NATIONAL LABOR RELATIONS BOARD v. Fargo Foundry Co., 12685.

• Decision Date: 30 March 1944
• Docket Number: No. 12685.,12685.
• Citation: 141 F.2d 462
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: NATIONAL LABOR RELATIONS BOARD v. FARGO FOUNDRY CO.

141 F.2d 462 (1944)

NATIONAL LABOR RELATIONS BOARD v. FARGO FOUNDRY CO.

No. 12685.

Circuit Court of Appeals, Eighth Circuit.

March 30, 1944.

Stephen M. Reynolds, Atty., National Labor Relations Board, of Minneapolis, Minn. (Robert B. Watts, Gen. Counsel, Howard Lichtenstein, Asst. Gen. Counsel, and Ida Klaus and Kate Wallach, Attys., National Labor Relations Board, all of Washington, D. C., on the brief), for petitioner.

Herbert G. Nilles, of Fargo, N. D. (Nilles, Oehlert & Nilles, of Fargo, N. D., on the brief), for respondent.

Before STONE, THOMAS, and JOHNSEN, Circuit Judges.

JOHNSEN, Circuit Judge.

The controversy relates to a requirement in an order of the National Labor Relations Board that Fargo Foundry Company, upon request, bargain collectively with Federal Labor Union Local 22364, chartered by the American Federation of Labor, as the exclusive representative of the production employees in its plant at Fargo, North Dakota. The question arises on the Board's petition for enforcement of its order.

The Company contends that the Board's finding that the employees had selected the Union as their bargaining representative is unsupported by the evidence; that, on the contrary, the evidence conclusively shows that the employees had designated six specific persons as a special bargaining committee and not as an organ of the Union; that the Company was accordingly not required to bargain with the Union; and that it was also not required to bargain with the committee after a vacancy occurred in its membership, unless the committee was reconstituted by the employees, because its powers were exercisable only by the full committee jointly.

If the evidence warrants the Board's finding that the employees had selected the Union and not an independent committee of specific persons as their representative, then the order must be enforced, for it is clear that the Company has refused to bargain collectively with the Union.

The record shows, without dispute, that a majority of the Company's production employees had signed a paper, referred to in the testimony as a petition, which declared: "The Undersigned do hereby authorize the following committee of Local 22364 A. F. of L. to represent us in collective bargaining. The committee is as follows: Joseph Flor, Oscar Erickson, William Hoganson, Gottfried Peterson, Leland Patten and Carl Krumbein." Other facts, which follow, are also undisputed.

Prior to the execution of the petition, some of the employees had joined in organizing Federal Labor Union No. 22364, and had received a charter from the American Federation of Labor. The persons named in the petition constituted the committee appointed by the Union to negotiate a labor relations contract with the Company. Murrey, president of the North Dakota State Federation of Labor, called preliminarily upon Kornberg, general manager of the Company, and left a copy of a proposed contract with him. Kornberg was acquainted with Murrey and knew that he was the representative of the State Federation of Labor.

The proposed contract contained a recital, "This Agreement, made and entered into * * * by and between the Fargo Foundry Company, hereinafter referred to as the Employer, and the Foundry Employees Local Union 22364, A. F. of L., hereinafter referred to as the Union". Article I also expressly provided that "The Employer recognizes the Union as the sole collective bargaining agency for all employees of the employer, with exception of only the shop foremen and office staff."

Kornberg promised to go over the contract and then discuss it. Later he asked that he be furnished with some proof of authority, before entering into discussion with any committee. Murrey offered to have the Board hold an election under section 9(c) of the National Labor Relations Act, 29 U.S.C.A. § 159(c), but Kornberg suggested that it would be sufficient if the employees merely signed a petition. The Union then drew up the petition in question and had the employees sign it, and Murrey delivered it to Kornberg. Kornberg thereafter met with Murrey and the committee of employees named in the petition, and discussed some of the contract provisions. Three meetings were thus held, during the course of which the committee agreed to redraft parts of the contract. The contract was still unsatisfactory to Kornberg, and in the discussion which occurred at the fourth meeting he protested that Murrey seemed to be doing all the talking instead of the members of the committee. At the last two meetings, La Motte had appeared in place of Hoganson, who had left the Company's employ, and Kornberg raised no objection to his right to participate, on being told that he had been chosen to replace Hoganson.

Shortly after the fourth meeting, Kornberg discovered that Krumbein, one of the committee members, who had been with the...