National Labor Relations Board v. Federbush Co.

• Decision Date: 18 July 1941
• Docket Number: No. 230.,230.
• Citation: 121 F.2d 954
• Parties: NATIONAL LABOR RELATIONS BOARD v. FEDERBUSH CO., Inc.
• Court: U.S. Court of Appeals — Second Circuit

121 F.2d 954 (1941)

NATIONAL LABOR RELATIONS BOARD v. FEDERBUSH CO., Inc.

No. 230.

Circuit Court of Appeals, Second Circuit.

July 18, 1941.

Christopher W. Hoey, of New York City, and Robert B. Watts, Gen. Counsel, Laurence A. Knapp, Associate Gen. Counsel, Ernest A. Gross, Asst. Gen. Counsel, Frederick M. Davenport, Jr., and Robert Leland, all of Washington, D. C., Attys., National Labor Relations Board, for petitioner.

Jacob E. Hurwitz, of New York City, for respondent.

Before L. HAND, SWAN, and CHASE, Circuit Judges.

L. HAND, Circuit Judge.

This is a petition for the usual "enforcement order" of this court to be entered upon an order of the National Labor Relations Board, enjoining the respondent from refusing to bargain collectively with a local of the Congress of Industrial Organizations, and further enjoining it in the exact words of § 7 of the Act, 29 U.S.C. A. § 157. An affirmative part of the order directed the respondent to bargain collectively with the local as the exclusive representative of its employees and to post the usual notices. The respondent is engaged in the manufacture and sale of "loose-leaf devices"; it has a small factory in New York where it employs about fifty people. A local of the Congress of Industrial Organizations began to organize the plant in May, 1939, and the "unfair labor practices" of which the Board found the company guilty consisted of interfering with these organizing activities, and refusing to bargain collectively with the union after it had been formed. The company takes its name from six brothers, of whom one, Charles, was president, and another, Irving, was secretary, who together were in charge of its labor policies; two others, Nathaniel and Max, were the supervisors of the stamping and order department respectively. All the Federbush brothers had power to hire and discharge employees. The company's only interference with organizing the local which the Board proved was as follows. One of the employees, Napoli, was active in his efforts to organize the factory, and in June, 1939, Nathaniel Federbush in a talk with him said that the union was "just a bunch of racketeers * * * trying to collect dues and it won't get you anywhere in the end. They won't secure you a job." After Napoli had told him that he had already applied for membership and received a card, Federbush added that if the plant was organized, the company would be unable to operate for more than six months a year. In August, 1939, two other organizers went to the factory, and on arriving saw Nathaniel Federbush standing in the doorway. As they moved off he followed them; as they supposed, in order to shadow their activities. In September while Gramacy and Rogovsky — also organizers — were standing on the steps of a building of which the company occupied the sixth and seventh floors, Nathaniel pushed one of them away, and told him to go to the other side of the street; and later the elevator operator at Federbush's direction chased him away altogether. On October 23rd, Irving Federbush asked Napoli "why he was turning against the firm by joining the union," and suggested that he should come over to the office and talk matters over. These appear to us trivial matters, but as the Board has seen fit to make them the occasion of an injunction, we cannot say that its order should not be enforced.

The refusal to bargain with the union after it had been formed, stands on a more substantial basis. On October 20th, Rogovsky and Sandner — both members of the union — met Irving Federbush, as a representative of the company, to discuss conditions of employment. Federbush asked for proof that they represented a majority of the employees, and what were their demands. Rogovsky refused to show the membership cards, but told Federbush the names of the five members of the shop committee, and the Board found that Federbush then admitted that he knew the union represented a majority of the employees. (This Federbush disputed.) These negotiations proving inconclusive, another meeting took place on October 24th, at which Hurwitz, the company's attorney, alone represented it. He too raised the question of the union's representing a majority, and particularly of the propriety of grouping together employees engaged in "production, maintenance and shipping" with the rest. Hurwitz suggested that the "cutting, binding, stamping, assembling and punching" departments should constitute a separate bargaining "unit," and that the union should prove its right to represent these. That meeting too was inconclusive, and Grasso, one of those present on behalf of the union, arranged another for the next day at the Regional Office of the Board. The union representatives and Hurwitz met at that time and place, and Grasso then said that he had with him the cards which would show the tally, but Hurwitz again raised the question of the proper "unit." Later at that interview, however, he conceded that the union represented a majority of the employees, but said that the company did not like unions, though compelled to deal with them. He would do nothing to "expedite matters," and the company was using the Board for delay; there was "a lot of unnecessary red tape that allows us to stall. But if we agree to negotiate we will dispense with all of that and will call you in and you can come in and we can negotiate the contract." On the evening of October 26...