Petition for enforcement of order granted.
Before MARIS, JONES and GOODRICH, Circuit Judges.
This case is before the Court upon petition of the National Labor Relations Board for enforcement of its order against John Engelhorn & Sons, a New Jersey corporation engaged in processing, slaughtering, packing, sale, and distribution of hogs, and related products. The chronological sequence of significant events prior to the order is as follows:
On January 27, 1938, Local 422 of the Amalgamated Meat Cutters and Butcher Workmen of North America, an affiliate of the American Federation of Labor, filed a petition under § 9(c) of the National Labor Relations Act*fn1 for the investigation and certification of representatives at the Engelhorn plant in Newark. Thereafter the employer and the union agreed to a consent election which the union won. On July 8, 1938, they executed a written contract designating Local 422 the exclusive bargaining representative. The agreement was to remain in force until November 1, 1938, and to be automatically renewed from year to year thereafter unless either party gave thirty days' notice of intention to terminate. Such a notice was not given. The contract did not contain a closed shop clause.
In April, 1941, the C.I.O. began to organize Engelhorn's employees. On May 8, 1941, the C.I.O. notified the employer that it represented a majority of the employees and requested a bargaining conference. This request was refused on the grounds that the 1938 contract was still in effect. By a letter dated May 13, 1941, the employer was notified by the Regional Director for the Board that the C.I.O. had filed a petition for investigation and certification of representative. On May 19, 1941, thirty-two of approximately forty-eight employees went on strike at the Engelhorn plant. To keep the plant in operation Local 174, to which jurisdiction had been transferred by Amalgamated,*fn2 furnished about ten employees. On May 27, 1941, the Local, although it had knowledge of C.I.O.'s petition to the Board, negotiated a new contract with the employer and the striking employees returned to work the following day. This contract designated Local 174 as the exclusive bargaining representative of all employees in a designated unit and contained the same renewal provision as the 1938 contract. It also provided for a closed shop. It was signed by the Local and the employer on May 29, and unanimously ratified by the employees involved at a meeting held on June 6, 1941.
Three days later the C.I.O.'s petition for investigation and certification of representatives was granted by the Regional Director. The C.I.O., Local 174 and the employer appeared, were represented and participated in the hearings which followed. At the conclusion of the latter an election in the unit found appropriate was ordered. The C.I.O. won the election and was certified by the Board as the exclusive bargaining representative on September 19, 1941.
The employer refused to bargain with the C.I.O. and upon charges filed by the union the Board issued a complaint dated February 17, 1942. It alleged that the employer had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of § 8(1), (3), (5) and § 2(6) and (7) of the National Labor Relations Act.Local 174 and the employer filed separate answers to the charges and appeared and participated in the hearing. The Board sustained the complaint. It ordered the employer to cease and desist from the unfair labor practices found and from giving effect to its contract with Local 174. It further ordered the employer to bargain with the C.I.O. and to offer reinstatement with back pay to four employees and to post appropriate notices. This petition by the Board is for enforcement of its order against the employer. Local 174 is an intervenor in this action.
The employer has stipulated that it is engaged in commerce within the meaning of § 2 of the Act and will not contest the Board's jurisdiction. Nor is there any dispute as to the bargaining unit found appropriate by the Board. This unit coincides with the one agreed upon by Local 174 and the employer in the May, 1941, contract. The controversy thus is narrowed to issues growing out of the contract of May 29, 1941.
The Closed Shop Agreement
The employer's defense to the proceedings both before the Board and this Court is the closed shop agreement of May 29, 1941. This agreement, it is said, makes legally ineffective as to the employer the election held by the Board and the certification of the C.I.O. The agreement thus being operative, everything done by the employer was sanctioned by it. To this defense, two lines of attack are made.
The first is that the employer may not raise for his protection in this proceeding a closed shop contract made with Local 174 at a time when the employer knew that an investigation and certification proceeding, instituted by a rival labor organization claiming a majority of the employees, was pending. The Board in accordance with its previous decisions,*fn3 so held. This proposition of law does not seem to have been squarely decided by any court decision.*fn4 Nor need we decide it here, for we consider the second line of attack sufficient. We think, as did the Board, that the agreement was invalid in view of the employer's activities attending its execution.
The proviso to § 8(3) of the Act provides that nothing in the Act or other legislation shall preclude an employer from entering into a closed shop agreement with a labor organization, subject, however, to serval important qualifications. The labor organization must be the representative of the employees as provided in § 9(a) which requires its designation as bargaining agent by a majority of the employees involved. Furthermore, the labor organization must be one "(not established, maintained, or assisted by any action defined in this Act [sections 151-166 of this title] as an unfair labor practice) * * * ." Neither of these conditions were met.
There is ample evidence to support the Board's conclusion that the agreement in question was made with a labor organization assisted by unfair labor practices. There was direct testimony on this point. Alex Borys, an employee, testified at the hearing that on or about May 23, 1941, he was approached by his foreman, Steve Kijak, who had authority to hire and dischange employees under his supervision, and warned that he and his fellow employees faced a plant shut-down and loss of their jobs unless they joined Local 174. Borys was given membership applications and told to sign up other employees. Kijak pointed out to him that, under the law, he himself could not engage in such activities. Borys took the applications to the president of the company who admitted knowledge of what they were for and told ...