Petition for Enforcement of Order of National Labor Relations Board.
Before MARIS and CLARK, Circuit Judges, and KALODNER, District Judge.
KALODNER, District Judge.
Is recognition of the union the essential basis of the collective bargaining guaranteed by the National Labor Relations Act (Act of July 5, 1935, c. 372, 49 Stat. 449, U.S.C., Supp. II, Title 29, Sec. 151 et seq., 29 U.S.C.A. § 151 et seq.)?*fn1
That is the paramount issue involved in this proceeding. Both the petitioner and respondent have asserted their positions concisely in their respective Reply Briefs.
"The prime requisite and first step to collective bargaining is, therefore, union recognition": page 9, Reply Brief, National Labor Relations Board, petitioner.
"This obviously does not support the statement that union recognition is necessary, but only that the employer meet and confer with the authorized representatives of its employees * * * ". Page 7, Reply Brief, Griswold Manufacturing Company, respondent.
While there are other issues involved, hereinafter discussed in detail, the issue of union recognition is the crux of this controversy.
Briefly stated, the employer-respondent refused to recognize the union, comprised of a majrority of its employees, for the purpose of collective bargaining. It chose to "recognize", instead, a committee named by the union as a "Plant Committee". It contends that that is all it is required to do under the terms of the Wagner Act; that is, to "meet and confer with the authorized representatives of its employees."
It is the respondent's contention, in substance, that the Wagner Act in its essence intends nothing more than that there shall be a bargaining between employer and employee.
We cannot subscribe to that contention. Indeed, the very soul of the Wagner Act is its mandate that the employer shall, if the employees so desire, bargain with the union of the employees as a unit, and the recognition of that unit in the bargaining process.
We feel most strongly that to adopt the respondent's contention would be to destroy the Wagner Act.
Language is often used as a medium to conceal thoughts and objectives. Respondent professes its compliance with the Wagner Act. Its actions speak louder than its words - else we would not be called upon to make a decision in this proceeding.
As was said in National Labor Relations Board v. Jones & Laughlin Steel Co., 301 U.S. 1, page 42, 57 S. Ct. 615, page 626, 81 L. Ed. 893, 108 A.L.R. 1352: "Experience has abundantly demonstrated that the recognition of the right of employees to self-organization and to have representatives of their won choosing for the purpose of collective bargaining is often an essential condition of industrial peace. Refusal to confer and negotiate has been one of the most prolific causes of strife. This is such an outstanding fact in the history of labor disturbances that it is a proper subject of judicial notice and requires no citation of instances."
Denial of union recognition is a vitiation of the rights of employees to organize into unions, and, as stated by Section 151 ("Findings and Declaration of Policy") of the National Labor Relations Act: "The denial by employers of the right of employees to organize and the refusal by employers to accept the procedure of collective bargaining lead to strikes and other forms of industrial strife or unrest, which have the intent or the necessary effect of burdening or obstructing commerce * * * ."
Collective bargaining is one of the principal intendments of the National Labor Relations Act. Equal in importance is the intendment of this Act that employees shall be given the right to organize.
Accomplishment of the intendments (1) to organize and (2) to bargain collectively, become a mockery if recognition of the bargaining agency is withheld.
Before proceeding with further discussion of this paramount issue, a brief statement of the facts and contentions of the parties, as well as the rulings of the petitioner, is appropriate.
The National Labor Relations Board has petitioned this court for enforcement of its order dated March 30, 1938, requiring the respondent, the Griswold Manufacturing Company, of Erie, Pennsylvania, to cease and desist from certain unfair labor practices under the National Labor Relations Act (49 Stat. 449, 29 U.S.C.A. § 151 et seq.) and to take affirmative action which the Board found would effectuate the policies of the Act.
The respondent, the Griswold Manufacturing Company, filed no answer to the Board's petition. Section 10(e) of the National Labor Relations Act, 29 U.S.C.A. § 160(e), providing for proceedings in this court, makes no mention of a respondent's answer. Nevertheless the filing of such an answer was impliedly sanctioned in National Labor Relations Board v. BilesColeman Lumber Company, 9 Cir., 98 F.2d 18, and the practice of filing an answer is to be commended, in order that the issues may be defined, and undisputed matters the more readily eliminated from consideration.
In the absence of an answer to the petition of the board, it will be assumed that the respondent raises only those issues argued in its briefs and orally before this court.
accordingly it will be taken as conceded that the Board made the order here sought to be enforced, and that the order was made after due notice and hearing upon a complaint duly issued pursuant to Section 10 of the eAct, 49 Stat. 453, 29 U.S.C.A. § 160.
The order on its face seems to be neither unlawful nor improper, and appears to be in consonance with the powers and duties of the National Labor Relations Board as provided for in the National Labor Relations Act. Respondent does not challenge either the jurisdiction of the Board or of this court.
The Board found that the respondent violated the National Labor Relations Act, supra, and was guilty of unfair labor practices thereunder, in that it failed to bargain collectively, as required by the Act, and in that it dominated and interfered with the formation of what the Board denominates an employees' union, and with its administration; and that by such acts the respondent interfered with, restrained, and coerced its employees in the exercise of their rights granted in Section 7 of the Act.
The objections of the respondent to the order of the Board are based on its contentions that:
(1) Respondent did not fail to bargain collectively, but, on the contrary, the evidence shows that it did bargain collectively with the representatives of its employees;
(2) There was no such domination or interference by the respondent with the formation and administration of the employees' union as to justify the cease and desist order of the board;
(3) The examiner of the board admitted incompetent and irrelevant testimony at the hearing, to the prejudice of the respondent, which evidence was utilized by the board in arriving at its findings and in making its order.
The facts are as follows:
Following charges filed against respondent by Amalgamated Association of Iron, Steel, and Tin Workers of North America, Lodge 1197 (hereinafter referred to as the Lodge), a complaint was issued by the board, and an answer filed by the respondent; and hearings were held, after due notice, before a trial examiner during the period September 27, 1937 to October 1, 1937.
The trial examiner filed an intermediate report, and the order of the board followed.
The board found that the respondent was a corporation of the State of Pennsylvania, with its plant and office in Erie, Pennsylvania. It is engaged in the production, sale, and distribution of stoves, stove furniture, hollow-ware, castings of iron and aluminum, domestic cooking utensils, kitchen hardware specialities, and other cooking utensils. Twenty-five per cent of the raw materials used in the production of its products are obtained from without the State, and ninety per cent of its finished products are shipped out of the State.
The board further found that the appropriate unit for collective bargaining, Section 9(b), 29 U.S.C.A. § 159(b), was composed of the production employees of the respondent, to the number of approximately 370, excepting clerical and office employees, foremen and supervisory employees, and watchmen. It found that the Lodge included a clear (and high) majority of the employees in the appropriate unit, and that the Lodge was the exclusive representative of all the employees in such unit for purposes of collective bargaining in respect to rates of pay, waages, hours of employment, and other conditions of employment.
The board further found that on April 2, 1937, and at all times thereafter, the respondent refused to bargain collectively with the Lodge as the exclusive representative of its employees in respect to rates of pay, wages, hours of employment, and other conditions of employment, in that the respondent at all times refused to negotiate with the committee of the Lodge as a representative of the Lodge, but chose instead to treat the committee as a committee of its employees; wherefore, the board found, the ...