National Labor Rel. Bd. v. L. RONNEY & SONS FUR. MFG. CO.

• Decision Date: 24 August 1953
• Docket Number: No. 13315.,13315.
• Citation: 206 F.2d 730
• Parties: NATIONAL LABOR RELATIONS BOARD v. L. RONNEY & SONS FURNITURE MFG. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

206 F.2d 730 (1953)

NATIONAL LABOR RELATIONS BOARD v. L. RONNEY & SONS FURNITURE MFG. CO.

No. 13315.

United States Court of Appeals Ninth Circuit.

August 24, 1953.

George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, Owsley Vose, Louis Schwartz, Attys., National Labor Relations Board, Washington, D. C., Howard F. LeBaron, Director, National Labor Relations Board, Los Angeles, Cal., and Edward Friedman, Atty., National Labor Relations Board, Washington, D. C., for petitioner.

Richard A. Perkins and Arthur Garrett, Los Angeles, Cal., for respondent.

Before MATHEWS, BONE and ORR, Circuit Judges.

BONE, Circuit Judge.

This case comes to us on the petition of the National Labor Relations Board for enforcement of its order against respondent and on respondent's cross-petition for modification of the order and application for leave to adduce additional evidence.

At the outset we are met with a question as to the jurisdiction of the Board. The unfair labor practice charges which gave rise to this proceeding were signed by former employees of respondent. Respondent contends that in filing the charges these former employees acted merely as "fronts" for the United Furniture Workers of America, CIO, Local 576 (herein Local 576). It is pointed out that the charges were solicited and prepared by Local 576 and counsel for that union represented the nominal charging parties at the hearing. And since Local 576 was not in compliance with the non-Communist affidavit requirements of § 9(h) of the National Labor Relations Act, as amended,¹ respondent asserts that the Board lacked jurisdiction to issue the complaint.

While there is some question whether Local 576 was in compliance with § 9(h) at the time the complaint was issued, the critical date, N. L. R. B. v. Dant, 344 U.S. 375, 378-379, 73 S.Ct. 375, it is unnecessary to decide this question for in our view Local 576 was not a charging party and § 9(h) is therefore inapplicable. Employees acting individually may assert their rights before the Board without restriction of § 9(h). In the instant case the unfair labor practice charges were signed and filed with the board by 10 former employees of respondent, each alleging discrimination and other unfair labor practices as against himself or herself individually. The charges were in form and in substance assertions of individual rights. They were not made less so because Local 576 assisted or directed the employees in preparing the charges, or because counsel for Local 576 represented the employees at the Board hearing, or because Local 576 might incidentally benefit from the Board's order. The problem is essentially the same as in N. L. R. B. v. Globe Wireless, 9 Cir., 193 F.2d 748, 749, note 1, where we quoted with approval from N. L. R. B. v. Augusta Chemical Co., 5 Cir., 187 F.2d 63, 64, as follows: "`Granted that the disqualified union was active in assisting, indeed in directing, the employees in preparing their charges, it does not at all follow that the employees, by accepting that assistance, disqualified themselves.'"

Nothing to the contrary can be found in N. L. R. B. v. Happ Bros., 5 Cir., 196 F.2d 195 and N. L. R. B. v. Alside, 6 Cir., 192 F. 2d 678, on which respondent relies. In each of those cases the court held that where the president and chief protagonist of the interested but disqualified union had filed unfair labor practice charges on behalf of himself and a great number of other union employees, he was really acting as a representative of the union and not as an individual. Those cases have no application here.

We turn now to the facts from which the Board concluded that respondent was guilty of unfair labor practices. Respondent is a family partnership engaged in the manufacture of furniture in Los Angeles. In the years prior to and including 1948 respondent was a member of an association of employers whose employees were represented in collective bargaining by Local 576 (CIO). In the Los Angeles area during this period the jurisdiction of Local 576 extended primarily to upholstered furniture factories, while the "case goods" or woodenware plants were predominantly AFL. Respondent was principally a case goods manufacturer. Since the CIO commanded generally higher wages than the AFL, respondent under its contract with Local 576 was required to pay wages about 20 cents an hour in excess of those paid by most of its competitors. Respondent's contract also required it to pay a $3.00 monthly health insurance premium for each of its employees. The contract thus placed respondent at a competitive disadvantage. It contained other provisions regarded by respondent as burdensome. When in 1948 it appeared that the majority of the CIO employers group were prepared to indorse a master contract which was substantially the same as the existing contract, respondent in the spring or early summer of that year withdrew from the association and notified Local 576 that it would terminate its contract on September 1, 1948, the anniversary date of the contract.

At about the time of its withdrawal from the association, respondent engaged a labor relations consultant, Joseph Brodine, who was representing certain other employers who had withdrawn from the association. Brodine informed Sam Ronney (one of the respondent co-partners) that the AFL was organizing a new local for furniture workers in the area (Local 2488) and that there was a good chance of getting the AFL in respondent's plant. At Brodine's suggestion, Ronney prepared a list of respondent's employees with up-to-date addresses, and submitted it to Brodine to be turned over to the Los Angeles District Council of Carpenters (AFL), which was directing the organizational campaign of Local 2488. Ronney in his testimony gave the reason for this action: "I was very anxious to get a contract similar with my competitors." The bid of the AFL for respondent's employees was unsuccessful. Using the list obtained from Brodine, it sent letters to each of respondent's employees but got no returns.

After Ronney had furnished the list to Brodine he consulted another labor relations counselor, Irvin Stalmaster. Stalmaster represented an AFL employers group which in July of 1948 had negotiated a bargaining contract with the AFL. Stalmaster advised Ronney that it had been a mistake to send the list to the AFL and that he should begin negotiations with Local 576 for a new contract. Ronney thereupon discharged Brodine and engaged Stalmaster as counsel. Negotiations with Local 576 began in August, 1948.

While the negotiations were in progress respondent called two or three formal meetings of its employees and conducted informal discussions at the morning and afternoon rest periods at which Ronney and other representatives of management spoke to the employees concerning the points of disagreement between respondent and Local 576. Ronney told the employees that his proposals were as good, if not better than those of Local 576; that Local 576 was "a bunch of Communists and crooks," and that he would not sign a contract with them; that before he would let the CIO run his plant he would close it down, as he had earned enough money and was keeping the plant open solely for the benefit of the employees. Ronney denied making some of these statements, but at least two Board witnesses testified as to each. The Board, as it had a right to do, credited the Board witnesses.

Respondent closed its plant on November 19, 1948 for economic reasons, as the Board concedes. Negotiations with Local 576 continued. While the plant was closed respondent kept four employees on its payroll. When operations were resumed in January of 1949, Furniture Workers Union, AFL, Local 3161 (herein Local 3161) began to show interest in respondent's plant. As activity at the plant gradually increased in January and February respondent hired an almost entirely new complement of personnel. Only two of the employees who were working at the time of the shutdown were recalled during this period. One of these failed to report immediately and the position was filled by a new employee. To secure new help Sam Ronney directed his secretary to call Local 3161 (AFL), the State Employment Service, public employment agencies, and to place newspaper advertisements. He gave express instructions not to call Local 576. Most of the new persons employed came from the hiring hall of Local 3161.

On February 17, 1949, the final meeting in the negotiations with Local 576 was held. At this meeting respondent for the first time demanded that the minimum wage be reduced to approximate that which prevailed in AFL plants and proposed that the health insurance program be abandoned. The meeting ended in anger, with the understanding that respondent would submit its final offer in writing. On February 23, 1949, one day before respondent's final offer was transmitted to Local 576, Local 3161 petitioned the Board for certification as bargaining agent for respondent's employees. Neither in the petition nor in the preliminary discussions between respondent, Local 3161 and Board officials was it disclosed to the Board that respondent was still in negotiations with Local 576.

On February 28, 1949, respondent and Local 3161 executed an agreement for a consent election. A list of eligible voters was taken from the February 25, 1949 payroll. On that date respondent had 20 employees. Only five of these had been in the employ of respondent at the time of the shutdown. The remaining 15 were new employees. Nine of the new employees were from the hiring hall of Local 3161. Another accompanied a person who had been sent by Local 3161. Two, though not shown to have been sent by Local 3161, were members of that union. The record does not show where respondent procured the remaining three employees, or their union affiliation.

On March 10, 1949 the election was held. Fifteen of the 20 eligible voters...