National Labor Relations Board v. Thompson Products
| Decision Date | 05 June 1947 |
| Docket Number | No. 10116.,10116. |
| Citation | 162 F.2d 287 |
| Parties | NATIONAL LABOR RELATIONS BOARD v. THOMPSON PRODUCTS, Inc., et al. |
| Court | U.S. Court of Appeals — Sixth Circuit |
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Harold A. Cranefield, of Washington, D. C. (Gerhard P. Van Arkel, Morris P. Glushien, A. Norman Somers, Ida Klaus, and Fannie M. Boyls, all of Washington, D. C. on the brief), for petitioner.
E. B. Schwartz, of Cleveland, Ohio (Stanley & Smoyer, of Cleveland, Ohio, on the brief; Welles K. Stanley, Harry E. Smoyer, and Eugene B. Schwartz, all of Cleveland, Ohio, of counsel) for respondent.
Before ALLEN, MARTIN, and MILLER, Circuit Judges.
This case arises upon a petition for enforcement of an order of the National Labor Relations Board which found that the respondents, Thompson Products, Inc. (hereinafter called TP), and Thompson Aircraft Products Company (hereinafter called TAPCO), engaged in unfair labor practices in violation of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., and disestablished two alleged company unions.
TP is a manufacturer of airplane and automotive parts, doing business in Cleveland, Ohio, at several plants of which the principal one is the Clarkwood plant. In 1941 TP, with the financial backing of the Defense Plant Corporation of the United States, formed TAPCO, a wholly-owned subsidiary of TP, for the manufacture of airplane and automotive parts in a new plant at Euclid, Ohio, some eight miles from the Cleveland plant. From May, 1941, until December, 1941, TAPCO operated in the Railway Building in Cleveland. Thereafter operations were begun at Euclid, and employees were gradually transferred from Cleveland to Euclid and put to work at TAPCO, together with increasing numbers of new employees. The number of transferees from TP and of new employees at TAPCO during the succeeding months is shown by the following table:
Transferred Total
Newly Hired from TP TAPCO
Month Employees (Approximate) Payroll
5-22-41 14 32 46
6-19-41 0 40 35
7-31-41 172 38 210
8-28-41 207 16 243
9-25-41 244 26 270
10-23-41 245 29 274
11-20-41 275 51 326
12-18-41 329 152 481
1- 1-42 362 1,584 965
1-29-42 420 687 2,310
2-26-42 480 131 3,972
4-23-42 667 59 4,490
5-21-42 347 52 4,823
The total as of April 23, 1942, of newly-hired men was 3,415. The total of transferees from TP on that date was 2,845.
An organization unaffiliated with any union had been previously formed at TP and disestablished by an order of the Board issued August 1, 1941, which was modified in certain respects and enforced by this court in National Labor Relations Board v. Thompson Products, Inc., 130 F.2d 363, August 28, 1942. This organization, denominated the Automotive and Aircraft Workers Alliance, Inc., is hereafter called the A&AWA. In May, 1941, after TAPCO began operations, a movement for an independent organization at TAPCO was instituted. This organization was denominated Aircraft Workers' Alliance, Inc. (hereinafter called AWA). After the disestablishment of A&AWA, another independent organization was formed at TP, called the Brotherhood of Independent Workers, Inc. (hereinafter called BIW).
The Board found that TP and TAPCO had engaged in unfair labor practices, in violation of the Act, in that they dominated and interfered with the formation and administration of AWA and BIW and contributed support to them in violation of the Act, discriminatorily laid off 6 employees and discharged 2 employees, and thereby, as well as by other acts and conduct, interfered with, restrained and coerced their employees in the exercise of the rights granted by § 7 and § 8 of the Act.
As to BIW, the latest independent organization formed at TP, respondents do not challenge the finding of the Board. This organization was never given a contract by TP and was recognized for collective bargaining purposes only under the requirement of the War Labor Board. Respondents attack the order which disestablishes AWA and directs the reinstatement of Erwin Baur and Kenneth Wilson, and orders reimbursement to five employees of wages which would normally have been earned during the time of a layoff. As to these phases of the case, respondents urge that the order is not supported by substantial probative evidence.
Disestablishment of AWA.
The Board ordered disestablishment of AWA because in its formation and operation, including its conduct at the election of May 1, 1942, AWA did not validly reflect the employees' free choice of elective representatives. The respondents contend that this finding has no substantial support in the record, and hence a detailed consideration of the facts on this subject is required.
AWA had been formed primarily by members of A&AWA who had been transferred from TP to TAPCO and desired representation at the Euclid plant. Through their attorney, Milton Roemisch, who was also attorney for A&AWA, they sent a written demand to the management of TAPCO on November 18, 1941, that AWA be recognized as the exclusive union representative, and given a contract. At the request of TAPCO the membership cards were checked against the TAPCO payroll of December 4, 1941, by a certified public accountant, who certified that AWA represented 201 out of 265 hourly-rated employees. On December 18, Roemisch and the representatives of AWA met with the TAPCO management, and an exclusive contract between AWA and TAPCO was executed shortly thereafter.
The CIO had filed a petition in December, 1941, claiming that A&AWA at TP in Cleveland was dominated and coerced by the management. This petition was withdrawn within a few days. The respondents contend, and the regional director of the Board in effect admits that TP was not notified of the petition. On January 12, 1942, an amendment to the original petition was filed by the CIO, which for the first time charged unfair labor practices with reference to the formation of AWA and BIW. These proceedings, by common consent, were held in abeyance until a plant-wide election, both at TP in Cleveland and TAPCO in Euclid, was held under the supervision of the Board on May 1, 1942. The Board had refused to allow A&AWA to intervene in the election proceedings or to have its name placed upon the ballot, upon the ground that it had previously issued an order disestablishing this association. It permitted the International Association of Machinists, A F of L, and the CIO to have their names on the ballot. The A&AWA thereafter advised its adherents to vote in the election for "neither." At the election, the result of the vote was as follows:
(1) At TP 1288 for the UAW-CIO
87 for the IAM
2510 for "Neither"
(2) At TAPCO 2249 for the AWA
1203 for the UAW-CIO
134 for "Neither"
The following facts are either found by the examiner, by the Board, or are undisputed in the record. It is specifically found by the examiner that the movement which resulted in the formation of AWA was instituted because the TP management refused to bargain with A&AWA on matters pertaining to employees transferred to TAPCO. George Wrost, secretary of A&AWA, consulted with Roemisch, attorney for A&AWA, about this situation in the spring of 1941, and Roemisch advised an independent union, and asked Wrost to sound the men out on this subject. Wrost reported that they were agreeable, and Roemisch, who, as the Board found, had represented several independent unions and had a personal interest in so doing, gave Wrost a copy of the articles of incorporation of AWA and got him to secure five incorporators. Wrost took the incorporators to see Roemisch, stayed a few moments, and never again attended a meeting of the new organization. No records of A&AWA were given to AWA, and no A&AWA representatives other than Wrost ever attended a meeting.
It is undisputed that Roemisch and Wrost did not consult with management as to this project. Roemisch stated categorically that he never had any conference with management about the formation of AWA. In the organization meetings he repeatedly told the men that there would be "a new union" at TAPCO; that it would not be affiliated with A&AWA, and invited the employees, if transferred to TAPCO, to join AWA. It was generally understood by the men that the union at TAPCO was distinct from A&AWA, and unaffiliated with it. Board witnesses repeatedly spoke of the "new union" being formed at TAPCO, and of the fact that it had no affiliation whatever with the organization at TP.
It is undisputed that Roemisch warned the men not to let management know anything about AWA, and the feeling of the men that the organization was not identical with A&AWA was expressly shown in the minutes of a meeting of the officers and stewards of AWA on February 6, 1942, which reads as follows:
The examiner found that the incorporation was complete in June or July, 1941. He concluded upon the above facts that Roemisch was acting in the interest of management in forming...
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