On Petition for the Enforcement of an Order of the National Labor Relations Board.
Before DAVIS, BIGGS, and CLARK, Circuit Judges.
In the case at bar a petition was filed by the National Labor Relations Board pursuant to the authority of the National Labor Relations Act, 49 Stat. 449, c. 372, 29 U.S.C. § 151 et seq., 29 U.S.C.A. § 151 et seq., praying this court to enforce an order entered by the Board upon March 25, 1928, against Stackpole Carbon Company, the respondent.
The order*fn1 as entered by the Board requires the respondent and its agents to (1) cease and desist from (a) restraining or coercing its employees from exercising their rights of self-organization or of collective bargaining by representatives of their own choosing or engaging in activities for the purposes of collective bargaining, (b) from dominating or interfering with the administration of a labor organization known as the Stackpole Employees' Association of St. Mary's, Pennsylvania, or with the administration of any other labor organization formed by the respondent's employees, (c) from giving effect to a certain contract hereafter referred to more specifically between the respondent and the Stackpole Employees' Association of St. Mary's, and (d) from refusing to bargain collectively with United Electrical and Radio Workers of America, Local No. 502, as the exclusive representative of the production and maintenance employees of the respondent's plants at St. Mary's and johnsonburg, Pennsylvania.
The order of the Board also requires, by way of affirmative action upon the part of the respondent, (2) that the respondent (a) withdraw all recognition from Stackpole Employees' Association of St. Mary's, Pennsylvania, as a representative of its employees for the purposes of collective bargaining, (b) upon request, to bargain collectively with United Electrical and Radio Workers of America, Local No. 502, as the exclusive representative of its employees in the departments of the respondent's plant heretofore designated, (c) upon application, offer to its employees who were employed on March 2, 1937, and who struck on March 3, 1937, or thereafter, immediate and full reinstatement to their former positions without prejudice to their rights or privileges, dismissing if necessary persons hired to take the places of striking employees, (d) make whole from monetary loss those employees who struck, by paying to them sums equal to the wages they would have earned for the period between the refusal of their applications for reinstatement and the date of their actual reinstatements, less and sums which they may have earned in the interim, and (e)(f) and (g) post notices for a period of thirty consecutive days stating the respondent's willingness to comply and compliance with the order of the Board, and notify the regional director of the Board of the steps taken by the respondent to comply with the order of the Board.
After argument had in the cause before this court and after the respondent had set forth detailed contentions in its brief in respect to the invalidity of the designation by the Board of united Electrical and Radio Workers of America, Local No. 502, as an appropriate agent for collective bargaining on behalf of a majority of the employees of the respondent entitled to be represented, the Board rechecked the evidence and data before it, and as a result thereof found that Local No. 502 did not represent a majority of the employees referred to. The Board through its counsel thereupon consented to a modification of its order of March 25, 1938, by striking therefrom paragraphs (1)(d), (2)(b) and the reference to paragraph (1)(d) appearing in paragraph (2)(e).
The question presented for our determination therefore is whether or not the order of the Board as modified should be enforced, should be subjected to further modification or should be refused enforcement. In order that the issues presented by this question may be made clear we deem it necessary to give as brief a resume as we can of the pertinent facts.
The hearings before the trial examiner consumed many days and certain issues were presented for determination of the Board which are not now pertinent.We think that it is sufficient to state the following. The respondent is a Pennsylvania corporation, operating plants at St. Mary's and Johnsonburg, Pennsylvania, for the manufacture and sale of carbon products and radio parts. It clearly appears that approximately two-thirds of the raw materials purchased by the respondent come from without the State of Pennsylvania and over 50 per cent. of its manufactured products are sold to individuals, firms or corporations without that State. It is stipulated and it also appears from the testimony that the respondent is the second, or possibly the third, largest manufacturer or carbon products in the United States, and is a large producer and vendor of radio parts sold throughout this country. The business of the respondent constitutes approximately 10 per cent. of the total carbon products business and approximately 15 per cent. of the radio parts business in the United States.We therefore conclude that the respondent is subject to the provisions of the National Labor Relations Act since the cessation of its business as a manufacturer and seller of carbon products and radio parts has an appreciable effect upon interstate commerce within the meaning of subsection (7) of Section 2 of the National Labor Relations Act, 29 U.S.C.A. § 152(7). See National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1, 57 S. Ct. 615, 81 L. Ed. 893, 108 A.L.R. 1352; National Labor Relations Board v. Fruehauf Trailer Co., 301 U.S. 49, 57 S. Ct. 642, 630, 81 L. Ed. 918, 108 A.L.R. 1352; National Labor Relations Board v. Friedman-Harry Marks Clothing Co., 301 U.S. 58, 57 S. Ct. 645, 630, 81 L. Ed. 921, 108 A.L.R. 1352; Santa Cruz Fruit Packing Co. v. National Labor Relations Board, 303 U.S. 453, 58 S. Ct. 656, 82 L. Ed. 954.
It appears from the record that in August, 1933, the respondent sponsored the formation of a labor organization among its employees which became known as the N.R.A. Union. A meeting of the employees of the respondent was held in August, 1933, upon the premises of the respondent at St. Mary's in order that this union might be organized.Certain supervisory employees of the respondent were put in charge of its affairs.The N.R.A. Union never functioned, however, after its organization.
Approximately three years later an organizer for the United Electrical and Radio Workers of America came to St. Mary's and held a meeting among the employees of the respondent to the end that a local of the United Electrical and Radio Workers of America might be formed. Temporary officers were elected for the local union and a charter for it was obtained from the national organization.The local was designated as No. 502. Immediately thereafter certain of the elected officers of Local No. 502, employees of the respondent, were called to the directors' room of the respondent where they were met by the respondent's president, Harry D. Stackpole, who, according to the statements of the employees, issued a warning to them " * * * to be careful of what kind of an association of union you tie up with * * * ". Mr. Stackpole is further reported to have stated that he would gladly let his employees start a company union and would negotiate with it. According to the testimony of the respondent's employees, Stackpole also stated, "If you boys won't set up a company union I will - in fact I have already set it up." Stackpole denied making such a statement, however, or any statement of a similar tenor.
It is apparent none the less that the respondent immediately after the organization of Local No. 502 began through the medium of its officers and supervisory employees to create and set up the Stackpole Employees' Association of St. Mary's, Pennsylvania. The Board found that this organization was in fact an outgrowth of the old N.R.A. Union. The respondent for its part contends that the Stackpole Employees' Association was largely the outgrowth of a spontaneous movement which started among its employees because they desired such representation for the purpose of collective bargaining. The respondent also contends that the Employees' Association was not sponsored or materially aided by the respondent. These contentions are not borne out by the evidence and the findings of the Board that the Employees' Association was dominated and interfered with by the respondent which contributed financial and other support to it are bottomed upon ample and convincing evidence.
The policy adopted by the respondent in respect to the Employees' Association and Local No. 502 is shown clearly by testimony concerning certain incidents which occurred during the drives for memberships of these two organizations. For example, one foreman instructed an employee in his department to canvass his fellows to try to get them to join the Employees' Association. One female employee who had not become a member of either union was called to the office of the assistant works manager who theretofore had aided her in gaining employment with the respondent. The record shows that she emerged in tears from the office and forthwith joined the Association. These instances might be multiplied from the testimony. The record shows that the respondent practiced unfair labor practices as defined by Section 8 (1, 2) of the Act (29 U.S.C.A. § 158 (1) and (2) in that the respondent interfered with the right of its employees to selforganization and to bargain collectively through representatives of their own choosing. See Section 7 of the Act, 29 U.S.C.A. § 157.
Upon January 4, 1937, representatives of Local No. 502 held a meeting with certain of the officers of the respondent, including President Stackpole, and presented a contract which was designed to be signed by the respondent and by the representatives of Local No. 502 on behalf of the employees. The proposed contract is not printed in the record but from the intermediate report filed by the examiner its terms apparently dealt with wages, hours and working conditions of employees and provided also, it would seem, for exclusive representation by the Local for the purposes of collective bargaining of all of the respondent's eligible employees. The members of the union represented at this time, as they had theretofore, that Local No. 502 had enrolled in its membership a majority of the employees of the respondent eligible for representation. This statement was incorrect. The respondent contends that these statements made by the representatives of Local No. 502 were known by them to be untrue and that these persons made false representations to the end that Local No. 502 might gain advantage thereby. We have examined the record carefully in an attempt to ascertain whether or not this charge made by the respondent is justified by the evidence and we think that it may be said that a careful examination of the facts by the representatives of Local No. 502 should have convinced them that the union on whose behalf they appeared did not represent a majority of the employees of the respondent eligible for representation.
At this meeting the president of the respondent requested that a grace period of thirty days be given to the respondent in order that he might consider the demands made. Thereupon the representatives of Local No. 502 stated that the union was willing to accord a period of a week to the respondent in order that its officers might ascertain whether or not they desired to accept the terms proposed by the contract.
Thereafter, upon January 9, 1937, the contract committee of the Employees' Association called upon the general manager of the respondent's plant and informed him that the Association represented a majority of the respondent's employees. This was followed immediately by a meeting held upon Sunday, January 10, 1937, between the contract committee of the Association and executive officers of the respondent.
This meeting commenced about eleven o'clock on Sunday morning, continuing without interruption until evening when an agreement was reached. It was agreed, among other things, that the employees of the respondent should receive an increase of 10 per cent. in wages. Upon the following morning, however, the question of the amount and manner of the wage increase again came to the fore and the original agreement was modified to allow an increase of 5 an hour to all non-salaried employees. A contract was thereupon executed between the respondent and the Association. Under the terms of this contract the Association was recognized as a bargaining agent, but not the exclusive bargaining agent, for the employees of the respondent. The agreement also provided for an open shop, for a maximum fifty hour week, for the creation of an arbitration committee to dispose of disputes between the respondent and its employees and for certain other things which need not be discussed here. ...