Before BIGGS, Chief Judge, MARIS, GOODRICH, MCLAUGHIN, O'CONNELL, KALODNER, and HASTIE, Circuit Judges.
,MCLAUGHLIN, C.J.: This is a petition by the National Labor Relations Board for enforcement of its order against respondents following proceedings under Section 10 of the National Labor Relations Act, 49 Stat. 449, U.S.C. Title 29, Section 160.
Respondents are garment manufacturers. During the period with which we are concerned, they were engaged principally in making leather sport jackets.*fn1 Since 1937 respondents' employees have been represented in their collective bargaining by the Golden Fleece Association. In 1941, the Board conducted an election among the employees to determine whether they desired to be represented by the Golden Fleece Association or by the Amalgamated Clothing Workers of America. The Association won the election. In 1942 and 1943, contracts between the Association for the employees and the respondents were entered into. The expiration date of the 1943 contract was April 1, 1944. That contract, in effect, called for a closed-shop. It was so treated by the parties to it, and no contrary contention has been raised in this proceeding. It provided that new employees could be hired from without the Association, but would be required to join it within a four-week period. The contract also contained clauses covering weekly dues check-offs, maintenance of membership, and a "nostrike" provision.
In February, 1944, there were negotiations between the Association and the respondents with respect to a new contract. The main question had to do with wage increases. It is conceded that rumors of activity during that period on behalf of Amalgamated were known to the employer, and, with them in mind, respondent Philip Spiewak, in the latter part of February, 1944, asked an employee wage increase committee of the cutters whether they were from the Association or another organization. The answer was that "right now" it was the Association. Shortly thereafter, two foremen, Newfield and Klein, made a "proposition" to a member of the cutters' committee that if the cutters would leave the rest of the factory out of the organization and "not bother the operators" and "forget about the union", Newfield or Klein would "see to it" that the cutters got a ten per cent raise.Following this, Newfield told three other employees that he had asked Spiewak to give the cutters a raise "providing you will not bother with the operators and also not with the union". Around the same time (late in February, 1944) Klein said to Mary Tarantino, an employee active on behalf of Amalgamated, "You know, you are a silly kid. You know Mr. Spiewak will never permit another union in here but the Golden Fleece."
On March 6, Amalgamated called a strike contrary to the plain language of the "nostrike" clause of the 1943 employment contract. Practically all of the employees were out for two days, but, on March 8, a number of them returned to work. On March 13, the organizer for Amalgamated asked Harber, respondent's assistant general manager, "* * * if it was not possible for us to get together with Mr. Spiewak in regard to a contract with the Spiewak company as we had the majority of the workers." Harber stated that he told Spiewak of this and that Spiewak said to him, "* * * whatever is to be done in that direction, he is capable to take care of it himself without any help from me." On March 17, Amalgamated filed a petition for certification as bargaining representative for the employees with the Board. Meanwhile, on March 17, a contract was entered into between the Association and respondents extending for another year the 1943 agreement which was about to expire.
Without attempting to outline it at length, there is substantial evidence in the record that, as the Board found, during the strike respondents tried to induce individual strikers to return to work. Negotiations for the termination of the strike started in the latter part of April, 1944. These continued during May and June, but broke down over the exclusion of six strikers who, the Association insisted, were not to be reemployed "because of the actions by them in assaulting and threatening members of the Golden Fleece with physical violence and in their misleading and unauthorized behavior."
The Board did not hold an election following Amalgamated's claim for representation. Almost two years later, on February 26, 1946, a complaint was issued and thereafter hearings were held. On June 11, 1946, the Trial Examiner's report was filed. The decision and order of the Board was filed November 27, 1946. Petition for enforcement was served on respondents on or about January 1, 1949.
The Board held that "in the period immediately preceding Amalgamated's request for recognition unlawful assistance was given by the respondents to the Association." It held further that such assistance alone "rendered the respondents' subsequent recognition of, and contract with, the Association unlawful", and that "by entering into the closed-shop contract of March 17, 1944, with the Association, respondents interfered with, restrained and coerced their employees, within the meaning of Section 8(1) of the Act." It also held that "respondents discriminated with respect to hire, tenure of employment and terms and conditions of employment, thereby discouraging membership within the meaning of Section 8(3) of the Act by their conduct in enforcing their closed-shop and check-off of dues provisions of the Association contract on and after March 17, 1944."
With direct reference to the strike, the Board found "that the respondents, by attempting through various supervisors, and by permitting employees to leave work, to induce striking employees to return to work, unlawfully interfered with their employees' concerted activities, within the meaning of Section 8(1) of the Act." The Board states that "* * * the respondents' efforts to induce individual strikers to return to work, in our opinion, constituted a calculated effort to weaken and discredit the strike called by the Amalgamated, by depriving it of the support of the individuals solicited to abandon the strike." By such solicitation respondents were found to have "interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act."
The order of the Board calls for the respondents to cease and desist from recognizing or dealing with Golden Fleece Association as the representative of any of their employees; from giving effect to either the 1944 or 1945 contracts with the Association; from discouraging membership in Amalgamated or in any other labor organization of their employees, by discharging or refusing to reinstate, etc.; in any other manner interfering with employees in their right to form labor organizations, in joining or assisting Amalgamated or any other labor organization, in bargaining collectively through representatives of their own choosing or in engaging in concerted activities for the purpose of collective bargaining, etc. The affirmative action ordered consists of withdrawing and withholding recognition of the Association as bargaining agent unless or until so certified; offering forty-three named employees reinstatement and making whole any wage losses to them since April 21, 1944, less net earnings during that period; making whole thirty-five named employees for specified wage losses less net earnings; reimbursing each employee for check-off dues paid by him since March 17, 1944; and the usual Posting and notification clauses.
Unless the respondents were protected by their then current labor contract with the Association, the attempts by foremen Newfield and Klein to eliminate Amalgamated and Klein's effort around the same time to discourage the Tarantino girl in her activity for Amalgamated present substantial evidence justifying the Board's finding that the respondents had rendered improper assistance to the Association prior to the Wildcat strike. There is a pattern indicated by the named incidents that takes them out of the category of unimportant casual conversation between the individuals concerned, as illustrated by Quaker State Oil Refining Corp. v. N.L.R.B., 3 Cir., 119 F.2d 631, 663, or the type of episodes outlined in N.L.R.B. v. Public Service Co-ordinated Transport, et al., 3 Cir., 177 F.2d 119, which obviously had no effect in either preventing or discouraging membership in the there advocated union.
The 1943 closed-shop type of agreement between respondents and the Association was admittedly valid and within the proviso to Section 8(3) of the Act.*fn2 Under the interpretation of that contract by both the parties thereto and the parties to this litigation, respondents had to suspend or discharge charge an employee at the Association's demand where the latter had suspended or expelled the employee from membership, even where such action had been based on the employee's dual unionism. Colgate-Palmolive-Peet Co. v. N.L.R.B., 338 U.S. 355. But the conduct of Newfield and Klein bore no relationship to that type of situation. The demand by the Association that respondents not rehire certain named employees was not made until April 24, 1944. The acts of assistance by Newfield and Klein occurred back in February of that year, and were rendered by the respondents to the Association during the period immediately preceding the execution of the 1944 contract on March 17, 1944. They were intimately tied into the February contract negotiations. During that time there was a valid current agreement between the employers and the Association, but this did not excuse the mentioned assistance which was specially directed at the forthcoming 1944 agreement. That assistance by the employers to the Association was, as found by the Board, unfair labor practice under Section 8(1) of the Act. It rendered the 1944 contract invalid. Labor Board v. Electric Cleaner Co., 315 U.S. 685, 694. Cf. Wallace Corp. v. Labor Board, 323 U.S. 248.
The Rutland Court doctrine,*fn3 now repudiated by the Supreme Court in the Colgate-Palmolive-Peet decision, supra, which permitted incumbent union members to campaign for new bargaining representation towards the close of a current contract, obviously would have had no application to the above facts.
And it further follows necessarily, we think, that the Board's findings must be upheld with respect to respondents being guilty of 8(1) and 8(3) violations of the Act by entering into and functioning under the nugatory March 17th agreement. This includes their collection of check-off dues. Such dues must be returned to the employees. This, of course, is without prejudice to any right which respondents may have against the Association to the restitution of the dues which they have heretofore checked off from their employees' wages and paid over to it. In connection with this, it must be remembered that the 1943 contract containing a similar check-off provision did not expire until April 1, 1944.
The Board also holds, as to the execution of the 1944 contract, that the respondents thereby resolved "the question concerning representation in favor of the Association, in the face of the representation claim made by the Amalgamated", and, therefore, that the respondents "interfered with, restrained and coerced their employees within the meaning of Section 8(1) of the Act."
In view of our conclusion that the 1944 contract must be set aside because of improper assistance, the above representation question becomes largely academic, but it should be noted that this finding of the Board is just barely supported by the record. The first evidence of Amalgamated's representation claim was in connection with the strike.It consists of the informal talk the organizer had with Harber on March 13th. That talk was directed to the present adjustment of the strike which had been in progress since March 6th. It is true that the organizer's version of it referred to "a contract with the Spiewak company as we have the majority of the workers", but there was nothing to indicate that Amalgamated was interested in abandoning the pressure of its illegal strike and thereafter proceeding in orderly fashion to become the employees' proper representative under the forthcoming 1944 contract. Amalgamated did file a petition for certification on March 17th. Respondents were not served in that matter until March 24th. There is no evidence that they had knowledge of it prior to that date, though, undoubtedly, they were motivated by the strike in speeding the execution of the 1944 agreement.
With respect to the incidents arising out of the strike, we do not think that the Board's penalization of the respondents can be fairly justified. The first request for reinstatement of any of the strikers was not until April 21, 1944. Philip Spiewak, respondents' managing partner, testified that he wanted all employees to return, no exceptions, but that the Association objected in writing to the reinstatement of six of the strikers. He said that he construed the Association letter to mean that "if these people who had caused the violence would come back it would cause a disruption in the plant and that they definitely prohibited me from taking them back." The letter specifically objected to the rehiring of the six "because of the actions by them in assaulting and threatening members of the Golden Fleece Association with physical violence and in their misleading and unauthorized behavior." Spiewak testified that he understood "misleading and unauthorized behavior" to mean that "they were referring to certain particular incidents that occurred where there was some physical violence used, and there was also a record of it in the courts and as a result of that, they felt that any people that had anything to do with this violence to be in there would cause more violence." On cross-examination by the ...