Superior Engraving Co. v. National Labor Rel. Bd.

• Decision Date: 31 August 1950
• Docket Number: No. 9920.,9920.
• Parties: SUPERIOR ENGRAVING CO. v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Seventh Circuit

183 F.2d 783 (1950)

SUPERIOR ENGRAVING CO. v. NATIONAL LABOR RELATIONS BOARD.

No. 9920.

United States Court of Appeals Seventh Circuit.

June 27, 1950.

As Modified on Denial of Rehearing August 31, 1950.

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George B. Christensen, Chicago, Ill., Otto A. Jaburek, Edward J. Wendrow, Keehn Landis, Chicago, Ill., Winston, Strawn, Shaw & Black, Chicago, Ill., of Counsel, for petitioner.

Joseph M. Jacobs, Alfred Kamin, Chicago, Ill., for intervenor.

David P. Findling, Associate General Counsel, A. Norman Somers, Assistant General Counsel, Dominick L. Manoli, Attorney, National Labor Relations Board, Washington, D. C., Abraham H. Maller, Attorney, National Labor Relations Board, Washington, D. C., for respondent.

Before DUFFY, LINDLEY and SWAIM, Circuit Judges.

LINDLEY, Circuit Judge.

This is a petition to review and set aside a decision of the National Labor Relations Board finding petitioner guilty of violating Sections 8(1), 8(2), and 8(5) of the original National Labor Relations Act, 49 Stat. 452, 29 U.S.C.A. § 158(1, 2, 5), and ordering petitioner to recognize, as the exclusive collective bargaining agent of its employees, Chicago Photo-Engravers' Union No. 5, hereinafter referred to as the Union. The Board's answer requests enforcement.

In a consent election held October 11, 1943, 23 of the 36 men then employed by petitioner voted in favor of the Union; thereupon petitioner recognized and entered into a collective bargaining relationship with the Union. At the first bargaining session, petitioner and the Union reached a tentative agreement with respect to all terms of a contract except expiration date, Union security provision, double time pay, inclusion of apprentices, and grievance procedure. The chief dispute revolved about the Union's demand for a closed shop. Following the second session, at which no further progress was made, petitioner contends, and the Trial Examiner found, that the Union instructed petitioner's employees to institute a slow-down and to refuse to work overtime; the Board, however, while apparently recognizing existence of a slow-down, set aside as "clearly erroneous" the Trial Examiner's finding that it was Union-inspired, and found, further, that there was no concerted refusal to work overtime. After a third session had ended in failure to agree, the Union, on November 18, 1943, announced that an impasse had been reached and, on the following day, filed an unfair labor practice charge against petitioner, alleging violations of Sections 8(1) and 8(3) of the Act. This charge was docketed as Case No. 13-C-2281. On December 6, 1943, petitioner and the Union met with a United States Conciliation Commissioner, but his efforts to settle the parties' disputes having proved unavailing, on March 4, 1944, the controversy was certified to the War Labor Board.

With respect to the events which occurred in the period between the Union's announcement that an impasse had been reached and the date of certification of the dispute to the War Labor Board, the record is replete with conflicting evidence. That Gruber, the Union's president, did, on December 2, 1943, mail to petitioner's competitors a list of its customers, with a suggestion that they "might be solicited," is definitely established. It is also undisputed that, between December 24, 1943, and March, 1944, 19 of petitioner's employees quit their jobs. Petitioner contended that they did so at direction of the Union and that the latter thus destroyed its own majority, but the Trial Examiner, excluding as hearsay the testimony of petitioner's president, Conforti, that nine of the men told him they were leaving because of Union instructions, credited the testimony of several of the employees themselves that they had left to take better paying jobs, and concluded that the Union had not ordered any mass withdrawal of petitioner's employees. It is clear, too, that, in early February, 1944, Conforti bought for Joe Busse, an employee who subsequently spearheaded a drive to form an independent union among petitioner's employees, an $80 suit of clothing and that he gave to Busse, in a series of installments over a period of approximately one year extending into 1945, some $500 in war bonds. Conforti testified that Busse, though a drunkard, was a good worker when sober, and that he bought the clothes in order to keep Busse on the job and cheer him up and that he, Conforti, promised Busse the war bonds if he would remain sober, but both the Examiner and the Board credited the testimony of Busse to the effect that the bonds and the clothing were given him in consideration of his opposing the Union and taking the lead in establishing the Independent.

In the period during which the contract dispute was pending before the War Labor Board, petitioner and the Independent, together, filed with NLRB a total of five representation petitions, all averring that the Union had lost its majority among petitioner's employees. Each of these petitions was dismissed, the Board taking the position that the Union, by the submission of the dispute to the War Labor Board, had been deprived of a reasonable opportunity to bargain, and that the Union's prior certification and the pendency of the War Labor Board case constituted a bar to any new representation proceedings. The Board also, on March 27, 1945, decided Case No. 13-C-2281, finding that petitioner had been guilty of an unfair labor practice in dominating a then defunct organization which, during its existence from 1937 to June, 1943, had been known as the Engravers Guild; the Board, however, stating that, "In view of the present state of the record, we are unable to make any findings with respect to the allegations" that petitioner, "from on and after about June, 1943," violated Section 8(1) of the Act by reason of certain anti-union statements and conduct of its president, Conforti, dismissed the complaint as to that charge.

On May 17, 1945, the Regional War Labor Board, reviewing a series of panel hearings and intermediate reports and recommendations from which both petitioner and the Union had appealed, issued its "Directive Order" deciding the contract dispute and ordering that the closed shop provision demanded by the Union be incorporated in the collective bargaining agreement. The company's petition for review was denied by the War Labor Board on October 18, 1945, and the Union, on November 10, submitted to petitioner a proposed contract incorporating the clauses on which the parties had tentatively agreed prior to December 6, 1943, and those referred to in the War Labor Board's Directive Order. When petitioner failed to make any response thereto, the Union instituted the proceedings which culminated in the order now before this court.

The first unfair labor charge, filed by the Union on January 28, 1946, averred, in substance, that the petitioner had violated Sections 8(1) and 8(5) of the Act in that it had refused to put into effect or reduce to writing certain terms and conditions of employment agreed to by it and had refused to accept or to carry into execution the provisions of the War Labor Board's Directive Order of October 18, 1945. The first amended charge, filed August 12, 1947, alleged that petitioner had engaged in unfair labor practices in refusing to meet in collective bargaining conferences with the Union when requested to do so in November, 1945, and at various times thereafter, and in unilaterally granting wage increases to its employees, on or about January, 1946, and thereafter. The Board's complaint, incorporating the Union's charges, was filed on August 13, 1947, and petitioner, which had, subsequent to the filing of the Union's first unfair practices charge, filed a decertification petition which was denied by the Board on July 9, 1946, filed its answer denying that it was under any obligation to bargain with the Union, due to the fact that the Union had, by its own acts, lost its status as exclusive bargaining representative of the employees.

After the hearing had been in progress for some time, a second amended charge was filed by the Union, February 13, 1948, charging that petitioner had, in addition to committing the unfair practices specified in the earlier charges, violated the Act by supporting a company-dominated Independent, by interrogating employees concerning their membership in the Union and promising them benefits if they would refuse to join or would withdraw from it, by causing and permitting the circulation of various anti-Union petitions on company time and property, and by discriminatorily discharging one Charles Burger. These acts, it was charged, had occurred "since on or about October, 1943." The Board's complaint was amended, over petitioner's objection, to incorporate these averments, and petitioner's answer thereto was filed February 23, 1948.

Subsequent to the hearing, which was held on various dates from January 20 through April 1, 1948, the Examiner issued his Intermediate Report finding that petitioner, on November 10, 1945, and thereafter, had unlawfully refused to bargain with the Union in violation of Section 8 (5) of the Act, and that, by making gifts to Busse to encourage formation of the Independent and by interfering with its employees in the exercise of the rights granted them by the Act, it had violated Section 8(1). The Examiner recommended that petitioner be required to bargain with the Union. Exceptions to the Intermediate Report were filed with and argued before the Board, which, by order of April 28, 1949, adopted the recommendations of the Examiner and ordered petitioner to cease and desist from (1) refusing to bargain with the Union, (2) dominating or recognizing the Independent or any successor thereto, (3) making gifts to influence its employees in their attitude toward the Union, or (4) otherwise interfering with, restraining or coercing its employees...