National Labor Relations Board v. Rath Packing Co.

• Decision Date: 13 October 1942
• Docket Number: No. 481.,481.
• Citation: 130 F.2d 540
• Parties: NATIONAL LABOR RELATIONS BOARD v. RATH PACKING CO.
• Court: U.S. Court of Appeals — Eighth Circuit

130 F.2d 540 (1942)

NATIONAL LABOR RELATIONS BOARD v. RATH PACKING CO.

No. 481.

Circuit Court of Appeals, Eighth Circuit.

September 11, 1942.

As Modified on Denial of Rehearing October 13, 1942.

Marion A. Prowell, of Washington, D. C., Atty., National Labor Relations Board (Robert B. Watts, Gen. Counsel, Ernest A. Gross, Associate Gen. Counsel, Gerhard P. Van Arkel, Asst. Gen. Counsel, Malcolm F. Halliday, Asst. Gen. Counsel, A. Norman Somers, Frank Donner, William F. Guffey, Jr., and Leslie Clifford, Attys., National Labor Relations Board, all of Washington, D. C., on the brief), for petitioner.

B. F. Swisher, of Waterloo, Iowa (Swisher, Cohrt & Gillilland, of Waterloo, Iowa, on the brief), for respondent.

Before SANBORN, THOMAS, and JOHNSEN, Circuit Judges.

PER CURIAM.

In 115 F.2d 217, we sustained an order of the National Labor Relations Board, 14 N.L.R.B. 805, entered against Rath Packing Company, and directed its enforcement. In 123 F.2d 684, on subsequent application of the Board for a contempt order and the response made thereto, we appointed a special master to take testimony and report the facts. The record made before the special master and the special master's findings of fact have been duly filed, and the matter has now been fully submitted to us, on briefs and arguments of counsel.

The Board's order required that respondent "completely disestablish" the Employees Representative Council of Plant Employees of the Rath Packing Company, as a collective bargaining representative for any of its employees, and the question here is whether this has properly and effectually been done.

The Board had found that the Council was a company-fostered and dominated union, with supervisory employees filling the positions of chairman and secretary-treasurer, and with a governing board whose members were subsidized for their time losses in attending meetings and whose actions in effect were subservient to the company's wishes. In the language of the Board, the plan and its operation were such that "substantially the same individuals have been continually in office."

Shortly after the Board's decision and order of August 18, 1939, the governing board of the Council met in the plant cafeteria and purported to disband the organization. The chairman and the secretary-treasurer, who were supervisory employees of the company, then picked up the records and papers of the Council and withdrew from the meeting. The other members of the old governing board, however, remained, and the formation of a new union for the plant employees was suggested. No specific plans were agreed upon, but one of the leaders thereafter took the matter up with an attorney. The group then held meetings with the attorney, and, when the drafting of satisfactory articles of association had been completed, they invited the employees of the plant to attend a mass meeting at the county court house. About fifteen per cent of the plant employees were present, and about two-thirds of these came forward at the meeting, in response to a solicitation, to sign up as members of the new organization. An election was held among the members a short time later, and three of the four officers' posts in the new union again came to rest in the hands of employees who had been leaders of the old Council. The new organization had been named the Independent Packinghouse Workers' Association.

While all of this was going on, Rath Packing Company did not make any general disavowal of the old Council, and the special master found from the evidence that, at the time the Independent was created, "respondent's employees as a whole had no knowledge that the Council was dissolved and that respondent had withdrawn all recognition from the Council and that employees were free to join or not to join any other labor organization and that respondent was indifferent as to what they might do in that regard."

More than a year had elapsed from the date of the Board's order until the enforcement order of this Court was issued. At the time the matter was submitted to us on the Board's petition for enforcement, the Independent had been in existence for approximately eleven months. The facts with respect to both the old Council and the new Independent were fully known to respondent, but it chose not to inform either the Court or the Board of the existing situation. It argued here that it had in no way been guilty of any unfair labor practice in respect to the Council and that the Board had no right to disturb such relationships as existed between them. Inasmuch as the old Council was no longer purporting to function and respondent now contends that it had ceased to exist, it is difficult to avoid the conclusion that respondent's chief aim and interest, in resisting the petition for enforcement, were to move as laggingly as possible in allowing the door to become opened to the free selection of a collective bargaining representative by its employees. Complementary significance is derived from the fact that, throughout this whole period, an outside union had unsuccessfully been seeking to gain a dominant position in the plant and that, even after the issuance of our enforcement order, supervisory employees of respondent had continued to take occasion to disparage this affiliated organization to the employees, although the evidence does not show that such disparagement was directed by respondent.

The purpose of the Board's order, in requiring...