National Labor Relations Board v. Clark Bros. Co.

• Citation: 163 F.2d 373
• Decision Date: 29 July 1947
• Docket Number: Docket 20375.,No. 268,268
• Parties: NATIONAL LABOR RELATIONS BOARD v. CLARK BROS. CO., Inc.
• Court: U.S. Court of Appeals — Second Circuit

163 F.2d 373 (1947)

NATIONAL LABOR RELATIONS BOARD v. CLARK BROS. CO., Inc.

No. 268, Docket 20375.

Circuit Court of Appeals, Second Circuit.

July 29, 1947.

Gerhard P. Van Arkel, General Counsel, Morris P. Glushien, Associate General Counsel, A. Norman Somers, Asst. General Counsel, Leonard Appel and Mozart G. Ratner, all of Washington, D.C., for petitioner.

Maurice F. Hanning and McAfee, Grossman, Taplin, Hanning, Newcomer & Hazlett, all of Cleveland, Ohio, and J. Edward Lumbard, Jr., and Donovan, Leisure, Newton, Lumbard & Irvine, all of New York City, for respondent.

Before SWAN, AUGUSTUS N. HAND and FRANK, Circuit Judges.

SWAN, Circuit Judge.

This case is before us on the petition of National Labor Relations Board for enforcement of its order of August 26, 1946, entered against Clark Bros. Company after a hearing before a trial examiner. The order directs the respondent to desist from (a) surveillance of its employees' self-organizational activities, (b) enforcing a rule prohibiting union solicitation on company premises during nonworking time, (c) discrimination in the distribution of union literature at the company's plant, (d) compelling its employees during working time to attend speeches relating to self-organization and (e) interfering with its employees in the exercise of the right to self-organization. Affirmatively the order directs the respondent to rescind Shop Rule 6 in so far as it prohibits union solicitation on company premises during nonworking time, and to mail and post notices to its employees. One member of the Board, Mr. Gerard D. Reilly, dissented from the Board's decision and order. 70 N.L.R.B. 802.

The respondent, a New York corporation, is engaged in the manufacture of gas engines, compressors and related products. It employs at its plant in Olean, N. Y., approximately 1200 persons. For several years preceding 1944, an "independent" union known as Employees Association, Inc., of Clark Bros. Company, hereafter referred to as the Association, had been recognized as the exclusive bargaining representative for the respondent's employees. In the spring of 1944 the United Automobile, Aircraft and Agricultural Implement Workers of America, C.I.O., hereafter referred to as the CIO, began an organizing campaign among the employees. On January 19, 1945 the Board conducted an election at the Olean plant. Neither the Association nor the CIO received a majority of the votes cast, and a run-off election was ordered to be had on February 8th. The respondent, which had been silent before, then began an aggressive campaign to assure the defeat of the CIO in the run-off election; by newspaper advertisements, and by letters and speeches to its employees, it made known its hostility to the CIO. One hour before the election work was stopped and the employees were ordered to listen to respondent's president, who spoke against "outside" unions but assured the workers that they could vote as they pleased without fear of discrimination. The run-off election resulted in a decisive victory for the Association, which received 585 votes as against 394 for the CIO. Upon the latter's protest the election was set aside, and a complaint initiating the case at bar was filed against the respondent. Thereafter, on October 3, 1945, the CIO petitioned for another election, which the Board ordered held, 66 N.L.R.B. 849. In connection with this representation case the CIO executed a written waiver of any right it might have to protest the election on any of the grounds set forth in the complaint in the case at bar. The election was held on April 9, 1946. It resulted in the election of the Association which was thereafter certified as the collective bargaining representative for the employees involved. On May 21, 1946 the respondent moved the Board to dismiss the complaint in the case at bar on the ground that the issues therein had become moot by reason of the representation case. This motion the Board denied.

We do not think the issues as to unfair labor practices have become moot because of the representation case and the certification of the Association as collective bargaining agent. The waiver by the CIO precluded it from contending that no fair election could be held in April 1946, but it does not render moot the question whether the conduct of the respondent in connection with the run-off election in February 1945 violated the Act. The CIO will doubtless continue its organizational efforts and may hereafter petition for another election. If the court makes no decision as to respondent's former conduct, it may then be repeated; hence a decision as to its legality will not be a futile exercise of jurisdiction.

The charge of surveillance is based on two visits by the respondent's industrial relations director to a saloon frequented by some of the employees for the purpose of overhearing what they were saying about the election to be held on January 19, 1945. What he heard did not result in any action being taken against any employee nor in any interference by the respondent in that election; it does not even appear that any employee knew that his...