National Labor Relations Board v. Lund

• Decision Date: 10 May 1939
• Docket Number: No. 420.,420.
• Citation: 103 F.2d 815
• Parties: NATIONAL LABOR RELATIONS BOARD v. LUND et al.
• Court: U.S. Court of Appeals — Eighth Circuit

103 F.2d 815 (1939)

NATIONAL LABOR RELATIONS BOARD v. LUND et al.

No. 420.

Circuit Court of Appeals, Eighth Circuit.

May 10, 1939.

Gerhard Van Arkel, of New Orleans, La. (Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, and Laurence A. Knapp, Mortimer B. Wolf, and Louis Libbin, Attys. for National Labor Relations Board, all of Washington, D. C., on the brief), for petitioner.

Edward S. Stringer, of St. Paul, Minn. (Alexander E. Horn, of St. Paul, Minn., on the brief), for respondents.

Before STONE, WOODROUGH, and THOMAS, Circuit Judges.

THOMAS, Circuit Judge.

The National Labor Relations Board has filed a petition in this court praying for the enforcement of its order of April 5, 1938, directed to the respondents. Both respondents resist the enforcement of the order and pray that it be vacated and set aside and the complaint upon which it is based be dismissed on the ground that the order is illegal, erroneous and contrary to law.

The Northland Ski Manufacturing Company (hereinafter referred to as Northland) is a Minnesota corporation engaged at its plant in St. Paul, Minnesota, in the manufacture, sale and distribution of skis, accessories, and toboggans. It is managed, operated and controlled by Christian A. Lund, who, together with the members of his family, own all of the capital stock. The C. A. Lund Company (hereinafter referred to as Lund) is the trade name of a business wholly owned by Christian A. Lund. Under this name Lund has a plant at the town of Hastings, Minnesota, about 20 miles from St. Paul, where products similar to those made at the Northland plant in St. Paul are manufactured and sold. It is conceded that the business at both plants involves interstate commerce.

The complaint, filed by the Board on June 21, 1937, is based upon amended charges filed by Woodenware Workers Union, Local 20481 (affiliated with the A. F. of L.). The complaint alleged that respondents had engaged and were engaging in unfair labor practices within the meaning of section 8(1), (2), (3) and (5), and section 2(6) and (7) of the National Labor Relations Act, 49 Stat. 449, Supp. III, Title 29 U.S.C. § 151 et seq., 29 U.S.C.A. § 151 et seq. The unfair labor practices alleged in the complaint occurred in part at each of the plants referred to.

Respondents filed separate answers denying the commission of the unfair labor practices, and a hearing was held before a trial examiner at Minneapolis, Minnesota, in July, 1937. An intermediate report was filed by the examiner to which exceptions were taken, and the Board on April 5, 1938, filed its findings of fact and entered its decision and order.

The Board in addition to certain jurisdictional matters found:

(1) That Lund at his Hastings plant dominated the formation and administration of the Independent Order of Ski Workers, an unaffiliated labor organization, and had contributed support to it, thereby interfering with, restraining and coercing his employees in the exercise of the rights guaranteed in section 7 of the Act, 29 U.S.C.A. § 157.

(2) That Lund, at his Hastings plant, discharged Sigurd P. Nesseth and Edward Hageman because they had joined and assisted the Woodenware Workers Union, thereby discriminating against his employees in regard to hire and tenure of employment and interfering with, restraining and coercing his employees in the exercise of rights guaranteed in section 7 of the Act; and that discrimination and coercion existed at both plants.

(3) That a strike in progress at the time of the hearing was caused by unfair labor practices.

(4) That all production employees of both respondents, excluding supervisory and clerical employees, constitute a unit appropriate for the purpose of collective bargaining and that said unit insures to employees of the respondents the full benefit of their right to self-organization and to collective bargaining and otherwise effectuates the policies of the Act.

(5) And that the Woodenware Workers Union was the duly designated representative of a majority of the employees in such appropriate unit on April 19, 1937, and at all times thereafter; and that thereafter respondents refused to bargain collectively with the Union as the exclusive representative of the employees in said unit.

Consistent with its findings of fact the Board concluded as a matter of law (1) that Lund has engaged in unfair labor practices within the meaning of section 8, subdivisions (1), (2), (3) and (5) of the Act; (2) that Northland has engaged in unfair labor practices within the meaning of section 8, subdivisions (1) and (5) of the Act; (3) that the production employees of Lund and Northland together, excluding supervisory and clerical employees, constitute a unit appropriate for collective bargaining; (4) that local 20481 of Woodenware Workers Union, having been selected as their representative by a majority of the employees in an appropriate unit, was, on April 15, 1937, and at all times thereafter has been, the exclusive representative of all the employees in such unit for the purpose of collective bargaining; and (5) that the unfair labor practices affect commerce within the meaning of section 2, subdivisions (6) and (7) of the Act.

Upon the basis of the findings of fact and conclusions of law the Board ordered: 1. That Lund cease and desist (a) from dominating or interfering with and from contributing support to any labor organization and (b) from discouraging membership in any labor organization of his employees by discharging or refusing to reinstate any of his employees or by discriminating in regard to hire and tenure of employment; 2. That both respondents cease and desist (a) from refusing to bargain collectively with Woodenware Workers Union, Local 20481, as the exclusive representative of their production employees, excluding supervisory and clerical employees, and (b) from interfering with, restraining or coercing their employees in the exercise of their rights of self-organization, to join labor organizations, to bargain collectively through representatives of their own choosing and to engage in concerted activities for such purpose; 3. That both respondents take the following affirmative action: (a) Upon request, bargain collectively with Woodenware Workers Union, Local 20481, as exclusive representative of the production employees; 4. That Lund take the following additional affirmative action: (a) Offer Nesseth and Hageman immediate reinstatement and make them whole for loss of pay from March 23, 1937; (b) Upon application, offer employees who went on strike March 25, 1937, full reinstatement without prejudice to their rights, dismissing, if necessary, all persons hired since said date, and make whole such employees for loss of pay; (c) Withdraw recognition from the Independent Order of Ski Workers as representative of the employees and disestablish said Independent as such representative; (d) Post appropriate notices; and (e) Notify the regional director; 5. That Northland take the following additional affirmative action: (a) Upon application, reinstate employees who went on strike April 14, 1937, without prejudice to their rights and make them whole for loss of pay; (b) Post notices; and (c) Notify the regional director.

The respondents do not contest the finding of the Board that Lund dominated and interfered with the Independent Order of Ski Workers. The findings and order of the Board are assailed on the grounds that: (1) the finding that respondents coerced their employees in the exercise of their rights guaranteed by section 7 of the Act is not justified by the evidence; that (2) the finding that the production employees of both respondents, excluding supervisory and clerical employees, constitute a unit appropriate for collective bargaining is contrary to law; that (3) the finding that Nesseth and Hageman were discharged for union activities is not justified; and that (4) the order to reinstate strikers is not justified.

On the first question it is clear that there was ample evidence to support the finding of the Board that the respondents coerced their employees at both the St. Paul and Hastings plants to refrain from joining the A. F. of L. union and to join the Independent Order, or company union. The evidence supports the finding that Lund announced that he would never deal with the American Federation of Labor or have anything to do with it; that he would under no circumstances recognize it for collective bargaining. He and his agents and representatives did affirmatively assist in the organization of the company union and promptly recognized it as the representative of all the employees at the Hastings plant. While the company union was in process of organization he closed the plant at Hastings under circumstances justifying the finding that his act was for the purpose of coercing his employees to join the company union. At about the same time he announced through his agents that he would remove his plant from Hastings rather than bargain with the A. F. of L. When in August, 1936, the A. F. of L. undertook to organize a local at the St. Paul plant there is substantial evidence that Lund opposed it and threatened to move the plant out of town if there were any labor troubles and that he declared that he would not deal with an outside union. In the face of such testimony this court is bound by the findings of the Board. National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., 303 U.S. 261, 58 S.Ct. 571, 82 L.Ed. 831, 115 A.L.R. 307; Consolidated Edison Company v. National Labor Relations Board, 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. ___.

The important question in this case is whether the employees in the St. Paul and Hastings plants as a whole constitute an appropriate unit under the Act for collective bargaining. The respondents say they do not constitute such a unit because there are two separate employers.

In April, May and June, 1937, representatives of the Union...