Appeal from National Labor Relations Board.
Before BIGGS, MARIS, CLARK, JONES, and GOODRICH, Circuit Judges.
In a proceeding duly had, the National Labor Relations Board entered an order*fn1 directing (in part here complained of) that the respondent, John A. Roebling's Sons Company, cease and desist from dominating or interfering with the administration of Roebling Employees' Association, Inc., or with the formation or administration of any other labor organization of its employees and further directing that the respondent take certain affirmative action, including the withdrawal of all recognition of Roebling Employees' Association, Inc., as the agent of respondent's employees for collective bargaining purposes.
The matter is here upon a petition for review filed by Roebling Employees' Association, Inc. (hereinafter referred to as the Association), which was granted leave to intervene in the proceeding before the Board and which now seeks to have the Board's order vacated and set aside. The National Labor Relations Board also petitions for a decree enforcing the Board's order. The Association asserts that, both in its organization and administration, it represents the free and uncoerced exercise of the will of its members (more than a majority of the respondent's employees).The respondent on its part denies that it has dominated or controlled the Association or has interfered with or coerced its employees in respect of their right to bargain collectively through a representative of their own choosing.
Prior to 1933, no labor organization existed among the respondent's employees at its plants in Trenton and Roebling, New Jersey. In that year (1933), the respondent instituted a Plan of Employee Representation covering both of its plants. According to the testimony of the respondent's president, W. A. Anderson, the Plan was similar in design to what "all the steel companies considered * * * feasible" at that time, that is, "during the period of N.R.A."*fn2 as Anderson phrased it.
The Plan called for the election of employee representatives from various departments and "natural subdivisions" of the respondent's plants and for the appointment by the management of an equal number of regular representatives of the company and one special company representative. As the Plan directed, an equal number of employee representatives and of regular company representatives should constitute a Joint Committee, whose principal function was to consider grievances arising out of the employer and employee relationship, if other methods for settlement provided for by the Plan failed to satisfy the grievance. The Plan further provided that in the event the Joint Committee was unable to agree upon the proper settlement of a grievance, the matter might be arbitrated provided that the respondent's general manager and a majority of employee representatives agreed to that procedure. The Plan required that employee representatives should be non-supervisory employees of the respondent who were over twenty-one years of age and American citiens; and an employee representative was to be deemed to have vacated his office upon the termination of his employment, his permanent transfer from one voting unit to another (i.e. department or "natural subdivision" of the plants), or upon his promotion to a supervisory position. The company obligated itself to pay employee representatives in an amount "commensurate with their average earnings" for time lost by them from their work because of their duties as employee representatives. The Plan put the duty of providing a suitable place for the meetings of representatives upon the chairman of the employees' representatives and the management's special representative. Amendment of the Plan could be made only by a vote of two-thirds of the entire membership of the general Joint Committee (this necessarily required the approval of a requisite number of management representatives) or by concurrent majority vote of the employee representatives and of the management representatives at an annual conference.
The Board found that the Plan "was interfered with in its formation and administration and was dominated and supported by the respondent". We do not understand the respondent to question the merit of this finding. In any case, it is fully warranted by the evidence. The Board expressly refrained, however, from basing an order upon the finding in as much as the respondent's domination of the Plan was not an allegation of the complaint. Nevertheless, the fact thus established with regard to the status of the Plan as a company union is important and assumed additional significance consequent upon the passage of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq.*fn3 After the passage of the Act, the respondent, as formerly, continued to support and maintain the Plan in operation uninterruptedly even after the decision of the Supreme Court on April 12, 1937, upholding the Act's constitutionality. 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.
In December 1936, the Steel Workers Organizing Committee (C.I.O.) began organizational activities, including a membership campaign, among the respondent's employees at its Trenton plant. A few weeks later (January 27, 1937) Anderson, the respondent's president, addressed a letter to the employees on his official company stationery. The letter opened with a reference to the current campaign by "outside union organizers" for members among the company's employees.It cited Anderson's recognition of his professed duty to inform the employees of the results that would follow should they (the "outside union organizers") be successful "in misleading you". He stated that the membership cards which the employees had been asked to sign were powers of attorney and that signing them would mean that an employee would no longer be a free agent to deal with the company regarding "rates of pay, wages, hours of employment or other conditions of employment". He said that, upon signing the cards, the employees would have no further voice in selecting their own representative to deal for them and that thereby this power would be given to outsiders*fn4 over whom the employees would have no control. He warned that if enough employees were "misled" into signing the cards, they would thus empower strangers to represent them and that, once the employees signed, "there can be no 'dropping out' if you are dissatisfied". The letter concluded with an expression of Anderson's confidence that no one would lightly sign away his rights as an employee of the company if he knew all of the facts.
The Board found that the letter as a whole was calculated to impress upon the employees the respondent's hostility to their joining an "outside" union and its preference for the type of organization which it had introduced into its plants. From this, the Board concluded that "the respondent, by circulating this letter, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act". In so doing we think the Board was justified. As was said by the Supreme Court in International Association of Machinists v. National Labor Relations Board, 311 U.S. 72, 61 S. Ct. 83, 88, 85 L. Ed. , "Slight suggestions as to the employer's choice between unions may have telling effect among men who know the consequences of incurring that employer's strong displeasure." See also National Labor Relations Board v. Link-Belt Co., 61 S. Ct. 358, 365, 366, 85 L. Ed. .
The letter is plainly susceptible of the interpretation which the Board placed upon it. Not only does the letter's own import plainly so indicate but Anderson's frank admissions with respect to it confirm the Board's construction. When asked the purpose of sending the letter to the employees, Anderson testified:
"A. The purpose was very evident on the face of it.
"Q. Oh, I think so, too, but I thought you might want to give a further explanation of why you sent it. A.No, I just thought it would be a good thing to advise all the people employed by the company just what they were signing if they signed up with the CIO or the SWOC. They have always had perfectly satisfactory relations with the company in all the time that I have been there. That was the main purpose of the letter.
"Q. You did not look upon the entrance of the CIO with any favor, did you? A. I do not look on the entrance of any outsiders in the relation between the ...