Counsel, Howard Lichtenstein, Asst. Gen. Counsel, and Joseph B. Robison and William J. Avrutis, Attys., National Labor Relations Board, all of Washington, D. C., on the brief), for respondent.

Before GARDNER, WOODROUGH, and JOHNSEN, Circuit Judges.

WOODROUGH, Circuit Judge.

This is a petition to review and set aside an order of the National Labor Relations Board based on the Board's findings and its conclusion that petitioner had been and was engaging in unfair labor practices in violation of section 8(1) of the National Labor Relations Act, 29 U.S.C.A. § 158 (1). The Board prays for enforcement of its order.

The order in substance requires petitioner to cease and desist from (a) recognizing the Employees Benevolent Association Union (hereinafter called the Association) as bargaining representative of its employees until and unless the Association is certified by the Board; (b) giving effect to any contract with the Association (with certain exceptions); (c) in any manner interfering with its employees in the exercise of the right of self organization. And to affirmatively (a) withdraw and withhold recognition from the Association until and unless certified by the Board; (b) to post notices; (c) to notify the regional director.

The Board in its summary headed "Concluding Findings" found that petitioner "interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in section 7 of the Act 29 U.S.C.A. § 157" by the statement of its foreman, Valnoski, to Arnold, an employee, that petitioner did not want an affiliated union in its plant; by Valnoski's statement to Dillon, an employee, that foolishness like filing charges with the Board would have to stop; and by Valnoski's statements to Meistrell, an employee, concerning the giving of testimony before the Board. That petitioner contributed "unlawful assistance" to the Association in violation of section 8(1) of the Act by Valnoski's expression of preference for an unaffiliated union in petitioner's plant. "At a time when its employees were divided for and against an unaffiliated organization, the respondent's foreman, Valnoski, indirectly but clearly, expressed his preference for an unaffiliated organization. Thereafter, while much of the organization of an unaffiliated union was taking place in the plant during working hours, the respondent, which has been found to have had knowledge of the activity, took no steps to rebut the natural tendency of the employees to presume therefrom that the respondent favored the formation of an unaffiliated organization. Further assistance was supplied by permitting the posting of notices of the Association's meetings and an anti-union handbill on the respondent's bulletin boards, and by permitting the collection of dues for the Association in the plant during working hours. Then, too, the respondent proceeded to recognize the Association on the basis of a petition which did not designate the Association as bargaining representative, but expressed a preference of the signers for an `independent labor union.' Although informed 1 day later that the Union also claimed to represent a majority of its employees, the respondent nevertheless carried on contract negotiations with the Association. Finally, within a period of 10 days, and after having had notice of the filing by the Union of charges of domination of the Association, the respondent on September 25, 1942, entered into a contract with the Association. A neutral employer, when faced with the conflicting representation claims of two rival unions, would not negotiate a contract with one of them until its right to be recognized as the collective bargaining representative had been finally determined under the procedures set up under the Act."

Petitioner contends (1) that there was nothing in the remarks to Arnold, Dillon or Meistrell which constituted an unfair labor practice; that the statements could not be considered coercive inasmuch as the employees were not prevented from remaining members of or subsequently joining the American Federation of Labor Union; that certain of the statements could not be considered coercive since made subsequent to the organization of the Association and the signing of the contract; and that Valnoski's remarks were constitutionally privileged; (2) that there was no evidence that petitioner knew of the circulation of the petition or that it permitted the collection of Association dues, or the posting of the notices of the Association meetings and the anti-union handbill on its bulletin board; (3) that there is no basis for the conclusion of the Board that the signed petition did not designate the Association to represent the signers; (4) that there was no evidence to support the conclusion that a neutral employer would not have recognized the Association under the circumstances, and that there is no evidence to support the conclusion that petitioner by signing the one-year contract of September 25, 1942, bestowed unlawful support upon the Association.

Referring briefly to the background of the events relative to the filing of the charges with the Board in this proceeding, it appears that: Petitioner is a New Jersey corporation engaged in the manufacture of mechanical stop-nuts and maintains its home plant in Union, New Jersey. In the summer of 1942 it acquired a large warehouse in Lincoln, Nebraska, and began remodelling it for the purpose of setting up a second plant. Petitioner sent three employees to Lincoln from the New Jersey plant, Hofman, plant manager; Harvin, plant superintendent; and Valnoski, foreman of the automatic screw machine department. Shortly thereafter six automatic screw machines were brought to the Lincoln plant so that men locally employed might be trained in their use and subsequently serve as instructors to new employees as additional equipment was installed.

In July, 1942, and early in August, 1942, the trainee employees began discussing the relative merits of affiliated and unaffiliated unions with a view to the formation of a labor organization which would act as their bargaining agent. There was a divergence of opinion and organizational activities were conducted independently by the supporters of an unaffiliated union on one hand and by those in favor of an affiliated one on the other. In the latter part of August, Borner, an employee favoring an unaffiliated union, began circulating a petition in the plant on behalf of such an organization and eventually secured forty four signers out of the approximately sixty persons employed. Two employees later had their names stricken off.

On September 6th or 7th a group of about nine employees favoring an unaffiliated organization retained Attorney Victor Eitel to draw up articles of incorporation for an independent union (the Association). On September 14th, Eitel called Hofman and requested that petitioner enter into a contract with the Association. Hofman asked for proof of majority representation, and on September 15th Eitel met with Hofman and submitted the petition containing the signatures of the forty-two employees. The signatures were checked against petitioner's payroll, and Hofman, on the advice of petitioner's attorney, stated to Eitel that petitioner was required to recognize the Association as representing a majority of the employees. The Association, that evening, instructed Eitel to prepare a contract for negotiation with petitioner and appointed a negotiating committee.

On September 23d, petitioner agreed on all the terms of the contract with the Association, but refused to sign the contract until the Association could make a showing of majority by paid membership record. Petitioner signed a contract with the Association on September 25th, although Hofman was aware that the affiliated union had filed charges against the petitioner, alleging domination of the Association, on the previous day.

During this same period the employees advocating affiliation were proceeding with organizational activities. They communicated with an official of the American Federation of Labor and asked for assistance. Ray Roth, an international representative of the American Federation of Labor, began holding meetings and securing signatures of employees on union designation cards. After his first meeting with petitioner's employees on September 15th, Roth notified Hofman on September 16th that petitioner's employees had designated him to represent them as their collective bargaining agent, and Hofman agreed to see him on September 18th. On September 18th Roth met with Hofman, declined to reveal the names of the employees of the union he represented, but offered to submit them to the Board. Hofman stated that this was Roth's "privilege" and further stated that he had already recognized a union as required by law. On October 22, 1942, Hofman dismissed Roth's request for recognition of the affiliated union with the statement that petitioner had already signed a contract.

1. In the latter part of August, 1942, Arnold and several other employees approached Valnoski in the plant for the purpose of seeking advice on the subject of unionization. Arnold asked Valnoski what kind of union petitioner had in its New Jersey plant. Valnoski replied that petitioner had an independent organization, and being unwilling to further discuss the subject of unions, walked away. Arnold followed him, and at a time when the two were alone, exhibited an A. F. of L. union card and again questioned Valnoski about the...