National Labor Relations Board v. Franks Bros. Co.

• Decision Date: 27 July 1943
• Docket Number: No. 3872.,3872.
• Citation: 137 F.2d 989
• Parties: NATIONAL LABOR RELATIONS BOARD v. FRANKS BROS. CO.
• Court: U.S. Court of Appeals — First Circuit

137 F.2d 989 (1943)

NATIONAL LABOR RELATIONS BOARD v. FRANKS BROS. CO.

No. 3872.

Circuit Court of Appeals, First Circuit.

July 27, 1943.

Malcolm A. Hoffmann, Robert B. Watts, Gen. Counsel, Ernest A. Gross, Associate Gen. Counsel, Howard Lichtenstein, Asst. Gen. Counsel, and David Findling, all of Washington, D. C., and Herman Lazarus, of Philadelphia, Pa., for petitioner.

Benjamin E. Gordon, of Boston, Mass., for respondent.

Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.

MAHONEY, Circuit Judge.

Pursuant to Section 10(c) of the National Labor Relations Act (49 Stat. 449, 29 U.S.C.A. 151 et seq.), the National Labor Relations Board has petitioned us for enforcement of its order of October 8, 1942, against Franks Bros. Company, a Massachusetts corporation, with its principal office and place of business at Lawrence, Massachusetts.

The respondent is engaged in the manufacture, sale and distribution of men's clothing. Samuel Franks is its President, Treasurer and principal stockholder. Abraham A. Franks, his son, is its Secretary. No question is raised in this case as to the interstate character of respondent's business.

The Board found that the respondent on June 12, 1941, and thereafter, refused to bargain collectively with the Amalgamated Clothing Workers of America (C.I.O.), (hereinafter called the union), as the exclusive representative of its employees in an appropriate bargaining unit within the meaning of Section 8(5) of the Act, and interfered with, restrained and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act, thereby committing an unfair labor practice within the meaning of Section 8(1). The Board issued its usual cease and desist order ordering the respondent upon request to bargain collectively with the union as the exclusive representative of the employees, and to refrain from interfering with, restraining or coercing its employees and to post notices to this effect.

The respondent challenges the sufficiency of the evidence in support of the Board's conclusions that the union was the exclusive representative of its employees and that it coerced or interfered with their union activities. It contends that a majority of its employees did not designate the union as its exclusive bargaining representative as of June 12, 1941, but that even if this were so, nevertheless, the union did not as of the date of the hearing of this cause before the Trial Examiner have a majority due to the voluntary quitting of some of respondent's employees, and that, therefore, the Board's order that it bargain with the union despite its loss of a majority is invalid.

The evidence introduced in behalf of the Board indicated that the union had engaged in an organizational campaign commencing in January, 1941, and that by the early part of June a majority of the employees had signed cards designating the union as its bargaining representative. On June 12, 1941, Frank Lerman, Assistant Manager of the Boston Joint Board, had a conference with Samuel and Abraham Franks at their place of business in Lawrence. Louis Hascall, a union organizer, deputized Lerman to discuss the matter of collective bargaining with the respondent's officers because he was of the opinion that Lerman, through his acquaintance with the Franks, would have a better chance of success in any negotiations with them. At this conference Lerman sought to persuade the Franks to agree to bargain with the union but was unsuccessful. The evidence as to what took place at this conference is conflicting. Lerman testified that he informed the Franks that the union had a majority but that they refused to bargain with it. He further testified that Abraham Franks said that it would be advisable to wait until Christmas before reaching a decision because he was not certain what would be done with the business. The Franks denied that Lerman told them that the union had a majority. Samuel Franks' version is that Lerman was asked whether the union had a majority and that he replied in the negative. Abraham Franks stated that Lerman, in response to a question as to whether the union had a majority, replied that he did not know. A second conference was held between Lerman and Abraham Franks in Boston at the Bradford Hotel during the following week. Lerman testified that in response to a question put to him by Abraham Franks as to whether the union would win an election if one were held, he replied that a majority of the employees had signed cards designating the union as its representative. Lerman stated that Abraham Franks reiterated his suggestion that the union leave respondent alone until Christmas because he didn't know what was going to be done with the business. Lerman said that he told him then that unless the parties could reach some agreement the union would petition the National Labor Relations Board to certify it as a majority representative. Franks denied that he had stated that the matter should be deferred until Christmas. On the basis of the conflicting testimony the Board concluded that on June 12, 1941, the union had a majority of the cards signed by the employees of respondent designating it as the bargaining representative; that upon Lerman's request that the respondent bargain with the union, it refused and sought to delay the matter until some considerable time thereafter; that he had notified respondent that the union had a majority and that the respondent by its attempt to delay negotiations until Christmas did not bona fide doubt the majority status of the union but merely refused to bargain. Respondent on the other hand categorically denied the testimony offered by Lerman. In the light of this conflicting testimony it is clear that the appellate court is not in a position to weigh the testimony of the witnesses, nor is it permitted to do so. National Labor Relations Board v. Link-Belt Co., 1941, 311 U. S. 584, 61 S.Ct. 358, 85 L.Ed. 368; National Labor Relations Board v. Waterman Steamship Corp., 1940, 309 U.S. 206, 60 S. Ct. 493, 84 L.Ed. 704; National Labor Relations Board v. Johnson Steel & Wire Co., 1 Cir., 134 F.2d 785, decided April 1, 1943.

Respondent asserts that the testimony given by Lerman in this regard is unreliable and that throughout examination and cross-examination by counsel he never stated that he told the respondent that the union had a majority. It contends that the Trial Examiner improperly elicited this information from him by asking him leading questions. The fact that the Trial Examiner injected himself into the proceedings by asking Lerman certain questions was not on this record improper. As was said in Bethlehem Steel Co. v. National Labor Relations Board, 74 App. D.C. 52, 120 F.2d 641, 652:

"It is the function of an examiner, just as it is the recognized function of a trial judge, to see that facts are clearly and fully developed. He is not required to sit idly by and permit a confused or meaningless record to be made."

On June 19, 1941, the union filed a petition for a certification of it as the bargaining representative of respondent's employees. As a result of conferences held at the Regional Office of the National Labor Relations Board, in which counsel for the parties participated, an agreement was entered into for a consent election to be held on July 25, 1941. The Board introduced testimony to show that after the notice of the election was posted in respondent's plant, supervisory employees of respondent sought to undermine the majority status of the union and to prejudice the employees of respondent against it by making statements to the effect that if the union were successful in the forthcoming election, respondent would close down its plant. As a result of this, the union claimed that it cancelled the scheduled election and thereafter it filed charges with the Board alleging that the respondent committed unfair labor practices.

During July, August and September of 1941, various conferences were held and correspondence exchanged between the respondent and the Board in an effort to settle the dispute. The Board requested the company to post notices stating that "the company hereby advises its employees that there will be no shutdown of the plant caused by the employees selecting a union". Respondent was willing to post the notice but with the additional statement: "However, if the union wins their election and makes excessive demands on the company, the company may cease operations and close the plant." The condition which respondent sought to impose by its request that it be permitted to append its additional statement to the Board's notice was rightly considered by the Board coercive. Abraham Franks testified that at the time he had no idea that the union would make excessive demands nor did he under the then existing conditions expect to close the business. Why respondent should want to qualify the Board's language is unclear unless it thought that the complete statement would have some effect upon the free choice of the employees in their selection of a bargaining agent. We think the Board properly concluded that this was evidence of a continued refusal on the part of the respondent to bargain collectively with its employees.

Respondent contends that the union did not represent a majority of its employees, despite the fact that out of eighty employees who worked for respondent, forty-six had signed cards designating the union as its representative. Its contention is based upon the fact that certain of the cards signed by the employees designated the union and others designated the Boston Joint Board of the Amalgamated Clothing Workers of America. We find no merit in this contention. The Boston Joint Board is composed of seven members from each of the thirteen locals in Boston and vicinity. The National Executive Office of the union consists of representatives of the Joint Boards throughout the country. With this obvious tie-up between the ...