National Labor Relations Bd. v. Englander Company

• Decision Date: 26 January 1959
• Docket Number: No. 15832.,15832.
• Citation: 260 F.2d 67
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The ENGLANDER COMPANY, Inc., and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Warehousemen's Local Union No. 117, AFL-CIO, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

260 F.2d 67 (1958)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The ENGLANDER COMPANY, Inc., and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Warehousemen's Local Union No. 117, AFL-CIO, Respondents.

No. 15832.

United States Court of Appeals Ninth Circuit.

October 10, 1958.

As Amended on Denial of Rehearing January 26, 1959.

Jerome D. Fenton, General Counsel, Thomas J. McDermott, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Fannie M. Boyls, Attorney, N.L.R.B., Washington, D. C., for petitioner.

Walsh & Margolis, Harry Margolis, Seattle, Wash., for respondent Englander Co.

Bassett, Davies & Roberts, Richard P. Donaldson, Seattle, Wash., for respondent International Brotherhood of Teamsters, etc.

Before DENMAN and HAMLIN, Circuit Judges, and BOWEN, District Judge.

HAMLIN, Circuit Judge.

The National Labor Relations Board, hereinafter called the Board, has petitioned this court for the enforcement of its order against Respondent Company, the Englander Company, Inc., its officers, agents, successors and assigns, hereinafter called Englander, and Respondent Union, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Warehousemen's Local Union No. 117, its officers, agents, successors and assigns, hereinafter called Teamsters.

This court has jurisdiction by virtue of Section 10(e) of the National Labor Relations Act as amended, 29 U.S.C.A. § 160(e).

The proceedings before the Board arose generally as follows. Englander had furniture manufacturing plants in Oakland and Los Angeles. Prior to January, 1956, it did not have a plant in Seattle. In December, 1955, John Sparrowk, general manager of Englander's western division with headquarters at Oakland, learned of the possibility of acquiring the plant in Seattle of Craftmaster, Inc., and went to Seattle to investigate. Negotiations for the purchase of the plant began, and culminated some weeks later on January 16, 1956, with the purchase by Englander of a portion of the Craftmaster inventory and equipment, and the signing of a lease by Englander with the owner of the premises. Englander, however, did not assume any of Craftmaster's contractual obligations.

Craftmaster on January 10, 1956, had terminated the operations of its plant. At the time of its termination and immediately prior thereto, Craftmaster had employed approximately 35 members of the Furniture Workers' Union Local 3197, approximately 71 members of the Upholsterers' Union Local 5, and some truck drivers who were members of the Teamsters' Union (the exact number not being indicated in the record).

Englander had collective bargaining agreements with the Locals of the Teamsters' Union covering its plants in Oakland and Los Angeles; and late in 1955 when Sparrowk was considering the possible acquisition of a plant site in Seattle, he was told by Joseph Dillon, a representative of the Western Conference of Teamsters, that "We expect to have your Seattle operation under contract on the same basis that we have it elsewhere."

Apparently information concerning the possible acquisition of the Craftmaster plant by Englander spread quickly and all three unions — the Furniture Workers' Union, the Upholsterers' Union and the Warehousemen's Local of the Teamsters' Union — began to compete actively with each other to become the bargaining representative.

On January 9th, seven days before Englander acquired the Craftmaster plant, Sparrowk encountered Dillon in Seattle and was introduced by him to Williams, secretary-treasurer of Local 117 of the Warehousemen's Union. Williams then told Sparrowk that inasmuch as "they had contracts with us elsewhere and we had been doing business in Seattle and warehousing and it was handled by the Teamsters, that they expected to have the representation in whatever undertaking we elected to do here." On January 11, 1956, the Furniture Workers' Union sent a letter to Englander, asking for representation; and on January 12 and 13, pickets from both the Furniture Workers' Union and the Upholsterers' Union appeared and marched in front of the plant. The pickets were withdrawn about February 13th. The plant was not being operated during this period.

On February 14, Englander commenced the operation of the plant with 60 employees. More employees were added on February 15 and 16, bringing the total to 96. Sparrowk testified that he was shown on February 13, 14 and 15 applications for membership in the Teamsters by more than 85 employees, and that on February 15th or 16th, when he returned to the Oakland office, he signed the contract with the Teamsters. The contract had previously been submitted to Englander by the Teamsters, but according to the testimony of Englander's witnesses it had not been signed before then by Englander. This contract contained a security clause requiring employees to become members of the Union not later than 31 days following the beginning of their employment or be discharged by the employer.

The Board found that between January 9, 1956, and February 14, 1956, Englander had violated § 8(a) (2) and (1) of the National Labor Relations Act, 29 U.S.C.A. § 158(a) (1, 2) by entering into a collective bargaining agreement with the Teamsters at a time when the number of employees at work was not representative of Englander's anticipated work force, and by rendering other unlawful assistance to the Teamsters; and violated § 8(a) (3) and (1) by a discriminatory denial of employment to Robert A. McDonald because of his refusal to join the Teamsters. The Board further found that since the Teamsters were unlawfully assisted, Englander and the Teamsters violated the National Labor Relations Act by agreeing to and maintaining a Union security clause in their contract.

A great deal of testimony was presented before the Trial Examiner as to what had occurred during the contacts between the members of each of the three competing unions and the top employees of Englander. As is to be expected, this testimony was in considerable conflict.

Section 10(e) of the Act 29 U.S.C.A. § 160(e) provides that "The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive."

The leading case interpreting this Section is Universal Camera v. N. L. R. B., 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. The Court considered whether the 2nd Circuit erred in holding that it was barred from reviewing portions of the Trial Examiner's report that had been rejected by the Board. The Supreme Court held that the Court of Appeals was not barred from reviewing these findings of fact. The Court ruled that the function of the Appellate Court was to view the evidence in the light of the record in its entirety and to set aside the order if not supported by substantial evidence.

I. Is There Substantial Evidence of a Contract Having Been Executed by Respondents Prior to February 14?

The Board found that Englander and Teamsters entered into a collective bargaining contract "prior to February 14" at a time when the number of employees at work was not representative of Englander's anticipated work force.

In the complaint as it was filed originally by the Board, it was alleged that the contract was entered into on or about January 16, 1956. However, the Trial Examiner found that the contract was entered into "prior to February 14, 1956" and the Board adopted that finding.

Sparrowk testified that he signed the contract in Oakland on February 15 or 16. The plant had already been opened on February 14th, and it is conceded by all parties that by February 14 or 15 a very large majority of the workers had signed up with the Teamsters. Other than Sparrowk's testimony, there was no testimony by any witness as to when this contract was signed by Englander.

The order of the Board recites the following evidence as a basis for its finding: (1) Sparrowk's testimony of Dillon's statements regarding the Teamsters' expectations of having the representation in the Seattle plant; (2) Sparrowk's testimony of a telephone call from Englander's Chicago office referring to a "contract" signed only by the Teamsters; (3) the lack of any evidence of negotiations between the parties; (4) a purported reference by factory manager Hunt to "an agreement" between Respondents on February 13th; (5) Sparrowk's reference to a "master agreement" in conversation with a Carpenters' Union official on January 26; (6) testimony of Jeanette Testerman that a Teamsters' representative telephoned her on February 10 and said the Teamsters "had a contract here" with Englander; (7) a document signed by applicants for employment at the Teamsters' office that referred to a contract between the Teamsters and Englander.

The first three items above have no evidentiary value at all. (1) Dillon's statements and the (2) lack of evidence of negotiation obviously have no probative value. The circumstances surrounding the (3) telephone call from Chicago are these: Mr. Sparrowk testified that he had a telephone conversation with a Mr. Pink in Chicago who was a vice-president of Englander, and that he was advised by Mr. Pink that the Teamsters had sent a contract to Chicago, signed by the Teamsters, covering the Seattle plant (which was a copy of the one covering the Los Angeles plant). On February 6th Mr. Pink, in a telephone conversation, told Sparrowk of the receipt of this contract, but told Sparrowk that he did not want him to sign that contract or any other contract until he "was convinced that whatever contract he was interested in signing had a majority of the members." Pink asked where the contract should be sent, and Sparrowk suggested that it be sent to the Oakland office.

Three other items are hearsay and manifest all the untrustworthiness inherent in hearsay evidence.

(4) Factory manager Hunt's alleged reference to an agreement between Respo...