National Labor Rel. Bd. v. THE SUMMERS FERTILIZER CO., 5253.

• Citation: 251 F.2d 514
• Decision Date: 14 January 1958
• Docket Number: No. 5253.,5253.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. THE SUMMERS FERTILIZER COMPANY, Inc., et al., Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

251 F.2d 514 (1958)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. THE SUMMERS FERTILIZER COMPANY, Inc., et al., Respondents.

No. 5253.

United States Court of Appeals First Circuit.

Heard November 6, 1957.

Decided January 14, 1958.

Robert J. Wilson, Atty., N.L.R.B., Washington, D. C., with whom Jerome D. Fenton, Gen. Counsel, Stephen Leonard, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Frederick U. Reel, Atty., N.L.R.B., Washington, D. C., were on the brief, for petitioner.

Herbert H. Bennett, Portland, Me., with whom Mayo S. Levenson, Portland, Me., was on the brief, for respondents.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

HARTIGAN, Circuit Judge.

The petitioner, the National Labor Relations Board, pursuant to § 10(e) of the National Labor Relations Act, as amended, 61 Stat. 136, 29 U.S.C.A. § 151 et seq., (hereafter called the Act), seeks enforcement of its order issued against the Summers Fertilizer Company, Inc. (hereafter called Summers) and Northern Chemical Industries, Inc. (hereafter called Northern). In essence the Board ordered Summers and Northern, which although different corporations had the same president and vice-president and a common office and until January 1, 1956 a common payroll, to cease recognizing the Summers Committee and Northern Committee respectively as the representatives of their employees for collective bargaining purposes, until such organizations were certified by the Board and to reinstate certain employees who had been discriminatorily discharged in violation of § 8(a) (3) and (1) of the Act. The Board found that Summers and Northern had assisted and contributed financial and other support to these Committees and had thus committed an unfair labor practice under § 8(a) (2) and (1) of the Act. The Board refused to adopt the finding of the trial examiner that Northern and Summers had unlawfully dominated the Committees and, therefore, did not order the Committees to be disestablished.

It is necessary to examine the record as a whole to see whether there is substantial evidence therein to support this finding of unlawful support. Universal Camera Corp. v. N. L. R. B., 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. The Summers and Northern plants are located about five miles apart, in a rural area of Maine, the former being a fertilizer plant with about twelve employees and the latter is a manufacturer of chemicals employing about forty persons. In the summer of 1955 District 50, United Mine Workers, and the American Federation of Labor-Congress of Industrial Organizations attempted to organize the respondents' employees. On August 9, 1955 two representatives of District 50 met with the respondents' general manager and assistant general manager. One of these representatives testified that the other produced authorization cards signed by fifty-three of the respondents' employees but that respondents' officers refused to examine them. Colosi, the UMW representative, was then reported to have stated that as the Board would not certify the UMW because of its failure to file non-communist affidavits, it would be necessary to resort to economic pressure to obtain recognition and that he would wait until eight o'clock the following morning for the respondents' answer. Litty, the respondents' general manager, and Moynihan, the assistant general manager, then inquired of some of the Northern employees the next morning as to whether they would walk out unless Litty signed the UMW recognition statement. Two of the employees were reported to have said a vote would be necessary before a strike was called and the others were said to know nothing about it. In any event no walk-out occurred.

On August 11, 1955 a group of nine employees went from the Northern lunch room to Litty's office to determine whether Northern would recognize the UMW. A negative answer was received but Litty expressed a willingness to talk with the men if they could obtain recognition from a majority of the Northern employees as their bargaining representative. These nine men then returned to the Northern garage where the majority of the employees had met. It was decided that in order to present proof of recognition it would be necessary for all the employees to be at the meeting. It is undisputed that Moynihan was asked to come down to the garage with the payroll list of employees in order that all the employees could be notified to attend the meeting. The record is not clear as to whether it was Moynihan or a minor supervisor, for whose acts Northern was not responsible, who then instructed some Northern employees to notify absent employees to attend a meeting that afternoon to vote on a company union. In any event the absent employees were notified to attend the meeting. At least one was under the impression it was a company meeting, and at least two of the absent employees testified they were paid by the company for their time when they came down to the garage to attend the meeting.

The Board found that all employees whether on or off duty, were paid for time spent in attending this and other meetings and the members of the Northern Committee executed an affidavit stating that one of their members had been instructed to notify the absent workers of the meeting and that they would receive pay for attending the meeting. At the afternoon meeting, thirty-six employees signed a paper agreeing to form "our own representatives bargaining committee appointed from the men of N.C.I." (Northern). The same nine men who had met with Litty earlier that day showed this document to him and he then executed a document recognizing the nine men as exclusive bargaining agents for all of the employees of Northern. Negotiations then began between Litty and the Committee which lasted until one o'clock the following morning and from eight o'clock the next morning until late in the afternoon when a memorandum of agreement was submitted by the Committee to the other employees for their approval. This memorandum was approved by a vote of thirty-four to six and a contract was signed by the Committee and by Litty on behalf of Northern later that night. This second meeting was also held in the Northern...