National Labor Relations Bd. v. National Licorice Co.

• Citation: 104 F.2d 655
• Decision Date: 12 June 1939
• Docket Number: No. 229.,229.
• Parties: NATIONAL LABOR RELATIONS BOARD v. NATIONAL LICORICE CO.
• Court: U.S. Court of Appeals — Second Circuit

104 F.2d 655 (1939)

NATIONAL LABOR RELATIONS BOARD v. NATIONAL LICORICE CO.

No. 229.

Circuit Court of Appeals, Second Circuit.

June 12, 1939.

Charles Fahy, Gen. Counsel, and Robert B. Watts, Associate Gen. Counsel, National Labor Relations Board, both of Washington, D. C., David A. Morse, Atty., National Relations Board, of Newark, N. J., and Laurence A. Knapp, Bertram Edises, and Malcolm S. Mason, Attys., National Labor Relations Board, all of Washington, D. C., for petitioner.

Kotzen, Mann & Siegel, of New York City (Abraham Mann, of New York City, of counsel), for respondent.

Before L. HAND, CHASE, and PATTERSON, Circuit Judges.

L. HAND, Circuit Judge.

This case comes up upon a petition by the National Labor Relations Board for an order, enforcing its order, entered against the respondent on May 31, 1938, after a hearing upon a complaint under the National Labor Relations Act, 29 U.S. C.A. § 151 et seq. The respondent is a company engaged in interstate commerce, and therefore subject to the jurisdiction of the Board: the unfair labor practices found against it were that it had refused to bargain with the Bakery & Confectioners National Union which represented a majority of its workmen; that it had interfered with, and coerced, them, while acting through that union; and that it had fostered and dominated a company union — the Collective Bargaining Committee of National Licorice Co. — through which it made unlawful contracts with its workmen, unduly restricting their rights secured by the statute. The upshot of the order was that the respondent should withdraw recognition from the company union, that it should inform its workmen, who had signed the contracts, that they were unlawful and that it should bargain with the Bakery & Confectioners Workers Union. The respondent raised two objections: (1) that the evidence did not sustain the Board's findings and conclusions; and (2) that if it did, the Board never acquired jurisdiction to deal with the company union or its contracts.

We begin with a narrative of those findings which we think had substantial evidence to support them. The respondent had 140 workmen and workwomen, from whom the union had secured 99 signed applications by July 14th: although not yet accepted by the union, each application designated it as the applicant's bargaining agent meanwhile. So armed, Galvin, the union's president, wired the company on the evening of the 14th, asking for a conference. Sandford, the company's president, at once called a conference of the men, and urged that they do not avail themselves of any "outside union", which he said he would not recognize if formed. He suggested that they should choose a committee of their own, adding, however, that he had no objection to their joining a union, and that he would not discriminate against them if they did. On the 20th Galvin and another officer of the Union conferred with Sandford, presenting to him a proposed contract. Galvin had 109 signed applications at this conference, but he refused to show them to Sandford, giving as a reason that he feared the disclosure of the names might prejudice the company against the signers. Sandford answered that it made no difference, as he could not tell from the applications whether the men had in fact signed them. Nevertheless, Galvin then offered to let him see them, provided that, if he could prove that they made up a majority, he would bargain with the union. This Sandford refused, and the conference ended inconclusively. Sandford had an interview that afternoon with some of the men, in which he offered a five per cent wage increase and one month's vacation. This he asked them to pass on to the others and bring back their answer. Healey, a superintendent, then selected some workmen to get a petition signed, nominating a committee to take the place of the union, but this proved abortive. Another meeting took place on the afternoon of the 29th at which Galvin, Anderson — the union's vice-president — its attorney, and another officer were present, and in which the union's demands were discussed, among which were a closed shop, a change in the wage schedule and a notice to the union with opportunity to be heard, in the case of all discharges. Sandford spoke from a prepared statement, refused the demands, and made a counter proposal in substantially the same terms as those of July 20th. He declared that he would not deal with the union, but would make individual contracts with the men, the union's function being properly limited to passing on to them the result of any conferences, in order that they might individually sign. The conference went over to August fifth, and on the second the men struck. Anderson swore that the union had nothing to do with calling this strike, and the Board so found. Apparently the workmen remained in the factory for four hours, and finally had to be ejected by the police; but as the Board's order does not require any reinstatement, we disregard this feature of the dispute, though the strike does seem to have been a short "sit down". Sandford refused to have any further dealings with the union after this, and there was some evidence that while the strike was on, he sent agents among the strikers to persuade them to come back, and dissuade them from further dealing with the union. By the 25th enough did come back to start work, and by September 20th, substantially all were reëmployed. The origin of the company union dated from August 27th when, according to Healey, one McCann, a workman, saw him secretly, said that he was "fed up with the union", and asked whether the men could...