National Labor Relations Bd. v. Reed & Prince Mfg. Co.

• Decision Date: 02 June 1941
• Docket Number: No. 3549.,3549.
• Citation: 118 F.2d 874
• Parties: NATIONAL LABOR RELATIONS BOARD v. REED & PRINCE MFG. CO.
• Court: U.S. Court of Appeals — First Circuit

118 F.2d 874 (1941)

NATIONAL LABOR RELATIONS BOARD v. REED & PRINCE MFG. CO.

No. 3549.

Circuit Court of Appeals, First Circuit.

April 2, 1941.

Writ of Certiorari Denied June 2, 1941.

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Ernest A. Gross, of Washington, D. C. (Charles Fahy, Robert B. Watts, Laurence A. Knapp, Richard C. Barrett, and Thomas F. Wilson, all of Washington, D. C., on the brief), for the Board.

George H. Mason, of Worcester, Mass. (Jay Clark, Jr., and Vaughan, Esty, Clark & Crotty, all of Worcester, Mass., on the brief), for Reed & Prince Mfg. Co.

Before MAGRUDER and MAHONEY, Circuit Judges, and McLELLAN, District Judge.

Writ of Certiorari Denied June 2, 1941. See 61 S.Ct. 1119, 85 L.Ed. ___.

MAHONEY, Circuit Judge.

This case is before this court upon petition of the National Labor Relations Board for the enforcement of an Order issued against the respondent pursuant to Section 10(c) of the National Labor Relations Act, 49 Stat. 453 (1935), 29 U.S. C.A. § 160(c). The jurisdiction of this court is derived from Section 10(e) of the same statute.

The respondent, Reed & Prince Manufacturing Company, is a corporation located in the City of Worcester in the Commonwealth of Massachusetts, which is engaged in the manufacture, sale and distribution of nuts, bolts and screws. In its answer the respondent admitted that it was engaged in interstate commerce. The respondent employs approximately 782 production and maintenance employees. There can be no question but that the respondent is subject to the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. National Labor Relations Board v. Bradford Dyeing Association, 1940, 310 U.S. 318, 60 S.Ct. 918, 84 L.Ed. 1226; National Labor Relations Board v. Jones & Laughlin Steel Corp., 1937, 301 U.S. 1, 57 S.Ct. 615, 81 L. Ed. 893, 108 A.L.R. 1352; National Labor Relations Board v. Somerset Shoe Co., 1 Cir., 1940, 111 F.2d 681.

In November, 1937, the Steel Workers Organizing Committee of the C. I. O., hereinafter called the Union, filed a charge and an amended charge with the National Labor Relations Board alleging that the respondent had been guilty of various unfair labor practices including the refusal to bargain collectively with the Union as the authorized representative of a majority of the production and maintenance employees, had interfered with and discouraged membership in the Union and had discriminated against four employees by refusing to reinstate them because of union activities. The Board issued its complaint and notice of hearing, and the respondent filed an answer admitting that it was engaged in interstate commerce but denying the unfair labor practices alleged. A hearing was held at Worcester, Massachusetts, beginning in December, 1937, before a trial examiner.

At the close of the hearing the trial examiner filed an intermediate report in which he found that the respondent had violated Section 8(1), (3) and (5)¹ of the National Labor Relations Act, and recommended entry of an order to remedy these violations. Exceptions were filed to the report and an oral argument held upon it before the Board. On May 15, 1939, the Board issued its decision and order upholding the trial examiner except in the matter of his refusal to allow Mr. Johnson to intervene on behalf of the 547 employees who had signed individual contracts with the respondent. The trial examiner had allowed the intervention on behalf of five employees. As the interests of these five were identical with those of the remaining employees, their rights were fully represented by Mr. Johnson, and the error of the examiner could in no wise be considered sufficient to refuse to enforce the order of the Board if otherwise justified.

The testimony before the trial examiner was voluminous, but there was little dispute except as to the inferences and conclusions that could be drawn therefrom. The respondent admitted that the Union was a labor organization within the meaning of Section 2(5) of the Act, 29 U.S.C.A. § 152 (5), and that the production, maintenance and shipping room employees, excluding the supervisory and clerical employees, constituted an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act, 29 U. S.C.A. § 159(b). The Board made findings in accordance therewith, and on the basis of all the testimony concluded that the Union was the exclusive representative of all the employees within the unit for the purposes of collective bargaining within Section 9(a). The Board found that by refusing on June 5, 1937, and thereafter, to bargain with the Union, the respondent had engaged in unfair labor practices within the meaning of Section 8(5). The Board further found that the respondent had engaged in unfair labor practices by interfering with, restraining and coercing its employees in the exercise of rights guaranteed to them in Section 7, 29 U.S.C.A. § 157, and thus had violated Section 8(1) of the Act. The Board also found that by its discharge of and refusal to reinstate Roy Stevens, Jr., Clifford Gallant, Michael Sullivan and Mary Sullivan, following the strike, the respondent discriminated in regard to the hire and tenure of employment of these employees and thus violated section 8(3) of the Act.

The Board, therefore, ordered the respondent to cease and desist from its unfair labor practices, to bargain collectively with the Union, to notify each employee that the individual contracts entered into as a result of its unfair labor practices were void and of no effect, and to offer reinstatement to the four employees mentioned above. The Order of the Board is reproduced in the footnote.² It is this Order which the Board seeks here to have enforced.

It is now well settled that if the Board's findings of fact are supported by substantial evidence they are binding upon this court. Section 10(e), National Labor Relations Act; National Labor Relations Board v. Link-Belt Co., 61 S.Ct. 358, 85 L.Ed. ___, decided January 6, 1941; National Labor Relations Board v. Waterman S. S. Co., 1940, 309 U.S. 206, 60 S.Ct. 493, 84 L.Ed. 704; Consolidated Edison Co. v. National Labor Relations Board, 1938, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126. In examining the record we must consider the evidence and all inferences arising therefrom most favorably to the Board. Opposing evidence may not be considered if it conflicts with other evidence and fair inferences. This court may not pass on the credibility of witnesses nor the weight or sufficiency of the testimony. National Labor Relations Board v. Waterman S. S. Co., supra, 309 U.S. at page 226, 60 S.Ct. at page 503, 84 L.Ed. 704; National Labor Relations Board v. Elkland Leather Co., 3 Cir., 1940, 114 F.2d 221, certiorari denied, November 18, 1940, 61 S.Ct. 170, 85 L.Ed. ___; cf. Texas & N. O. Ry. v. Railway Clerks, 1930, 281 U.S. 548, 558-560, 50 S.Ct. 427, 74 L.Ed. 1034. Considering the evidence in this light, we believe that it supports the facts found by the Board.

The Refusal to Bargain.

Before 1937 no labor organization had been active at the respondent's plant, but in the middle of February, 1937, the Union commenced a membership drive among the respondent's employees. There was evidence that between the opening by the Union of its membership drive and the beginning of negotiations with the respondent on March 19, 1937, 712 out of 782 eligible employees in the designated unit had signed cards designating the Union as their representative. Later other employees joined. The respondent checked the signatures and agreed that all but sixteen were genuine. Thus there can be no doubt of the correctness of the Board's finding that on and after March 19, 1937, the Union was the designated representative of a majority of the employees in the unit. National Labor Relations Board v. Bradford Dyeing Ass'n, supra, 310 U.S. at pages 339, 340, 60 S.Ct. at page 929, 84 L. Ed. 1226.

The respondent does not dispute this finding as of March 19, but insists that the Union later lost its majority when many of its members repudiated it and signed individual contracts with the respondent. The only evidence to show the repudiation of the Union subsequent to March 19 was the signatures on the "back-to-work" petitions, with which we will deal later. If, as the Board found, these contracts were the result of unfair labor practices on the part of the respondent, they are invalid and cannot destroy the authority of the Union as the representative of the majority of the employees. National Labor Relations Board v. Bradford Dyeing Ass'n, supra; National Licorice Co. v. National Labor Relations Board, 1940, 309 U. S. 350, 60 S.Ct. 569, 84 L.Ed. 799. See International Association of Machinists v. National Labor Relations Board, 311 U.S. 72, 61 S.Ct. 83, 85 L.Ed. ___, decided November 12, 1940.

We will subsequently consider whether the defection of a majority of the employees from the Union was the result of such unfair labor practices, but no such contrary majority was claimed until July 12 at the earliest according to the uncontradicted testimony. All but the last of the incidents upon which the Board predicates its finding that the respondent refused to bargain collectively with the Union took place prior to this date and thus during the period when it is undisputed that the Union was the exclusive representative of the employees. If the evidence supports a finding of a refusal to bargain with the Union, it is clearly a refusal to bargain with the representatives of the employees within Section 8(5) of the Act.

In the middle of March the Union requested a conference with the respondent to discuss a collective bargaining agreement. The respondent granted the request, and the negotiations resulted in the signing of a preliminary agreement on March 19, which recognized the Union as the collective bargaining agency for such of the respondent's employees as were members of the Union. The agreement...