National Labor Relations Bd. v. National Motor B. Co.

• Decision Date: 15 June 1939
• Docket Number: No. 8869.,8869.
• Citation: 105 F.2d 652
• Parties: NATIONAL LABOR RELATIONS BOARD v. NATIONAL MOTOR BEARING CO. INTERNATIONAL ASS'N OF MACHINISTS AND PRODUCTION WORKERS LOCAL 1518, v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Ninth Circuit

105 F.2d 652 (1939)

NATIONAL LABOR RELATIONS BOARD v. NATIONAL MOTOR BEARING CO. INTERNATIONAL ASS'N OF MACHINISTS AND PRODUCTION WORKERS LOCAL 1518, v. NATIONAL LABOR RELATIONS BOARD.

No. 8869.

Circuit Court of Appeals, Ninth Circuit.

June 2, 1939.

As Amended June 15, 1939.

COPYRIGHT MATERIAL OMITTED

Charles Fahy, Gen. Counsel, Robert B. Watts, Assoc. Gen. Counsel, and Laurence A. Knapp, A. Norman Somers, Ruth Weyand, and Robert S. Erdahl, Attys., National Labor Relations Board, all of Washington, D. C., and John T. McTernan, Atty., National Labor Relations Board, of San Francisco, Cal., for petitioner National Labor Relations Board.

Joseph A. Padway, of Washington, D. C., and I. B. Padway, of Milwaukee, Wis., for petitioner International Ass'n of Machinists and Production Workers Local 1518, Affiliated with International Ass'n of Machinists.

Charles S. Wheeler, Jr., of San Francisco, Cal., and J. Marcus Hardin, of Oakland, Cal., for respondent.

Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.

STEPHENS, Circuit Judge.

This case comes before the Court upon petition by the National Labor Relations Board for the enforcement of an order issued by it against respondent, and upon petition by a labor union, alleged to be adversely affected by said order, to set the same aside. The proceedings have been consolidated for hearing and determination.

The International Association of Machinists, affiliated with the American Federation of Labor, hereinafter called the A. F. of L., will be called the I. A. M.; Production Workers Local 1518 will be called the Union; and International Union, United Automobile Workers of America, Local No. 76, affiliated with the Committee now Congress for Industrial Organization, will be called the U. A. W. The employer will be called the respondent.

Respondent is engaged in the manufacture, sale and distribution of shims and oil seals or retainers. It advertises on a nation-wide basis and sells shims in more than half of the States, and retainers in all. Much of the raw material entering into the products of respondent is procured from States other than California where respondent's factory is located. All of respondent's competitors are located outside of California.

The employees in the respondent's tool and die department have always been members of certain I. A. M. locals which are not involved in this proceeding. There had never been any kind of agreement between the I. A. M. and the respondent, but it had made it a practice to hire its tool and die workers from the I. A. M. and pay them the prevailing union wages.

Some time in August, 1936, about 17 of respondent's production employees attended a meeting of I. A. M. Local 284, and signed applications to join the same. These applications were rejected because Local 284 had been instructed by the I. A. M. that it could not admit to membership the production workers since they were not skilled machinists. A few days before February 21, 1937, the U. A. W. began organization. Prior to February 27, 1937, the U. A. W. and its supporters held two preliminary organizational meetings, distributed leaflets, and secured employee applications both at the plant and at the homes of the employees. Respondent knew of the U. A. W.'s efforts to organize its employees. A third U. A. W. meeting was set for February 28, 1937, but prior to that time on February 27, 1937 the respondent shut down its plant without warning to its employees. On the arrival of the employees at the plant for work on February 27, 1937, they found it closed and guarded by city police. All foremen were admitted save one, who was a member of the U. A. W.

On finding the plant closed, Frank Slaby, president of the U. A. W., gained admittance to the plant in order to see its manager, but was ejected by the police before meeting the manager.

On March 1, 1937 the U. A. W. submitted to respondent a form of contract containing a provision that the U. A. W. be recognized as the sole bargaining agent of the employees, and requested respondent to bargain with it. Respondent's manager was informed of the receipt of this contract by telephone on Monday morning, March 1, 1937, while at the office of his attorney. He did not at any time communicate with the U. A. W. or in any manner afford them an opportunity to substantiate their claims as sole bargaining agents of the employees. Instead, on the afternoon of March 1, 1937, he signed a contract with the I. A. M., whose officials had that day presented to respondent a letter which stated that a majority of the employees had been affiliated with the I. A. M., and requested a conference. The I. A. M. contract provided that the respondent was to re-open its plant, that the I. A. M. members were to return to work and that the pending negotiations were to continue, the results thereof to be retroactive to the time of resumption of full operations.

The U. A. W. had begun picketing on March 1, 1937. Respondent reopened its plant on March 8, 1937, and a large number of employees returned to work with a police escort. During the succeeding weeks, more employees returned, but the plant did not commence actual operations until March 15, 1937. Two weeks later the respondent began to hire new employees to take the place of those who had not returned.

On April 19, 1937, the respondent entered into a contract with the Union, providing for a closed shop, and wages, hours and other conditions of employment. The contract was for the period of a year, to be renewed from year to year unless terminated by either party by notice at least thirty days prior to the annual expiration date.

The U. A. W. filed its charge with the Board on March 4, 1937. On May 3, 1937, the Board issued its complaint alleging that respondent had engaged in and was engaging in unfair labor practices defined in § 8 (1), (3) and (5) of the act. For convenient reference we quote certain provisions of the act.

"Sec. 7 29 U.S.C.A. § 157. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection.

"Sec. 8 29 U.S.C.A. § 158. It shall be an unfair labor practice for an employer — "(1) To interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 157. * * *

"3. By discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this Act chapter * * * shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this Act chapter as an unfair labor practice) to require as a condition of employment membership therein, if such labor organization is the representative of the employees as provided in section 9(a) 159 (a) of this title, in the appropriate collective bargaining unit covered by such agreement when made. * * *

"(5) To refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a) 159(a) of this title.

"Sec. 9 29 U.S.C.A. § 159 (a). Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment. * * *

"(b) The Board shall decide in each case whether, in order to insure the employees the full benefit of their right to self-organization and to collective bargaining, and otherwise to effectuate the policies of this Act chapter, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof. * * *"

After making certain findings, which will be referred to below, in part, the Board concluded that the allegations of the complaint were proven with respect to unfair labor practices. It made an order on February 18, 1938, requiring respondent (1) to cease and desist from (a) interfering with, restraining or coercing its employees in the exercise of the rights guaranteed in § 7 of the Act; (b) maintaining surveillance of the meetings and activities of the U. A. W. or any other labor organization of its employees; (c) discouraging membership in U. A. W. or encouraging membership in the Union or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire and tenure; (d) refusing to reinstate 56 listed employees or requiring as a condition to their reinstatement, membership in the Union; (e) giving effect to its contracts with the Union; (f) recognizing the Union as the exclusive representative of its employees; (g) refusing to bargain collectively with the U. A. W. as the exclusive representative of its production, maintenance, and shipping employees, exclusive of supervisory employees, foremen, regular clerical employees, and employees in the tool and die department, in respect of rates of pay, wages, hours and other conditions of employment. The order also required respondent (2) to take the following affirmative action: (a) offer the 56 employees reinstatement; (b) make such employees whole for loss of pay; (c) inform such employees that they are free to join the U. A. W.; (d) upon request, bargain collectively with U. A. W. as the exclusive representative of its production, maintenance, and shipping employees; (e) post notices that it would cease and desist as aforesaid, and that its employees were free to join or assist any labor organization.

Leaving for subsequent discussion...