National Labor Relations Board v. National Seal Corp.

• Decision Date: 01 May 1942
• Docket Number: No. 216.,216.
• Parties: NATIONAL LABOR RELATIONS BOARD v. NATIONAL SEAL CORPORATION.
• Court: U.S. Court of Appeals — Second Circuit

127 F.2d 776 (1942)

NATIONAL LABOR RELATIONS BOARD v. NATIONAL SEAL CORPORATION.

No. 216.

Circuit Court of Appeals, Second Circuit.

Argued March 19, 1942.

Decided May 1, 1942.

Aaron Lewittes, of Washington, D. C., and Robert B. Watts, Gen. Counsel, Ernest A. Gross, Associate Gen. Counsel, Gerhard P. Van Arkel, Asst. Gen. Counsel, Hilda D. Shea, and David C. Sachs, all of Washington, D. C., Attys., National Labor Relations Board, for petitioner.

Abraham Mann and Kotzen, Mann & Siegel, all of New York City, for respondent.

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

L. HAND, Circuit Judge.

This case comes before us upon a petition of the Labor Board for an "enforcement order" against the respondent based upon an order of the Board in usual form, made on March 8, 1941. The respondent does not challenge the sufficiency of the evidence to support the findings; but it complains (1) that evidence was admitted of transactions antedating the putative "unfair labor practices" under investigation; (2) that it was not obliged to bargain with the union during the pendency of a "certification proceeding" under National Labor Relations Act, § 9(c), 29 U.S.C.A. § 159(c), begun before the Board by the union; (3) that the respondent's refusal to bargain was not a cause of the strike which occurred at the plant on March 28, 1941, or of its continuance; (4) that its refusal to go further than to sign a letter embodying its "labor policy" was not a refusal to contract in writing; and (5) that the failure of union members to pay their dues automatically ended their membership and the union's authority to represent them. We shall take these up in turn; but by way of introduction we must state the general situation. The respondent makes metal tops for glass jars and metal cans; it employed about 140 persons in March and April, 1940, when the transactions here at bar took place. It was a successor of an earlier corporation called the National Seal Company, Inc., which did the same business and was in charge of the same officers, of whom one, Wainwright, had charge of the labor relations of both companies. In July, 1939, the old company had become heavily indebted and the old shareholders decided to step out and hand over the business to one of the largest creditors. This was accomplished by the purchase of the assets by an intermediary company which at once passed them to the respondent.

So matters stood in March, 1940, when the respondent's officers became aware that the American Federation of Labor was trying to organize the plant. On March 7th, one of Wainwright's subordinates, at Wainwright's direction, had a talk with an assistant foreman named Doweiko, in which he tried unsuccessfully to persuade Doweiko not to join the union. The organizing went on, and on the 14th Carey, the union organizer, wrote a letter to Wainwright asking for an interview. Wainwright answered on the 18th that he doubted whether Carey represented a majority of the employees; but he fixed an interview for the 26th and the two met on that day. Carey would not take up any grievances of the employees until Wainwright recognized him as bargaining representative, which Wainwright refused to do for the avowed reason that Carey, after receiving the letter of the 18th, had filed an application with the Board for a certificate under § 9(c) that he represented a majority. According to Carey, Wainwright nevertheless wished to dispose of any disputes over labor conditions, and in the course of the talk said that he had no doubt "in the back of my head" that Carey had a majority. Wainwright denied this, but he admitted that he had said that he had no power to recognize the union, and that he wished some time to think the matter over. Carey suggested that they wait until the 29th, the day fixed by the Board for the hearing, but Wainwright would not agree, so that there was a postponement until only the next day. Again their talk — this time over the telephone — was inconclusive, and Carey concluded that Wainwright was merely evading recognition of the union. He called a meeting of the employees that night at which they voted to strike the next day, which they did with substantial unanimity, putting forward five grievances of which one was the refusal to recognize the union.

Wainwright saw then, if he did not know it before, that the union represented the majority, and he did not go to the hearing before the Board on the 29th; but on April 3rd with two or three of the respondent's other supervisory employees he had an interview with Carey and several members of the local, who had prepared a written proposal, which Wainwright answered with a counter proposal which expressly recognized the union as bargaining representative. He declared, however, that he had no power to change any of the proposed terms and therefore no real negotiations were possible, to which the union especially objected because the company refused to "enter into a written contract" on the ground that it must remain free to sell out the business on the best terms possible. Instead, it offered to write "a letter" saying that the terms agreed upon "would be the policy of the company * * * and that we would agree to maintain them as long as the employees do not strike." Carey took the company's proposal to the employees, who refused it, in part because of the refusal to sign any contract. Although all negotiations then broke down the strike did not last long. The employees began to go back to work within a week and the company went into operation by the 15th; by the end of the month substantially all had returned. On April 5th the company sent letters to all employees stating its position and arguing against a closed shop which was one of the union's terms; it followed these by other letters of the same kind on May 7th.

The Board found that the talk with Doweiko on March 7th was an interference with the employees' right to organize under § 7, 29 U.S.C.A. § 157; that the refusal to recognize the union on March 26th and 27th, the refusal to sign a written agreement on April 3rd and to discuss the terms of the counter proposal, and the letters to individual employees, all constituted a continuous refusal to bargain until May 7th. It ordered the respondent to cease from refusing to bargain and from interfering; it directed it to recognize the union and to reinstate those employees who had struck because of the refusal.

With this setting we can now consider the respondent's supposed grievances. The first is the evidence of transactions in 1935 and 1937 between its predecessor, National Seal Company, Inc., and that company's employees, in which Wainwright had acted for the employer. The upshot of the testimony was that Wainwright had told Doweiko to discharge certain employees because of their union activity and had in other ways shown hostility to unions and unionism; and the argument is that earlier transactions should not have been used as proof of the...