National Labor Relations Board v. Brown Co., 4215.

• Decision Date: 05 March 1947
• Docket Number: No. 4215.,4215.
• Citation: 160 F.2d 449
• Parties: NATIONAL LABOR RELATIONS BOARD v. BROWN CO.
• Court: U.S. Court of Appeals — First Circuit

160 F.2d 449 (1947)

NATIONAL LABOR RELATIONS BOARD v. BROWN CO.

No. 4215.

Circuit Court of Appeals, First Circuit.

March 5, 1947.

Louis Libbin, of Washington, D. C. (Gerhard P. Van Arkel, Gen. Counsel, Morris P. Glushien, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, and Owsley Vose and Margaret M. Farmer, Attys., all of Washington, D. C., on the brief), for petitioner.

Harry E. Smoyer, of Cleveland, Ohio (John W. Jordan, of Berlin, N. H., on the brief), for respondent.

Before MAHONEY and WOODBURY, Circuit Judges, and FORD, District Judge.

WOODBURY, Circuit Judge.

This is a petition brought by the National Labor Relations Board under § 10(e) of the National Labor Relations Act, 49 Stat. 453, 29 U.S.C.A. § 160(e) for enforcement of an order entered by it pursuant to § 10 (c) of the Act directing the Brown Company to cease and desist from engaging in certain labor practices found to have had the effect of dominating and coercing its office employees in the formation and administration of an independent labor organization called the Brown Company Office Workers Association, and to post appropriate notices.

The respondent Brown Company is a Maine corporation having not only its principal office but also its manufacturing plant in Berlin, a city in northern New Hampshire. It employs several thousand persons in the manufacture of wood pulp, paper, various paper products, and chemicals, a large proportion of which it ships in interstate commerce. The Board's jurisdiction in the premises under § 10(a) and § 2(6, 7) of the Act, 29 U.S.C.A. §§ 160(a) and 152(6, 7), cannot be successfully disputed and in fact is stipulated.

The Board's action rests upon a charge made by the Regional Director in Boston of United Mine Workers of America District 50. In its complaint based upon this charge the Board alleged in substance that the respondent on or about October 3, 1944, warned certain of its employees that working conditions would be "worsened" if the Union won an election then pending among certain of its employees and on or about January 11, 1945, warned certain of its employees not to vote in that election, and, in addition, that since November 5, 1944 it had assisted, dominated, encouraged, contributed to the support of and interfered with the administration of the Brown Company Office Workers Association in six specified ways. It is alleged specifically that the respondent (1) permitted its supervisory employees to be active in the formation of the Association, (2) permitted them to solicit membership therein, (3) permitted the solicitation of memberships in the Association on Company time and property, (4) permitted certain of its employees to take time away from their work for the purpose of soliciting memberships in the Association, (5) permitted the use of its office facilities, including its telephone system and photostatic equipment, for the purpose of aiding the Association and carrying on its business, and (6) suggested to certain of its employees that they consult an attorney named by it for the purpose of procuring advice as to the formation of the Association. The Association was allowed to intervene at the hearing held on this complaint before a trial examiner. Only the Board elected to call witnesses at that hearing.

Following the hearing the trial examiner dismissed the complaint for lack of supporting evidence insofar as it charged that the respondent had warned some of its employees that working conditions would deteriorate in the event that the Union won an election then pending and had warned certain of its employees that they should not vote for the Union in that election. The trial examiner found, however, that the respondent had been guilty of unfair labor practices as defined in § 7 of the Act, 29 U.S.C.A. § 157, by reason of assistance and support given by it to the Brown Company Office Workers Association. With one exception to be noted hereafter the Board adopted the findings, conclusions and recommendations of the trial examiner and affirmed his ruling.

The facts may be stated as follows:

United Mine Workers of America, District 50, A.F. of L., hereinafter referred to as the Union, organized the respondent's production and maintenance workers during 1940, and since 1941 it has represented and bargained with the Brown Company for that group of employees through an affiliate, Pulp, Sulphite and Chemical Workers Local Union No. 12175. Early in 1944 the Union organized the respondent's pulp wood truck drivers and it has represented them ever since.

There is no evidence that the Brown Company was in the slightest degree hostile to the Union at any time during the above 5 year period. On the contrary the president of the local union, when testifying as a witness for the Board in the § 10(b) proceedings underlying this petition said, and his testimony was neither contradicted nor questioned, that during that entire time, the respondent had never interfered with the Union's organizing activities; that after the establishment of the Union it had frequently consulted with the Union when it was under no contractual obligation to do so; and that there had always been "an attitude of mutual respect and confidence" and "an attitude of friendly cooperation" between the officers of the Union on the one hand and the management of the respondent on the other.

During the summer of 1944, following its organization of the respondent's pulp wood truck drivers, the Union took a few tentative steps toward organizing the respondent's office workers. In this group there were some 270 persons divided into 29 departments scattered throughout the various units of the respondent's plant which extends over an area some three miles in length. Each department was under the supervision of a department head and some of the departments in addition had assistant department heads. The Board contends that there were 19 persons who should properly be classified in this latter sub-category. It may be conceded that all 48 of these officials (department heads and assistant department heads) as a practical matter had the power to bring about the discharge of rank and file employees in their respective departments, although actual discharge was handled by the respondent's personnel director. It follows that all of them are to be classified as supervisory officials.

We must infer, however, in spite of their somewhat high sounding titles, that they were "not high in the factory hierarchy." International Ass'n of Machinists v. National Labor Relations Board, 311 U.S. 72, 80, 61 S.Ct. 83, 89, 85 L.Ed. 50. There were too many of them in proportion to the number of persons in the office worker group to warrant any other inference, (as one of the office workers testified "The place is full of supervisors") and there is no evidence that they had anything to do with formulating the respondent's corporate policy but were only entrusted with the allocation of work and other administrative details within their respective departments.

The order which the Board here seeks to have us enforce rests upon inferences drawn by the Board from findings made by it with respect to the participation of some of these supervisory officials in the organization of the Brown Company Office Workers Association which we shall now proceed to consider.

The organizational activities of the Union with reference to the respondent's office workers, which began in the summer of 1944, culminated, and so far as the present record is concerned ended, with a meeting called by it on November 5. Notice of this meeting was given three days in advance by means of letters sent by the officers of the local union, who styled themselves therein the "Organizing Committee of the Brown Company," to some 50 or 60 office workers of their selection. In these letters, after giving the date and place of the meeting, its purpose was stated to be "to acquaint you with your rights under the National Labor Relations Act." Following this some advantages of organization under the banner of the Union were suggested, and the letters closed with the request: "Please make a very special effort to attend this important conference and if possible bring an office worker friend with you that may not have received this invitation."

The Board found that immediately following this announcement by the Union two admittedly rank and file office workers named Tourangeau and Oleson, neither of whom had received the Union's letter, "openly, on the respondent's time and property, with full knowledge of the respondent's supervisors, embarked on a campaign designed to frustrate the Union." It found that approximately 175 of the respondent's office workers attended this meeting; that it was "`packed' with anti-union elements"; and that among those in attendance were supervisory officials "including the head of its accounting department, other department heads and various assistant department heads."¹ The only evidence in the record, however, is that only two supervisory officials attended — one the head of the accounting department and the other one of two female supervisors of the stenographic pool — and there is no evidence that either of them were more than passive observers.

Some of the rank and file office employees, however, particularly Tourangeau and Oleson, were outspoken at this meeting in opposition to the Union.

The Board found that during the meeting both of the latter asked questions of the chairman which indicated their hostility to the Union, and that eventually Oleson offered a motion to the effect that it was the sense of the gathering not to affiliate with the Union. On the refusal of the chair to entertain this motion the meeting broke up. Immediately thereafter a small group of office workers headed by Tourangeau and Oleson met at the latter's house and decided to form an independent labor organization. There is no evidence or finding that any supervisory...