National Labor Relations Board v. Burke Mach. Tool Co.

• Decision Date: 18 February 1943
• Docket Number: No. 9193.,9193.
• Citation: 133 F.2d 618
• Parties: NATIONAL LABOR RELATIONS BOARD v. BURKE MACH. TOOL CO.
• Court: U.S. Court of Appeals — Sixth Circuit

133 F.2d 618 (1943)

NATIONAL LABOR RELATIONS BOARD v. BURKE MACH. TOOL CO.

No. 9193.

Circuit Court of Appeals, Sixth Circuit.

February 18, 1943.

Ivar Peterson, of Washington, D. C. (Robert B. Watts, Ernest A. Gross, Gerhard P. Van Arkel, Morris P. Glushien, Louis Libbin, and Thomas E. Shroyer, all of Washington, D. C., on the brief), for petitioner.

Harry E. Smoyer, of Cleveland, Ohio (Smith & Kauffman, of Conneaut, Ohio, and Stanley & Smoyer, of Cleveland, Ohio, on the brief), for respondent.

Before ALLEN, HAMILTON, and MARTIN, Circuit Judges.

ALLEN, Circuit Judge.

This is a petition for enforcement of an order based upon findings that respondent violated § 8(1) and § 8(5) of the National Labor Relations Act, Title 29 U.S. C., § 158(1) and § 158(5), 29 U.S.C.A. § 158(1, 5). The respondent admits that it violated § 8(1) of the Act during a three-day period, but contends that after violations extending concededly for less than two weeks, voluntarily and before issuance of any complaint by the Board, it did all that the Board could then have properly ordered it to do and that it is not rightfully subject to the order for past violations of the Act, since there is no evidence of any threat or intent of repetition.

Respondent is a machine tool company doing business at Conneaut, Ohio, of which Rockwell was president and general manager. It employed at the time in controversy 49 men, exclusive of clerical and supervisory employees. On January 20 and 21, 1941, union meetings were held at the home of one of the employees where 28 men signed application cards for membership in the International Association of Machinists, hereinafter called the union. Having learned of the meetings, Rockwell announced on January 22 that employees who signed union applications would receive no overtime and hence no time-and-a-half compensation. Under the customary schedule of operations the men would have worked until six P. M., entitling them to a credit of two hours' overtime for the day, but in accordance with Rockwell's order, 25 of the men who had signed application cards ceased working at four o'clock. Shortly thereafter, at the request of a number of the employees, Nobozny, an organizer of the union, interviewed Rockwell at the plant. Nobozny opened the conversation with the statement that he represented the union and a majority of the employees, and wished to protest against the fact that union men were not permitted to work overtime. This was the first time that Rockwell had ever seen Nobozny, and the interview was extremely acrimonious, concluding with the statement by Rockwell that he would throw Nobozny out, and by Nobozny that he would come back again. Rockwell thereafter disparaged the union and Nobozny, and suggested and sponsored the formation of a company union, to which 30 of the employees applied for membership. Being advised a few days later that this action was a violation of the statute, respondent on February 5, 1941, posted throughout its plant a notice stating its desire to fully comply with the Act, its intention not to discourage any labor organization, including the union in question, and its resolution not to deal with the company union in process of formation, and concluding that it would bargain collectively "with any labor organization that is not violative of the National Labor Relations Act, including the International Association of Machinists, providing that said organization is duly chosen as their representative by a majority of our employees in an appropriate bargaining unit under the procedure prescribed by the National Labor Relations Act."

Both the examiner and the Board found that the respondent refused to bargain, and hence violated § 8(5) upon January 22, when the interview with Nobozny was held. The record contains no evidence supporting this finding of fact. Nobozny admits that he did not ask Rockwell to bargain with the union nor bring any contract with him. In fact he stated that Rockwell was in no mood to bargain. The Board considered that respondent was not in a position to maintain that there was no request to bargain because of Rockwell's conduct during the interview and his other anti-union activities. We cannot agree that the quick-tempered reaction of an employer, however unfortunate, to a man whom he had never seen before, who was accompanied by none of his employees and who failed to propose a conference or produce evidence that he represented a majority of the employees, under the statute dispenses with the necessity for a specific request to bargain. Nobozny in effect recognized the fact that he had made no request to bargain by his statement that he would come again.

However, the record substantially supports the finding that respondent's action at the meeting of February 6, in which the respondent stated that it would bargain, but conditioned its assent on the holding of an election, constituted a violation of § 8 (5). The Board found that this refusal followed the employer's efforts to induce its employees to join the inside organization, its disparagement of the union, and its violation of § 8(1). Giving full effect to the stipulation relied on by the respondent, and noting that its contention is correct that according to the time cards only 21 of the men rang out at four o'clock on January 22 and that four of those who had signed applications for membership in the union were paid for a half-hour's additional time, there was also evidence that these four men had ceased working at four o'clock and were delayed in leaving the plant only because of a conversation with Rockwell in which he sought to induce them to leave the...