Appeal from the National Labor Relations Board
Before SWAN, AUGUSTUS N. HAND, and CLARK, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
This is a petition by the National Labor Relations Board for enforcement of an order requiring respondent American Manufacturing Company (herein called the Company) to cease and desist from certain unfair labor practices. Upon charges and amended charges filed by the Textile Workers Organizing Committee (herein called T.W.O.C.), an affiliate of the C.I.O., the Board issued its complaint on July 27, 1937, and caused it to be served with notice of hearing upon the Company, the Company Union of the latter, and the Collective Bargaining Committee formed by the Company about June 1, 1937 (herein called the Committee). The intervenor Nu-Art Employees, Inc. (herein called Nu-Art), a union of the employees of the Company formed by the latter about July 14, 1937, was served with the complaint, and amended complaint, on August 11, 1937.
The amended complaint alleged (a) that the Company urged, persuaded and warned its employees under threat of discharge and other reprisals to refrain from becoming or remaining members of T.W.O.C., which a majority of them had in May, 1937, joined and designated as exclusive bargaining agent; (b) that about May 29, 1937, and thereafter, the Company refused to bargain collectively with its employees through T.W.O.C., although that Union represented the majority in its Nu-Art Fibre Products Department, an appropriate unit; (c) that about June 1, 1937, the Company formed the Committee for the purpose of dealing with its employees concerning grievances, labor disputes and conditions of employment and about June 4, 1937, coerced its employees to sign individual contracts providing for bargaining by the Committee and containing various unlawful provisions and also to sign false statements to the effect that the individual contracts had been executed voluntarily; (d) that about June 29, 1937, the Company discharged, and thereafter refused to reinstate, sixteen of its employees because of membership in T.W.O.C. and of activity in its behalf; (e) that about July 1, 1937, the Company formed and dominated the labor organization of its employees known as Nu-Art Employees, Inc.; (f) that because of the unfair practices of the Company other employees went on strike; and (g) that by reason of the foregoing the Company was engaging in unfair labor practices within Section 8(1), (2), (3) and (5), 29 U.S.C.A. § 158(1-3, 5).
The Company filed its answer to the complaint denying that it had engaged in unfair labor practices and thereafter Nu-Art filed its answer to the same effect. Neither the Company Union, nor the Committee, filed answers but the Company's counsel stated that he was appearing on behalf of the Committee for the limited purpose of protecting a contract dated June 4, 1937, between the Company and the Committee regulating the labor relations between the Company and its employees.
The Board made findings to the effect that the Company engaged in unfair labor practices by circulating petitions among its employees repudiating T.W.O.C.; by holding a so-called election whereby the Committee was chosen to represent the employees; by causing the latter to sign individual unlawful contracts and by threats that members of T.W.O.C. would be discharged and that the Company would sooner shut down the Nu-Art Department than to let the C.I.O. come in; by refusing to bargain collectively with T.W.O.C. when that organization represented a majority of the employees in an appropriate unit; by discharging sixteen employees because of their membership in and their activity on behalf of T.W.O.C.; by refusing to reinstate a number of employees who on June 29, 1937, had gone on strike because of the Company's unfair labor practices, and by dominating and interfering with the formation and administration of Nu-Art and contributing support to it.
Upon the basis of the foregoing findings of fact the Board determined (a) that the Company had engaged and was engaging in unfair labor practices within the meaning of Section 8(1) in that it had interfered with, restrained or coerced its employees in their rights to self organization, to form or join labor organizations, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection; (b) that it engaged in unfair labor practices within the meaning of Section 8(2) in that it dominated or interfered with the formation or administration of Nu-Art and contributed support to that organization; (c) that it engaged in unfair labor practices within the meaning of Section 8(3) through discrimination in regard to hire or tenure of employment and other terms or conditions of employment; (d) that it engaged in unfair labor practices within the meaning of Section 8(5) by refusing to bargain collectively with representatives selected by the majority of its employees.
The Board ordered the Company to take affirmative action in order to effectuate the policies of the Act (1) by offering reinstatement with back pay to the sixteen named employees who on June 29, 1937, were discharged; (2) by offering reinstatement to those striking employees who were refused reinstatement, together with back pay from the date of such refusal; (3) by withdrawing all recognition from Nu-Art as representative of the employees for the purpose of collective bargaining; (4) by (upon request) bargaining collectively with T.W.O.C. as the exclusive representative of the employees of the Nu-Art Department except supervisory and clerical employees.
The principal question is whether the Board's findings of fact with respect to unfair labor practices have a substantial support in the evidence. In answering this question it is necessary to refer to the organization of the Company Union which was set up in 1936, about a year prior to the formation of Nu-Art. The Company had had some trouble in Philadelphia and did not want any outside labor organization to inject itself into the Brooklyn plant. They, therefore, organized a Company Union.Its character as such is not questioned. Its constitution and by-laws were evidently furnished by the Company. The choice of the delegates was essentially that of the Company and any meetings held by the delegates were attended by Fardy, the personnel manager, who would listen to complaints that might be presented and, on numerous occasions, redressed grievances. The organization apparently had no expenses and held its meetings in the Company plant and on the Company's time; the members paid no dues and the organization was such as to justify the conclusion that it was no more than a clearing house for complaints, and not a real bargaining agent or indeed an independent representative of the employees in any respect. Finally, in April, 1937, Filley, the president of the Company, told Fardy that "a Company Union would no longer exist" and directed the latter to inform the delegates of the fact, whereupon the Company Union apparently expired.
At the time of the organization of the Company Union certain supervisory employees took an active part in the formation of this Union and also in the later transactions which the Board found constituted unfair labor practices on the part of the Company. Among them were Josephine Gulino, who was assistant to Anderson, the chief foreman in charge of the Nu-Art Department of the Company. She handed out cards and requested employees to join the Company Union. Margaret Schwartz, who was referred to by Fardy as a foregirl (Record, p. 1313), and had the duty of seeing that the work was properly done in the twisting room, also called one of the employees to her desk and told her to sign a card joining the Company Union. Matusza, Gosslein and Cartello held supervisory positions in the Nu-Art Department under Anderson, who testified that they transmitted his orders to the men since the Department was too much for him to handle alone. While Matusza, Gosslein and Cartello had not the power to discharge, the men believed that they had it and regarded them as foremen. There was testimony before the Board that they solicited memberships in the Company Union during working hours.
In April, 1937, some of the employees began to discuss the advantages of organization with the result that one of their number went to the T.W.O.C. headquarters and obtained literature and pledge cards which were thereafter distributed and a campaign for members of that union began which resulted in its obtaining a majority membership among the employees of the Nu-Art Plant.
The Company was aware that the T.W.O.C. was making strides in obtaining memberships and that many weavers had joined. Accordingly Fardy, after consultation with Filley, approached several weavers on May 14th and requested a meeting on Saturday morning, May 15. The apparent purpose for calling the meeting was, as expressed by Fardy, that "there is a lot of underground work going on around here" and "the company should have a chance to defend themselves." The men who came to the meeting wrote out certain complaints regarding working conditions and wages, most of which were at once granted by Anderson and Fardy. The employees who came were paid for their time although the great majority did not normally work on Saturday.
On May 21, 1937 one Rosenberg, who was the T.W.O.C. representative, advised Filley that T.W.O.C. represented a majority of the employees of the Nu-Art Department, and a meeting was arranged for May 29th for the purpose of collective bargaining. The meeting was held on the latter date and Filley did not question the claim of ...