Jeffery-De Witt Insulator Co. v. National LR Board

Decision Date16 June 1937
Docket NumberNo. 4066.,4066.
Citation91 F.2d 134
CourtU.S. Court of Appeals — Fourth Circuit

F. M. Livezey, of Huntington, W. Va., for petitioner.

Philip Levy, Atty., and Charles Fahy, Gen. Counsel, National Labor Relations Board, both of Washington, D. C. (Robert B. Watts, Associate Gen. Counsel, and Mary L. Schleifer and William R. Walsh, Attys., National Labor Relations Board, all of Washington, D. C., on the brief), for respondent.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

PARKER, Circuit Judge.

This case arises upon a petition of the Jeffery-DeWitt Insulator Company for review of an order of the National Labor Relations Board. The company is a West Virginia corporation engaged in the manufacture, sale, and distribution of insulators at Kenova, W. Va. The raw materials which it uses are obtained in large part from other states and are shipped to it in interstate commerce, 85 per cent. of the raw materials used by it in the 11-month period ending November 30, 1935, having been obtained from states other than West Virginia. Its product is sold and distributed throughout the Union and in several foreign countries, 99 per cent. thereof having been thus sold outside the state of West Virginia during the eleven-month period mentioned. Its gross sales during this period amounted to $230,854.75. It maintains sales offices at Kenova, New York, and Chicago, and makes sales through approximately 20 regularly appointed sales agents located throughout the United States. In 1935 it employed at its Kenova plant between 82 and 166 persons, the number employed at any particular time depending upon its operations.

In September 1933, Local Union No. 455, United Brick and Clay Workers of America, affiliated with the American Federation of Labor, was organized at the company's plant for the purpose of collective bargaining, and the company recognized it as the representative of its employees and bargained with it until June 20, 1935. Approximately 75 members of this union were working in the company's plant on June 15, 1935, when a strike was called. On the preceding day 89 persons were shown by the pay roll to be in the employment of the company. Persons on the rolls of the company were considered as employees although not actually at work; and there were 166 of these, of whom 129 were members of the union. A clear majority of the employees, therefore, were unquestionably members of the union, which was found by the Board to constitute a unit appropriate for the purpose of collective bargaining.

Disputes arose between the company and the union in October, 1933, and March, 1934, which were settled as the result of efforts on the part of conciliators of the Department of Labor of the United States government. Another dispute arose in 1935 as a result of the demand of the union for a union shop, the recognition of certain seniority rights on the part of employees, and a provision for the checkoff, or deduction by the company from the wages of employees of the fees and dues of the union. The company declined to accede to the demands of the union and a strike was declared on June 15th, which resulted in the closing down of the plant. Efforts to compromise the matters in difference on June 16th and 20th failed of result; and on the latter date the company reopened with a greatly depleted force without arriving at an adjustment. From June 20th to July 15th the strike continued and the plant of the company was operated far below normal or seasonal capacity. On July 15th a conciliator of the United States Department of Labor and an inspector of the West Virginia Department of Labor endeavored to persuade the company to enter upon negotiations with representatives of the union for the purpose of adjusting the matters in difference, but the company declined to do so. The Board in its report found the following with respect to its refusal: "The record convinces us that after the strike began, the respondent did not desire to reach an agreement with its striking employees. In addition to telling the Conciliators that he would not meet the Committee because further meetings would be useless, Stinson told them that he would not meet the Committee because the situation was working itself out nicely, and because the respondent had no further duty to meet the strikers inasmuch as, by striking, they had ceased to be employees of the respondent. The record shows clearly that a current labor dispute existed on July 16, 17, 18 and about August 1; thus, at all such times, the strikers were still employees within the meaning of the Act. These statements of Stinson's clearly show that the respondent no longer regarded itself as an employer whose relation with its employees were governed by the orderly procedure required by the Act. At the hearing, Stinson admitted that his statement to the strikers on June 20, that he wished to deal with them as `J-D employees', meant that he did not wish to deal with them through a union. This merely reinforces our conviction that, regardless of what the result of a meeting with the Committee might have been, the respondent no longer desired, or considered itself required, to use the procedure of collective bargaining as a means of reaching an agreement; and that the respondent had finally determined to seize the strike as a means of eliminating Local No. 455 as the bargaining agent of its employees. Consequently, the respondent's refusal to negotiate with the strikers through the Conciliators was merely the final expression of its determination not to bargain collectively."

Upon refusal of the company to enter into negotiations with the union, the latter filed complaint with the Board charging that the company was guilty of unfair labor practices within the meaning of the Wagner-Connery Labor Relations Act (29 U.S.C.A. § 151 et seq.) in refusing to bargain with the union as the representative of the employees on strike, and in discouraging membership in the union by discriminating against union members with regard to hire and tenure of employment. The Board found against the union and in favor of the company on the issue of discrimination but sustained the charge of refusal to bargain with the union as representative of the employees. It further found that the effect of the strike was to burden and obstruct interstate commerce and that the company by its refusal to bargain collectively with the union, "placed obstacles in the way of settling the strike and as a consequence was responsible for the continuance of the burden and obstruction to the free flow of commerce." It found that on November 26, 1935 the company was employing 58 wage earners, only 23 of whom had been employed by it prior to June 15, 1935, and, with respect to the relief to be accorded, said: "Under these circumstances no effective relief would be granted by merely ordering the respondent to bargain collectively. Since the respondent in refusing to bargain collectively on July 16, 1935, and thereafter, precluded the possibility of the strikers returning to work under an agreement which might have been reached at that time, we will also order the respondent to offer employment to its employees who were on strike on July 16 and who have not received substantially equivalent employment elsewhere, replacing, if necessary, the persons who were hired by the respondent for the first time on and subsequent to July 16, 1935."

The order as entered directed that the company cease and desist from refusing to bargain collectively with the union as representative of its employees, that upon request it bargain with the union as the exclusive representative of its employees "in respect to rates of pay, wages, hours of employment and other conditions of employment," and that it offer employment to its employees who were on strike on July 16, 1935, and who had not received substantially equivalent employment elsewhere "when the positions held by such persons on June 15, 1935 are not filled by persons who were first employed by respondent on and after July 16, 1935," placing all other employees who were on strike on a preferential list. In asking that the order be set aside, the company makes three contentions: (1) That members of the union were not employees within the protection of the act at the time of the alleged unfair labor practices; (2) that the company was not guilty of any unfair labor practices in refusing to negotiate further after an impasse had been reached in negotiations; and (3) that the alleged unfair labor practices did not burden commerce. Other contentions, going to the constitutionality of the act, have been virtually abandoned in view of the decision of the Supreme Court in National Labor Relations Board v. Jones & Laughlin Steel Corporation, 57 S.Ct. 615, 81 L.Ed. ___, and other National Labor Relations Board cases decided at the same time. (National Labor Relations Board v. Fruehauf Trailer Co., 57 S.Ct. 642, 81 L.Ed. ___; National Labor Relations Board v. Friedman-Harry Marks Clothing Co., 57 S.Ct. 645, 81 L.Ed. ___; Washington, Va. & Md. Coach Co. v. National Labor Relations Board, 57 S.Ct. 648, 81 L.Ed. ___; Associated Press v. National Labor Relations Board, 57 S.Ct. 650, 81 L.Ed. ___.)

The contention that the Board was without jurisdiction to afford relief to the union, on the ground that members of the union were not employees at the time of the unfair labor practices complained of, proceeds upon the assumption that that relationship was severed when the employees continued on strike and refused to return to work when the company resumed operations on June 20, 1935, and that, as this was prior to the passage of the Wagner-Connery Labor Relations Act on July 5, 1935 (29 U.S.C.A. § 151 et seq.), the provisions of that act are not effective to preserve the rights of employees as a basis for action on the part of the Board. We think, however, that...

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