Jefferson Electric Co. v. National Labor Relations Bd.

Decision Date31 March 1939
Docket NumberNo. 6726.,6726.
Citation102 F.2d 949
CourtU.S. Court of Appeals — Seventh Circuit

M. S. McDonough, of Iron River, Mich., Earl W. Le Fever, of Cleveland, Ohio, and Otto A. Jaburek, of Chicago, Ill., for Jefferson Electric Co.

Joseph A. Padway, of Milwaukee, Wis., for International Brotherhood.

G. L. Patterson, of Washington, D. C., for National Labor Relations Board.

Charles Fahy and Robert B. Watts, all of Washington, D. C., for other respondents.

Before SPARKS, MAJOR, and KERNER, Circuit Judges.

KERNER, Circuit Judge.

This case is here on separate petitions by the Jefferson Electric Company (hereinafter also referred to as the "employer", "Jefferson Electric", "petitioner", or "company") and the International Brotherhood of Electrical Workers (hereinafter also referred to as the "Brotherhood" or "intervenor") to review and set aside, and on request by the National Labor Relations Board for the enforcement of, an order of the National Labor Relations Board (hereinafter also referred to as the "Board"). Sec. 10(e, f), National Labor Relations Act, Title 29, U.S.C.A. § 160(e), (f), ch. 372, 49 Stat. 453.

The case arose out of the opposing unionization campaigns conducted by the United Electrical and Radio Workers of America, a labor organization (hereinafter also referred to as the "United") affiliated with the Committee for Industrial Organization, and the Brotherhood, a labor organization affiliated with the American Federation of Labor, to represent the employees of the Bellwood, Illinois plant of the Jefferson Electric Company.

Jefferson Electric perfected closed-shop contracts with the Brotherhood, and United filed charges of unfair labor practices with the Board. Secs. 8(1, 3), 10(b), N.L.R.A., Title 29, U.S.C.A. §§ 158(1, 3), 160(b), ch. 372, 49 Stat. 452, 453. After a hearing, the Board concluded that the closed-shop contracts were in effect the culmination of the employer's unfair labor practices, and ordered the Jefferson Electric Company to reinstate with back pay certain employees, to cease conduct which interfered with the employees' right to select an exclusive bargaining representative of their own choice, to cease its partisanship in favor of the Brotherhood, and to post notices that the closed-shop contracts were invalid. It is this order1 of the Board which is the subject of judicial review. The facts follow:

Prior to 1937 no attempts had ever been made to unionize the plant. Then, sometime in January of 1937, J. M. Marquis (business agent of the Brotherhood) made his first appearance before the company in his organizational campaign. Before this time the only effort to band together had produced the Jefferson Social Club, which provided recreational facilities for the employees and foremen of the company. Upon this first visit to the company plant Marquis spoke to Enos A. Hamer (President of the Jefferson Social Club) and asked him, without success, for a list of the company's employees. Early in February Marquis met Luke Gallagher, a popular employee, who, when informed of Marquis' mission, stated that the employees had been treated very nicely by the company. After describing the advantages which the employees were enjoying and the manner in which the company had treated them over a period of years, Gallagher expressed the thought that it would be a difficult proposition to induce the men to join the Brotherhood, but stated that he would be willing to assist, whereupon Gallagher gave Marquis the names of some of the employees.

On April 28 Marquis informed James C. Daley (Vice President of the company) that the Brotherhood represented 240 employees. After assuring Marquis that the company was neither opposed nor partial to unionism, Daley informed him that there were 900 employees in the plant and suggested (upon request) the name of Hamer as a person who might help him. Marquis thereafter continued his organization work, and, on May 10, claimed he had 600 pledges or members in his organization. On May 11, by telephone, he informed Daley of that fact and requested permission to bring a sound truck into the company's yard so as to induce the remaining employees to join the Brotherhood. Permission was granted on May 12, the normal lunch period was extended thirty minutes, and the employees were addressed by Brotherhood organizers and employee Harry Rudnick. During the addresses, which were not derogatory to the company or to the United, the gates were locked and the yard was guarded by a company foreman and a city policeman. After the sound-truck meeting a committee of employees requested Marquis to meet it in the cafeteria, where they remained for thirty minutes. Marquis' next visit to the plant was on May 18, at which time he established headquarters in the cafeteria. In addition he was given a visitor's badge and was permitted to solicit membership in the Brotherhood.

In April the United also commenced an organization campaign among the employees. This was brought to the attention of the company about May 1, 1937. At no time did the United request the use of the company's premises for meeting purposes, although during the first two weeks of May its organizers were actively engaged near the plant in distributing membership applications among the employees of the company and in circulating hand-bills urging them to join the United.

On May 10 a number of the company's employees called upon Daley and inquired whether they could not organize a union of their own. Daley informed them that they had a right to organize, but added that the company was assuming a hands-off or neutral policy. Thereupon, during working hours, four employees circulated a petition in the plant, urging the organization of an independent union. This petition was posted on the company's bulletin board; the plant was closed at 2:30 p. m., so as to enable all of the employees to attend a meeting at the Social Club, where the merits of having an independent union were discussed; and a similar meeting was held on May 11 in the cafeteria. These efforts to form an independent union failed. On the afternoon of May 11 some of these men attended a meeting in the company's Board of Directors' room, where Hamer, at Daley's suggestion, introduced Marquis, who addressed them in behalf of the Brotherhood. After Hamer introduced Marquis he left the room and did not remain for the meeting.

Although testimony by United witnesses suggested solicitation of the employees during working hours, the exact date was not revealed. Henry Kasper, witness for petitioner, was not sure as to the time of solicitation, and gave two possible periods of time, i. e., before or after May 15. J. M. Marquis, on the other hand, was positive that the solicitation did not occur until after May 17. In addition he testified that on May 11 the Brotherhood had unionized 600 of the employees, which is in excess of the 483 that constituted a majority. Later, on May 15, Marquis submitted to Daley the notarial certificate, which certified that on that date notary public Sloan had counted 703 union application cards signed by employees of Jefferson Electric designating the Brotherhood as their representative.

According to Jefferson Electric, its conduct was consistent with the company's neutral position. According to Marquis, the Brotherhood claimed to represent 240 employees on April 28 and 600 on May 11, whereas 483 constituted a majority.

On May 17, 1937 Jefferson Electric met with the Brotherhood, recognized that organization as the exclusive bargaining agent for the employees, and executed with it a short form closed-shop agreement. By the terms of the contract the parties agreed to meet again within ten days to negotiate a more complete contract. Accordingly, meetings ensued, and a proposed further agreement was drafted. The terms of this agreement were then submitted to the Brotherhood membership for ratification. It was ratified by postcard ballot, and on June 29 the agreement was formally executed, effective as of May 17, 1937.

On May 20, 1937 the United organizers, John M. Smith and Earl T. McGrew, called on John A. Bennan (president of Jefferson Electric). They requested Jefferson Electric to meet a United committee on the matter of collective bargaining for its members. They also inquired as to the truth of the rumor that Jefferson Electric had completed a closed-shop agreement with the Brotherhood on May 17. Bennan, who had been out of the city from April 25 to May 20 and had not been informed as to what had transpired during his absence, referred them to Daley, who had full charge of the plant.

On May 21 the United filed with the Board a petition urging an investigation of the representation of the employees of Jefferson Electric. Sec. 9(c), N.L.R.A., Title 29, U.S.C.A. § 159(c). A hearing was set for July 7 and later postponed to July 26. In the meantime, charges of unfair labor practices by the company had been filed with the Board by the United. In the end the "9-c" hearing was not held and the "9-c" petition was withdrawn.

After the signing of the closed-shop agreement on May 17, Jefferson Electric discharged three men; namely, Edward Phelan and Nicholas Franzen on June 11, and Alfred Wittersheim on June 18. The company stated that the discharges were nondiscriminatory and wholly unrelated to the closed-shop agreement. On the other hand, Phelan, Franzen and Wittersheim insisted that they were discharged because of their activities in behalf of the United.

On October 15, 1937, after charges of unfair labor practices had been filed on behalf of United, the Board issued its complaint against the employer. Sec. 10(b), N.L.R.A., Title 29, U.S.C.A. § 160(B). The complaint, as thereafter amended, alleged inter alia that the employer had discharged certain employees because of their...

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