Western Cartridge Co. v. National Labor Relations Board

• Decision Date: 01 March 1943
• Docket Number: No. 8142,8155.,8142
• Citation: 134 F.2d 240
• Parties: WESTERN CARTRIDGE CO. v. NATIONAL LABOR RELATIONS BOARD et al. WESTERN CARTRIDGE EMPLOYEES' INDEPENDENT UNION v. SAME.
• Court: U.S. Court of Appeals — Seventh Circuit

134 F.2d 240 (1943)

WESTERN CARTRIDGE CO. v. NATIONAL LABOR RELATIONS BOARD et al. WESTERN CARTRIDGE EMPLOYEES' INDEPENDENT UNION v. SAME.

Nos. 8142, 8155.

Circuit Court of Appeals, Seventh Circuit.

March 1, 1943.

R. H. McRoberts, Henry Davis, and Wayne Ely, all of St. Louis, Mo. (Bryan, Williams, Cave & McPheeters, of St. Louis, Mo., of counsel), for petitioners.

Joseph A. Padway, Robert A. Wilson, Robert B. Watts and Ernest A. Gross, all of Washington, D. C., Jack G. Evans, of St. Louis, Mo., and Howard Lichtenstein, Asst. Gen. Counsel, Roman Beck, and Armin Uhler, all of Washington, D. C., for respondents.

Before EVANS, KERNER, and MINTON, Circuit Judges.

KERNER, Circuit Judge.

These cases are here on separate petitions by Western Cartridge Company (hereinafter referred to as "Company") and the Western Cartridge Employees' Independent Union (hereinafter referred to as "Independent") to review and set aside, and on request by the National Labor Relations Board for the enforcement of, an order¹ of the Board, issued pursuant to the provisions of § 10(c) of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., requiring the employer (1) to cease and desist from (a) giving effect to its individual contracts of employment with employees etc., (b) dominating Independent, (c) recognizing Independent, (d) giving effect to its certain agreements with Independent in respect to rates of pay, etc., (e) discouraging membership in the International Molders and Foundry Workers Union of North America, Local No. 333, affiliated with the American Federation of Labor, (f) in any other manner interfering with its employees in the exercise of their rights under § 7 of the Act; and (2), affirmatively to (a) withdraw all recognition from Independent, (b) offer William Elliott full reinstatement, and (c) make him whole for loss of pay.

The company is a Delaware corporation engaged in the manufacture of munitions and has more than 6000 employees at its East Alton, Illinois, plant. Jurisdiction is not in dispute.

The proceeding before the Board was instituted by the American Federation of Labor and charged that the company, in order to create a barrier to union organization among its employees, induced its employees to sign individual contracts which infringe rights guaranteed by the Act; that by continuing that practice after the effective date of the Act, the company violated § 8(1); that it disparaged outside unions and warned its employees not to join such unions; and that by dominating and interfering with the formation of Independent and contributing to its support, and by discharging William Elliott, it violated § 8(1) (2) and (3) of the Act.

The questions presented are (1) whether the Board's findings of fact concerning the unfair labor practices are supported by the evidence; (2) whether the Independent was accorded a fair hearing; and (3) whether the order is valid.

The record discloses that from 1915 to 1921 the company followed the practice of having its employees sign individual contracts, which, if lived up to, assured the employees of a bonus. It ceased its practice in 1921 because of the depression, but revived the practice in 1933, when business was at a very low ebb and when there was much industrial unrest resulting in part from unionization.

The Company, since July, 1933, has urged its employees to sign the individual contracts. After three months' service, all new employees are either sent to the Personnel Department by their foremen or given notice to report there for an interview. In these interviews, the employees are told of the benefits which the contract provides and are urged to sign. They were told in writing that "The signing of such a contract is optional on your part." When a contract is about to expire, the employee is notified to report to the contract office for the purpose of signing a renewal. The contract is for a fixed term, either six months or one year, and obligates the employee to devote his full time throughout that term to the business of the company; breach of that undertaking entails, at the option of the company, the employee's immediate suspension or dismissal, and its faithful performance is made a condition precedent to the employee's receiving the bonus stipulated for in the contract. To obtain the bonus, the employee must continue in the employ of the company for the entire period of his contract. The contract also provides that the company may terminate it in the event of the "non-operation, or the material curtailment of the operations, of the plant * * * due to * * * strikes." The employee in such case forfeits the bonus plus any sum which the company has deducted from his wages pursuant to the contract if the contingency resulting in the shut-down or curtailment is due "to the fault of the employee."

About July 8, 1941, the company incorporated the East Alton Manufacturing Company, a Maryland corporation, which took over the operation of the smokeless powder division, and on August 2, the new corporation entered into a collective agreement with Local 22574, concerning which more anon, providing, among other things, that the individual contracts between the company and some 423 employees of the smokeless powder division should not be assigned to the new company, and that like contracts should not in the future be offered the employees of that division.

During the summer of 1933 a group of the company's employees began to discuss the question of whether they desired a company union or no union at all, and the subject was violently agitated throughout the plant. Thereupon, Vice-President Olin addressed a mass meeting of the employees and discussed with them the possibility of forming an employees representation plan, such as the company's Works Council Plan at New Haven.

There was no union among the company's employees from 1933 to 1937, but in the spring of 1937, after several C.I.O. organizing meetings had been held and some of the employees had signed applications for membership, steps were taken at the plant to oppose that movement and to organize the Independent. Charles Taylor, a machinist, was its principal organizer. He discussed plans for this organization with other employees, but before going ahead with its formation, Taylor called on General Manager Bassett to inquire whether the company had any objection to the formation of the Independent and whether the rights of the employees under the individual contracts would be adversely affected by the formation of the Independent. Bassett replied that they would not be, that the company would not object to the inside union provided the employees "stayed within their rights," and did not solicit members on company time and property. June 4, 1937, Taylor and his associates engaged an attorney and launched a membership drive during working hours, at times in the presence of foremen. The record does not disclose that the company voiced any objection to the use of its time for this purpose. June 25, 1937, Independent requested recognition and on July 26, submitted to the company a prepared working agreement. August 10, the company submitted to Independent a contract to remain in force for one year and thereafter until terminated by a prescribed written notice, recognizing Independent as the bargaining agent of the company's employees "with respect to all matters not covered by the contracts of employment between the Company and those of its employees who have made them"; stipulating that "neither the company nor the Independent admit or assert any right to change said contracts of employment without the consent of the parties thereto"; and providing "that if the parties should from time to time agree that a modification of the individual contract was desirable, the proposed change would be `recommended' to the employees." This contract was executed on August 12, 1937.

In January, 1941, a campaign to organize the employees in the smokeless powder division was commenced and on January 31 a mass meeting of these employees was held, at which a large number signed applications for membership in the American Federation of Labor. February 5, Local 22574 was chartered, and on March 13 it asked for recognition which was denied on the ground that the unit was inappropriate. Thereupon, this local petitioned the Board requesting certification in the smokeless powder division. June 13, following an election, the Board certified the local as the exclusive bargaining representative in that division. After the local had won the election, the company disregarded the Board's unit determination, continued to recognize the Independent as the bargaining agent for all employees in the plant, and entered into a working agreement with the Independent.

The record also discloses that from 1937 to December, 1940, the membership of the Independent declined and that its position was being threatened by the campaign of the A. F. of L. To offset this advance, Independent's executive committee, in November 1940, appealed to Bassett and requested him "to do something to keep the Independent's membership up." The committee was informed that the company had authorized a wage bonus of two per cent to be given the signers of the individual contracts and that "if the union Independent got credit for it, it would build * * * Independent's membership up." After this conference, a notice to that effect was posted on the bulletin board. It also appears that throughout this period, particularly after the A. F. of L. had commenced its campaign, the company engaged in varied coercive measures to keep the employees from joining the A. F. of L. It will not be necessary to recite such evidence in detail. We cite, for example, the instance in which the superintendent of the smokeless powder division sent for the president of Local 22574 and said to him: "I expected a rough sort of a fellow — being mixed up with a union like you are," and told him...