National Labor Relations Board v. West Ohio Gas Co.

• Decision Date: 21 February 1949
• Docket Number: No. 10766.,10766.
• Citation: 172 F.2d 685
• Parties: NATIONAL LABOR RELATIONS BOARD v. WEST OHIO GAS CO.
• Court: U.S. Court of Appeals — Sixth Circuit

172 F.2d 685 (1949)

NATIONAL LABOR RELATIONS BOARD v. WEST OHIO GAS CO.

No. 10766.

United States Court of Appeals Sixth Circuit.

February 21, 1949.

John H. Hull, Jr., of Cleveland, Ohio (David P. Findling, Ruth Weyand and Thomas McDermott, all of Washington, D. C., on the brief), for petitioner.

Paul O. Boesel, of Lima, Ohio, (Paul O. Boesel, of Lima, Ohio, of counsel; Bentley, Neville, Cory & Boesel, of Lima, Ohio, on the brief), for respondent.

Before HICKS, Chief Judge, and ALLEN and McALLISTER, Circuit Judges.

ALLEN, Circuit Judge.

The National Labor Relations Board prays for enforcement of its order finding (1) that respondent had coerced its employees in the exercise of their rights under Section 7 of the National Labor Relations Act, 29 U.S.C.A. § 157; (2) that it had discriminated against Ralph Engle in discharging him for union activities; (3) that it had raised wages in order to forestall union organization; and (4) that it had threatened economic reprisal against employees active in the union. The usual cease and desist order was issued in accordance with the findings.

Prior to 1942 there was an independent union among the respondent's employees. After 1942 the A. F. of L. was certified as bargaining representative, and in January, 1945, as the result of an election, a local union, member of the C. I. O., was certified as exclusive bargaining agent. The plant at that time employed some 42 men. A contract was executed between respondent and the union covering all points in dispute between respondent and the men, except checkoff, maintenance of membership, and wages and hours, and running from January 26, 1945, to January 26, 1946. The disputed points were submitted to the National War Labor Board, which on December 19, 1945, issued its recommendations. Respondent in no way opposed the organization under either of these unions. This is uncontradicted. Interest in the C. I. O. union declined after its certification. After June, 1945, only two of the 23 members paid dues, and for July only, and no quorum was ever secured for a meeting. Witnesses both for the Board and for the respondent testified that the members in general wished to withdraw from the union. There was no testimony to the contrary.

On December 27, 1945, the respondent called a meeting with the negotiating committee of the union to read the recommendations of the National War Labor Board. These included in their principal features maintenance of membership, the checkoff, no change in wages, and time and a half for overtime. It was also recommended that the foregoing terms be incorporated in a written contract between respondent and the union. The four members of the negotiating committee, including the president and secretary, said that they wished to get out of the union. A written resignation of withdrawal was proposed, and the president and secretary of the union started to draw such a paper. The attorney for respondent suggested that the petition refer to the recommendations of the National War Labor Board, and the respondent's president suggested that if a petition for withdrawal were circulated a second paper permitting a vote in favor of retention of the union should also be submitted. This was done, a secretary of the respondent typing the two petitions. The petitions were circulated by the president and secretary of the union, and every member of the union with the exception of one who could not be contacted signed the petition for withdrawal. After this had been done the men in a body conferred with respondent's president and asked for a raise in wages. This request was complied with on or about January 30, 1946, as soon as a reorganization within the employer corporation was consummated, the raise being voted by a new board of directors, in which the majority were new men, and from out of the state.

The order of enforcement must be denied. There is no substantial evidence that the respondent, in assisting in the preparation and circulation of the petition, the proposal for which emanated from the union's own members and the decision for which had been voluntarily made by the employees long previous to the meeting of December 27th, interfered with the freedom of choice of the employees. The assistance was requested by the men, and the submission of both sides of the question was suggested and secured by the respondent. This is the antithesis of coercion. The recommendations of the War Labor Board were read in toto at this meeting and discussed, and there is no substantial evidence that the discussion misled the men and caused them to decide to withdraw from the union. The union was already defunct, every one of its 23 members being long in arrears for payment of dues, and the choice registered on the petitions had already been made. After being meticulously instructed to vote either for withdrawal or for retention of the union, the entire membership, with the exception of one who could not be reached, voted to withdraw.

A similar conclusion is necessitated as to the wage increases. The employees of their own accord had withdrawn from the union and none existed. The respondent therefore did not bypass any organization authorized to bargain for the men. Cf. National Labor Relations Board v. J. H. Allison & Co., 6 Cir., 165 F.2d 766, certiorari denied 335 U.S. 814, 69 S.Ct. 31. The National War Labor...