National Labor Relations Bd. v. Highland Park Mfg. Co., 4564.

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Citation: 110 F.2d 632
• Docket Number: No. 4564.,4564.
• Parties: NATIONAL LABOR RELATIONS BOARD v. HIGHLAND PARK MFG. CO.
• Decision Date: 11 March 1940

110 F.2d 632 (1940)

NATIONAL LABOR RELATIONS BOARD v. HIGHLAND PARK MFG. CO.

No. 4564.

Circuit Court of Appeals, Fourth Circuit.

March 11, 1940.

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Charles A. Horsky, Atty., National Labor Relations Board, of Washington, D. C. (Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, Laurence A. Knapp, Asst. Gen. Counsel, and Allen Heald and Malcolm S. Mason, Attys., National Labor Relations Board, all of Washington, D. C., on the brief), for petitioner.

Whiteford S. Blakeney, of Charlotte, N. C. (Guthrie, Pierce & Blakeney, of Charlotte, N. C., on the brief), for respondent.

Before PARKER, SOPER and DOBIE, Circuit Judges.

PARKER, Circuit Judge.

This is a petition to enforce an order of the National Labor Relations Board based on a finding that respondent refused to bargain collectively with a labor union representing its employees. Respondent was ordered to cease and desist from refusing to bargain collectively with the union and from interfering with its employees in the exercise of the rights guaranteed them by Sec. 7 of the National Labor Relations Act, 29 U.S.C.A. § 157; upon request by the union, to bargain with it as the exclusive representative of employees; and to embody in a signed agreement any matters upon which an understanding might be reached. The order was entered May 26, 1939, in a proceeding commenced in August 1937, upon petition of the union, which was shown at the time of the filing of the petition to represent 80 to 85 per cent of respondent's 1,000 to 1,100 employees. Petition for enforcement was filed with this Court October 12, 1939, and was set for hearing at the January term 1940. On December 29, 1939, respondent filed a motion with the Court that the cause be remanded to the Board to take additional evidence for the purpose of ascertaining whether the union still represented a majority of respondent's employees. Three questions are presented for our consideration: (1) Whether the findings of the Board are supported by substantial evidence; (2) whether the order of the Board is proper; and (3) whether the cause should be remanded for the taking of additional testimony.

On the question as to whether the order is supported by substantial testimony, there is evidence tending to establish the following facts: Late in May 1937 the union, having attained the right to represent 80 to 85 per cent of respondent's non-supervisory production and maintenance employees, requested and was granted an opportunity to confer with the officers of respondent. At this conference the union representatives submitted a draft of contract as a basis for negotiations, but no conclusions were reached and a second conference, held about ten days later, was cut short as a result of the illness of respondent's president. Conferences were held on June 15 and 25, but the proposed contract was not read or discussed, and respondent's vice-president took the position that it had complied with the requirement to bargain collectively in as much as its mill superintendent had conferred with the union's shop committee concerning several specific grievances. At a meeting on July 27 the union's representatives made an effort to have the provisions of the proposed contract discussed, but failed, and no counter-proposals were made.

On August 4, 1937, another meeting was had. The representatives of the union presented a modified draft of its proposed contract providing for a smaller wage increase than it had originally sought, abandoning an earlier provision that new employees join the union as a condition of employment and providing for the enforcement of the contract's provision against strikes by the discharge and expulsion from the union of employees advocating violation of contract. Respondent's officers at first declined to enter into a detailed discussion of the union's proposals, and insisted that it had already satisfied the requirements of the law by meeting with the union committees. When the union's representatives stated that they would resort to action before the Board, respondent's officers agreed to discuss the union's proposals seriatim. The proposed contract was then read, and respondent disposed of most of its substantive provisions with the statement that it was already following the practices provided for and intended to continue to do so, but would not enter into any agreement with regard thereto. The proceedings of the meeting are more fully described by the Board in its findings as follows:

"The first paragraph of the draft involved the fixing of a term for the operation of the contract. The respondent's representatives were unwilling to accept such a provision. However, there was little discussion upon the subject, for the union representatives were anxious to reach and have considered the more important substantive provisions. The second paragraph, setting forth that the parties would preserve harmonious relations and protect `the interest of the textile industry' occasioned little comment. The discussion then turned to the section providing for a workweek of 40 hours, and a workday of 8 hours, and for an increased rate of compensation for overtime work. The respondent's president, C. W. Johnston, stated that the respondent already was operating on a 40-hour week, 8-hour day basis and proposed to continue doing so, that its employees were not and would not be required to work overtime, that, consequently, there was no need for an agreement upon these matters. With respect to the provision for observance of Labor Day, Thanksgiving Day, Christmas Day, and Fourth of July, and the payment of compensation at the rate of `time and one-half' for any work performed on those days, the respondent's representatives stated that the respondent, as a matter of practice, had always granted its employees holidays, that it had no objection to allowing these holidays if the `employees wanted them,' but it `didn't care to agree to the section * * * as a stipulation to be put into effect as a regular thing.' A like position was taken by the representatives regarding a provision prohibiting the employment in the mills of any person under 16 years of age. They contended that the state law prohibited such employment, that the respondent was not employing persons below that age and would not do so, that, therefore, an agreement concerning that matter was unnecessary. Similarly, a provision for settling through arbitration questions concerning `work loads, proper distribution, or reclassification' was set aside, because `there is no use trying to find trouble and arbitrate some conditions that don't exist.' Provisions for an increase in wage rates, for a `preferential shop' and check-off, were flatly rejected. Concerning the requested wage increase, the respondent's representatives contended that `competition would not allow us to raise wages.'

"Throughout the August 4 conference, the respondent's representatives stressed the fact that while the respondent was always ready to confer with union committees on employee grievances, the respondent had no intention of entering into an agreement or signing a contract with the union. The respondent's president, C. W. Johnston, was emphatic in this. In connection with a provision of the proposed contract embodying the principle of seniority for increases and reductions of working force, a principle which the respondent's representatives asserted the respondent had followed in the past and would adhere to in the future, Johnston was expressly asked by the union representative, Lawrence, `Will you agree to this seniority provision?' Johnston replied, `I am not going to agree to a thing.' At the hearing Johnston testified that his reply to this question was, `I would not sign anything'; that `Mr. Brewer and Mr. Lawrence (union representatives) insisted on signing a contract which I stated I would not sign it because the law didn't require me to do it and I had no idea of signing a contract.' While Johnston's testimony in terms refers only to the signing of a collective contract and not to the making of an agreement, we are satisfied, and find, upon the foregoing facts and the record, including the circumstances mentioned below, that the respondent had no intention whatsoever of entering into any collective agreement, written or oral, with the union, and did so inform the union representatives.

"At what proved to be the end of the conference, the union representatives, `for the purpose of determining * * * whether or not it was possible to bargain at all' with the respondent, inquired of Johnston whether the respondent would be willing to make an oral agreement with the union covering merely some of the provisions of the proposed contract, `enough of (the union's) * * * requests' to satisfy both the union and the respondent, and then to post in the respondent's mills a written statement of the terms thereof as a `statement of policy,' signed by Johnston. The union representatives indicated, as an inducement to such action, that the union would be willing to have the statement unsigned by it. Johnston replied that the respondent would make no agreement with the union, even under those conditions. The union representatives then asked whether the respondent would do so if the respondent's superintendent rather than Johnston were to sign the statement of policy. Johnston's reply was again in the negative. Finally, he was asked whether the respondent would make such an agreement and merely have its superintendent read to the employees an unsigned written statement thereof as a statement of policy for the ensuing year. Johnston answered that the respondent would not do so, and the conference thereupon ended."

On August 15 another conference was held, at which the Southern director of the Textile Workers Organizing Committee took the matter up with officers of respondent without result.

The Board summarized its findings and conclusions on...