National Labor R. Board v. Hollywood-Maxwell Co.

• Decision Date: 23 March 1942
• Docket Number: No. 9731.,9731.
• Citation: 126 F.2d 815
• Parties: NATIONAL LABOR RELATIONS BOARD v. HOLLYWOOD-MAXWELL CO.
• Court: U.S. Court of Appeals — Ninth Circuit

126 F.2d 815 (1942)

NATIONAL LABOR RELATIONS BOARD v. HOLLYWOOD-MAXWELL CO.

No. 9731.

Circuit Court of Appeals, Ninth Circuit.

March 23, 1942.

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Robert B. Watts, Gen. Counsel, National Labor Relations Board, Ernest A. Gross, Associate Gen. Counsel, Frederick M. Davenport, Jr., and Margaret Holmes McDowell, Attys., National Labor Relations Board, all of Washington, D. C., and Richard A. Perkins, Atty., National Labor Relations Board, of Los Angeles, Cal., for petitioner National Labor Relations Board.

Latham & Watkins and Richard Lund, all of Los Angeles, Cal., for respondent Hollywood-Maxwell Co.

Before DENMAN, MATHEWS, and STEPHENS, Circuit Judges.

DENMAN, Circuit Judge.

This is a petition of the National Labor Relations Board for enforcement of its order issued against respondent pursuant to Section 10(c) of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C. Supp. V, Sec. 151 et seq., 29 U.S.C.A. § 151 et seq.

The jurisdiction of this court is based upon Section 10(e) of the Act. Respondent is a California corporation having its principal place of business in Los Angeles, California, where the claimed unfair labor practices occurred. It was engaged in the manufacture and the interstate shipment and sale of brassieres and bust forms. The jurisdictional facts of the interstate commerce into which flows the product of the laborers' efforts are proved.

We are asked to decree against respondent (a) a general cease and desist order, the Board having found respondent to have successively bribed one William Busick, a general organizer of the International Ladies Garment Workers Union, at all pertinent times one of the unions of the Congress of Industrial Organizations, who organized some of respondent's workers into a local, No. 236, hereafter called the C. I. O. Union, and also to have urged and aided certain of its employees to create a union of their own; (b) that respondent had violated Section 8(5) of the National Labor Relations Act in refusing to bargain collectively with the C. I. O. Union on March 14, 1939, some three weeks after the discovery of the bribery and the then attempted revocation by enough of the employees of their designation of the C. I. O. Union as their bargaining agent to reduce the remaining designations to much less than half the employees; (c) that respondent must negotiate with the C. I. O. Union as the bargaining agent of a majority of the productive employees of respondent; (d) that a union called the Independent Productive Group, hereinafter called the Group, formed by an admitted majority of respondent's employees after the discovery of the bribery, and prior to March 14, 1939, was dominated and controlled by the respondent and hence should be disestablished and a contract made by the Group with the respondent should be set aside; (e) that a corporation formed by respondent's employees, the Independent Brassiere Workers of California, hereinafter called the Brassiere Workers, had been interfered with by respondent's aid in its formation in September 1937 in violation of Section 8(1) of the National Labor Relations Act, and that it had, in addition, dominated the corporation subsequent to its formation and, therefore, the corporation should be disestablished.

(A) The laborers and their choice of rights to form or join labor organizations.

The enterprise of respondent is a relatively small manufacturing unit of garment workers, mostly women. It is the rights of self-organization of these workers, either (a) to "form" a union to aid them in collective bargaining or (b) to "join" one already formed for that purpose, with which this proceeding is primarily concerned. The protection of these rights, described in Sections 1¹ and 7² of the National Labor Relations Act, is the major, if not the sole, purpose of Congress in enacting that legislation to free the flow of interstate commerce from the interference of industrial disputes.

Respondent had a president who was also general manager, a foreman, forelady, and supervising inspector, and other non-garment workers or those in a supervisory capacity. The time involved is from July 1937 to June 1939, when the Board served its complaint on the respondent and the three labor organizations involved.

The period began in the early confusion in the minds of workers and employers alike concerning their respective rights and obligations under the National Labor Relations Act, the Jones and Laughlin decision, National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352, having become final in the preceding May. From the beginning, up to March 1939, the garment workers were closely divided on the question whether they would form a union of their own or join the C. I. O. Union. There were the usual two or three vibrant personalities leading each group of workers, personalities without whom the whole fabric of labor organization could not have been woven and without whom it never would have been created.

(B) The respondent's bribery of William Busick, a grafting general C. I. O. labor organizer.

The labor disputes between the two groups of workers and between them and the employer took form in July, August and September 1937 in a successful strike and organization of the employees by one William Busick. Busick was not an employee garment worker. He was a grafting general organizer of the C. I. O. Union. He was found by the Board secretly to have been bribed, and repeatedly bribed, by the respondent's president beginning shortly after Busick had won the strike and had procured an exclusive bargaining agency for the employees he betrayed in the C. I. O. Union. This exclusive agency extended for one year from October 1, 1937. The purpose of the bribery, which was repeated several times in 1938, was to have Busick persuade his union to have an election called by the Board at a time when it had less than the majority designations required by Section 9(a) of the National Labor Relations Act.

The respondent in August 1937, when Busick was working into his control of the employees, sided with the group which disliked the C. I. O. methods and was seeking to form its own union. Two of respondent's supervisory employees addressed the workers and encouraged them to exercise their congressionally recognized right to form their own union. One of them criticized the C. I. O. Union before an assembled group of the workers. He also contributed to the cost of a mimeographed argument for the forming of an independent union. The committee of workers for self-organization within the plant on one occasion conferred with Dr. Bowen, respondent's president, "during working hours without loss of time or pay," as expressly permitted by Section 8(2) of the Labor Act,³ at which time the committee discussed their inside organization in connection with certain wage demands on the respondent. There were other meetings which Dr. Bowen walked in upon, but no further impropriety on the part of the respondent is shown — unless its advice that they should exercise their right, guaranteed by the statute, to form their own union by perfecting their organization be deemed an impropriety.

More pertinent to the Board's order disestablishing the California corporation, the Brassiere Workers union, which the workers created on September 7, 1937, shortly after these meetings, is that no act of domination or attempted domination over it was committed by the respondent. Nor was there any evidence of a voluntary submission by the Brassiere corporation or its members to any demand of the employer, much less any evidence of the making of such a demand.

It is doubtful that the encouragement of and aid to the workers seeking to form their own union, given by the respondent in July and August, 1937, which were then known to the Board, would in the absence of any interference or attempted interference or act of dominion in the succeeding year and eleven months, warrant a general cease and desist order against respondent on a hearing on a complaint dated June 26, 1939. However, there can be no question that such an order is required by respondent's continued bribing in the year 1938 of the grafting organizer.

This kind of crookedness by corporate managers in bribing the representatives of those having an interest in negotiations adverse to their corporation is as despicable as that of grafting labor leaders who secretly betray the inexperienced and innocent workers they persuade or coerce to join their unions. We are entitled to assume that the Board has taken up with the Department of Justice the question whether this conspiracy to violate a federal statute, enacted to accomplish the congressional function of regulating interstate commerce, is a conspiracy to obstruct the performance of a federal function within Section 37 of the Criminal Code, 18 U.S.C.A. § 88. Cf. Firth v. United States, 4 Cir., 253 F. 36.

We agree that, unlike in the case of National Labor Relations Board v. Mason Manufacturing Co., 9 Cir., 126 F.2d 810, decided February 13, 1942, there should be a general cease and desist order. Exercising our power under Section 10 of the Labor Act, we modify the Board's order to include a description of the dishonesty of the respondent and requiring respondent to cease and desist from

"Bribing any labor leader or organizer, or in any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act."

We also require that respondent post immediately in at least four conspicuous places at its plant in the City of Los Angeles, and at all...