National Labor Relations Board v. Scullin Steel Co.

• Decision Date: 25 April 1947
• Docket Number: No. 13442.,13442.
• Citation: 161 F.2d 143
• Parties: NATIONAL LABOR RELATIONS BOARD v. SCULLIN STEEL CO.
• Court: U.S. Court of Appeals — Eighth Circuit

161 F.2d 143 (1947)

NATIONAL LABOR RELATIONS BOARD v. SCULLIN STEEL CO.

No. 13442.

Circuit Court of Appeals, Eighth Circuit.

April 25, 1947.

Marcel Mallet-Prevost, of Washington, D. C., Attorney, National Labor Relations Board (Gerhard P. Van Arkel, General Counsel, Morris P. Glushien, Associate General Counsel, A. Norman Somers, Asst. General Counsel, and Thomas C. Marshall, Attorney, all of Washington, D. C., on the brief), for petitioner.

James E. Garstang, of St. Louis, Mo. (George A. McNulty and Carter, Bull, Garstang & McNulty, all of St. Louis, Mo., on the brief), for respondent.

Before GARDNER, THOMAS and RIDDICK, Circuit Judges.

GARDNER, Circuit Judge.

This matter is before us on a petition to enforce a cease and desist order of the National Labor Relations Board.

The order is based upon findings that respondent, in violation of Section 8(1) of the National Labor Relations Act, 29 U.S.C.A. § 158(1), interfered with, restrained and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act, 29 U.S.C.A. § 157, and gave assistance to the Independent Steel Workers Organization, and, in violation of Section 8(3) and (1) of the Act, discriminated against certain employees because they were active on behalf of outside unions or because they opposed the Independent Steel Workers Organization. The order required respondent to cease and desist from its unfair labor practices, from recognizing the Independent as the representative of any of its employees and from giving effect to any contract with the Independent unless and until the Independent should be certified as such representative by the Board; to withdraw and withhold any recognition from Independent Steel Workers Organization as the representative of any of its employees for the purpose of dealing with respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment; to reinstate with back pay certain employees discriminated against, and to post appropriate notices.

Respondent is a Missouri corporation with its principal office and place of business at St. Louis, Missouri, where it is engaged in the manufacture, sale and distribution of under carriages for railroad cars, steel castings, and other miscellaneous products.

Prior to the organization of the Independent Steel Workers Organization there had been two successive organizations of employees of respondent, but on December 11, 1941, pursuant to stipulation, the Board entered its order requiring respondent to cease and desist giving effect to a contract theretofore entered into between the then existing union and respondent, and on February 14, 1942, this court entered an order enforcing the Board's order.

Early in 1941 the employees of respondent commenced organization of the Independent, and on December 10, 1941, respondent was advised by letter from the Regional Director of the National Labor Relations Board that Steel Workers Organizing Committee had filed a charge alleging company domination of the Independent. These charges were subsequently withdrawn. On February 3, 1942, a consent election agreement was entered into, pursuant to which an election was held under supervision of the Board on February 12, 1942. Subsequently objections were filed to the election which the Board sustained. A second election was held under the supervision of the Board, and on May 6, 1942, the Regional Director issued a report finding that the Independent had been elected as the representative of respondent's employees, 868 votes being cast for the Independent and 285 votes against it. Following notification to respondent by the Regional Director, negotiations were entered into between Independent and respondent resulting in a contract covering wages and working conditions. The contract by its terms became effective for one year beginning August 2, 1942, but contained an automatic renewal clause, by operation of which the contract was in effect at the time of the hearing. In August 1944, respondent began deducting Independent dues from the wages of Independent members who signed voluntary authorization cards for such deductions. This arrangement followed a request by Independent for such deductions.

The Board found that following the formation and certification of Independent respondent gave assistance to that organization by remarks of its supervisory employees in apposition to the C.I.O. and the A.F. of L., and in favor of the Independent, by permitting solicitation of Independent membership during working hours, while enforcing its no solicitation rule where outside unions were involved, by discriminating against employees who were active in behalf of outside unions or who opposed the Independent. The Board found that, "Although we are of the opinion that the respondent's conduct in these respects is insufficient to constitute domination of the Independent within the meaning of Section 8 of the Act, we are satisfied, and we find, that by such conduct the respondent unlawfully assisted the Independent and interfered with, restrained and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. We further find that because of the illegal assistance by the respondent, the contract between it and the Independent was invalid."

As already observed, in its order to cease and desist the Board required respondent to cease giving effect to its contract with the Independent.

In resisting the petition to enforce petitioner's cease and desist order respondent contends that: (1) the board was not warranted in ordering respondent to cease and desist from recognizing the Independent Steel Workers Organization as the representative of its employees; (2) that there is no substantial evidence to support the Board's finding that respondent unlawfully assisted the Independent Steel Workers Organization in violation of Section 8(1) of the Act; (3) that if such assistance were rendered it would not effectuate the termination of the contract between respondent and Independent; (4) there is no substantial evidence to support the Board's finding that respondent discriminated against Modie Shaw and Charles B. Starks because of the union affiliations or activities of said employees.

Prior to entering into the contract with Independent that union had been certified as the representative of respondent's employees. It was then determined that Independent was not dominated by respondent. As a result of the hearing in the present proceeding the Board again found that Independent was not dominated by respondent. The acts found by the Board to be violative of the Labor Relations Act in giving assistance to Independent all occurred after Independent had been certified as the representative of respondent's employees and after the contract between respondent and Independent had been executed. The Board found that respondent, following the disestablishment of prior unions, "had wiped the slate clean" and that "the respondent did not recognize the Independent or enter into bargaining relations with it until the Regional Director, after investigating charges of company domination filed by the S.W.O.C., and after conducting a consent election, notified the respondent that the Independent had been elected as the bargaining agent of respondent's employees." The Independent was therefore recognized as a lawful and proper labor organization.

Section 7 of the Act provides that, "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection."

One of the most important rights, guaranteed to employees is that of collective bargaining through representatives of their own choosing. Section 8 of the Act forbids an employer to interfere with, restrain or coerce employees in the exercise of the rights guaranteed in Section 7. The purpose of the Act was to compel employers to bargain collectively with their employees to the end that employment contracts binding on both employer and employee should be negotiated. N. L. R. B. v. Sands Mfg. Co., 306 U.S. 332, 59 S.Ct. 508, 83 L.Ed. 682; Consolidated Edison Co. v. N. L. R. B., 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126. There is imposed upon the employer the obligation to bargain with his employees collectively, and included within this obligation is the duty to sign a written contract if the parties reach an agreement which the Board by appropriate order may enforce. H. J. Heinz Co. v. N. L. R. B., 311 U.S. 514, 61 S.Ct. 320, 85 L.Ed. 309 There is no claim and the Board did not find that the contract here under review was invalid on its face, nor is there any claim that the contract had been terminated by any agreement of the parties. By this contract Independent became the bargaining agent of respondent's employees in a designated unit, having been selected as such by a majority of the employees. The authority of the Independent as a bargaining agent could, we think, be terminated only by the agreement of the parties or by operation of law. The Board found that the parties were in such relations to each other as to entitle them to enter into this contract, and it is found that that relation still exists.

The Board, under Section 10 of the Act, 29 U.S.C.A. § 160, had power to require an offending employer "to cease and desist from such unfair labor practice, and to take such affirmative action, including reinstatement of employees with or without back pay, as will effectuate the policies" of the Act. This power is not, however, unlimited. The Board is not authorized to break some other law as a means of enforcing the provisions of this act. Southern Steamship Co. v. N. L. R. B., 316 U.S. 31, 62 S.Ct. 100, 86 L.Ed. 479; N. L. R. B. v. Fansteel Corporation, 306...