National Labor Relations Board v. Tappan Stove Co.

• Citation: 174 F.2d 1007
• Decision Date: 03 June 1949
• Docket Number: No. 10798.,10798.
• Parties: NATIONAL LABOR RELATIONS BOARD v. TAPPAN STOVE CO. (INDEPENDENT EMPLOYEES ASS'N, Intervener).
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

174 F.2d 1007 (1949)

NATIONAL LABOR RELATIONS BOARD v. TAPPAN STOVE CO. (INDEPENDENT EMPLOYEES ASS'N, Intervener).

No. 10798.

United States Court of Appeals Sixth Circuit.

June 3, 1949.

Ruth Weyand, Washington, D. C. (David P. Findling, A. Norman Somers and Irving M. Herman, Washington, D. C., on the brief), for petitioner.

J. H. Gongwer, Mansfield, Ohio, and Maurice F. Hanning, Cleveland, Ohio (J. H. Gongwer, Mansfield, Ohio, and Maurice F. Hanning, Cleveland, Ohio, on the brief), for respondent.

Daniel E. Bevis, Columbus, Ohio (Daniel E. Bevis, Columbus, Ohio, on the brief), for intervenor Independent Employees Ass'n.

Before SIMONS, ALLEN and MARTIN, Circuit Judges.

MARTIN, Circuit Judge.

This is another petition of the National Labor Relations Board for enforcement of its order in the consideration of which we must constantly bear in mind that, though not in accord with the board's decision, we are impelled to enforce it if upon consideration of the record as a whole it is apparent that the board's findings are supported by substantial evidence. Title 29, U.S.C.A. § 160(e). The Supreme Court has repeatedly admonished the courts of appeal as to their limited power of review of fact findings of the labor board. See for example authorities cited in S. H. Camp & Co. v. National Labor Relations Board, 6 Cir., 160 F.2d 519, 522, and in National Labor Relations Board v. Thompson Products, 6 Cir., 130 F.2d 363, 367, 368. In the matter of factual review, the Taft-Hartley Act, 29 U.S.C.A. § 141 et seq., merely broadened the Wagner Act, 29 U.S.C.A., 151 et seq., to the extent that the findings of fact of the National Labor Relations Board must now be based upon substantial evidence rather than upon evidence unqualified by the objective "substantial"; and that determination of issues of fact must be reached upon consideration of the record as a whole.

The board order under present review directed the respondent, The Tappan Stove Company, to cease and desist from (1) domination or interference with the Independent Employees Association of The Tappan Stove Company, or any other organization of its employees; (2) from recognizing the Independent Employees Association, or any successor thereto, as the representative of its employees concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment; (3) from giving effect to any and all agreements and contracts with the Independent Employees Association; (4) from recognizing or dealing with any other labor organization as the representative of its employees concerning wages and other conditions of employment unless and until such labor organization shall have been certified by the board as such representative; and (5) from encouraging membership in the Independent Employees Association, or any other labor organization of its employees, and discouraging membership in the United Electrical, Radio & Machine Workers of America, affiliated with the C.I.O., or any other labor organization of its employees, by discharging any employee pursuant to any contractual provision requiring, as a condition of employment, membership in any labor organization which has been established, maintained or assisted by any action defined in the Act of Congress as an unfair labor practice, or in any successor thereto, or in any labor organization which has not been certified by the board.

The respondent was ordered to take affirmative action, as follows: (1) to withdraw all recognition from and completely disestablish the Independent Employees Association as representative of its employees, and to refrain from recognizing the several relations committees should The Tappan Mutual Benefit Association, or The Tappan Stove Company Employees' Association, return to active existence; (2) to offer to four named employees, Sposito, Kellogg, Wolford and Heppinger, immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority, or other rights and privileges; (3) to make them whole for any loss of pay occasioned by respondent's discrimination against them; (4) to post appropriate notices; and (5) to notify the regional director of compliance with the board's order.

The record reveals a long history of friendly labor relationship between the respondent and its employees. As far back as 1895, to alleviate distress among its members by an insurance plan, The Tappan Mutual Benefit Association came into existence. Its membership embraced management employees, as well as employees generally. In 1926, this organization was revitalized so as to afford the employees a voice in the practical running of the plant. Six committees were constituted to deal, respectively, with safety, fire prevention, recreation, improvements, loss and waste, and grievances. The chairmen of these committees were chosen by the membership of the Mutual Benefit Association, with the participation of the management. Each chairman chose the six members of his committee, one from each of the voting groups into which the plant was divided. The benefit association still exists and operates, and five of the six committees remain unchanged. The sixth, the relations committee which concerned itself with grievances, has been supplanted by the welfare committee. During the time that the relations committee was embraced within the Mutual Benefit Association, it served as a representative of the employees in dealing with the respondent company concerning wages, hours and working conditions. The meetings were held on the company premises and, while attending them, the committeemen were paid by the company. The chairmanship of the relations committee was sometimes held by a foreman, and the membership of the committee included both workers and "bosses."

After it became apparent from the decision of the Supreme Court in National Labor Relations Board v. Jones & Laughlin, 301 U.S. 1, 57 S.Ct. 615, 8 L.Ed. 893, 108 A.L.R. 1352, that the relations committee was an illegal organization, the respondent in May, 1937, caused its attorney, Veach, to address that committee — together with a group of foremen — as to the legal situation resultant from the Wagner Act. This meeting was attended by two of the Tappans. The testimony of the various witnesses as to what the attorney said is not too clear. This would be natural, in view of their attempt to recall his remarks after some seven years. It is clear, however, that Veach told the group that the committee could no longer meet on company property; but he did not make it plain that the committee must be abolished. Along this line, the extent of his remarks seems to have been that the company could have no further dealings with the relations committee "as it was at that time." At least one witness understood that the company could deal with the relations committee on company property when the committee came with a grievance. Another witness testified that Veach said that the relations committee had to hold its meetings "outside the shop from then on," and would have "to get a new committee."

Those who listened to the lawyer's speech were told to explain the Wagner Act to the other employees. The gist of Veach's remarks became general knowledge around the plant, but the respondent company posted no notice on the bulletin board and directed no specific communication to its employees advising them that it could no longer deal with the relations committee. At the conclusion of Veach's remarks, the relations committee retired to another room to discuss a course of action. With Craig, foreman of the experimental engineering department, acting as chairman, it was decided to pass for signature among the employees of the company an acceptance of the relations committee as their representative. By reason of his close relationship to management, Craig resigned from the committee and induced another member, King, to resign for the same reason. Craig convinced Wilhelm that "for the good of the people" the latter should take over the chairmanship of the relations committee.

With neither aid nor interference from the respondent, lists bearing the suggested slate for membership on the relations committee were circulated by employees on the sidewalk outside company premises. Gross, a member of the relations committee, was stopped from circulating a list on the premises of the company after he had obtained about eight signatures in the shop. At the "next regular meeting" of the relations committee, held off company property, the lists which had been circulated were tabulated with the result that the suggested committeemen were approved by the signatures of 186 of the 333 eligible employees. Wilhelm was elected chairman by the relations committee, which continued to deal with the company in very much the same fashion as it previously had done, except that meetings were not held in the factory and no officials were present.

Until April, 1938, the membership of the committee remained unchanged, except as to successors to Wilhelm and King. Wilhelm was then reelected chairman. Until 1939, the relations committee did not represent any organized group, but took up grievances for anyone in the plant except the moulders, who had a separate union. In the annual general meeting of that year, held in April, Farley was elected chairman. The small expenses of the committee having been paid by the committeemen out of their own pockets, it was resolved that the members thereafter should be charged dues of fifty cents a year. There was discussion of obtaining a constitution, but nothing was done about it until the meeting held in December, when the membership decided to have a constitution drafted. Farley felt himself incompetent to perform this service, and it was thought that legal advice was needed and that an attorney should be employed.

After turning down the attorney's first draft, the committee accepted one which he...