National Labor Rel. Bd. v. Kearney & Trecker Corp.

• Decision Date: 12 October 1956
• Docket Number: No. 11726.,11726.
• Citation: 237 F.2d 416
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. KEARNEY & TRECKER CORPORATION, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

237 F.2d 416 (1956)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. KEARNEY & TRECKER CORPORATION, Respondent.

No. 11726.

United States Court of Appeals Seventh Circuit.

October 12, 1956.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Rose Mary Filipowicz, Atty. National Labor Relations Board, Washington, D. C., Theophil C. Kammholz, Gen. Counsel, Fannie M. Boyls, Attys. National Labor Relations Board, Washington, D. C., for petitioner.

Leon B. Lamfrom, Milwaukee, Wis., Helen F. Humphrey, Washington, D. C., Lamfrom & Peck, Milwaukee, Wis., for respondent.

Before FINNEGAN, LINDLEY and SCHNACKENBERG, Circuit Judges.

LINDLEY, Circuit Judge.

This cause is before us upon the petition of the Board for enforcement of its order, pursuant to Sec. 10(e) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 160(e), in which it found that respondent had violated Sec. 8(a) (1) of the Act, by interfering with, restraining or coercing employees in the exercise of the right guaranteed by Sec. 7 of the Act, " * * * to engage in * * * concerted activities for the purpose of collective bargaining or other mutual aid or protection". The question presented involves the legality of respondent's disciplinary action against seven employees who insisted that respondent explain to them as a group, to their satisfaction, the mechanics of the incentive system. Essentially the problem is whether, under the circumstances existing at the time of the incident, the employees were engaged in protected concerted activities for their mutual aid and protection.

For some years prior to 1951, respondent's employees had been exclusively represented by the Employees Independent Union (hereinafter called EIU). In September, 1950, a schism occurred within that union. A substantial number of the employees remained loyal to the old union. However, a new group, including most of the officers of EIU, joined Local 1083, UAW, CIO (hereinafter called the Local), which, thereafter, filed a representation petition with the Board. After the election called to determine the exclusive bargaining representative, on October 31, 1951, the Local, having received a majority was certified as the exclusive bargaining representative. Nevertheless, respondent, questioning this action, refused to recognize or deal with either EIU or the Local, or any other group, but, in practice, continued to observe the substantive provisions of its unexpired contract with EIU as far as possible. Subsequently a complaint was filed by the Local alleging a refusal to bargain on the part of respondent. On December 31, 1952, the Board found respondent guilty of refusing to bargain with the Local.

Pursuant to respondent's policy of neutrality, after it had received the Board's certification of the Local, respondent took steps to notify the employees of its position in three letters. In the first, dated March 21, 1952, respondent stated inter alia: "Because of the litigation now pending to test the certification of a collective bargaining representative of your unit by the National Labor Relations Board * * * your company is, as you know, not recognizing either union involved in the dispute. In the meantime, the company's position concerning its labor relations with you is that it will continue to deal in hours, wages and working conditions along the same lines provided for in the contract which the company now has with the employees' Independent Union. If there is any question in your mind concerning grievances, you should know that we are handling them on an individual basis, following the procedure which is set forth in the contract — except that there is no union recognition involved. If you have a grievance, you may, as an individual, present it orally to your foreman, as you have in the past, or on forms which will be furnished to you by him." (Emphasis suppied.)

In its letter of April 7, 1952, which dealt primarily with a certain wage increase authorized by the Wage Stabilization Board, respondent advised its employees: "This is an appropriate time to repeat that in regard to other aspects of our labor relations, we will continue to deal in hours, wages, and working conditions along the same lines that we have in our existing contracts."

Similarly, in a letter of July 2, 1952, respondent advised its employees: "* * the company will continue in its labor relations to observe the terms and conditions of existing contracts as they apply to hours, wages and working conditions."

On review we held that misconduct on the part of the Local had prevented a fair election from taking place. Kearney & Trecker Corp. v. N.L.R.B., 7 Cir., 210 F.2d 852, saying, at page 859: "Our study of this record leaves us with the firm conviction that Local 1083 was conceived under a heavy cloud of suspicion and that its conduct was such as to preclude the inalienable right of the employees to select their bargaining representative in an election free from coercion and intimidation."

Against this background of bitter rivalry between the two unions, we approved the events which led to the two-week suspension of the seven employees. The episode in question occurred subsequent to the Board's certification but prior to our determination of the invalidity of the election.

Sometime during 1951, a somewhat complicated wage plan, commonly known as the Halsey 50-50 group incentive system was adopted in respondent's shipping department. Shortly thereafter, the employees in that department began to complain to their supervisory employees that they did not understand how their bonus pay was computed and why it varied from week to week. Although several attempts were made by respondent to explain the Halsey system to the men, as individuals, the Trial Examiner concluded that the men in the shipping department did not understand this complex wage plan. On the day preceding the action in question, the foreman of the department was confronted by a request from two spokesmen from the department, both of whom, incidentally, were officials of the Local. They demanded that someone explain the bonus system to them as a group. They were informed that they would be received individually but not as a group.

According to a prearranged plan, agreed upon by the employees in the shipping department before going to work on February 26, 1953, the men refused to return to work after their morning coffee break, and stated that they would not resume employment until someone from the company explained to them as a group, the operation of the bonus system. As a result of this action, seven of the men refused, on request, to return to their jobs and were laid off for two weeks as a disciplinary measure, for, among other reasons, the improper method of presentation of a grievance.

It is to be noted at the outset, that there were several attempts by the company to explain to these employees the nature of this wage system. We need not pass on the question of how far an employer has to go in explaining a matter of this nature to his employees. For purposes of this discussion we assume that this was a valid grievance. However, attention should be given to the following statement from N.L.R.B. v. American Pearl Button Co., 8 Cir., 149 F.2d 258, 260: "Whether or not the employer in the exercise of his managerial judgment is just or unjust, wise or unwise, is not a matter of concern, and the Board's inquiry must be confined to the question as to whether or not the employees have been discriminated against * * *." See also, N.L.R.B. v. McGahey, 5 Cir., 233 F.2d 406.

Likewise, contrary to dissenting member Farmer of the Board, we conclude, that, although reasonable minds might differ as to whether this was merely "another contrivance" by the Local to obtain Company recognition "in the checkered history of this controversy", the record supports the Board's conclusion that this was not an attempt by the Local to seek "backdoor" recognition. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456.

Based on these assumptions, we are faced with the rather difficult problem of determining whether this "minority" group activity falls within the protective ambit of Sec. 7. In determining the purview of that section it is to be noted that it is implemented by Sec. 9(a), as follows: "Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: Provided, That any individual employee or a group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or...