Oughton v. National Labor Relations Board

Decision Date26 February 1941
Docket NumberNo. 7336.,7336.
Citation118 F.2d 486
CourtU.S. Court of Appeals — Third Circuit

Charles A. Wolfe and Montgomery & McCracken, all of Philadelphia, Pa., for petitioners.

Frank E. Hahn, Jr., John F. E. Hippel, and Edmonds, Obermayer & Rebmann, all of Philadelphia, Pa., for intervening petitioners.

Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, Laurence A. Knapp, Asst. Gen. Counsel, Mortimer B. Wolf, William F. Guffey, Jr., and Ernest Gross, all of Washington, D. C., for National Labor Relations Board.

Before MARIS, JONES, and GOODRICH, Circuit Judges.

GOODRICH, Circuit Judge.

This case comes before the court upon a petition to review and set aside an order1 of the National Labor Relations Board issued against the petitioners. In its answer to the petition the Board has requested enforcement of its order.

The Conflict in Testimony.

The first point made by the petitioners is that they did not, in fact, interfere with or restrain or coerce their employees in the exercise of rights guaranteed to the employees by Section 7 of the National Labor Relations Act. The petitioners complain that the trial examiner believed some witnesses and disbelieved other witnesses and that the witnesses disbelieved were those presented by the petitioners. This is clearly a situation where the determination of the Board on the facts controls. It is not the function of the court to determine from the confusion of conflicting testimony where the truth lies. Republic Steel Corp. v. National Labor Relations Board, 3 Cir., 1939, 107 F.2d 472.

The Finding of Unfair Practices.

The determination of credibility of witnesses being a Board function, is there sufficient evidence upon the record to justify the Board's finding that the petitioners' employees were restrained in the exercise of rights guaranteed to them by Section 7 of the Act? Whether the conclusion is to be drawn or not is not for us to say. It is sufficient that there is evidence, which, if believed, supports the conclusion of the Board.

There is evidence upon the record in support of the Board's findings that, when the union attempted in May, 1937, to organize the production employees in the plant, Bertram Oughton, one of the partners, addressed the workers and stated that he would never sign a contract with the union and that he would close the plant before he would do so; that several foremen of the company continually disparaged the union saying that it was composed of "a bunch of communists and reds" and that those who joined the union were "mixed up with the wrong people"; that the foremen attempted to dissuade the workers from joining the union and threatened that if they did so the plant would shut down; that after John Oughton, one of the partners had opened a plant in Athens, Ga., to which twenty-four looms were sent from the Philadelphia plant, threats were made by the foremen that the entire plant would move south if the union did not cease its activities; and that there was an abortive attempt to form a company-dominated union. These actions on the part of the company constituted an interference with the rights of its employees to bargain collectively and to choose freely their representative for that purpose.

Our attention is called to evidence offered by the petitioners that the foremen were expressly ordered not to engage in anti-union activities. Petitioners contend that they are not bound by the action of the foremen, citing Cupples Co. Manufacturers v. National Labor Relations Board, 8 Cir., 1939, 106 F.2d 100 and National Labor Relations Board v. Swank Products, Inc., 3 Cir., 1939, 108 F.2d 872. But the supervisory employees in the instant case had definite indicia of authority. It is shown in the evidence that foremen had the power to hire and "lay off'. It is inevitable that, under the circumstances, their remarks would carry to rank and file employees the impression that they were speaking for the management. Upon this point the language of the court in H. J. Heinz Co. v. National Labor Relations Board, 6 Cir., 1940, 110 F.2d 843, 847, is relevant: "Petitioner also contends that, even if its supervisory employees did engage in the aforesaid activities, there is no evidence that it expressly authorized or ratified those acts; on the contrary, when they were brought to its attention, it claims that all foremen were instructed to remain neutral and not discriminate against any employee because of union activities. But there was no evidence that petitioner directed any supervisory employee to communicate its alleged neutrality to the employees. If petitioner had really wanted its employees to know that they might with safety join whichever union they desired, the bulletin boards were the obvious and, because direct, the most effective means of assuring them of its impartiality. There was abundant evidence that the ordinary employees feared the disfavor of those from whom they were accustomed to taking orders. Since they were justified in believing that these supervisory employees were acting as petitioner's representatives, petitioner is responsible for what they did."

Bargaining Agency and Intervention Petition.

The next point made by petitioners is that they have not and do not refuse to bargain collectively with the representatives of the majority of their employees. Closely related to this question is the issue raised by the intervenors.

The Textile Workers Union of America, C. I. O., had been designated as bargaining agency of the employees under an election held January 19, 1938. The vote at that time was as follows: out of 221 ballots cast 123 voted in favor of this union, 85 against it, 6 were held void and 7 challenged ballots were not counted. This election was held under the aegis of the Mayor's Labor Board of the City of Philadelphia by agreement of the parties after a long drawn-out strike. During the year intervening between the election conducted by the Mayor's Labor Board and the issuance of the complaint herein the management met many times with the union representatives. We deem it unnecessary to discuss the question whether there is support in the record for the Board's finding that the company had failed to bargain in good faith. On February 13, 1939, the company wrote to the union, refusing to meet with it in the future on the ground that the union no longer represented the majority of its employees. The order of the Board requires the company to bargain with the union upon request. If the union does represent the majority, this is an obligation placed upon the employer by the act; if the union does not have that strength then there is no duty to bargain with it. The issue, therefore, with respect to sections 1(a) and 2(a) of the order is whether there is sufficient evidence to sustain the finding by the Board that the union does represent the majority.

At the hearing held by the trial examiner the intervening petitioners herein filed a petition praying for leave to intervene in the proceedings. This petition alleged that the committee named represented approximately 75 per cent of the employees of the Windsor Manufacturing Company and bore attached to it what purported to be the signatures of about 145 of the employees.2 The verification of this petition bears the date of March 9, 1939, which was the date of the opening of the hearing before the trial examiner. The trial examiner declined leave to intervene and this action was affirmed by the Board. The committee, however, was allowed to intervene before this court when the matter was brought here for review. It argues only the question of the propriety of the denial of the right to participate in the proceedings.

The complaint in this case was issued February 28, 1939. The hearing was opened on March 9, 1939. This, it will be noted, was something more than a year after the election referred to. At the hearing before the trial examiner the manager of the Philadelphia Textile Workers joint board testified, on direct examination, that he thought his union no longer represented a majority of the workers and that he got this opinion from the records of the union. On cross-examination he testified that he believed the union had a majority on the date of the filing of the complaint by the Board, which was nine days prior to the hearing. He was also allowed to testify, over objection, that he had been told by two employees that the attitude of the management was discouraging membership in the union. This last statement was, obviously, hearsay. While the Board is not bound by technical rules concerning the admission of evidence, unsubstantiated hearsay is not competent evidence of a fact. Consolidated Edison Company v. National Labor Relations Board, 1938, 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126. This is all the evidence that was presented concerning the union's then representation of a majority of the employees. The verified petition of the intervenors, alleging that they represented 75 per cent of the employees, the Board refused to consider, although if the statement was true, obviously, the union did not represent a majority of the workers of the Windsor Manufacturing Company. In refusing to consider this intervening petition there was an abuse of discretion by the Board.

The Board stated and here argues that, "the only evidence in the record indicates that the union's majority status continued to the date of the complaint herein, and, except for the effect of the respondents' unfair labor practices thereafter. As we have previously held, the unfair labor practices of the respondents cannot operate to change the bargaining representatives previously selected by the untrammeled will of the majority."3 With the general proposition that an employer cannot attack the status of a union whose majority has been dissipated by his own unfair labor practices we, of...

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