National Labor Relations Board v. DUNCAN F. & M. WORKS

• Citation: 142 F.2d 594
• Decision Date: 16 May 1944
• Docket Number: No. 8521.,8521.
• Parties: NATIONAL LABOR RELATIONS BOARD v. DUNCAN FOUNDRY & MACHINE WORKS, Inc.
• Court: U.S. Court of Appeals — Seventh Circuit

142 F.2d 594 (1944)

NATIONAL LABOR RELATIONS BOARD v. DUNCAN FOUNDRY & MACHINE WORKS, Inc.

No. 8521.

Circuit Court of Appeals, Seventh Circuit.

May 16, 1944.

Stephen M. Reynolds, of Minneapolis, Minn., and Alvin J. Rockwell, Gen. Counsel, Malcolm F. Halliday, Associate Gen. Counsel, Howard Lichtenstein, Asst. Gen. Counsel, and Jacob I. Karro and Isadore Greenberg, Attys., National Labor Relations Board, all of Washington, D. C., for petitioner.

Henry I. Green, of Urbana, Ill., Karl K. Hoagland, of Alton, Ill., and James E. Garstang, of St. Louis, Mo., for respondent.

Before MAJOR and MINTON, Circuit Judges, and LINDLEY, District Judge.

LINDLEY, District Judge.

The National Labor Relations Board requests enforcement, under Section 10(e) of the Act, 49 Stat. 449, 29 U.S.C.A. § 151 et seq., of its order requiring respondent to (a) cease and desist from unfair labor practices, (b) post appropriate notices, (c) withdraw recognition from and completely disestablish the "Association" as the bargaining representatives of its employees, (d) cease giving effect to its agreement with the Association, (e) offer reinstatement with back pay to two employees, and (f) make whole eleven others for loss of pay they may have suffered by reason of respondent's discrimination against them. The order is based upon findings that respondent has violated Section 8 (1), (2), and (3) of the Act by dominating and supporting the Employees' Representation Plan of the Duncan Foundry & Machine Works, Inc., and a later organization, the Employees' Association of the Duncan Foundry & Machine Works, Inc., by discriminating against thirteen of its employees because of their union affiliations and activities, and by interfering with the self-organization of its employees. Respondent challenges the substantial sufficiency of the evidence to support the findings (1) that it has illegally supported and dominated the Employees' Representation Plan (hereafter referred to as the E. R. P.) and the Employees' Association (hereafter referred to as the Association), and (2) that it has illegally discriminated against Seward Kershner and Charles Cairns.

Respondent manufactures and distributes machines and castings, largely in interstate commerce. The number of its employees has fluctuated from some one hundred in 1934, to over four hundred in 1943. Due to a devastating fire which destroyed much of respondent's property in 1937, the number dropped to less than forty in the years 1937 and 1939. E. R. P. had come in to being early in January, 1934, by action of a majority of the employees. They requested respondent's cooperation in formation of their organization and its plan to provide a basis for relationship between management and workmen. The employees elected representatives, the balloting taking place in the plant during working hours, under facilities provided by respondent. A plan was submitted to which the employer never formally assented, although both parties proceeded to function as if formal agreement had been accomplished. From time to time Juttemeyer, the personnel manager of respondent, met with representatives of the employees in friendly, amicable meetings.

The respondent's relationship with E. R. P. and the question of whether the latter was dominated by respondent is material on the crucial question of whether, at the time the complaint was filed, respondent was improperly dominating the chronologically later association, only to the extent that continuity of identity is shown to have existed between the two associations and to the extent that it is established that improper practices toward E. R. P. were carried over from the first and persisted in the later union. In view of our conclusion with respect to the later association, it is unnecessary to comment at length upon this earlier phase of the findings and order, for we think it clear from the undisputed evidence that E. R. P. died a natural death, brought about by desertion by all interested parties, terminating in eternal rigor mortis.

The trial examiner found, and the Board agreed, that respondent "assisted and encouraged the instigation and formation of the Association as successor to and alter ego of the E. R. P. and thereafter dominated and interfered with the administration and encouraged and fostered the growth and continued existence of the Association * * *". Apparently the Board's reasoning is that there was no evidence to show that respondent had effectually disestablished E. R. P. and that, consequently, what was deemed improper in its career, carried over and persisted in the new association.

Disestablishment of a bargaining unit previously dominated by the employer is well nigh essential in order to afford employees an opportunity to start anew in organizing an uninfluenced bargaining unit, since otherwise the influence of management may not be eliminated and the employees rendered entirely free to act upon their own initiative. National Labor Relations Board v. Newport News Shipbuilding & Dry Dock Co., 308 U.S. 241, 60 S.Ct. 203, 84 L.Ed. 219. The test is well expressed in National Labor Relations Board v. Rath Packing Co., 8 Cir., 123 F.2d 684, 685 (modified on denial of rehearing 130 F. 2d 540): "To avoid having a new labor organization regarded as the alter ego or the successor of an old labor organization that was subject to employer domination, it must appear that, prior to the formation of the new organization, the employees were advised by their employer, in substance, that all recognition of the old organization by him had ended, and that they were entirely free to join or not to join any other labor organization, and that the employer was completely indifferent as to what organization they joined."

We think the Board's evidence justifies only the finding that, in the hearing here, the test was fully met. True, respondent did not circularize each member of the E. R. P. with notice of cessation of support of the E. R. P. However, we can not, nor can the Board, after seven years, say that it was necessary for respondent to follow any certain formal mechanical pattern of procedure in order to evince disestablishment, inasmuch as the evidence establishes beyond peradventure an honest, active and successful effort by respondent to effectuate its detachment, and clear understanding of the attitude of the employer in this regard upon the part of the employees.

During May, 1937, Juttemeyer, at a meeting of the representatives of E. R. P. told them that the company could no longer be a party to or recognize the existing organization; that E. R. P. by virtue of the Supreme Court's decision, was "outlawed," and that they would have to do "something else," "whatever they wanted to do"; that it was up to them to decide what they wished to do. When some of the employees asked for advice as to what steps were advisable in forming a proper organization under the Act, Juttemeyer replied, according to the testimony offered by the Board, that he could give them no advice and that "From now on, you are on your own. It is just whatever you want to do." From this, wholly without basis in fact, the Board inferred that respondent suggested that the men form an independent union. This was wholly unjustified.

Furthermore the inference is completely and fully negatived by the undisputed subsequent events and the actions of the employees. After Juttemeyer's remarks, the men retired and perfected plans to hold a preliminary meeting of employees to discuss the matter further, and invited "anyone who could attend to be present." They passed the word around among the employees and several of them attended, as well as two representatives of a union in existence at the refinery of the Standard Oil Company, who had been invited to make suggestions and supply information concerning the creation of an employees' association. The conferees decided to call a mass meeting of all employees at the Odd Fellow's Hall, and, in preparation for the meeting, drafted a proposed agreement, patterned largely upon the contract in force at the Standard Oil plant.

The document was presented to the mass meeting on June 4, which had been announced on the factory bulletin board and was attended by approximately 119 persons out of some 200 employees. One Cannon explained that the company had advised that it could no longer cooperate with the old organization; that the employees would have to do something else; that it was up to them. In his own words, he "dumped the matter into their laps." Extended discussion followed, covering the questions of joining a national union, forming an independent local and dues. They decided to form their own organization. A motion that the officers of the earlier union be retained was defeated. The draft of a proposed agreement which had been submitted was rejected, because the men felt, as they said, that they had had no hand in its composition. The president of the old organization was...