National Labor Rel. Bd. v. Peter CK Swiss Choc. Co.

• Decision Date: 16 July 1942
• Docket Number: No. 270.,270.
• Parties: NATIONAL LABOR RELATIONS BOARD v. PETER CAILLER KOHLER SWISS CHOCOLATES CO., Inc.
• Court: U.S. Court of Appeals — Second Circuit

130 F.2d 503 (1942)

NATIONAL LABOR RELATIONS BOARD v. PETER CAILLER KOHLER SWISS CHOCOLATES CO., Inc.

No. 270.

Circuit Court of Appeals, Second Circuit.

July 16, 1942.

Joseph B. Robison, of Washington, D. C. (Robert B. Watts, General Counsel, Ernest A. Gross, Associate General Counsel, Gerhard P. Van Arkel, Asst. General Counsel, and Robert Todd McKinlay, Atty., National Labor Relations Board, all of Washington, D. C., on the brief), for petitioner.

Henry S. Drinker, Jr., of Philadelphia, Pa. (Henry S. Fraser, of Syracuse, N. Y., and Henry S. Drinker, Jr., and Lewis H. Van Dusen, Jr., both of Philadelphia, Pa., on the brief), for respondent.

Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

L. HAND, Circuit Judge.

The Board's order in this case enjoined the respondent company in the usual form from interfering with an unaffiliated union of its employees, called "The Peter Cailler Kohler Union" — which we shall speak of as "The P. C. K." — and directed it to reinstate with back pay an employee, named Whipple, whom it had discharged, and who at that time — September, 1940 — was, and for some time before had been, president of "The P. C. K." The Board based its order partly upon findings that the company had long harbored hostility towards unions and Whipple as their promoter, and that this finally culminated in the discharge. These findings we shall not, however, consider, as we should be obliged to do if we thought the excuse given for his dismissal adequate. In that event we should have to decide whether there was evidence to support the conclusion that the excuse, though the avowed reason, was not the real one. Since we think that the excuse was itself invalid, we need go no further.

The company uses large quantities of milk in making its product; and to secure this cheaply it had for many years before 1938 been under contract with the Dairymen's League to accept all the League's "surplus" milk; that is, all the milk which the League did not dispose of to its ordinary customers. It resulted that in seasons of high yield the League sold large quantities of milk to the company, and that in seasons of low yield the company was forced to use substitutes. Thus, by insuring a full market to the League at peak, and by never demanding any part of the supply which the League could sell elsewhere, the company got its milk at substantially lower prices. The Dairymen's League is a cooperative association of farmers who pool their milk and sell it collectively; the Dairy Farmers' Union — which we shall call "The Union" — is another similar association; both operate in the Mohawk Valley from which the company's milk comes, and in which its factory is situated. Both associations are made up only of farmers in the dairy business; neither is, or has any relations with, a labor union; each is merely a cooperative group of producers organized to sell their milk on the best possible terms. They are competitors, and "The Union" was very hostile to the League.

In August, 1939, "The Union" declared a "milk strike," or — as it called it — a "milk holiday," by which it tried to raise the price by withholding the supply from the cities, particularly New York. The chocolate company helped the Dairymen's League in its successful effort to defeat this "strike"; it used substitutes in its own manufacture so as to release milk for the League to take the place of "The Union's" milk, and it allowed the League to use its cooling plant and its trucks. In September, 1940, "The Union" proposed another "milk holiday," and on September 28th Whipple called a meeting of "The P. C. K." to take some action. Very few members attended, and there was some reason to suppose that he called the meeting only to promote his election for the office of county clerk, for which he was running on the ticket of the American Labor Party. However, as the Board has found that the action taken at the meeting was a genuine expression of those present, including Whipple, and as its decision is supported by substantial evidence, we must take it that the action was in good faith. A resolution was passed which we quote in the margin.¹ When the resolution was published in the local newspapers, the company considered it a grave injury to its business, which perhaps it was; and dismissed Whipple as the moving spirit. The sole question is whether he and the others who passed the resolution were acting within their right "to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection." § 157, Title 29 U.S.C.A.

The company argues that the National Labor Relations Act was designed to protect only mutual relations between "employees," as § 2(3) defines that word; and that, since "The Union" was not made up of "employees," § 7 did not sanction "The P. C. K.'s" action in its support. Both the text and the purpose of the act show this position to be untenable. It is of course true that only those "employees" can invoke § 7, who are defined by § 2(3), and that therefore the members of "The Union" could not do so. It follows that, so far as the resolution was a "concerted activity" for the "mutual aid or protection" of the farmers on the one hand and the members of "The P. C. K." on the other, the section did not cover it. So far, however, as it was a "concerted activity for the purpose" of the "mutual aid or protection" of the members of "The P. C. K." themselves, the section did cover it, though perhaps the more accurate word in that situation would have been "common" instead of "mutual." Certainly nothing elsewhere in the act limits the scope of the language to "activities" designed to benefit other "employees"; and its rationale forbids such a limitation. When all the other workmen in a shop make common cause with a fellow workman over his separate grievance, and go out on strike in his support, they engage in a "concerted activity" for "mutual aid or protection," although the aggrieved workman is the only one of them who has any immediate stake in the outcome. The rest know that by their action each one of them assures himself, in case his turn ever comes, of the support of the one whom they are all then...