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National Labor Relations Board v. New ERA Die Co.

February 26, 1941


Author: Jones

Before BIGGS, MARIS, CLARK, JONES, and GOODRICH, Circuit Judges.

JONES, Circuit Judge.

The National Labor Relations Board petitions for the enforcement of its order which directs the respondent to cease and desist from certain unfair labor practices, to take affirmative action for the future and to post the customary notices of its intention to comply. The respondent answers that the Board's findings are unsupported by the evidence, that the order is invalid and should, therefore, be denied enforcement.

When the matter was originally argued here, it was suggested that a question was present as to the majority status of the bargaining agent, similar to the question in Oughton et al. v. National Labor Relations Board, 3 Cir., 118 F.2d 486. consequently when, upon petition for rehearing, the Oughton case was ordered for reargument, the present case was also set down for reargument at the same time.

The respondent is a Pennsylvania corporation having its place of business in Red Lion, Pennsylvania, where it is engaged in the manufacture, sale and distribution of steel clicking dies for use in cutting materials in the fabrication of shoes. About twenty per cent. of the materials used in the manufacture of dies, the respondent obtained from points outside of Pennsylvania, and it shipped directly to points outside of Pennsylvania approximately sixty per cent. by value of its manufactured products. These facts appear in material part by stipulation. The Board correctly concluded that the respondent was amenable to the provisions of the National Labor Relations Act.*fn1 The disruption of respondent's business because of labor troubles would directly affect the flow of interstate commerce. Cf. National Labor RElations Board v. Bradford Dyeing Association (U.S.A.) et al., 310 U.S. 318, 60 S. Ct. 918, 84 L. Ed. 1226; National LAbor Relations Board v. Fainblatt, 306 U.S. 601, 59 S. Ct. 668, 83 L. Ed. 1014; National LAbor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S. Ct. 615, 81 L. Ed. 893, 108 A.L.R. 1352.

The parties also stipulated tha the unit appropriate for the purposes of collective bargaining should consist of all production and maintenance employees of the respondent, exclusive of supervisory and clerical employees. And the Board accordingly so concluded. There were thirty-nine such employees in the unit.

The Board found that the respondent, in violation of Sec. 8(1) of the National Labor Relations Act, had interfered with, restrained and coerced its employees in the exercise of rights guaranteed to them by Sec. 7 of the Act; that it had refused, in violation of Sec. 8(1) and (5) of the Act, to bargain collectively with the representative (International Association of MAchinists) chosen for such purposes by a majority of its employees; and that, in violation of Sec. 8(1) and (3), it had discriminatorily treated one Eby, an employee, because of his union activities. It is these findings which the respondent contests.

Upon questions, such as are here raised, it is not within our province to make findings independently of the Board. The Act commits the fact-finding function to the Board exclusively. Sec. 10(c). Necessarily therefore the credibility of the witnesses and the facts testified to by them, as well as the reasonable inferences to be deduced therefrom, re for the Board's consideration. Our duty upon a review of the Board's action, in addition to passing upon any question of law involved, is to determine whether there is substantial evidence which, if believed, supports the Board's findings either directly or circumstantially. National Labor Relations Board v. Waterman Steamship Corp., 309 U.S. 206, 208, 209, 60 S. Ct. 493, 84 L. Ed. 704.

In substantial part, the material testimony was undisputed and no important conflict of fact has been called to our attention. It is the inferences and conclusions, rather, which the Board drew from the testimony, whereof the respondent complains, contending that the Board erred in concluding that the management's action was designed to interfere with, restrain and coerce the employees in the exercise of their right to organize and to bargain collectively through representatives of their own choosing. It is the respondent's contention that, contrary to the Board's conclusion, the management's action was intended in the company's and, by the same token, the employees' best interests.

In support of its argument, the respondent stresses that the company was new (incorporated in 1937) and, consequently, its position in the industry not yet so established that union requirements could be met; that its employees, who were relatively few (thirty-nine in production and maintenance; forty-six in all), were highly interdependent in their work and all were in proximity to the management at all times; that there was no need for an outside independent agency as the bargaining representative of the employees; and that when the employees fully perceived and appreciated these facts, they, of their own choice, revoked the union's authority.

Unfortunately for the respondent's contention, the management's handling of the matter was such as to justify the Board's conclusion that the respondent did not permit its employees to enjoy the freedom of choice which the National Labor Relations Act contemplates. The speeches of Dedrick, formerly plant manager and later president of the company, at meetings of the employees which he called on company property, and in one instance on company time, during the employees' organizational activities, were thinly veiled threats that, if the employees chose the union for bargaining agent, the plant would close down and they would all lose their jobs. This innuendo, Mosher, plant superintendent after Dedrick's elevation to the company's presidency, buttressed with statements of like import. It was easy to forecast the probable effect of this conduct. As observed by this court in National Labor Relations Board v. Griswold Mfg. Co., 3 Cir., 106 F.2d 713, 722, "the employee is sensitive and responsive to even the most subtle expression on the part of his employer, whose good will is so necessary, * * * ." And, what was foreseeable was what actually happened. The testimony of several of the employees who had joined the union but later signed revocations of their prior union authorizations gave reasons for their action which indicate the certain effect of the management's threats. One said "Well, why I signed it [the revocation] was to keep the shop from shutting down and would be more safer on the job; if the shop shut down we had no jobs." Mosher, the superintendent, had just told this witness prior to his signing that "The ones that sign it will be the ones that will get the gravy around the shop." According to the witness, "gravy" meant the chance "to put in * * * extra time". Another testified as a reason for his revoking the bargaining agent's authority " * * * that we heard about the shop closing up, and different things like that. I was the same as the rest of the guys; I didn't want to be out of a job." And another, a witness for the respondent admitted on crossexamination as his reason for signing the revocation that he was "afraid that the plant would close if * * * [he] did not sign it." The Board's finding that the respondent coerced its employees in respect of their exercise of their right to bargain collectively was warranted.

As much may be said for the Board's findings that the respondent interfered with and restrained its employees in the exercise of their rights. After twenty-five of the employees (more than a majority) had signed cards authorizing the union to represent them for collective bargaining, Cederholm, the union representative, immediately notified the respondent to that effect and requested a conference for the purposes of the union's representative function. Instead, however, of acceding to its employees' own choice of a bargaining representative, the company failed to respond to Cederholm and immediately caused a petition to be circulated among the employees (Mosher saw to it through the foremen), calling upon them to make a signed choice on the petition between a union and an open shop, - a spurious issue. The respondent thus actively interfered with the exercise of its employees' rights by going "over the heads of the representatives to their constituents; to discredit them as representatives, to destroy their power to bargain as such." National Labor Relations Board v. Remington Rand, Inc., 2 Cir., 94 F.2d 862, 870, certiorari denied 304 U.S. 576, 58 S. Ct. 1046, 82 L. Ed. 1540. The worthlessness of the company's petition as any evidence of its employees' free and untrammeled choice could hardly be better indicated them by what is disclosed concerning the signing of the petition. Although within ten days or so prior to the circulation of the petition twenty-five of the employees had signed up with the union as their bargaining representative, when the petition was circulated, thirty of the total thirty-nine employees signed for an open shop and none for a union. The bald form of the employer-sponsored "poll" was not without its desired effect. Cf. Titan Metal Mfg. Co. v. National Labor Relations Board, 3 Cir., 106 F.2d 254, 260, certiorari denied 308 U.S. 615, 60 S. Ct. 260, 84 L. Ed. 514.

Three times Cederholm for the union endeavored to bargain collectively with the management, and each time the opportunity was denied. At the conferences held, the time was largely consumed by the management in an effort to prove to Cederholm that the union did not represent a majority.and, upon the occasion of Cederholm's holm's last visit, for which he arranged by telephoning Mosher and at which Raub, secretary of the company, was also present, the time was taken up in controversy over Cederholm's demand that the shop committee (Eby, Kelly and Hibbs) be summoned, which Mosher rejected. As a conclusion to the meeting, Mosher, for some reason not accounted for by him, apprehended personal harm to Cederlhom and warned him that he had better not remain in town over night - "somebody is out to get you." Cederholm left the place of meeting but did not leave town immediately. Shortly after he had gone, ten or twelve of the employees arrived at Raub's office (the place of the conference) seeking Cederholm. They had noisily rushed out of their place of work without interference from foremen or supervisors upon the rallying call of one Poet, an employee, "Come on, fellows, let's go." Nor did Mosher or Raub reprove them for having left their place of employment during working hours. When told by Mosher that Cederholm had gone, all but four of the group returned to work, but the four continued to roam the town until they met up with Cederholm and told him that it would not be "healthy" for him to remain in town and advised him not to make any more complaints to the Board against the respondent. Was this treatment of the union representative inspired by the company? The Board was justified in its conclusion that it was at least encouraged and approved by the company. And being so encouraged, it constituted an interference with the employees' bargaining rights for which the employer is responsible. National Labor Relations Board v. Ford Motor Company, 6 Cir., 114 F.2d 905, 911, 912, certiorari denied 61 S. Ct. 621, 85 L. Ed. . See also Consumers Power Co. v. National Labor Relations Board, 6 Cir., 113 F.2d 38, 44.

The respondent argues that it was under no obligation to bargain collectively with the union, alleging, in this connection, that Cederholm failed to furnish proof, upon request, that the union actually represented a majority of the employees. It has been held that it is a bargaining representative's duty, when an employer in good faith questions its majority status, to offer, and it is the employer's duty to accept, some reasonable method for ascertaining the truth of the representative's claim. Matter of the Serrick Corporation, etc., 8 N.L.R.B. 621, enforced in International Ass'n of Machinists, Tool and Die Makers Lodge No. 35 v. National Labor Relations Board, 71 App.D.C. 175, 110 F.2d 29, affirmed by the Supreme Court, 311 U.S. 72, 61 S. Ct. 83, 85 L. Ed. . But Cederholm cannot be said to have refused the requested proof. He suggested that the respondent inquire of the Philadelphia office of the National Labor Relations board where the signed cards of the employees were on file but the respondent made no such inquiry. Cederholm did refuse to show Mosher the signed cards. To have done so would have been to deprive the employees of their secrecy of choice which the Act is designed to secure. The undeniable fact is that a majority of the employees had authorized the union to bargain collectively for them and the respondent took no ...

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