National Labor Relations Board v. Mathieson A. Works

• Decision Date: 07 October 1940
• Docket Number: No. 4626.,4626.
• Citation: 114 F.2d 796
• Parties: NATIONAL LABOR RELATIONS BOARD v. MATHIESON ALKALI WORKS, Inc.
• Court: U.S. Court of Appeals — Fourth Circuit

114 F.2d 796 (1940)

NATIONAL LABOR RELATIONS BOARD v. MATHIESON ALKALI WORKS, Inc.

No. 4626.

Circuit Court of Appeals, Fourth Circuit.

October 7, 1940.

Gerhard P. Van Arkel, Atty., National Labor Relations Board, of Washington, D. C. (Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, Laurence A. Knapp, Asst. Gen. Counsel, Bertram Edises, and Frederick M. Davenport, Jr., Attys., National Labor Relations Board, all of Washington, D. C., on the brief), for petitioner.

Wm. A. Stuart, of Abingdon, Va., for respondent.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

PARKER, Circuit Judge.

This is a petition to enforce an order of the National Labor Relations Board. The respondent is the Mathieson Alkali Works of Saltville, Virginia, and the order disestablishes an association of its employees as a bargaining agency and directs that respondent cease and desist from interfering with the right of self organization on the part of its employees. The principal question involved is whether respondent has dominated or interfered with the formation or administration of the association. Respondent contends that the Board's finding to that effect is not supported by substantial evidence; and a careful review of the evidence relied upon by the parties convinces us that this contention must be sustained.

There were approximately 950 employees of respondent, exclusive of supervisory employees, at its Saltville plant; and, following the decision of the National Labor Relations Board cases in the spring of 1937, certain of these employees became interested in forming an organization for the purpose of bargaining collectively with respondent. About the same time, an effort was made to organize a chapter of the United Mine Workers of America in their midst; but there is no evidence that this was begun before the effort to organize the association. Saltville was near communities which had had unfortunate experiences with strikes as a result of activities of the Committee for Industrial Organization; and the knowledge of these experiences, together with knowledge gleaned from newspaper accounts of sit-down strikes which had occurred in other sections of the country, furnished arguments to those who favored organizing an independent association of respondent's employees as an agency for collective bargaining to forestall the organization of an outside union, which it was thought might result in industrial strife and the interruption of employment. Such an association was organized through the efforts of one W. P. Thompson, a mechanic employed by respondent, and certain of his associates, none of whom held a position of supervisory character.

There is no evidence that respondent suggested the formation of the association or assisted in any way in its organization. On the contrary, the evidence is that, when respondent's manager heard rumors that organizational efforts were being talked among the men, he called in twenty-five or more of the thirty-four supervisory employees of higher rank, read the Wagner-Connery Labor Relations Act, 29 U.S.C.A. § 151 et seq., to them and cautioned them to take no part in the matter whatever and to remain strictly neutral as between any rival organizations. This occurred on August 20, 1937. Three days later Thompson and five of his associates called on the manager in his office, informed him that they were forming an association for the purpose of collective bargaining and asked his opinion with regard thereto. The manager stated that he was not permitted under the Wagner Act to advise them what they should or should not do, read to them sec. 7 of the Act, and told them that the choice of an organization rested with the employees. He further stated that for the employer to interfere with employees in the exercise of rights under the Act would constitute an unfair labor practice, and that the only request he had to make of them was not to let any organizational activities that they might decide upon interfere with the performance of their duties during regular working hours.

Prior to this conversation with the manager, many of the men had been reluctant to join the association which Thompson was engaged in organizing, through fear that respondent might be opposed to any organization whatever. After Thompson had received this assurance from the manager as to their rights, however, the signing up of employees for membership in the association proceeded rapidly; and, on September 27th, a meeting was held in the village school at which 100 or more employees were present and at which a committee was appointed to proceed with the work of organization and prepare a constitution and by laws. Another meeting was held on October 5th; and the constitution and by laws which had been prepared were adopted. On October 14th, the organization committee of the association called on the manager and asked that he recognize the association as a bargaining agency, as it had signed up over 700 men of whom 643 had paid their dues. The manager, however, refused at this time to recognize the association as a bargaining agency on the ground that no proper credentials of its authority were presented. On October 19th, the association held an election of members of its council, and on October 20th the council elected officers for the association. On October 22, a negotiating committee of the association held a conference with the management, at which both sides were represented by counsel, and recognition was again requested but was withheld because documentary proof of representation of a majority was not furnished. On October 25th, the committee presented to the management a verified petition for recognition to which was attached a certified list of 643 paid up members. The association was thereupon recognized as the bargaining agency for the employees and has since functioned in that capacity.

Upon its recognition as a bargaining agent, the association presented eleven requests from the employees relating to wages, hours and conditions of employment; and agreements were reached as to a number of these, including a wage increase of five cents per hour and provision for a five day week of forty hours with time and a half for over time. In the following month, due to a falling off in business, respondent notified the association that it would be necessary to reduce wages, hours of work or the number of employees, and an agreement was reached that the work available be divided or staggered among the employees by allowing four days a week to each employee. The wage scale fixed by the prior agreement was retained. The record shows that the association has had regular monthly meetings of its council and has functioned in a number of matters relating to rights and grievances of the employees. No supervisory employee is a member of the association; and there is no evidence that the respondent has any control over it or any voice in its deliberations, or that respondent contributes in any way to its support or maintenance.

The Board's finding of domination and interference was based upon activities of four foremen of minor supervisory capacity, viz., Terry, Maiden, Holmes and Brown, in advocating the association or soliciting members for it; upon the fact that another foreman, Taylor, was found to have spied upon a union meeting; upon the fact that an assistant superintendent of one of the departments handed to a member of the association's organizing committee an envelope containing a copy of the constitution and by laws of an association in another of respondent's plants; upon the fact that respondent made no attempt to curb solicitation for membership in the association on company property during working hours and permitted an election of association officers to be held on the premises; upon the fact that the records of the association were kept in respondent's vault; and upon the finding that the association had failed to secure any real or lasting benefits for the employees. These matters must be considered in the light of attendant circumstances as disclosed by the record; and, when so considered, they fall far short of showing domination or interference with the association on the part of respondent.

The most serious of the facts to which the Board points is the activities of the foremen. We agree that the mere fact that respondent may have forbidden its supervisory employees to take part in the organizational activities of its employees is not sufficient to purge the association of employer domination, if such domination in fact existed; and we think, also, such domination may be inferred from activities of minor supervisory employees, such as foremen, if their activities were sufficiently wide spread or were of such a character as to form a reasonable basis for the conclusion that they proceeded from the anti-union policy of the employer and interfered with the right of self organization on the part of the employees. Consumers Power Co. v. N. L. R. B., 6 Cir., 113 F.2d 38, 44.

Sporadic activities on the part of foremen, however, not authorized by the employer and not resulting in interference with or domination of the right of the employees to organize and select bargaining representatives of their own choosing, should not be allowed to nullify a choice freely made by a majority of the employees acting on their own initiative. Humble Oil & Refining Co. v. N. L. R. B., 5 Cir., 113 F.2d 85. It would be absurd, for instance, to hold that, in a contest between the A.F.L. and the C.I.O., the union selected by the majority should be disqualified to act as bargaining representative merely because some foreman, without the authorization or approval of the employer, expressed his preference for or joined in soliciting members for it (National Labor Relations Board v. Sands Mfg. Co., 306 U.S. 332, 341, 342, 59 S.Ct. 508, 83 L.Ed. 682); and this would even more clearly be true if it also appeared that...