Lebanon Steel Foundry v. National Labor Rel. Board

• Citation: 130 F.2d 404
• Decision Date: 29 June 1942
• Docket Number: No. 7990.,7990.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Parties: LEBANON STEEL FOUNDRY v. NATIONAL LABOR RELATIONS BOARD.

130 F.2d 404 (1942)

LEBANON STEEL FOUNDRY v. NATIONAL LABOR RELATIONS BOARD.

No. 7990.

United States Court of Appeals for the District of Columbia.

Decided June 29, 1942.

Writ of Certiorari Denied October 12, 1942.

Mr. Hugh P. McFadden, of Bethlehem, Pa., for petitioner.

Mr. Ernest A. Gross, Assistant General Counsel, with whom Mr. Robert B. Watts, General Counsel, Mr. Lawrence A. Knapp, Associate General Counsel, and Mrs. Hilda D. Shea, Attorney, all of the National Labor Relations Board, all of Washington, D. C., were on the brief, for respondent.

Before GRONER, Chief Justice, and STEPHENS and RUTLEDGE, Associate Justices.

Writ of Certiorari Denied October 12, 1942. See ___ U.S. ___, 63 S.Ct. 58, 87 L.Ed. ___.

RUTLEDGE, Associate Justice.

The question is narrow. Shortly, it is whether certain checkoff cards, signed by employees, constitute evidence of authority to bargain collectively.

It is stipulated the employees at petitioner's plant in Lebanon, Pa., with certain exceptions, constitute an appropriate unit. Petitioner concedes that a majority of the employees in the unit signed the cards. The company declined, and still does, to recognize the cards as conferring authority to bargain. The Board has found them sufficient, has found also that the petitioner has been guilty of unfair labor practice in refusing to bargain collectively with the designated union, S. W. O. C., and has ordered appropriate relief. We think the order must be affirmed.

The facts, in outline, follow. Petitioner, Lebanon Steel Foundry, is a Pennsylvania corporation which manufactures various types of steel castings in interstate commerce. There were between 585 and 623 employees in the unit at the crucial period. Prior to September, 1940, and thereafter, the company had a vague plan of employees' representation, known indefinitely as "the independent group" until the negotiations, during which apparently it acquired the name "The Association of Independent Lebanon Steel Foundry Workers." There is no evidence of its membership, but less than half the employees voted for employee representatives in the fall of 1940; nor is there showing that it requested recognition, attempted to negotiate a collective agreement, or did much more than deal with grievances at various times. The Board found that the organization was dormant¹ and was not a labor organization within the meaning of the Wagner Act.

S. W. O. C. (Steel Workers Organizing Committee), affiliated with the C. I. O., is a labor organization within Section 2(5) of the Act.

In September, 1940, some of petitioner's employees secured membership application cards from an organizer for S. W. O. C. at a nearby steel plant. Seventy-three had signed these, when a meeting was held with Fritchman, S. W. O. C. district representative. Employees then stated a desire to have union dues checked off from their wages. Fritchman thereupon instructed them to use checkoff cards ("Wage Deduction Authority") in place of the membership application cards in soliciting union members. Employees who had signed the latter, with two exceptions, then signed checkoff cards and thereafter only the checkoff cards were used in soliciting members. The evidence that they were used for this purpose is undisputed.

Fritchman testified, without contradiction, that the checkoff cards were used throughout his district to signify union membership and authority to check off union dues; that the union (S. W. O. C.) customarily organizes plants in that area by having the employees sign such cards; and that all employers whose plants were thus organized accepted the checkoff cards as proof of the employee's desire to have the union represent them. The trial examiner and the Board credited this testimony.

Eventually 358 employees signed the checkoff cards. Fritchman testified they totalled 335 and 342 as of December 15, 1940, and January 10, 1941. The union's membership lists were made up from them.

On December 16, 1940, Moyer, for the union's negotiating committee,² submitted a proposed collective agreement to Phillips, the plant manager, told him he represented the union and a majority of the employees, and asked him to arrange a date to begin negotiations. Phillips replied the company would discuss grievances, but the contract was important, he would study it, and would advise when a meeting could be held. He said he "was not prepared to give them a date; that it might take days, might take weeks, might take months." Not satisfied, Fritchman arranged with Quinn, the company's treasurer and Phillips' superior, for a meeting of officers and the negotiating committee on December 21. At the meeting Fritchman offered to give proof that the union represented a majority. The offer was treated with indifference. Phillips indicated dissatisfaction with the contract, said the company would meet with any employee or person representing employees, but also stated "we have been dealing with an Independent Group as sole collective bargaining agency."³ Thereafter the union representatives made repeated efforts to secure further meetings, attempted constbut unsuccessfully, to speed negotiations, and finally gave in to Phillips' insistence that the matter go over until after the holidays. When the holidays had passed, unsuccessful efforts were made to secure a meeting earlier than January 10, when the second one was held.

At this meeting the checkoff cards were presented, but were not counted or examined by company representatives. No question concerning majority status was raised then or previously, nor was any claim made that the "Independent Group" represented a majority. At the hearing before the trial examiner Phillips testified he did not go into the matter because he "intended to recognize and deal with the Union and the Independent Group as the representatives of their respective members until the definite status of each one was established."⁴ (Italics supplied) However, the Board found he intended at most to permit the union to present grievances, on the evidence concerning his statements as made at the conference. The outcome of the conference was again inconclusive and unsatisfactory, with union negotiators charging that the company was "stalling."

The union men tried to expedite further meetings, offering to meet at night, on Saturdays or at any convenient time. Phillips declined to do this or to fix another date then. When Fritchman called him on January 13, as he suggested, the earliest date he would consider was January 24. Fritchman protested, pointed out the union had become restive and the previous day had adopted a resolution for "further action" if no agreement were reached by February 1, and again offered to meet at night. Other efforts, including threats to call in "a government official," were made to advance the date without success. In his discussions with Fritchman and others on the 13th Phillips insisted upon a clear distinction between grievances, concerning which the management was disposed to deal with S. W. O. C. when designated as agent by its members, and negotiations for a contract, which "required lengthy and deliberate attention." In the meantime, he said again, the company intended to recognize and deal with the "Independent Group" as sole collective bargaining agent, until the definite status of each group was established.

On January 14, after Phillips had declined again to expedite the meeting, S. W. O. C. filed a charge with the Board. On January 20, the Board's field examiner held a conference with representatives of both sides. An effort was made to settle the matter by a consent election, but failed when the "Independent Group" declined to permit its name to go on the ballot with S. W. O. C.'s,⁵ and the company declined to state in writing that it would bargain in good faith with the union if it should win the election. This was on the advice of counsel that "a request to put into writing that which the law already requires them to do is unreasonable and capricious." Thereafter the company declined to continue negotiations with the union on the ground that since the Board had intervened in the case there would be no point in further negotiations.

Petitioner says the case raises only the narrow question of law whether the checkoff cards are sufficient on their face as evidence of authority to bargain collectively. It urges the authority must be gathered "from the four corners" of the instrument, without reference to the circumstances under which they were signed, or usages prevailing in the area. It regards the cards as in effect technical powers of attorney, like powers to convey or mortgage realty, and insists, first, that their language contains nothing to indicate intention to authorize collective bargaining and, second, that recourse cannot be had to the evidence concerning usage and the conditions surrounding execution to give the words such a meaning.

On the other hand, the Board has found and contends that the cards show on their face intention to authorize collective bargaining, and this intent becomes indisputawhen the cards are read in view of the proven usages and the circumstances of signature, as the Board says may be done. We think the Board is clearly right.

Two forms of checkoff card were used, as follows:

"Wage Deduction Authority "Dated.......... "No "To the Paymaster of

"I hereby authorize you to deduct from my wages one dollar ($1.00) per calendar month, beginning with the month of........ 19.... provided I have worked a total of five (5) days or more during the calendar months.

"This payment to be sent to the Secretary-Treasurer of the S. W. O. C., David J. McDonald, 1500 Commonwealth Building, Pittsburgh, Pa.

"This authority to be effective during the life of the agreement. This authority will automatically be cancelled if, as and when the labor and working agreement between your Company and the S. W. O. C. terminates.

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