National Labor Relations Board v. Boss Mfg. Co.

• Decision Date: 07 December 1939
• Docket Number: No. 6433.,6433.
• Citation: 107 F.2d 574
• Parties: NATIONAL LABOR RELATIONS BOARD v. BOSS MFG. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

107 F.2d 574 (1939)

NATIONAL LABOR RELATIONS BOARD v.BOSS MFG. CO.

No. 6433.

Circuit Court of Appeals, Seventh Circuit.

November 7, 1939.

Rehearing Denied December 7, 1939.

H. G. Ingraham, Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, and Mortimer B. Wolf and Marcel Mallet-Prevost, all of Washington, D. C., for National Labor Relations Board.

David R. Clarke, of Chicago, Ill. (John Harrington and Albert J. Smith, both of Chicago, Ill., of counsel), for respondent.

Before EVANS, SPARKS, and KERNER, Circuit Judges.

KERNER, Circuit Judge.

This case is here upon petition by the National Labor Relations Board for the enforcement of an order issued by the Board against the Boss Manufacturing Company, pursuant to Section 10(c) of the National Labor Relations Act,49 Stat. 449,29 U.S.C.A. § 151 et seq.

The proceeding was instituted by Local 85 of the International Glove Workers' Union of America, a labor organization.The unfair labor practices charged, filed on November 11, 1935, were that the respondent had interfered with, restrained and coerced its employees in the exercise of the rights guaranteed under Section 7 of the Act in violation of Section 8(1), and had refused to bargain collectively with representatives selected by a majority of its employees in violation of Section 8(5).An amendment to the charge, filed April 16, 1936, alleged a violation of Section 8(3) of the Act in that respondent had discharged eight employees for Union activities.Respondent filed an answer denying the charges and challenged the constitutionality of the Act.A hearing was had before a Trial Examiner on April 30 and May 1, 1936, at which respondent renewed its motion to dismiss and withdrew from the hearing.

On June 22, 1936 the Trial Examiner filed his Intermediate Report, finding respondent guilty of unfair labor practices to which exceptions were filed, and on August 27, 1937 the Board issued its original order.

On October 28, 1937 the Board filed its petition for enforcement, and on December 2, 1937respondent filed its petition for leave to adduce additional testimony.On January 12, 1938we granted the petition, subject to a motion to strike the testimony after it had been adduced.

A further hearing was held, and on August 23, 1938 the Trial Examiner filed with the Board his Intermediate Report on the additional testimony adduced, in which he found that the Union had continued to represent the majority of the employees and that all except four of the employees had been offered reinstatement.He recommended that the Board's order of August 27, 1937 be reaffirmed, with the exception of the direction to reinstate those employees on strike on August 8, 1935.

On February 20, 1939 the Board rendered its supplemental findings, concluded that respondent had engaged in unfair labor practices within the meaning of Section 8(1), (3) and (5) of the Act, and reaffirmed its order of August 27, 1937.

On March 31, 1939 the Board filed its motion to strike the additional testimony adduced.

The first, second and third order of the Board directs respondent to cease and desist from interfering with, restraining or coercing its employees in the exercise of their rights to self-organization, refusing to bargain collectively, and discouraging membership in the Union, while (4)(f) directs respondent, upon request, to bargain collectively with the Union as the exclusive representative of its productive employees.

The respondent is engaged in the manufacturing of workmen's gloves and allied products, maintaining sales offices or branch factories in New York, Ohio, Indiana, Missouri, California and Illinois.In 1935 it employed about 382 production workers in its main plant at Kewanee, Illinois, shipping the major portion of its products out of the State of Illinois.

In February of 1935 the men and women employed in the leather-cutting department formed an unaffiliated labor organization.On March 4, 1935 a committee from this organization met with Charles M. White, superintendent of the plant, and requested a modification of the Bedeaux system of wage payments.¹They were told an effort would be made to remedy conditions.

On May 8, 1935 the employees became affiliated with the American Federation of Labor as Local 85 of the International Glove Workers' Union of America, the membership being open to all production employees.

On May 31, 1935John Jones, one of respondent's foremen, informed Camile Tremont, an employee, that White had told him (Jones) that this thing was getting serious, and approached Tremont and three other employees with a proposal that one or more of them attend a meeting of the Union and "go to bat" for respondent at the Union meeting.On June 25, 1935 Jones again approached Tremont and requested him to disclose the names of the girls in the sewing department who were members of the Union.And on July 9, 1935 Jones said to Tremont: "Well, the boys took a strike vote last night * * * it looks pretty bad.* * * They are going to make a mistake.* * * That is an awful thing.* * * I had a brother that was in a strike down there at Wallworth's, and he never could get a job again, and he had to move all the way to California.There are some more around town that could not get any jobs in these factories."

On June 15, 1935 Jones also had a conversation with Grace Bremmer, another employee, at which time he told her that the Union would take her money without giving her anything in return, and that his brother, who had been discharged by his employer for joining a Union, had been compelled to leave town in search of other employment.

In an advertisement in the Kewanee Daily Star Courier, published in September 1935, respondent stated that there was no advantage gained by membership in the Union and accused the Union of coercing its employees into joining.

On July 9, 1935 a Union committee met with Charles M. White and informed him that the Union had been designated as the representative of a majority of the employees and requested that respondent deal with the committee; this the respondent refused to do, contending that the designation by a majority of the employees did not enable the Union to represent any employee who had not so designated it.As a result, a strike was called on August 8, 1935.

On September 8, 1935 the Union committee met T. R. Stokes, respondent's president, and Harry Scheck, a Federal conciliator.Stokes, on behalf of respondent, again refused to bargain with the Union as the representative of all the employees.On September 28, 1935 Stokes, in a circular sent to all of the employees, stated that the sole issue of the strike was the determination of the Union to force the respondent to recognize, deal with and contract with the Union as the agent of all the employees at the Kewanee plant.

It is undisputed that the respondent refused to recognize the Union as the exclusive bargaining representative of its employees in an appropriate unit.It took the position that the majority rule principle would be invalid if construed to authorize the representation of a minority by a majority Union.In refusing so to recognize the Union, respondent was in the wrong.National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 42, 44, 45, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352.

Based upon the foregoing facts, we think the Board was warranted in the conclusion that there was substantial and adequate evidence to justify the findings that respondent had interfered with, restrained and coerced its employees in the exercise of their rights to self-organization; that respondent's conduct tended to discourage membership in the Union; and that the Board was justified in directing respondent to bargain collectively with the Union as the exclusive representative of its production employees.

The fourth order (a)(d) and (e) commanded respondent to offer reinstatement with back pay to four employees found to have been unlawfully discriminated against in discharge and refusal to reinstate.

The evidence discloses that Marion McCullough was one of the organizers of the Union, became its vice president, was active in its affairs, and that respondent knew of his activities.He had been in respondent's employ as a leather cutter for about ten years, except for an absence of one month in 1929 and of one year during 1932-1933.About March 4, 1935he participated in a conference with Charles M. White about rates of pay and conditions of employment.

On June 28, 1935 there was a general seasonal lay-off of all the employees and the plant was closed for an indefinite period, but not on account of any unfair practices.It should be remembered that the National Labor Relations Act became effective July 5, 1935.On July 5, 1935 McCullough came to the plant for his pay for the period preceding June 28.In his pay envelope he found a slip, instructing him to report to William Paul, an assistant foreman, who informed him that when the plant reopened the number of employees would be reduced, due to business conditions and lack of orders, and that his services were no longer required.

On July 6, 1935he spoke to White who informed him he found...