Wayside Press v. National Labor Relations Board
| Decision Date | 25 August 1953 |
| Docket Number | No. 13789.,13789. |
| Citation | 206 F.2d 862 |
| Parties | WAYSIDE PRESS, Inc. et al. v. NATIONAL LABOR RELATIONS BOARD. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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Gibson, Dunn & Crutcher, Ira C. Powers, Jerome C. Byrne and James J. Ryan, Los Angeles, Cal., for petitioners.
George J. Bott, Gen. Counsel, David P. Findling, Asst. Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, Norton J. Come, Melvin Pollack, Attys., National Labor Relations Board, Washington, D. C., for respondent.
Before DENMAN, Chief Judge, and MATHEWS and ORR, Circuit Judges.
This is a petition to review and to set aside an order of the National Labor Relations Board, hereafter the Board, pursuant to Section 10(f) of the Labor Management Relations Act, 29 U.S.C.A. § 151 et seq., hereafter the Act, and a cross petition by the Board to enforce the order.
Wayside Press, Inc., is a California corporation conducting a printing business in Los Angeles, California. A complaint against it was filed with the Board by Pressmen's Union, No. 78, an international union, seeking to organize Wayside's employees. While not directly engaged in interstate commerce, Wayside supplies goods and services of a value in excess of $50,000 per annum to firms which realize annual income in excess of $25,000 from sources outside the State of California. From this it is clear that the Board had jurisdiction to entertain and consider the Pressmen's Union No. 78's complaint. See Hollow Tree Lumber Co., 91 N.L.R.B. 635, 636. The question here is whether the evidence sustains the Board's burden of proof of a violation of the Taft Hartley Act.
The trial examiner, in a finding that was approved by the Board, ruled that in using an application blank for employment containing the question, "Are you a member of Union ......... If so, which one," Wayside had violated Section 8(a) (1) of the Act. The only evidence in support of this finding was the application blank itself. Immediately upon being informed that the Board objected to the inclusion of the question in its form, Wayside abandoned the use of it.
There was no evidence of any back-ground of union hostility on the part of Wayside, nor was any showing made, by credible evidence, that any attempt had been made to use the information so garnered to restrain or coerce employees in the exercise of their rights under the Act. Thus, the case is squarely within the following statement from Sax v. N. L. R. B., 7 Cir., 171 F.2d 769, 773 "Mere words of interrogation or perfunctory remarks not threatening or intimidating in themselves made by an employer with no anti-union background and not associated as a part of a pattern or course of conduct hostile to unionism or as part of espionage upon employees cannot, standing naked and alone, support a finding of a violation of Section 8(1)." See also N. L. R. B. v. Ozark Dam Constructors, 8 Cir., 190 F.2d 222, 227-228; N. L. R. B. v. Montgomery Ward & Co., 2 Cir., 192 F.2d 160, 163; Opelika Textile Mills, Inc., 81 N.L.R.B. 594, 595. The cases cited by the Board are all cases in which there was evidence of many forms of restraint or coercion in addition to the evidence that such a question was put to the employees, either in a questionnaire or orally. No case has been found in which it was held that the mere asking of the question was violative of the Act where, as here, the only evidence was that a question about union affiliation had been asked. Absent any further showing of restraint or coercion the finding of the Board is unwarranted and should be set aside.
The Wayside Press Employees' Independent Union, Inc., hereafter the Independent Union, was organized in 1938 but became inactive in 1942. About 1949, employee Irons started an employees' association for the purpose of paying sick benefits. On September 6, 1951, representatives of the Pressmen's Union, No. 78, an affiliate of the International Printing and Assistants Union, passed out circulars in front of the Wayside plant concerning its forming a union there. That international union required the company's foreman employees to become members of the union.
The following day employee Irons decided to reactivate the Independent Union with the foreman employees to be members. Before doing so he asked the opinion of Foreman Stevens, who worked as a mechanic 75 to 80% of the time and who was a member of the union. Stevens answered, according to Irons, "he thought it would be a little bit in our favor if we did have it that way." In saying "our favor" Stevens well could have meant the foremen who would become members. In any event, it is no violation of the Act that the employees knew that the employer preferred an independent union, or that Foreman Stevens preferred to be a member of it.
Irons then asked Bailey, a foreman who also was employed as such a mechanic, to set the type for the ballots. When he had done so, Irons ran them off on the company press. No work order was made out as for ordinary business and no other permission to use the company's equipment was received. Irons then gave the ballots to the delegates of the association to be passed out to the employees and to be collected when completed. It is no violation of the Act for such printing and distribution, where the employees themselves seek to form such a union. It merely aided the employees in determining whether they desired it.
On September 10, 1951, a meeting of employees was held, on company time, at the end of the lunch period. The minutes show that the meeting lasted about thirty minutes. A count of the ballots was taken and showed 39 votes for and 13 against reactivating the Independent Union. The employees' desire to reactivate the Independent Union was based on their opposition to the International which was seeking to organize the plant. They objected to "outsiders" being employed with them. Acting on such a purpose is no violation of the Act because the employer might agree with them.
After the ballots had been counted, Stevens addressed the meeting on the desirability of reactivating the Independent in order to keep outsiders from the plant and later nominated Irons as president and Crowder as vice-president. Both were elected. Other officers of the association were carried over until the end of the year.
At the time of the meeting, Woods, Wayside's general superintendent, was out to lunch, but he was informed of...
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