Hoover Co. v. National Labor Relations Board

• Citation: 191 F.2d 380
• Decision Date: 09 July 1951
• Docket Number: No. 11223.,11223.
• Parties: HOOVER CO. v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Sixth Circuit

191 F.2d 380 (1951)

HOOVER CO. v. NATIONAL LABOR RELATIONS BOARD.

No. 11223.

United States Court of Appeals, Sixth Circuit.

July 9, 1951.

Donald K. Merwin, Richard G. McCuskey, Canton, Ohio (Donald K. Merwin, Richard G. McCuskey, Canton, Ohio, on the brief, Black, McCuskey, Souers & Arbaugh, Canton, Ohio, of counsel), for petitioner.

Herschel Kriger, Canton, Ohio (Herschel Kriger, Canton, Ohio, on the brief), for charging parties amicus curiae.

Isadore J. Gromfine, Washington, D. C. (George J. Bott, David Findling, A Norman Somers, Owsley Vose, and Arnold Ordman, all of Washington, D. C. on the brief), for respondent.

Before HICKS, Chief Judge, and ALLEN and McALLISTER, Circuit Judges.

McALLISTER, Circuit Judge.

This is a petition of The Hoover Company asking that an order of the National Labor Relations Board requiring petitioner to reinstate certain employees who were the executive members of the board of a local union and to desist from discrimination, be vacated. In answer, the Board asked for enforcement of its order.

The background of the case is as follows: In August, 1942, Local 709 of the United Electrical, Radio & Machine Workers of America (CIO), hereafter referred to as the United Electrical Workers, was certified by the National Labor Relations Board as bargaining agent for The Hoover Company's production and maintenance employees; and from time to time thereafter, collective bargaining agreements were entered into between the company, on the one hand, and the Local and the International union, on the other, the last of which contracts expired by its terms on April 30, 1948. Prior to its expiration, each of the parties to the contract notified the other of its intention to terminate it, and negotiations toward a new contract had taken place prior to its expiration. These negotiations, however, did not result in a new contract or in an extension or modification of the old one, and were broken off after the date of the expiration of the contract then in effect.

The Hoover Company thereafter refused to recognize or deal with the International or the Local until they complied with Section 9(f), (g), and (h) of the National Labor Relations Act, 29 U.S.C.A. § 159 (f-h), which, among other requirements, provides that before an investigation by the Board of any question concerning representation of employees raised by a labor organization, or before the filing of any complaint issued pursuant to a charge made by a labor organization under the Act, each officer of such labor organizations, and any national or international labor organization of which they are affiliates or constituent unions, file with the Board affidavits executed comtemporaneously or within the preceding twelve-month period that he is not a member of the Communist party, and is not a member of, or does not support any organization that believes in or teaches the overthrow of the United States government by force or by any illegal or unconstitutional method. The officers of the Local and International union in question refused to comply with the provisions of the Act.

On May 2, 1948, the membership of the Local held a meeting at which the executive board of the Local was authorized to call a strike of the employees of The Hoover Company, and to take other action deemed necessary by them. On May 7, the company filed a petition with the Board, alleging that a question of representation existed at its plant, naming the International and Local as claimants of the right to represent petitioner's production and maintenance employees, and asking for a representation election. Subsequently, said petition was investigated by the Board and notice thereof was served upon the Local and International, advising them of their rights thereunder. The Local and the International having failed to comply with the provisions of paragraphs (f), (g), and (h) of Section 9 of the Act, the Board thereafter, on May 26, dismissed the company's petition because, on account of the failure of the Local and the International to qualify for a place on the ballot in a representation election, the purposes of the Act could not be effected.

On June 10, the Local, by the authority of its executive board, called a strike of the company's employees. Mass picketing, according to the president of the Local, was directed by the Local executive board, and began immediately at the gates of the company's main plant and general offices. At that time, the Local publicly declared, in an official strike bulletin, that the strike was called because The Hoover Company refused to renew the contract with the United Electrical Workers, and was refusing to deal with the union. The president of the Local admitted that he had taken part in the mass picketing, and knew of only two of the members of the Local executive board who did not also participate in such picketing.

On the following day, June 11, under the direction of the executive committee, all gates to the petitioner's plant were barred by mass picketing; and all persons, except the company's unarmed guards, desiring to enter the premises, were prevented by the massed pickets from doing so.

During the period from June 10 to June 23, some instances of violence took place at and in the vicinity of the gates to petitioner's plant, and access thereto was barred by mass picketing, which was thereafter enjoined by an order of the Court of Common Pleas of Stark County, Ohio, on June 23, following which work was resumed at the company's plant and its employees returned to work in increasing numbers. On July 19, the time of the annual vacation period, about 60% of all of the workers in the unit and all office employees had returned.

Prior thereto, however, on July 7, 1948, the Hoover Employee Committee, an independent labor organization, hereinafter referred to as HEC, filed its petition for the determination of a question of representation with the Regional Office of the Board, claiming the exclusive right to represent petitioner's production and maintenance employees at the plant in question. Following a preliminary hearing on this petition, which was attended by representatives of the Local and International, it was agreed, on July 21, 1948, that a consent election be held on August 17, 1948. The United Electrical Workers union was not on the ballot because of the refusal of its officers to sign the non-Communist affidavits; but the union carried on a vigorous campaign with parades, rallies, meetings, and the distribution of handbills calling upon all employees to vote no on the proposition whether the HEC would be their bargaining agent. Apparently all the employees of the company voted in the election, and the result was that the HEC received a majority vote, and was thereafter, on August 24, certified as the exclusive bargaining agent for the company's production and maintenance employees.

In the meantime, on July 19, the company's plant closed down for the annual two-week vacation, and remained closed until August 2.

During the period of the strike, and after the filing of the petition and the commencement of the representation proceeding before the Board by the HEC, the Local of the United Electrical Workers, on July 13, acting upon the recommendation of certain representatives of the International and members of the Local executive board, voted to instigate, promote, and place in effect a national boycott of the company's products, jointly with the International, in order to support the strike then going on and to achieve the same purposes as the strike, namely, recognition by the company as the bargaining representative of the employees, and execution by the United Electrical Workers and the company of a contract. Immediately thereafter, members of the executive board of the Local and various representatives of the International collaborated in the preparation of various publicity material for use in promoting the boycott, and organized ten teams of striking members of the Local who toured various cities and towns in the eastern half of the United States to promote the boycott and secure the aid of other locals and district councils of the International in promoting and effectuating the boycott.

In carrying out the boycott, the other locals and district councils of the International who were called upon by the teams were requested to and did distribute mimeographed and printed postcards to their members for mailing to the company, and were asked to write letters to the company's dealers and to distribute other publicity material, which they did. The International fulfilled its part in promoting the boycott by articles and photographs, published in its official weekly newspaper and distributed to its members. The national boycott of the company's products has never been stopped, and, at the time and after the time of the hearing in this case by the trial examiner, was still in effect.

On July 30, 1948, on the recommendation of the Local executive board, the members of the Local voted to return to work, one of the purposes of such return to work being to vote in the election against the HEC as the bargaining unit.

However, at the same meeting at which it was voted to abandon the strike, it was voted to intensify the boycott to "make the Company realize that the UE-CIO is the only bargaining agent for Hoover workers." The boycott policy was stated by the board in a handbill which was passed out at the meeting, as follows: "Suggested Program of Activities During the Period Until the Election. . . . During this period both the Local Union and the International Union will continue and intensify its boycott compaign against the Company. This campaign is receiving a tremendous response throughout the country and The Hoover Company is beginning to feel its effects. Defeat of the Company-Union and the effects of the boycott campaign will make the Company realize that the UE-CIO is the only bargaining agent for Hoover...