National Labor Relations Board v. Thompson Products

Decision Date28 August 1942
Docket NumberNo. 9129.,9129.
Citation130 F.2d 363
PartiesNATIONAL LABOR RELATIONS BOARD v. THOMPSON PRODUCTS, Inc.
CourtU.S. Court of Appeals — Sixth Circuit

Max W. Johnstone, of Washington, D. C. (Robert B. Watts, Ernest A. Gross, Gerhard P. Van Arkel, Ruth Weyand, and Robert N. Cook, all of Washington, D. C., on the brief), for petitioners.

Harry E. Smoyer, of Cleveland, Ohio (Stanley & Smoyer, Welles K. Stanley, and Eugene B. Schwartz, all of Cleveland, Ohio, on the brief), for respondent.

M. Alfred Roemisch, of Cleveland, Ohio (Selzer & Roemisch, of Cleveland, Ohio, on the brief), for intervener Automotive & Aircraft Workers Alliance, Inc.

Before SIMONS, ALLEN, and McALLISTER, Circuit Judges.

SIMONS, Circuit Judge.

The petitioner seeks a decree enforcing its order of August 1, 1941, that the respondent cease and desist from dominating or interfering with organizations among its employees, withdraw all recognition of and disestablish the Automotive and Air Craft Alliance, Inc., and take certain affirmative action. The respondent resists on the ground that the action of the Board was beyond its jurisdiction, barred by previous proceedings, and its ultimate findings and conclusions erroneous because unsupported by evidence. The Alliance intervenes in support of the challenge to the validity of the Board's order.

The respondent is engaged in the manufacture and sale of automobile parts in Cleveland, Ohio, and elsewhere, though the present proceeding involves only its Cleveland plants. In 1934 it cooperated with its employees in the formation of an organization known as "Thompson Products, Inc., Employees Association." This was an unaffiliated labor organization which, it is now conceded, became unlawful upon passage of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., because representatives of the employer were upon its governing council, and because its basic law recognized restraints upon action by employer representatives. It was therefore a labor organization dominated by the employer within the meaning of § 8(2), and the interference and restraint allowed to the employer by its constitution and its contracts with the respondent, invaded rights guaranteed by § 7 and became unfair labor practices within the meaning of § 8(1).

In March and April of 1937 the United Automobile Workers of America, Local 300, affiliated with the Congress of Industrial Organizations, hereinafter referred to as the Union, became active in an endeavor to organize the respondent's employees. It is clear, upon the record, that the respondent was opposed to this activity. In a number of articles appearing in its factory newspaper, "Friendly Forum," between March 26th and April 12th, comment was made derogatory of the Union and commendatory of the Association. These included an open letter in the April 9th issue, addressed to all employees and signed by the Association's employee representatives, which observed that "Recent statements made by an outside organization * * * in an effort to invade our plants prompt the candid opinion that no organization can secure any concessions from management that the present Association cannot secure, and with less * * * ill will. * * *"

On April 12, 1937, the Supreme Court, in a series of decisions, upheld the constitutionality of the National Labor Relations Act (N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352, and companion cases). Shortly thereafter the respondent posted upon its bulletin boards a notice which undertook to summarize the more important provisions of the Act. It called attention to the creation of the Board to decide questions of representation and to rule on alleged unfair labor practices, but declared the Board to be without enforcement powers, and concluded with the following: "It Should Be Understood That This Bill Has Been a Law for Nearly Two Years and This Company Has Been Observing Its Terms. Therefore, the Supreme Court's Recent Decision Causes No Change Whatsoever in Present Plant Conditions or Relationships."

Notwithstanding these assurances there was a feeling among some of the employee representatives in the Association, that their organization was not within the letter and spirit of the Act, and that some changes should be made in its constitution. They advised with Livingstone, respondent's director of personnel, who agreed that there should be revision, and advised that quick action should be taken because of awareness that the law was being violated. Wright, another officer of the respondent, was also consulted. He advised that incorporation was unnecessary, but that the Association might be improved by certain revisions in the constitution. At a meeting in the office of Crawford, respondent's president, it was suggested that revision should deal only with the purpose of the Association and the rules pertaining to eligibility for membership and election and eligibility of representatives, but that provision for presentation of grievances and relationships with management be left to contract. A committee to study and recommend changes in constitution was appointed. Subsequently certain changes were decided upon and later a revised constitution, purporting to conform to the Labor Act, was adopted.

Apparently there was still some doubt as to the validity of the Association. An independent attorney was consulted who suggested the incorporation of an entirely new organization. This advice was followed and the Alliance was born. Its incorporators and officers were, in the main, the employee delegates, representatives, and committee chairmen of the older organization. Immediately there began a solicitation for memberships among employees of the respondent, and on June 20th, at a joint meeting of the committee of representatives and officers of the new organization, it was reported that the membership committee had received 912 applications for membership, and it was voted to notify the respondent of an intent to seek a contract with it. While the organization of the Alliance and solicitation for members was going forward, the Union had likewise been active, but during this period the "Friendly Forum" continued its derogatory comment upon Union activities, while crediting the Association with substantial increase in employees' wages, and publicizing the Alliance campaign for memberships. In its columns was a statement by Arnold, temporary president of the Alliance, to the effect that it was the only sane method of bargaining collectively because the Alliance was not asking employees to pay high monthly dues, and its nominal dues would not go for salary to officers and organizers.

On June 21st a committee of Alliance officers met with respondent's personnel director in the office of respondent's president, exhibited 833 membership cards which were said to represent a majority of the employees, and requested an exclusive bargaining contract. It was arranged that the signatures should be checked, and when this had been completed, the committee was advised, on June 25th, by Livingstone, that the Alliance had a majority of employees, and that there was no alternative for the company but to grant it exclusive bargaining rights. Between June 25th and 30th the terms of the contract were tentatively agreed upon, and on the latter date, at a meeting in the offices of the attorney for the Alliance, it was voted to accept the contract and authorize its execution. On July 1st, at a meeting of the Joint Council of the Association, it was agreed that since a new union now represented a substantial majority of the employees, the contract between the respondent and the Association should be terminated. At the suggestion of Livingstone, a resolution was drafted as a testimonial to the achievements of the Association, and an agreement likewise was drafted terminating the Association's contract. On July 2nd, the contract between the respondent and the Alliance was signed, recognizing the Alliance as the exclusive representative of the respondent's Cleveland employees for the purposes of collective bargaining. It provided for the creation of a Labor Relations Committee consisting of an equal number of Alliance and management representatives for the purpose of adjusting grievances. In October, 1938, further contracts were made substantially similar.

The respondent does not assail the evidentiary fact findings of the Board. Its grievance is, in the main, directed to the inferences drawn therefrom and to the Board's ultimate conclusions. Before giving consideration to this challenge, however, it becomes necessary to dispose of contentions alleging jurisdictional infirmity and estoppel. The Board's complaint asserted the Union to be a labor organization within the meaning of § 2(5) of the Act. The respondent answered that it was unable to admit or deny this allegation. This, it now says, put in issue the existence of the Union. Notwithstanding, no evidence was offered to sustain the Board's allegation or its finding in that respect. Inasmuch as the Board has no power to initiate a proceeding on its own motion, but may do so only upon complaint of employees or of a labor organization which includes employees, and since the Board failed to prove existence of the Union, its qualification to file such complaint, or that it was capable of acting as a bargaining representative of the employees, if selected, it is urged that the Board had no jurisdiction and that the whole proceeding must fail.

This respondent, however, has been before the Board and before this court before, upon complaint of the same Union. N.L.R.B. v. Thompson Products, Inc., 6 Cir., 97 F.2d 13, 14. There was no contention then that the complaining organization was not bona fide a Union eligible to bring charges or qualified to function as a bargaining unit if selected by a majority of the respondent's employees....

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