National Labor R. Board v. Chicago Apparatus Co.

• Decision Date: 27 January 1941
• Docket Number: No. 7311.,7311.
• Citation: 116 F.2d 753
• Parties: NATIONAL LABOR RELATIONS BOARD v. CHICAGO APPARATUS CO.
• Court: U.S. Court of Appeals — Seventh Circuit

116 F.2d 753 (1940)

NATIONAL LABOR RELATIONS BOARD v. CHICAGO APPARATUS CO.

No. 7311.

Circuit Court of Appeals, Seventh Circuit.

December 12, 1940.

Rehearing Denied January 27, 1941.

Robt. B. Watts, of Washington, D. C., for petitioner.

Loy N. McIntosh and Frederick Secord, both of Chicago, Ill., for respondent.

Before EVANS and TREANOR, Circuit Judges, and LINDLEY, District Judge.

EVANS, Circuit Judge.

Petitioner seeks to enforce its order issued against respondent, the employer, pursuant to Section 10 (c) of the National Labor Relations Act, 49 Stat. 449, 453, 29 U.S.C.A. § 160(c). Charges were filed by the Federation of Architects, Engineers, Chemists and Technicians, Local No. 107, with the Board, and the latter issued its complaint thereon December 6, 1937, in which it was alleged that the employer, in order to discourage membership in the Federation, had discharged and refused to reinstate four of its employees, Alban Mirguet, Joseph Doyle, Patrick Doyle, and Clark Heppe, because of their affiliation with and activities in the Federation; that the employer had interfered with, restrained and coerced its employees in the exercise of their rights to self-organize; and has refused to bargain collectively with its employees through the Federation although a majority of the employees had selected it as their bargaining representative. All of the material allegations of this complaint were denied by the employer in its answer.

There followed a hearing before a trial examiner who, after hearing, filed his intermediate report to which exceptions were taken by the employer, and oral arguments were had before the Board. On May 17, 1939, the Board filed its decision and entered the order here in controversy. (12 N.L.R.B. 1002.)

The parties stipulated as to the facts which were determinative of the Board's jurisdiction. Therefrom it appeared that the employer is an Illinois corporation with its principal place of business in Chicago. It is engaged in the manufacturing and jobbing of apparatus and supplies such as Bunson Burners, tongs, tweezers, balances, electrical demonstration pieces, microscopes, test tubes, jars, prepared and unprepared slides, etc., for use in scientific laboratories in high schools and colleges.

Approximately twenty-five per cent. of the raw materials used in its manufacturing (which comprises one-fourth of its business) are taken from sources outside the State of Illinois. Approximately seventy-five per cent. of the merchandise used by the company in its jobbing (which comprises three-fourths of its business) is brought in from other states. Nearly seventy-five per cent. of its sales, amounting to seven hundred and fifty thousand pounds of merchandise, are made outside of Illinois. The company employs salesmen to cover these states.

The Board found that employer engaged in unfair labor practices in refusing to bargain with the Federation as the exclusive bargaining representative of its employees; interfered with, restrained and coerced its employees in the exercise of their rights to self-organization; discharged three employees, A. H. Mirguet, Joseph Doyle, and Patrick Doyle, because of their union activities. The Board found that these practices violated Section 8 (1), (3), and (5) of the Act, 29 U.S.C.A. § 158 (1, 3, 5).

It ordered the company to cease such activities and upon request to bargain collectively with the Federation and to reinstate the discharged employees to their former positions without prejudice to their seniority or other rights and privileges, and to make them whole for any losses of pay which they may have suffered by reason of their discharge. The complaint was dismissed, in so far as it alleged the commission of an unfair labor practice in the discharge of Clark Heppe.

The employer denied unfair labor practices. It contends that the Federation did not represent a majority of its employees, and that, if it did, it failed to present such proof upon request; that two of the employees named were discharged for cause, and the third resigned. It denied that there was substantial evidence of coercion, interference, or domination of the employees in the exercise of their rights to self-organization.

The pleadings present several questions which we must and do now decide:

(1) The Appropriate Unit. The complaint alleged that a unit composed of production and maintenance employees was appropriate. The Board found, however, that a unit composed of production employees only, excluding salesmen, office employees, and supervisors having the power to hire and discharge, was appropriate.

The power to make such a finding is given to the Board. Section 9 (b) of the Act, 29 U.S.C.A. § 159(b). Unless an abuse of discretion in the exercise of such power is shown, we are not justified in overthrowing it. National Labor Relations Board v. Lund, 8 Cir., 103 F.2d 815, 819; Pittsburgh Plate Glass Co. v. National Labor Relations Board, 8 Cir., 113 F.2d 698, 701.

(2) The Representation of the Majority by the Federation. The Federation is a union affiliated with the Congress for Industrial Organization, and had been in existence as a national organization for about four years at the time of the hearing. The Chicago Chapter of the Union consists of a group of several local lodges, one of which is Local No. 107.

On or about May 21, 1937, a group of fourteen of the company's employees sought information from Chicago chapter headquarters concerning its union program. One of the organizers, Kornacker, explained the principal points of its program, and what employees' rights were under the Labor Act. All of this group thereupon applied for membership in the Federation.

The following week, a second meeting was held in a Chicago auditorium. A much larger group of employees attended, and again Kornacker explained the program of the Federation. Questions concerning membership therein were asked. More men joined that evening. K. testified that fourteen signed on May 21, an additional seventeen on the twenty-eighth of May, and nineteen more by June 29, making a total of fifty. Thus, Local No. 107 came into being, some time in June, 1937. Officers were elected at subsequent meetings, by-laws adopted, and the machinery of organization perfected.

The pay-roll for the production department for the week ending July 11 shows that fifty-four employees were working. While the Board made no specific finding concerning the number of these within the appropriate unit, it did decide that three out of the fifty-four were supervisory employees and therefore should be excluded from the unit. The Board took fifty-four as the number favoring the Union. Employer on the other hand, takes forty-four as the number in the appropriate unit. It is immaterial whether the number be fifty-four, fifty-one, or forty-four, because the Federation had a majority on any hypothesis.

The record shows that fifty applications for membership had been made by June 29. Some of these were undated, but Kornacker, the organizer, testified that all of them had been made out before June 29. The employer contends, however, that many other applications show on their face that no initiation fees or dues had been paid, and so, according to the Constitution of the Federation, the applicants were not members of the Union. The Constitution provides that a member shall not be in good standing if he is three months in arrears in paying dues, and that he shall be automatically dropped from the rolls if he is six months in arrears. The by-laws provide that "Initiation fees must be paid * * (when) applicants shall fill out regular application cards * *." Kornacker testified, in this regard, that "an employee, say, of the Chicago Apparatus Company, becomes a member of our union when he signs an application card and when he pays an initiation fee, which may or may not be waived, depending upon our organizing status at the time * *." He further testified that if the applicants' "financial circumstances are such at the time they sign a card, that they cannot afford to pay an initiation fee, we may or may not consider him a member, depending upon the decision of the chapter executive board which considers the financial position of the applicant." He further testified that no applicants for membership in the Federation were rejected for financial or other reasons.

It thus appears that, even though no initiation fees or dues were paid, the applicants for membership were not rejected therefor, but were considered members for the purposes of collective bargaining. It further seems clear that the applicants, in so applying, gave the Federation authority to bargain for them, for the Federation officials obtained, by August 20, the signatures of thirty-five employees within the appropriate unit to the following statement: "I, the undersigned employee of the Chicago Apparatus Company, hereby authorize the Chicago Chapter of the FAECT to represent me in collective bargaining with my employer." Application for membership may be counted in determining whether the union has a majority. National Labor Relations Board v. Somerset Shoe Co., 1 Cir., 111 F.2d 681; National Labor Relations Board v. Bradford Dyeing Association, 310 U.S. 318, 60 S.Ct. 918, 84 L.Ed. 1226. This is true even though no dues have been paid.

Employer further contends that six applications for membership were unsigned. It is unnecessary to determine the status of these applications. From the fifty applications submitted in evidence, the following may be rejected: (1) four, because it does not appear that the applicants were in the appropriate unit; (2) two, because they were supervisory employees; and (3) six, because their application cards were not signed.

The conclusion is inescapable that there was substantial evidence to support the Board's finding that the Federation, on June 29, 1937, was the duly designated representative of a majority of the employees.

(3) The...