Hamilton-Brown Shoe Co. v. National Labor R. Board

Citation104 F.2d 49
Decision Date24 July 1939
Docket Number427,No. 425,425
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Lyon Anderson, of St. Louis, Mo. (J. S. Leahy and Leahy, Walther, Hecker & Ely, all of St. Louis, Mo., on the brief), for Hamilton-Brown Shoe Co.

Herbert S. Thatcher, of Washington, D. C. (Joseph A. Padway, of Washington, D. C., on the brief), for Boot and Shoe Workers Union, et al.

Ernest A. Gross, of Washington, D. C. (Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, Mortimer B. Wolf, Atty., Allen Heald, Atty., and Russell Packard, Atty., all of Washington, D. C., on the brief), for National Labor Relations Board.

Victor B. Harris and George E. Duemler, both of St. Louis, Mo., for United Shoe Workers of America, Local 125.

Before GARDNER and WOODROUGH, Circuit Judges, and BELL, District Judge.

GARDNER, Circuit Judge.

Two petitions for review of an order of the National Labor Relations Board are before us in this proceeding. The first was filed by an employer, the Hamilton-Brown Shoe Company, a corporation, and the second by Boot and Shoe Workers Union, an international union affiliated with the American Federation of Labor, and Local 176 of the Boot and Shoe Workers Union. The two petitions present distinct issues. The petition of the employer will be first considered.

On June 18, 1937, a complaint was filed against the Hamilton-Brown Shoe Company, petitioner herein, alleging that it had and was engaged in unfair labor practices affecting commerce within the meaning of Section 8(1), (2), (3), and (5) and Section 2(6) and (7) of the National Labor Relations Act, 29 U.S.C.A. §§ 158(1-3, 5), 152(6, 7). The complaint as amended, alleged: (1) that the petitioner's production and maintenance employees at its plant at Union, Missouri, known as the Hambro plant, constitute a unit for the purpose of collective bargaining; (2) that on May 17, 1937, a majority of said employees had designated Local No. 125 of the United Shoe Workers of America as their representative for the purpose of collective bargaining; (3) that petitioner had refused to bargain with said Local 125 as the exclusive representative of said employees; (4) that between May 1, 1937, and June 26, 1937, petitioner had discharged and refused to reinstate 89 employees because of their membership and activities in the Union; (5) that petitioner dominated and interfered with the formation and administration of the Commercial Shoe Workers Organization, and contributed financial support to it; and (6) that on or about June 29, 1937, petitioner had discharged 103 employees because they refused to join said Commercial Shoe Workers Organization.

The Company's answer denied these charges. Hearing was had before a trial examiner on the issues thus presented, and on October 18, 1937, the trial examiner filed his report, finding petitioner guilty of unfair labor practices as charged. Thereafter, exceptions were filed to this report and a hearing had thereon before the Board on December 15, 1937. The Board took the matter under advisement until November 23, 1938, at which time it rendered its decision, finding the Company guilty as charged in the complaint, and entered its order to cease and desist from the unfair labor practices and (a) to offer to the employees against whom discrimination was found to have been practiced, immediate and full reinstatement to their positions without prejudice; (b) to make whole the employees for any loss of pay they may have suffered by reason of the discrimination against them; (c) to withdraw all recognition from the C.S.W.O. and completely disestablish it; (d) to cease giving effect to its contract with the C.S.W.O.; (e) upon request, to bargain collectively with the Union as the exclusive representative of the production and maintenance employees at its Hambro plant; (f) to post appropriate notices; and (g) to notify the Regional Director of its compliance therewith.

The United Shoe Workers of America, Local 125, referred to in the record as the Union, intervened below.

As grounds for reversal of the order of the Board, petitioner urges that: (1) the Board erred in finding that the petitioner dominated or interfered with the C.S.W.O., or contributed to its support; (2) the Board erred in ordering reinstatement of employees, with back pay; (3) the Board erred in ordering petitioner, upon request, to bargain collectively with the Union as the exclusive representative of its employees for the purpose of collective bargaining.

1. The petitioner is a Missouri corporation, with its principal executive offices in St. Louis, Missouri. It is engaged in the manufacture of shoes, and has four plants in operation, the one here involved being located at Union, Missouri, where petitioner employed approximately 700 persons.

In January, 1937, there was a short strike in the heel and edge department and the finishing department, which was settled March 15, 1937, by a promise of a general increase in wages throughout the plant. On March 30, 1937, another strike occurred over wages, which ended April 14, 1937. On April 3, 1937, Percy Turner, general representative of the United Shoe Workers of America, in St. Louis, visited at Union, talked with some of the striking employees, and offered to assist them in connection with the strike. On April 8, 1937, the Company obtained an injunction limiting picketing. The plant reopened, and on April 14, 1937, the strike was called off on an agreement to reinstate all strikers, to dismiss the injunction proceedings, and consider grievances of employees individually. On May 1, 1937, sixteen employees of the petitioner went to St. Louis, where they signed applications for membership in United Shoe Workers of America, and applied for a charter for a local at the Hambro plant. They began circulating application cards among the employees of the Company, and by May 17, 1937, had enrolled a majority of the Company's employees. Percy Turner then called upon Luke E. Hart, President and General Manager of the Company, and requested an appointment for a Union bargaining committee. Hart objected to the committee on the ground that none of them was an employee of the Company, all of the members of the committee having theretofore been discharged, except Turner, who had never been an employee. He also questioned Turner's claim of a majority representation and requested a list of Union members as proof of the claim. This Turner refused to submit because of the wholesale discharges which were taking place in the plant, but offered to prove the Union's majority in a consent election to be held by the Board. Hart refused to meet with the committee unless a list of the Union members was submitted to him. On May 28, 1937, counsel for the Union wrote to the Company, stating that it represented a majority of the Company's employees, and requested it to bargain with the committee. Hart, by letter of June 1st, again refused to consider the request unless the Union submitted a list of its employees.

About June 1st, 1937, the C.S.W.O. began to take form. Ludy Niebrugge, employed in the City of Union as a bread salesman and who also did some work for a local newspaper, became interested in the labor questions involved and caused to be prepared and circulated among the employees of the Company "loyalty cards," which read as follows: "I, the undersigned, am not interested in a shoe workers' Union, for the Hambro factory, sponsored and controlled by men living outside of Union, Mo. I want to continue working in the Hambro Factory. If, in the future, questions should arise concerning wages and hours of labor, I would prefer the questions being settled by men and women who are employees of the Hambro Factory."

When the signers of these cards reached an impressive number, Niebrugge and his associates decided to organize an independent union. On June 22, 1937, he printed cards naming a committee of eleven to represent the employees in bargaining with petitioner. These were circulated among signers of loyalty cards, and at eight o'clock the following morning the group presented themselves to Jannings, the plant superintendent, claiming to have 200 members. When Jannings was told of their intent to organize the plant, he replied, "Well, I can't stop you." He made an appointment for them with Mr. Hart. During the next two days the circulation of the cards was completed, much of it during working hours. On June 25, 1937, Hart and his brother appeared at the factory and negotiated a contract with the committee, which then chose the name Commercial Shoe Workers Organization. The group had 351 signed cards, which was over 50% of the employees. After some dispute over the closed shop, a contract was signed which contained provision that none but members of the C.S.W.O. should be employed. The contract contained no provision concerning wages nor hours. Pursuant to this contract, the Company then notified its employees that only members of the C.S.W.O. would thereafter be employed, and in consequence about 100 employees did not return to work on June 29th.

In considering the charges of the Company's domination, interference with and contribution to the support of the C.S.W.O., we review the record to determine whether the findings of the Board are supported by substantial evidence such as a reasonable mind might accept as adequate to support a conclusion. Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126.

The salient facts are here stated with that rule in mind. In the course of the April strike, a meeting of employees was held at the court house, at which Hart and Jannings spoke. Hart said that if people in Union did not want to work they would move...

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