National Labor Relations Board v. Standard Oil Co., 7.

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation138 F.2d 885
Docket NumberNo. 7.,7.
Decision Date01 November 1943

Malcolm F. Halliday, Robert B. Watts, Gen. Counsel, Ernest A. Gross, Associate Gen. Counsel, Howard Lichtenstein, Asst. Gen. Counsel, Joseph B. Robison, and Daniel Baker, and Ruth Weyand, Attys., National Labor Relations Board, all of Washington, D. C., for petitioner.

John W. Davis, William A. Dougherty, and C. Horace Tuttle, all of New York City, for Standard Oil Co. and Standard Oil Co. of New Jersey.

Horace A. Teass, of New York City, for Bayway Refinery Employees' Ass'n.

Harry D. Field, of Newark, N. J. (Harold J. Field, of Bayonne, N. J., of counsel), for Bayonne Refinery Employees' Ass'n.

Before L. HAND, CHASE and CLARK, Circuit Judges.

L. HAND, Circuit Judge.

This case comes before us on a motion by the Labor Board for an order enforcing a "cease and desist" order, which directed the respondents not to "dominate" or to "recognize" three unions, each composed only of employees in one of three New Jersey plants, and "completely" to "disestablish" them by withdrawing "all recognition" from them. It also contained a provision that the respondents should cease "In any other manner interfering with * * * the exercise of the right to self-organization * * * and to engage in concerted activities for the purpose of collective bargaining * * * as guaranteed in Section 7 of the Act 29 U.S.C.A. § 157." The chief issue is whether the three unions which succeeded an earlier "Joint Conference Plan," dating from 1918, were in their origin, or later became, so far dissociated from the "Plan" (as we shall call it), as to represent the uninfluenced will of the employees of the three plants. The respondents concede that the "Plan" became unlawful with the passage of the National Labor Relations Act in 1935, 29 U.S.C.A. § 151 et seq. but they insist—as do two of the three unions which have intervened — that shortly after the act was declared constitutional on April 12, 1937, there was so complete a break between the "Plan" and the new unions — which we shall follow the parties in speaking of collectively as the "Association" — that the Board should have found the vote of an overwhelming majority of employees, who favored the "Association," to have been free from any domination by the respondents, and to have set up such autonomous bargaining representatives as the act demands. The evidence covered about 5,500 pages, upon consideration of which the Board — following the examiner — decided that the "Association" was a "continuation" of the "Plan"; and that the influence of the respondents had so far persisted up to the time when the hearings closed in November, 1941, as to make "disestablishment" necessary as a condition upon any free choice by the employees. The Board also denied a motion to allow the respondents and the "Association" to introduce new evidence.

The findings, covering as they do some seventy-two printed pages in narrative form, are too long to state in detail; nor is it necessary that we shall do more than give their upshot. The situation was the not unusual one in which before the act went into effect there was in existence a union of company employees, organized for collective bargaining, in which the employer took an active part, either by directly, or indirectly, subsidizing the union, or by presiding at joint meetings, or by expressing his preference for such a union as against affiliation with some more militant national union, or in some other way interfering in the free choice of his employees. That union having become unlawful, the employees then formed a new one, confined as before to those in the plant, but now organized without any financial support from the employer; after express disclaimer by him of any intention to influence the employees' choice of representatives; and at times, as in the case at bar, after an explicit declaration that he would recognize and deal with whomever they might select to represent them. In such cases the Board has always insisted that there must be such a break with the old union as to make certain that the new one was not formed in the hope of retaining the employer's past favor, and that the employees have not eschewed affiliation with any national union because they feared his hostility. This rupture with the old union the Board has expressed by the word, "disestablishment," and we do not understand that it has any further significance. In the case at bar much of the discussion turned upon how far the "Association" was a "continuation" of the "Plan," which in turn was to be determined by ascertaining how far the employees supposed that it was only a "modification," or "revision" of it; rather than a brand-new organization. But that too is a conclusion only mediate to the crux of the matter, which remains whether the employees have been properly disabused of the earlier influences under which — in the case at barthey had been bargaining for the preceding nineteen years.

The "Association" was formed about a month after the act was declared constitutional, at the initiative of those employees who had been employees' representatives under the "Plan"; and some of the employees' and employer's representatives expressed themselves as though they still regarded it as the "Plan," revised to meet the necessities of the new law. On the other hand, the employer circulated a letter to all the employees very shortly after the decision of the Supreme Court, in which it declared that the National Labor Relations Act protected "the rights of employees to bargain collectively * * * without domination, interference, coercion, or restraint"; and that nothing in the act need "cause the Company to change its long-established policy of not discriminating against any employee because of membership or nonmembership in any church, society, fraternity, or union." The letter concluded by saying that the employer would bargain with any representative of a majority of the employees, although it would pay no expenses of elections or "other like costs"; and that, if the employees wished a "collective bargaining agency," it must be "developed and established by themselves." The respondents never paid any of the "Association's" expenses after it was organized, though they set up the "check-off," and apparently extended some extremely trivial favors to it at rare intervals, which were however too unimportant to count as "substantial." We need not say whether on this showing we should have come to the Board's conclusion that in November, 1941, four and a half years after the "Association" was formed, and at a time when there can be no doubt that a very great majority of the employees still adhered to it, their adherence was a consequence of some carry-over of the respondents' earlier favor of the "Plan," and its well known preference for it over an alliance with any national union. We understand the law to be that the decision of the Board upon that issue is for all practical purposes not open to us at all; certainly not after we have once decided that there was "substantial" evidence that the "disestablished" union was immediately preceded by a period during which there was a "dominated" union.

Since we recognize how momentous may be such an abdication of any power of review, especially as it may result in the loss of those very rights of employees which it is the purpose of the act to protect, we feel justified in stating our reasons a little at length, even though we have in effect already decided the issue. Westing-house Electric & Manufacturing Co. v. National Labor Relations Board, 112 F.2d 657, affirmed per curiam, 312 U.S. 660, 61 S.Ct. 736, 85 L.Ed. 1108. That it is an issue of fact admits of no doubt, and everyone agrees that in general we do have some power, however circumscribed, to review the Board's decision upon questions of fact. In this instance, that question is whether the employer's influence upon the will of his employees — which by hypothesis resulted from their past relations and his known wishes and conduct — determined their choice when they formed the new union. That concerns only human motives and of a kind with which courts are not unaccustomed to deal. At first blush it might seem therefore to be no different from that involved in deciding for example what actuated an employer in discharging an employee: i.e., whether he was trying to maintain discipline, or to rid himself of a troublesome union organizer. We should have a review of that question, for we should be as competent as the Board to deal with it; but the question of how deeply an employer's relations with his employees will overbear their will, and how long that influence will last, is, or at least it may be thought to be, of another sort, to decide which a board, or tribunal chosen from those who have had long acquaintance with labor...

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    ...Board. Gray v. Powell, 314 U.S. 402, 411, 62 S.Ct. 326, 332, 86 L.Ed. 301. Cf. National Labor Relations Board v. Standard Oil Co., 2 Cir., 138 F.2d 885, 887, 888."23 It is not without significance that the Supreme Court in so deciding reversed the Ninth Circuit24 which, in its opinion, used......
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1 books & journal articles
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