National Labor Relations Board v. Crown Can Co.

• Decision Date: 09 November 1943
• Docket Number: No. 12547.,12547.
• Citation: 138 F.2d 263
• Parties: NATIONAL LABOR RELATIONS BOARD v. CROWN CAN CO.
• Court: U.S. Court of Appeals — Eighth Circuit

138 F.2d 263 (1943)

NATIONAL LABOR RELATIONS BOARD v. CROWN CAN CO.

No. 12547.

Circuit Court of Appeals, Eighth Circuit.

October 25, 1943.

Rehearing Denied November 9, 1943.

COPYRIGHT MATERIAL OMITTED

Russell Packard, Atty. for National Labor Relations Board, of Chicago, Ill. (Robert B. Watts, General Counsel; Ernest A. Gross, Associate General Counsel; Howard Lichtenstein, Asst. General Counsel; Roman Beck, Irene R. Shriber, and Frank Donner, Attys., National Labor Relations Board, all of Washington, D. C., on the brief), for petitioner.

N. W. Hartman, of St. Louis, Mo. (Fordyce, White, Mayne, Williams & Hartman, of St. Louis, Mo., on the brief), for respondent.

Before WOODROUGH, THOMAS, and JOHNSEN, Circuit Judges.

THOMAS, Circuit Judge.

The National Labor Relations Board has filed a petition asking the court to enforce its order of July 31, 1942 (42 N.L.R.B. 1160), entered in a regular proceeding under § 10 of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C.A. § 151 et seq., and directed to the respondent, Crown Can Company, at its Nebraska City, Nebraska, plant.

The respondent, a Pennsylvania corporation, is engaged in the manufacture, sale, and distribution of cans. Its principal office and plant are in Philadelphia, Pennsylvania. It operates plants in other parts of the country, including the plant involved in this proceeding.

The order is based upon the Board's findings and conclusion that the respondent had been and was engaging in unfair labor practices in violation of § 8(1), (3) and (5) of the Act. The order directs respondent:

1. To cease and desist from (a) refusing to bargain collectively with the American Federation of Labor (called A.F. of L. hereinafter) as the exclusive representative of its production and maintenance employees; (b) discouraging membership in the A.F. of L.; (c) in any other manner interfering with its employees in the exercise of the right of self-organization.

2. Affirmatively, (a) upon request, to bargain collectively with the A.F. of L. as the exclusive representative of its employees; (b) offer Gordon Armstrong reinstatement with back pay; (c) post notices; and (d) notify the regional director.

Enforcement is resisted in reliance upon four legal propositions, namely: 1. That the Board has no right to interfere with or limit the right of free speech; 2. That the Board, in ordering the reinstatement of Gordon Armstrong, failed to consider the seasonal operation of respondent; 3. That there is no duty of an employer to bargain until a representative of an appropriate bargaining unit presents convincing evidence of majority support; and 4. The Board's findings of unfair labor practices are not supported by substantial evidence.

The first of these propositions we think would be conceded by every one, with the understanding that "free speech" does not mean license to violate valid laws, such as laws against perjury, libel, slander, or laws against restraint or coercion of employees in the exercise of their rights under the Act. No application of the constitutional right of freedom of speech is made by counsel to the order or findings of the Board in the instant case, and we are unable to understand its pertinency.

The proposition that the Board, in reinstating employee Gordon Armstrong, failed to consider the seasonal operation of respondent's plant, is raised here prematurely. That question can arise only when respondent has undertaken to obey the order to make Armstrong whole for loss of pay. If at that time the Board, Armstrong, and the respondent cannot agree, an appropriate issue, if properly raised, may be presented to this court for decision.

A brief statement of facts found by the Board and supported by substantial evidence will aid in the discussion of the third and fourth propositions.

In October, 1940, two of respondent's employees, Gordon Armstrong and Earl Braye, undertook to obtain a charter for a local union from the A.F. of L. On October 7, 1940, a majority of the employees at the plant signed a petition authorizing the A.F. of L. to represent them as their collective bargaining agent for one year and requesting the issuance of a union charter. Pursuant to the request a charter was issued on October 16, 1940. On October 14, 1940, Roy M. Brewer, President of the Nebraska Federation of Labor, consisting of local unions affiliated with the A.F. of L. in Nebraska, sent the following letter to respondent's manager:

"October 14, 1940. Registered Return Receipt Requested. Mr. Louis Zannettii Manager Crown Can Company Nebraska City, Nebraska.

Dear Sir:

This is to advise you that a majority of your employees have selected the American Federation of Labor to represent them as their collective bargaining agent for the purpose of negotiating an agreement with your Company covering hours of work, rates of pay, and conditions of employment.

As their representative I would like to make arrangements to meet with you at the earliest mutually agreeable date.

Will you please advise me by return mail when it will be possible to meet with you and whether or not you are willing to recognize the A.F. of L. as their representative.

An immediate reply will be appreciated.

Yours very truly Roy M. Brewer Organizer, American Federation of Labor."

Zanetti never answered this letter, though he was in charge of the plant, had received the letter, and his duty was to answer correspondence. His only explanation for failure to answer the letter was that he was quite busy at the time.

On October 16, 1940, two days after the letter had been sent, Zanetti called Armstrong and Braye into his office. Most of the employees were already there. As Armstrong walked into the office, Zanetti said: "We will have a little family get-together; some of the boys seem to have something against me. I don't know what I ever done for you guys to do a thing like this to me. You can all speak up; you don't have to be afraid of getting fired. You can say what you want to." Employees Francis Cole and Joe Michon stated that they had said all they wanted to and that "We guys have decided to stay by the company." Then Zanetti turned to Braye and asked: "What he Zanetti had ever done to him Braye that he should do that." He also asked Armstrong what he had against him. Both men answered that they had nothing personal against Zanetti but were merely helping to organize a union. Zanetti then stated that "if you boys insist on pushing this organization" the plant "will fold up" because "it was just a drop in the bucket" in comparison with the company's other plants. At the close of the meeting Zanetti said: "If it is a wage increase you want I will see what I can do about it."

Four days later, on October 20, there was a general wage increase.

After the meeting in Zanetti's office, Braye, who with Armstrong had taken the initiative in organizing the union, told Armstrong that he was withdrawing. All attempts to get the employees together to install the union charter failed, and the charter never was installed. Approximately three months...