National Labor Rel. Bd. v. Stow Manufacturing Co.

• Decision Date: 07 December 1954
• Docket Number: No. 74,Docket 23104.,74
• Citation: 217 F.2d 900
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. STOW MANUFACTURING COMPANY, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

217 F.2d 900 (1954)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. STOW MANUFACTURING COMPANY, Respondent.

No. 74, Docket 23104.

United States Court of Appeals Second Circuit.

Argued October 6, 1954.

Decided December 7, 1954.

COPYRIGHT MATERIAL OMITTED

Fannie M. Boyls, Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D. C., George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, Jean Engstrom, Attorneys, National Labor Relations Board, for petitioner.

George C. Coughlin, Harrison, Coughlin, Dermody & Ingalls, Binghamton, N. Y., for respondent.

Before CLARK, Chief Judge, and L. HAND and FRANK, Circuit Judges.

L. HAND, Circuit Judge.

This case comes up on a petition of the Labor Board to enforce its order entered upon a complaint against the respondent, a corporation engaged in interstate commerce in the manufacture of machine tools, machine tool accessories, and the like. The complaint was filed upon a charge by the International Association of Machinists — which we shall call the Union — and was referred to a trial examiner who held extensive hearings. The Board accepted the examiner's findings of fact in his intermediate report, and entered an order finding the respondent guilty of violations of §§ 8 (a) (2) and 8(a) (5) of the Labor-Management Act, 29 U.S.C.A. § 141 et seq. The examiner had recommended that the order should also include a violation of § 8(a) (1) of the Act; but the Board held that there was no evidence of this except insofar as such a violation was necessarily included in violations of §§ 8(a) (2) and 8(a) (5); and we shall therefore confine our consideration to those two subdivisions. The particular conduct enjoined upon the respondent was to bargain collectively with the Union as its exclusive representative and to withhold all recognition from what the Board held to have been a competing labor union under the name of "The Monthly Meeting of All Departments." Incidentally, the order also forbade the respondent from interrogating its employees regarding their union activities and from engaging in certain other activities that we shall consider after our discussion of the two main questions.

The facts that are either established beyond dispute, or were found upon substantial evidence were as follows. Twice before September 1951 the Union had tried to organize the respondent's factory, both times unsuccessfully. In that month it began to do so again, and by September 20th, 41 of the 70 employees had signed cards as follows: "I, the undersigned, employee of Stow Mfg. Co. * * * hereby authorize the International Association of Machinists or any District or Local Lodge thereof to represent me for purposes of Collective Bargaining and, in my behalf, to negotiate and conclude all agreements as to hours of labor, wages or other conditions of employment." In spite of this unequivocal language the respondent argues that at least five of the cards should not be counted because the signers supposed that they were only asking that an election should be called at which they would vote for or against the Union as they then pleased. Since a reduction of these five votes would still leave a bare majority, we further understand the argument to be that the testimony of the signers puts in doubt at least one of the other putative votes and that that is enough. Assuming as much, we can find only three employees — Cacyuk, Charles Brown and Todd — who said that they understood the cards not to be votes for the Union. It is true that the testimony of several of the others can be so read, but it is not clear that it should be; and we cannot say, in the face of the express language of the cards themselves, that the examiner's finding that a majority meant to make the Union their representative was not supported by substantial evidence.

After securing these cards the Union on September 20 wrote a letter to the respondent, asking to be recognized as the bargaining agent of the employees. The respondent had already got wind of the Union's efforts; and on the 18th had called a meeting of employees to "tell them our side of the story, give our opinion on the unions, etc."; and at this meeting the president had presented arguments against unions in general. He called a second meeting on September 25th, telling that he had received the letter; and on the same day the respondent's lawyers answered it, declaring that the respondent would ask the Board to conduct an election. On the 26th, both the Union and the respondent filed petitions for that purpose, and on October 11th, they entered into a written agreement for an election "by secret ballot to be held under the supervision of the * * * Regional Director" who should certify the result. The regional director held an election two weeks later — i. e., on October 25th — at which 68 valid ballots were cast, 52 against the Union and 16 in favor of it; however, he did not certify the result for four months, i. e., until March 20, 1952; and the certificate that he then did issue declared only that a majority of the valid ballots had not been cast for the Union, and that it was not the exclusive representative of the employees.

The reason for this delay was what had taken place before the election on October 25th and afterwards. After the parties had agreed on October 11th to hold an election, the respondent called nine meetings before the 25th — each with one of the nine "departments" of the respondent — at which, in the words of the examiner, the president "opened each meeting by giving" a "speech * * and then conducted a question and answer period in which he considered and discussed questions, suggestions and complaints of the employees." The content of the speeches referred to is too long to quote, and some of it was within the privilege granted under § 8(c), being no more than the expression of the president's "views, argument, or opinion" without "threat of reprisal or force or promise of benefit." But there was much that was not so limited. For example, he said that, although "he could not promise any additional bonuses or wage raises," he "read to them the letter of the Company sent the employees with the 1950 bonus, in which it advised that that small bonus was the best it could do at that time, but expressed the hope that it would be larger." He added that the company was considering further improvements in the profit-sharing plan then in force. He said he would improve the "incentive system," though he could not say what definite ideas he had in mind for doing so. At another time in answer to a suggestion for better inspection of machines, he said that perhaps there ought to be an additional inspector; and again and again he discussed grievances that the employees raised at the meeting. In some cases he indicated that he would consider these complaints and a few he actually remedied. Although the regional director had not reported on the election, on the 29th of October the Union filed an objection to it, which, however, it withdrew on March 6, 1952, when it substituted the charge on which the present complaint was later founded. Meanwhile the respondent began to hold regular monthly meetings of the employees throughout the winter, and until at least May of 1952. These were meetings of the employees of all the departments, and were an established institution of the respondent under the title: "The Monthly Meetings of All Departments." These meetings followed in general the same pattern as the nine meetings of the several "departments," except that, as we have just said, the "departments" met in one body.

It was upon this evidence that the Board found the respondents guilty, (1) of refusing to bargain with the Union, and (2) of dominating "The Monthly Meetings of All Departments," which was, it found, a "labor organization" under § 2(5) of the Act. As to the first charge the Board held that the respondent's refusal to recognize the Union as a bargaining agent from the outset was not in good faith; and that the election of October 25th did not cancel employees' choice by cards in September, because of the respondent's improper interference with the employees' free choice by the meetings before October 25th. The second charge the Board supported on the ground that, as we have said, "The Monthly Meetings of All Departments" was a "labor organization" that the respondent had "dominated" within the meaning of § 8...