National Labor Relations Bd. v. Piqua Munising W. Prod. Co.

• Decision Date: 16 February 1940
• Docket Number: No. 8233.,8233.
• Parties: NATIONAL LABOR RELATIONS BOARD v. PIQUA MUNISING WOOD PRODUCTS CO.
• Court: U.S. Court of Appeals — Sixth Circuit

109 F.2d 552 (1940)

NATIONAL LABOR RELATIONS BOARD v. PIQUA MUNISING WOOD PRODUCTS CO.

No. 8233.

Circuit Court of Appeals, Sixth Circuit.

February 16, 1940.

Alvin J. Rockwell, of Washington, D. C. (Charles Fahy, Robert B. Watts, Mortimer B. Wolf, and Allen Heald, all of Washington, D. C., on the brief), for petitioner.

E. W. LeFever, of Cleveland, Ohio (Jones, Day, Cockley & Reavis, of Cleveland, Ohio, on the brief), for respondent.

Before SIMONS, HAMILTON, and ARANT, Circuit Judges.

HAMILTON, Circuit Judge.

This case arises out of a petition of the National Labor Relations Board filed pursuant to Section 10(c) of the National Labor Relations Act (49 Stat. 449, U.S.C. Supp. 111, Title 29, Sec. 151, et seq., 29 U.S.C.A. § 151 et seq), to enforce its order theretofore issued against the respondent, an Ohio corporation, engaged in the business of manufacturing woodenware, with its principal office in Cleveland, Ohio.

Upon an appropriate complaint, which was denied in its material allegations by respondent's answer, the Board found that respondent had engaged in unfair labor practices within the meaning of Section 8(1) of the Act by interfering with its employees' right to self organization and of Section 8(5) by refusing to bargain with Federal Labor Union Local 18,787, its employees' representative and an affiliate of the American Federation of Labor, hereinafter referred to as the "Union."

So far as material here, the complaint stated that all of the employees of the respondent, excluding those in clerical and supervisory positions, were an appropriate unit for the purpose of collective bargaining and that on or before July 27, 1937, and thereafter, a majority of them had designated the Union as their representative for that purpose. It was then alleged that the respondent had refused to recognize the unit and its agency and had interfered with, restrained and coerced its employees, in the exercise of their rights under Section 7 of the Act, 29 U.S.C.A. § 157, and was so continuing.

The respondent resists the enforcement of the order on the following grounds:

(a) That substantial evidence is lacking to support the finding that a majority of the members of the unit designated the Union as their bargaining representative;

(b) That there was no violation of the Act by a refusal to bargain until there had been a prior determination by the Board of the appropriate unit and agency;

(c) That an unlawful refusal to recognize a bargaining representative is a violation of Section 8(5) of the Act, not of Section 8(1);

(d) That the Board's order is in excess of its jurisdiction because it found the respondent guilty of an unfair labor practice without supporting complaint;

(e) That the Board's order is void because respondent's refusal to bargain occurred subsequent to the execution and filing of the charge.

There is substantial evidence to support the Board's finding that respondent's production and maintenance employees, exclusive of those in clerical and supervisory positions, constituted a unit appropriate for collective bargaining. National Labor Relations Board v. Lund, 8 Cir., 103 F.2d 815; National Labor Relations Board v. Colton, 6 Cir., 105 F.2d 179.

The evidence shows that respondent had 143 employees, eight of whom occupied supervisory or clerical positions, which left 135 in production. The Board's finding that the Union represented a majority of the unit for bargaining is supported by 82 application cards signed by employees seeking membership in the Union. Of these, two had discontinued their employment before July 27, 1937. Twelve of the cards are undated and one is post-dated September 21, 1937, leaving 67 members.

Respondent concedes that four employees were members of the Union prior to July 27, 1937, whose names do not appear on application cards. Employees Spangler and Pittman, whose names also did not appear, testify without contradiction that they had been members for several years prior to July 27, 1937. This makes a total of 73 out of the appropriate unit.

Respondent's contention that some of the cards lack probative value because dated in 1935 and 1936 is without merit. It is a well-established rule of evidence that when the existence of a personal relationship or state of things is once established by proof, the law presumes its continuance until the contrary is shown or until a different presumption arises from the nature of the subject matter. National Labor Relations Board v. National Motor Bearing Company, 9 Cir., 105 F.2d 652. The question as to the presumption of the continuation of membership in the Union was one of fact and rested within the sound discretion of the Board to be decided in the light of the facts and circumstances before it. Hiser, the Union president, testified that the persons whose names appeared on the membership cards were members of the Union.

Respondent's contention that the Board erred in assuming that the unit contained the some number of employees belonging to the Union on August 8, 1937, as of July 27, 1937, must be denied. The Act defines "employee" to "include * * * any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment." 29 U.S.C.A. § 152(3). The act also defines "labor dispute" to include "any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee." 29 U.S.C.A. § 152(9).

During the period between July 27, 1937, and August 8, 1937, the dispute between the respondent and its employees was current. The relationship of the parties had not been so completely terminated as to give rise to the presumption that any one of them had discontinued his employee relationship or had obtained regular and substantially equivalent employment elsewhere. Jeffrey-De Witt Insulator Co. v. National Labor Relations Board, 4 Cir., 91 F.2d 134, 112 A.L. R. 948; National Labor Relations Board v. Carlisle Lumber Co., 9 Cir., 94 F.2d 138; Black Diamond S. S. Corporation v. National Labor Relations Board, 2 Cir., 94 F. 2d 875.

Respondent challenges three of the application cards for membership in the Union upon the ground that they are undated as shown by the printed summary. The original exhibit shows dates and is controlling. The respondent also contends that four or five names should be eliminated from the list because Hiser, Union president, testified they were on the fence and wanted, to play both sides, and further that respondent's manager testified that two who had signed application cards stated to him they did not want to be members of the Union and that one whose signature appeared on a card, testified he was not a member. These objections go to the credibility and weight of the testimony and are matters for the determination of the Board. There is other evidence in the record tending to support the Board's finding that the Union had been designated by a majority of the unit. Its finding in that respect is supported by substantial evidence. National Labor Relations Board v. Louisville Refining Company, 6 Cir., 102 F.2d 678.

Some of respondent's employees had belonged to the Union for several years before it was selected as a bargaining agency. From October 24, 1935, the plant operated under the management's written declaration of policy, copy of which was furnished plant employees. In November, 1936, the Union, as bargaining representative for the employees, submitted a written contract to respondent's officers which was rejected by its plant manager and there is substantial evidence that he gave as his reason that it was not the policy of the company to recognize the Union and there is also substantial evidence that about this time respondent's president stated that he would not recognize the American Federation of Labor as a bargaining representative but would negotiate with a committee of the employees.

In April, 1937, respondent's president presented to the employees' committee, a bargaining agreement without mentioning the Union, and when it insisted on the name of the Union being inserted, he stated that before doing so, he would shut down the shop. As a counterproposal, he offered to increase wages five percent which the committee accepted. On June 14, 1937, he informed the committee that a tentative increase in wages provided in the April agreement would be impossible, but he would make every effort to provide steady work and there would be no shut down for inventory. He stated, however, if there were too much labor unrest, the plant would be shut down temporarily or possibly permanently. The Union committee then called in a representative of the American Federation of Labor to assist in negotiating with respondent and on July 27, 1937, the president of the local union posted a notice on the plant bulletin board announcing a meeting for that afternoon at which such representative would be present. About an hour later respondent's manager posted a notice on the board that the plant would close that night for inventory, pursuant to a proposed sale or lease, and that the employees would be advised later when to report back for work. The next day the Union endeavored without success to arrange a conference between the president of respondent and the representative of the American Federation of Labor.

Prior to May, 1937, the respondent was negotiating with the Robin Hood Woods Products Company of California for a sale or lease of part of its plant and on July 27, 1937, it was notified that the contract had been closed and that the Company was shipping machinery and equipment to Piqua, Ohio, for installation. O...