Western Electric Co. v. NATIONAL LABOR REL. BOARD, ETC.

• Decision Date: 09 April 1945
• Docket Number: No. 5302,5326.,5302
• Citation: 147 F.2d 519
• Parties: WESTERN ELECTRIC CO., Inc., v. NATIONAL LABOR RELATIONS BOARD. POINT BREEZE EMPLOYEES ASS'N, Inc., v. SAME.
• Court: U.S. Court of Appeals — Fourth Circuit

147 F.2d 519 (1945)

WESTERN ELECTRIC CO., Inc., v. NATIONAL LABOR RELATIONS BOARD.

POINT BREEZE EMPLOYEES ASS'N, Inc., v. SAME.

Nos. 5302, 5326.

Circuit Court of Appeals, Fourth Circuit.

January 3, 1945.

Writ of Certiorari Denied April 9, 1945.

Wilkie Bushby, of New York City (R. Dorsey Watkins and Piper, Watkins & Avirett, all of Baltimore, Md., William J. Butler and Root, Clark, Buckner & Ballantine, all of New York City, Walter L. Brown of Huntington, W. Va., and Carl K. Rang, of Washington, D. C., on the brief), for petitioner Western Electric Co.

Charles H. Dorn, of Baltimore, Md., for petitioner Point Breeze Employees Ass'n.

Frank J. Donner, Atty., National Labor Relations Board, of Washington, D. C. (Alvin J. Rockwell, Gen. Counsel, Malcolm F. Halliday, Associate Gen. Counsel, and Platonia P. Kaldes, Atty., National Labor Relations Board, all of Washington, D. C., on the brief), for respondent.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

Writ of Certiorari Denied April 9, 1945. See 65 S.Ct. 1014.

DOBIE, Circuit Judge.

These cases are before us on petitions by Western Electric Company and Point Breeze Employees Association (hereinafter referred to as the Company and the Association, respectively) to review and set aside an order of the National Labor Relations Board (hereinafter called the Board) issued on August 9, 1944, in a case under Section 10 of the National Labor Relations Act (herein called the Act), 29 U. S.C.A. § 151 et seq., 49 Stat. 449, based upon a complaint filed by the International Association of Machinists. In its answer to the petitions, the Board has requested that its order be enforced.

On the filing of the complaint, extended hearings were conducted by the trial examiner. After full consideration and the taking of a great mass of testimony, the examiner found the existence of unfair labor practices within the meaning of the Act, in that the Association is a successor to, and stands in the same position as, the Employees Representation Plan (hereinafter called the Plan); that the Company dominated and interfered with the formation of the Plan and the Association and is dominating and interfering with the administration of the Association. The Board approved and substantially adopted the findings and conclusions of the examiner and issued the order involved in this appeal. This order directed the Company to cease and desist from: Dominating and interfering with the formation of, or contributing support to, any labor organization of its employees; recognizing the Association as a representative of its employees; or giving effect to any contracts with the Association. The Company was further ordered to post appropriate notices. The questions before us are whether the Board's findings are based on substantial evidence, and whether the disestablishment order based on these findings is a proper order.

The Company is a New York corporation, and a subsidiary of the American Telephone and Telegraph Company. It now operates, and did operate at the time of the acts in question, four main manufacturing plants in various sections of the United States. It is conceded that the Company is engaged in interstate commerce within the meaning of the Act. We are here concerned solely with activities of the Company's plant at Point Breeze, Maryland.

In the summer of 1933, in line with the requirements of Section 7(a) of the National Industrial Recovery Act, 49 Stat. 198, the Company established and sponsored the Plan at its several plants. In August, 1933, W. H. Meese, the Company's vice-president and works manager, called a meeting at the Point Breeze plant and announced that officials of the Company had drafted the Plan, proposed its adoption, and invited the employees to elect a committee to set up the mechanics for the selection of employee representatives. Thereafter, an election was held, and, with the holding of this election, the organization of the Plan was fully effected. Under the Plan, no employee was required to pay dues. All expenses of the Plan were borne by the Company and all employees automatically became members of the Plan. The Plan operated through three pyramided types of joint committees, though even the ranking committee had, in effect, no more than advisory authority. In 1934 the Company integrated the Plan in its four plants, but no material changes were made.

Neither the form nor the administration of the Plan was illegal prior to July 5, 1935, the date of the passage of the Act. The Board has found, however, and the evidence amply supports the finding, that after that date the Plan clearly violated both the language and the purpose of the Act. N.L.R.B. v. Pennsylvania Greyhound Lines, Inc., 303 U.S. 261, 268, 58 S.Ct. 571, 82 L.Ed. 831, 115 A.L.R. 307; N.L. R.B. v. Newport News Shipbuilding & Dry Dock Co., 308 U.S. 241, 249, 60 S.Ct. 203, 84 L.Ed. 219. This illegal plan operated openly until April, 1937, when the decision of the Supreme Court in N.L.R.B. v. Jones & Laughlin Steel Corporation, 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352, sustaining the constitutionality of the Act, was brought to the attention of the Company.

The crucial question in the instant case is whether the evidence supports the Board's finding that the Association is a successor to, and stands in the same position as, the Plan. By the terms of the Act we are bound by the findings of the Board unless it can be said that those findings are unsupported by substantial evidence, 29 U.S.C.A. § 160(f). And these findings of the Board are binding as to not only evidentiary facts, but also conclusions of fact which may reasonably be drawn therefrom. Virginia Electric & Power Co. v. N.L.R.B., 4 Cir., 132 F.2d 390, 395; N.L.R.B. v. Waterman S. S. Corporation, 309 U.S. 206, 60 S.Ct. 493, 84 L.Ed. 704; Martel Mills Corporation v. N.L.R.B., 4 Cir., 114 F.2d 624. Further, we may not substitute our own conclusions for those of the Board. Where the evidence admits of more than one inference, the choice of inference is properly for the Board, not for the courts. N.L.R. B. v. George P. Pilling & Son Co., 3 Cir., 119 F.2d 32; Montgomery Ward & Co. v. N.L.R.B., 8 Cir., 115 F.2d 700; N.L.R.B. v. Christian Board of Publication, 8 Cir., 113 F.2d 678.

On, or shortly after, April 13, 1937, Hicok, the Company's superintendent of industrial relations, informed Scarborough, chairman of the Plan, that a pending meeting would not be held because there was doubt as to the legality of the Plan. On or about April 16, 1937, most of the seventeen employee-elected representatives were summoned to Meese's office and he told them that the Company could no longer "deal" with them. The testimony shows that information to the effect that the Plan was "out" was passed on to their constituents by these representatives. However, the Board found that the Company did not, by oral statement of any officer or other supervisory employee, or by written notice or otherwise, convey directly to its employees as a whole, as distinguished from the seventeen Plan representatives, the Company's intention no longer to recognize the Plan or to meet with its representatives.

The Company here strenuously argues that it is not compelled to follow any "ritualistic" form of notice, and that the fact that the knowledge of the disestablishment of the Plan was generally distributed to the employees is sufficient. No particular form of notice is required under the Act, yet any notice, to be valid, must constitute actual notice of the true situation, and not a statement of half facts from which many inferences might well be drawn.

Circulars distributed by the Plan representatives on April 21, 1937, the day before an election in which the entire number of Plan representatives were elected en bloc to act as bargaining agents for the employees for a period of sixty days, set forth information that was certainly not complete, correct though it may have been as far as it went. This circular, in part, stated the Plan "is no longer permitted because the management has been helping to pay the expense of it"; also, "It is necessary for us to form a New Plan or to have none at all." Further, employee Mileski testified that Schmidt, one of the Plan representatives, said: "We are forming a union, and since they have passed the Wagner Labor Act we want to keep out an outside organization" and that if an outside organization came in "We would lose our sick benefits and our vacations, and all our benefits we got from the Company." While these statements are not binding on the Company, they are important as tending to show the reactions to, and the interpretation of, Meese's speech by the employees.

It was not unreasonable for the Board to conclude, and we think the evidence reasonably supports the conclusion, that the employees were not "freed of the respondent's (Company's) domination of the Plan." In view of the Company's former active domination of the Plan, there is sound reason to believe the employees would consider that the "new Plan" had the hearty approval of the Company. The Board found that this brand of second hand notice "lacked the sanction and authority which attach to pronouncements of an employer concerning his employees." Half truths and partial notice are not sufficient to eradicate completely the effect of domination over a prior employee organization, nor do they indicate a complete abandonment of the old, and a distinct beginning of the new. N.L.R.B. v. Moore-Lowry Flour Mills Co., 10 Cir., 122 F.2d 419; N.L.R.B. v. Continental Oil Co., 10 Cir., 121 F.2d 120.

It is not unimportant that subsequent to the notice relied on by the Company, the Company on April 15, 20 and 22, 1937, met in joint committee with these same seventeen Plan representatives and discussed grievances concerning wages, hospitalization, and other questions. Such conduct on the part of the Company draws no such definite and clear line of cleavage between the...