NLRB v. Clegg

• Decision Date: 03 August 1962
• Docket Number: No. 16712.,16712.
• Citation: 304 F.2d 168
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Mark R. CLEGG and Mary M. Clegg, d/b/a Clegg Machine Works, Respondents.
• Court: U.S. Court of Appeals — Eighth Circuit

304 F.2d 168 (1962)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Mark R. CLEGG and Mary M. Clegg, d/b/a Clegg Machine Works, Respondents.

No. 16712.

United States Court of Appeals Eighth Circuit.

June 20, 1962.

Rehearing Denied August 3, 1962.

COPYRIGHT MATERIAL OMITTED

Russell Spector, Atty., N. L. R. B., Washington, D. C., Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate-Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel and Rosanna A. Blake and Vincent W. Bradley, Attys., N. L. R. B., Washington, D. C., on the brief, for petitioner.

Harry L. Browne, Kansas City, Mo., James R. Willard, of Spencer, Fane, Britt & Browne, Kansas City, Mo., with him on the brief, for respondents.

Before VOGEL, VAN OOSTERHOUT and BLACKMUN, Circuit Judges.

BLACKMUN, Circuit Judge.

In this case, concerning four employees, the National Labor Relations Board seeks enforcement of its order against Mark R. Clegg and Mary M. Clegg, doing business as Clegg Machine Works in North Kansas City, Missouri. The board concluded, 129 NLRB No. 154, that the company had violated §§ 8(a) (2) and 8(a) (5), and consequently § 8(a) (1), of the National Labor Relations Act, 29 U.S.C.A. § 158(a) (2), (5) and (1).¹ Specifically, the Board found that the company had failed to bargain collectively in good faith with District Lodge No. 71, International Association of Machinists, AFL-CIO, and had dominated a rival independent union, Local No. 1, Clegg's Independent Machinists.

Background. Mark and Mary Clegg are husband and wife. As partners they own and operate the small machine shop known as Clegg Machine Works. Mary does the typing, clerical and other office work. Mark manages the business. Their son Robert works in the shop.

The company was founded about 1941. In 1952 IAM attempted to organize the shop but lost the election. In August 1953 IAM picketed the place. The company thereupon recognized that union and its first labor contract was signed. This came about without an election. IAM, therefore, was not a certified union at the Clegg plant. The contract contained a union shop clause. Other similar contracts were successively executed over the years. The last of these was to expire on July 31, 1959.

About that time the company employed five persons other than the three Cleggs. They were:

Albur James, welder and shop steward;

Ira Jones, machinist;

Claude Hamilton, turret lathe operator;

Harold Fensenmeyer, turret lathe operator;

Orvid Jones, machine operator or helper and son of Ira.

All five were members of IAM. Young Clegg did not belong to the union; being a son of the owners, he was not an "employee" under § 2(3) of the Act, 29 U.S. C.A. § 152(3). The present dispute concerns only Hamilton, Fensenmeyer, and the two Joneses, for James voluntarily terminated his employment² around July 23, 1959.

The negotiations. In May 1959 IAM notified the company that it wished to negotiate a new contract. On June 15 a first meeting took place between Mark Clegg and two union representatives, Fay and Weber; neither steward James nor any other employee was present. At this meeting the union made a wage demand and a request for information as to the employees' rates of pay. As to the wage demand: Fay testified that he asked for a 30¢ per hour raise for Jones, the company's only first class machinist, in order to bring the contract up to the "going" rate of $2.97 per hour, and for a 20¢ per hour raise for the other employees. Clegg testified that Fay's demand at this time was for a 30¢ per hour increase across the board. He countered with an offer of 10¢ for all employees. Neither side moved from its position. As to the wage information sought by the Union: Clegg revealed the current rate of pay of all employees except Ira Jones. He said that he would rather not tell about Ira's rate because it was a "trade secret" and a matter between himself and Jones.

A second brief meeting between the union representatives and Clegg took place in late June or early July when Fay and Weber, without prior notice, called on Clegg. Fay testified that Clegg then "told us that he offered the ten cents and that was all that he would give, he wouldn't give another penny. We could take that or else. He said he didn't have time to talk to us and he turned around and walked away from us". Clegg testified, "I restated my offer of ten cents and Mr. Fay said it was wholly unacceptable and that there would be a strike and we would be deadlocked and so on if I didn't increase it". Neither side gave ground and that meeting, too, ended with no progress. Fay testified that immediately following this second meeting he went out into the shop and saw the employees and that they asked him to stand by the 20¢ figure. Fensenmeyer, on the other hand, as a witness for the General Counsel, testified that it was James who had talked to him and had asked what he thought about holding out for 30¢ or for 20¢ and that he answered that the latter was all right with him. Orvid Jones, as a witness for the General Counsel, and Ira Jones, as a witness for the company, both denied that a new contract had ever been discussed at any such meeting.

About July 10, Fay sought the assistance of the Federal Mediation and Conciliation Service. On July 14 Mediator Griffith met with Fay and Clegg. On this occasion Fay again told Clegg what IAM wanted by way of wage increases and Clegg again offered 10¢. Fay repeated his request for information as to Jones' rate of pay and Clegg repeated his refusal. Fay also asserted that young Clegg should belong to the union but Clegg replied that his son would never belong to it. That meeting ended with no agreement. Except for a telephone call to Clegg from Griffith, nothing further took place before the contract expired on July 31. Griffith, who evidently went on vacation about this time, called Clegg again on August 3. Clegg then told Griffith that IAM no longer represented the employees, that he would not meet further with their representatives, that he was withdrawing his 10¢ offer, and that Mrs. Clegg had filed a representation petition with the Board that very day.

The emergence of CIM. During these negotiations certain of the employees entertained some disenchantment with IAM. Ira Jones, who had been an IAM member for about twenty-one years and who apparently took the leading role in the independent union discussions, testified that this was due (a) to the failure of the union to communicate with the employees during the negotiations, James telling him, after a call to Weber at the union office, "Weber told me that we didn't have anything to say in the matter, it was strictly up to them", and (b) to a written demand by the union for payment by August 1 of all back dues owed by Clegg employees. Hamilton, Orvid Jones and Fensenmeyer, the other qualified employees involved, all testified as to the existence of talk of an independent union. Fay testified that twice during the negotiations he had called James to assemble the men for a meeting; that these meetings never developed; that the first failed because one of the men would be unable to get his ride home that night out into the country; and that the second failed because, as James told him, "I don't think the boys want to come to a meeting because Jones wants to be at the meeting and I don't think they want to be in a meeting where Jones is because he carries everything back to Clegg". Fay conceded, however, that "at one time James told me that the boys were dissatisfied and that they were talking of getting an independent union". Fay went on to assert that he did not know why the men failed to show up at the one meeting, that it had not come to his notice that the men were dissatisfied and that he never declined to meet with them as a group.

Ira Jones testified that during the first two days of August the employees held discussions concerning the formation of an independent union and withdrawal from IAM; that neither of the Cleggs knew anything of this at that time; that the men decided that they definitely wanted their own union; that he "was more or less appointed to inform Mr. Clegg that we were going to form a union of our own"; that he so advised Clegg; that Clegg said there wasn't anything he could do about it; that a day or so later he told Clegg that this was now definite; that the men, with the exception of the absent Orvid Jones, had voted to name him as bargaining agent "and asked him to type up some kind of a something, whatever was necessary to start such a union"; and that Clegg said he would ask Mary to type something up. Clegg confirmed this in his testimony and said that on the morning of August 3 Jones asked for his help in drafting a document to organize an independent union and that he asked his wife to prepare a rough draft.

Mrs. Clegg, who testified that the employees had often asked her to do personal favors for them that required typing, such as income tax returns, prepared a first draft upon her husband's explanation of what Jones wanted. Jones was named as bargaining agent and treasurer; the name "Clegg's Independent Machinists" was given to the organization (apparently suggested by either Clegg or Mrs. Clegg); and dues were specified at 50¢ per month at Clegg's suggestion that some amount be specified in the document so as to be there for change in a later draft. When she finished the typing Robert Clegg was in the office and at her request took it to Jones. Jones testified that he showed it to the men and suggested that they make the dues $2.00 per month; that they agreed; and that this was the only change. Mrs. Clegg, however, testified that there were other changes. In any event, the paper was retyped by Mrs. Clegg and returned to Jones on August 3. It was then signed by Jones and young Clegg. Jones showed it to Fensenmeyer who refused to sign because he wanted to avoid taking sides. Clegg also showed it to Fensenmeyer as he went by the latter's lathe after having...