HJ Heinz Co. v. National Labor Relations Board, 8187.

Decision Date03 June 1940
Docket NumberNo. 8187.,8187.
Citation110 F.2d 843
CourtU.S. Court of Appeals — Sixth Circuit

Earl F. Reed, of Pittsburgh, Pa., and Robert Caldwell, of Ashland, Ky. (Caldwell & Gray, of Ashland, Ky., and Thorp, Bostwick, Reed & Armstrong, Robt. T. Caldwell, Earl F. Reed, Roy G. Bostwick, Donald W. Ebbert, and Charles C. Hewitt, all of Pittsburgh, Pa., on the brief), for petitioner.

Philip G. Phillips, of Cincinnati, Ohio (Charles Fahy, Robert B. Watts, and Laurence A. Knapp, all of Washington, D. C., Philip G. Phillips, of Cincinnati, Ohio, and Mortimer B. Wolf, and Solbert M. Wasserstrom, both of Washington, D. C., on the brief), for respondent.

Before SIMONS, HAMILTON, and ARANT, Circuit Judges.

Writ of Certiorari Granted June 3, 1940. See 60 S.Ct. 1102, 84 L.Ed. ___.

ARANT, Circuit Judge.

This is a petition to review and set aside a final order of the National Labor Relations Board, which directed the H. J. Heinz Company to cease and desist from dominating or interfering with the administration of the Heinz Employees' Association, refusing to bargain collectively with the Canning and Pickle Workers, Local Union No. 325, and interfering with the rights of its employees guaranteed in § 7 of the National Labor Relations Act, 29 U.S.C.A. § 157; and also requiring petitioner to disestablish the Association, bargain collectively with the Union, upon request, embody in written form any understanding reached, if requested to do so by the Union, and post the usual notices of compliance.

The Board's order is based upon its findings of fact and conclusions of law that petitioner had violated §§ 7, 8 (1), 8 (2) and 8 (5) of the Act, 29 U.S.C.A. §§ 157, 158 (1, 2, 5).

Petitioner contends that the evidence does not support the Board's findings, that some of its findings do not support the conclusions of law based thereon, and that, in some respects, the order transcends the Board's powers. The Board takes issue and, pursuant to § 10 (e) of the Act, 29 U.S.C.A. § 160 (e), has petitioned this Court to enforce its order.

The Union and the Association began drives for membership among petitioner's employees in April of 1937. The former organization was later chartered by the Amalgamated Meat Cutters and Butcher Workmen of North America, which is affiliated with the American Federation of Labor; the latter is not affiliated with any other organization, and its membership is confined to employees of petitioner's Pittsburgh plant. By May, each organization claimed to have been chosen by a majority of petitioner's employees to act as sole bargaining agent. On May 21, Kracik, international representative of the Amalgamated, met with Riley, a director of petitioner in charge of manufacturing, and gave him a copy of a contract proposed by the Union; and Riley agreed to discuss it with representatives of the Union. On the morning of the 24th, representatives of the Association asked Riley for an appointment to negotiate a contract, and he met both groups on that day.

The meeting with the Union representatives was held first. Riley demanded proof of the Union's authority, but they were unwilling then to reveal the Union's membership. Though the advisability of holding an election had been discussed, no method of proving the Union's authority had been agreed upon when Riley acceded to a request that the Union be given twenty-four hours in which to prove the extent of its membership.

When Riley met representatives of the Association, he likewise demanded proof of its authority, and the representatives offered to exhibit petitions signed by a majority of the employees; but Riley declined to examine them, stating that he did not wish to know which employees had joined either group. He informed the Association's representatives that the Union also claimed to represent a majority of the employees, and suggested to them also the advisability of a secret election. However, no decision was reached as to how the conflicting claims should be resolved.

That night the Union voted to strike, effective immediately. During the following four days the Mayor of Pittsburgh tried in vain to obtain the consent of petitioner and the two organizations to an election. The Union would not consent to an election if the Association's name was to be on the ballot, because it claimed that petitioner had interfered with and dominated the formation and administration of the Association.

The Association was then requested to present its petitions for examination and, on the morning of May 29, petitioner publicly announced that they had been signed by 1,383 of its 2,000 employees, and that it would bargain collectively with the Association. Negotiations during the next three days resulted in an agreement with it covering wages, hours and working conditions, the terms of which were incorporated in a bulletin mailed to each of petitioner's employees on June 1. The strike, however, prevented the operation of the plant.

On June 4, all parties agreed, in writing, to an election to be conducted by the director of the National Labor Relations Board for the Sixth Region. The names of both organizations were to be on the ballot, and petitioner agreed to recognize and commence negotiations with whichever received a majority of the votes cast, within ten days after results of the election were announced. A stipulation was entered into, however, that the holding of the election would not prejudice the rights of any parties who had filed "affidavits" before the Board, the purpose being to allow the Union to prosecute charges, already filed with the Board, that the Association was a company-dominated union.

The election was held on June 8, and the Union received 1,079 of the 1,882 votes cast. The plant reopened, and petitioner entered into negotiations with the Union.

Six or seven meetings were held between June 17 and 28, petitioner being represented generally by Donald W. Ebbert, an attorney, and by Riley and Shinabarger, both directors, and the latter an assistant to one of the vice-presidents. The subject of discussion at these meetings was a proposed contract relating to wages, hours and working conditions, that had been submitted by the Union. The introductory paragraph was as follows:

"This agreement, dated the......day of ......, 1937, between the H. J. Heinz Company (hereinafter referred to as the `Employer'), and the Canning & Pickle Workers Local Union No. 325 of the Amalgamated Meat Cutters and Butcher Workmen of North America, or its successor (hereinafter referred to as the `Union') * * *."

The only objection to this paragraph expressed by petitioner's representatives was to the phrase "or its successor," which the Union agreed to eliminate. The parties could not agree, however, upon the proposed closed-shop and pay-increase provisions.

On June 26, Wilner, the Union's attorney, requested that a higher official attend the next meeting, because Riley and Shinabarger had stated that their actions required approval of the other directors. Anderson, a vice-president, attended the meeting on June 28, but said little, though the meeting lasted an hour and a half. When Wilner asked him for a statement, he replied that, according to the reports he had received, nothing new had been discussed; and added that the directors had full confidence in Riley and Shinabarger; and there was evidence that he stated that they had full authority to act for petitioner, though this was denied by petitioner's witnesses.

Feeling that an impasse had been reached, the Union solicited the aid of federal and state intermediaries. At another meeting on July 1, petitioner refused to offer more than the ten per cent increase previously proposed, and the Union representatives departed saying they would submit petitioner's proposals to the Union that night. Shortly after the meeting adjourned, however, Riley sent for Kracik and told him that petitioner would not enter into a signed agreement with the Union. That night the Union accepted petitioner's counter proposals, which as previously agreed, were to go into effect as of July 1.

At a meeting on July 2, Wilner voiced objection to petitioner's refusal to enter into a signed agreement. Riley stated that it was petitioner's policy not to enter into such agreements with unions, and that it did not believe that the Act required it to do so. It was finally decided, however, that Wilner and Ebbert should prepare a memorandum embodying the terms agreed upon. On July 14, Riley, Shinabarger and Ebbert met with Union representatives to discuss the memorandum, which, according to Wilner and Ebbert, correctly expressed all the terms on which an agreement had been reached. Certain further changes were agreed upon, however, and Ebbert undertook to embody them in a final draft to be posted on petitioner's bulletin boards the following day. On the following day, pursuant to agreement, Ebbert sent Wilner a copy of the corrected memorandum, dated July 15. It was entitled "Notice to All Employees," and the first paragraph read as follows: "Following the recent election held under the supervision of the National Labor Relations Board, in which the Canning and Pickle Workers' Local Union No. 325 was selected as the collective bargaining agency for our employees, we have had meetings with a committee from that organization and after several weeks of negotiation, have agreed with them as follows:" The memorandum concluded as follows:

"The wages rates and other matters hereinabove set forth shall remain in effect until further notice." And the typewritten signature of petitioner appeared at the end.

Upon being notified that the memorandum had not been posted as agreed, Wilner telephoned Ebbert and was informed that Anderson had objected to certain phrases in the memorandum and thought it should be submitted to Howard Heinz, president of petitioner, then absent,...

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