5. Kuehne Mfg. Co., C-369 (7th Circuit), decided 5/20/38, enforcement authorized 6/20/38. T. E. report, exceptions, oral argument, brief. $ (3). After a sitdown strike at its Flora, Illinois plant respondent moved its operations to Mattoon, Illinois and did not reinstate the sitdown strikers. The conduct of the sitdowners was admittedly exemplary. The Board found that the shutdown and removal were due to respondent's desire to avoid dealing with the union; respondent claims that business reasons were the motivating causes. On the evidence the Board's conclusions appear to be supported. Much evidence of anti-union attitude of respondent and opposition to "outsiders." The case also involves 2 discharges at Mattoon during the Flora shutdown. One of these cases is strong; the other is fairly weak. 8 (5) The only problem here is the Columbian and Fansteel problem as to whether the sitdown strike justified refusal to bargain, which is proved by the evidence. Reinstatement of the sitdowners ordered as well as of the 2 discriminatorily discharged employees. Back pay for sitdowners runs from the date of closing of the Flora plant, which the Board holds to be a lockout. 6. C. A. Lund and Northland Ski Mfg. Co., C-233 and C-254 (8th Circuit), decided 4/5/38, enforcement authorized 7/1/38. T. E. report, exceptions. 8 (1) strong. Espionage and repeated threats. 8 (2)-strong. Management promoted a company union and campaigning took place through supervisors authorized to do so. Assn. immediately recognized as sole bargaining agent. 8 (3)-strong. Two discharges. Union struck in protest against discharges and reinstatement of strikers is justifiable both because strike was caused by unfair labor practices and because respondent refused to bargain during the strike. 8 (5)-strong. Only doubt is appropriateness of single union comprising employees of both companies. In view of clear single control of both companies, this is not regarded as an obstacle. 7. National Licorice Co., C-410 (2nd Circuit), decided 5/31/38, enforcement authorized 8/1/38. T. E. report, exceptions, leave for oral argument granted but argument waived, leave for briefs but no briefs filed. 8 (1) and 8 (2)-strong. After the union requested a bargaining conference the company held meetings of its employees at which it urged them to form a bargaining committee of their own. The union struck and after the strike Balleisen contracts were offered the strikers. Petitions for the bargaining committee were circulated in the plant by an employee who had received the advice of respondent's secretary and the petition had been written by respondent's president. Respondent recognized the committee and refused to recognize the union. S (5)—The union had a clear majority in July, but respondent refused to negotiate. A spontaneous strike occurred on August 2 and respondent refused to negotiate further on the ground that the union had struck in bad faith. The evidence shows that the union did not call the strike and that even if it had called the strike, it had not previously agreed not to do so. This case is very strong. 8. Picus Munising Wood Products Co., C-302 (6th Circuit), decided 6/9/38, enforcement authorized 7/1/38. T. E. report, exceptions, oral argument, briefs. 8 (1) strong. Respondent announced that it would not deal with an A. F. of L. union but would bargain with an employees' committee. Also threatened to close down until "labor unrest" subsided. When organizer arrived on scene plant was closed down and remained shut during the hearing. 8 (5)-strong. Respondent refused to recognize the union, expressly stating that it would not deal with the union. Meetings with the employees' committee were cancelled when it was discovered that a union representative would be present. Respondent also rejected that part of the proposed contract with the union which said that it recognized the union: upon such refusal negotiations were discontinued. Respondent also refused to see "professional organizers." 9. Simplex Wire and Cable Co., C-359 (Principal office of company located and unfair labor practices occurred in First Circuit, but enforcement can be sought in other circuits. Respondent does business in "every state in the Union", as the Board found.), decided 3/29/38, enforcement authorized 7/18 38. T. E. report, exceptions, brief, oral argument. The case involves only 8 (2), which is not strong. Respondent furnished its foremen for distribution articles and posters advising employees that they had a right to join a company union and giving a model constitution for such a union. A company union was formed and respondent advised both the union and company union that it would not recognize either of them because of the other's existence. Thereafter an election was held which resulted in a majority for neither union. The evidence is not regarded by either the review attorney or by Babe as particularly clear. Babe is of the opinion that the First Circuit would not uphold us in this case and Wheatley regards the case as weaker than the Lion Shoe case. 10. Somerset Shoe Co., C-278 (1st Circuit), decided 2/19/38, enforcement authorized 5/14/38. T. E. report, and exceptions thereto. 8 (5)-When the union claimed a majority and asked for bargaining, respondent made no reply but closed the plant. Uncontradicted testimony quotes the general superintendent as stating that the shut-down was due to labor agitation and to respondent's determination not to deal with an outside labor organization. An unusual feature of this case is that the disestablishment order is based on the 8 (5) violations. There is no 8 (2) allegations in the complaint and no finding of 8 (2) violations. During the shut-down the union declared itself on strike, but a back to work movement of a citizens group resulted in an association which was permitted to solicit members openly in the plant after the plant reopened. Respondent accorded bargaining recognition to the association on the same day it was requested. The Board's disestablishment order is apparently based upon the theory that respondent could not comply with the order requiring it to bargain with the union so long as it recognized the association. The Board's order further requires reinstatement of the strikers on the theory that that had been locked out in violation of Section 8 (3) of the Act. The case appears to be a strong one on all of the above aspects. 11. Waggoner Refining Co. and W. T. Waggoner Estate, C-320 (Circuit). decided 4/21/38, enforcement authorized 8/4/38. T. E. report, exception, oral argument, briefs. This case involves only Section 8 (3). It is a strong case. After the employees formed an independent union, respondent offered them an ultimatum which in effect demanded that they either mend their attitude or cease working for respondent. The leader in the union organization movement was discharged. Seven employees who signed up with the union were discharged with the observation that they had "messed things up" by signing the petition. The assistant to the head of the organizational movement was fired. 12. Virginia Ferries Co., C-346, 348 (4th Circuit), decided 8/1/38, petition to review received 8/13/38. T. E. report, exceptions, oral'argument. 8 (2) The employees' committee was suggested by the captains of respondent's vessels, and respondent's general superintendant conducted a ballot to select employee representatives. The case appears to be a strong 8 (2) case. MBW:EL M. B. W. EXHIBIT NO. 1609-M To: Messrs. Fahy, Watts, Hawes. From: L. A. Knapp. [Copy] Subject: Phillips Packing Company-Cases Nos. C-289, C-290. Difficulties arising out of relation of decision to record: 1. Discrepancies between record and decision : a. At page 13 of the decision, the following appears: AUGUST 3, 1938. Lord's testimony in the record in connection with Le Compte, the Hicks episode, and his presence at the first organization meeting of the Association was extremely evasive. The Hicks episode was one in which Winterling, a supervisory employee, was identified as participating in a terroristic activity directed toward one of the striking employees (tr. 151-5). Lord was in no way involved in it, nor did he testify concerning it. The reviewer obviously confused him with Winterling and attention is called in the brief to the inadvertence. b. At page 13 of the decision it is stated: On July 29, after the plant reopened, Le Compte returned to work * The record shows he returned to work on July 19 (tr. 503). The reviewer has evidently confused the can factory, which reopened July 24, with the other plants, which reopened July 9. The time element is important here, because Le Compte was discharged on Thursday of the week he returned to work, (which would be July 22) following his refusal to join the Association (tr. 503, 348). On July 23, respondent executed an agreement with the Association on the theory that it represented a majority of its employees. The discharge on July 22 would tend to show the coercive measures which aided the Association in mustering a claimed majority by July 23. e. At page 9 of the decision, the distance of the table used by the Association in its solicitation of employees is described as "15 or 20 yards from the entrance to this plant." The proximity of the table to the entrance is a material point in that occurrence. The witnesses who testified to the distance of the table to the entrance set it at either approximately 10 feet or 15 to 20 feet. (tr. 366; 531; 925: 1091-2). The Board's witnesses testified to the shorter distance and the Association's witnesses testified to the slightly larger distance. Obviously the unit "yards" was intended for "feet" and the brief so states. d. At page 6 of the decision, it is stated that Smith, an active organizer of the Association, "characterized himself as an 'office boy;' although the evidence unquestionably indicates that he was a paymaster." This is not entirely accurate. Smith flatly testified that his last employment with respondent was that of paymaster (tr. 631), but that previous to being made paymaster he had held other positions, including that of office boy. e. At page 7 of the decision, it is stated that Moore's name was dropped from the original authorization card of the Association because he was a supervisory employee, and then the following appears: “The presumption arises that Willey's name was omitted for the same reason." This leads to the impression that while there was direct evidence as to the reason for dropping Moore's name, the evidence with regard to Willey was purely inferential. The contrary is the fact. The testimony concerning Moore and Willey was given by the same witnesses and the same reason was expressly assigned for the dropping of hath names from the original Association list (tr. 951-2: 1052; 1072). f. Reference is made at page 12 of the decision to "the strike of July 22." This is obviously intended to refer to the strike of June 22. 2. Omissions from the decision of important aspects of the record: In particularizing the incidents in which employees were coerced into joining the Association, no reference whatever is made to the case of Robert McClennan who was discharged by Lord, a supervisory employee, upon the former's refusal to join the Association and subsequently reinstated upon joining it (tr. 1389-1400). Such an occurrence is highly significant, and an instance of that type was cited by the very circuit court before which the order here is sought to be enforced as one of the factors justifying the Board's finding of employer-domination of a labor organization. N. L. R. B. v. Wallace Mfg. Co. 95 F. (2nd) 818 (C. C. A. 4th). 3 Suggestions as to topics under which certain occurrences should be cited: The instances of solicitations to join the Association are cited under "C" entitled "Interference, restraint, and coercion." It would appear to me that the more logical place would have been under “B” entitled “The formation of the Association" with the title revised to "Domination and support of the Association." In its present form the Board's emphasis is on the matter set forth under topic “B”. An intimation to that effect is conveyed in the motion of respondent filed March 11, 1938, for leave to adduce additional evidence to demonstrate the absence of any connection between respondent and Valliant, one of the business men cited under "B" who sponsored the Association. In view of the fact that the solicitations set forth under "C" were of the type upon which the Fourth Circuit had sustained the findings of employer-domination in the Wallace case supra (see also the J. Freezer case 95 F (2nd) 840), the arrangement here suggested would appear to me to have been the preferable one. ANS: cmk L.A. K. Exhibit No. 1612-A-1612-0 [Introduced into evidence in Volume 24, Part I, August 1, 1940] Correspondence Relating To Nathan Witt EXHIBIT NO. 1612-A INTER-OFFICE COMMUNICATION NATIONAL LABOR RELATIONS BOARD MAY 19, 1938. To: Nathan Witt. From: E. M. Herrick. Subject: American Machine & Foundry Company, II-R-589, II-C-1053. You are pretty generous with granting extensions of time to file exceptions, don't you think? Don't forget that I have the union on my neck! E. M. H. MAY 23, 1938. To: Elinore M. Herrick, Director, 2nd Region. Subject: American Machine & Foundry Company, II-R-589, II-C-1053. As you should know, the Review Section is so far behind that there is not even the slightest hope that they could work on this case even within the time now given to respondent for filing its exceptions. Why don't you ask about such things before you scribble insulting memoranda? DEAR NAT: The first matter that came to my attention yesterday morning was a letter from: you stating that we could probably get along with five Field Examiners instead of six. At the same time you say that you would suggest to Mr. Fahy he should consider the taking on of Casselman. This suggested cut in staff is due to a case load condition that appears to exist in this office. Candidly, I have not had time to look at the matter from a case load stand point. The only thing I know is that everybody in this office is busy at all times and by all times, I don't mean from 9:00 A. M. to 4:30 P. M. While I'm in the humor, I might as well give you a sort of a log of yesterday's happenings. In the same mail was a letter from B. Stern taking me to task for not having given attention to her letter of April 2 relative to two cases in the western part of the state, namely Saranac Industries Corporation, Case VII-C-96, and Viloco Machine Company, Case VII-C-116. Her letter was dated April 18. Our file shows that her letter was answered as completely as possible on April 6. Incidentally, in thinking over the matter. I have come to the conclusion that it is as difficult to get an Order from the Board to proceed with a Complaint as it was to go through the entire hearing in the beginning. I remember issuing the complaint in the Fruehauf case and sending a copy to the Board after its issuance. Now we have to make all kind of explanation as to why this complaint should be issued. Naturally I suppose it is an Order of the Board and must be general in its effect. If, however, it is in effect only as far as this office is concerned, it's about time that you get a new Director. Later on in the day I was being pounded by the International Typographical Union for the Board's silence regarding the issuance of a complaint from Washington in the Ann Arbor Press case. The Union was assured by me that the Board in taking over this case intended to proceed with it at once and show Michigan and the world that no fool Circuit Court Judge in Michigan or any other place could hinder the work of the Board. Reifin, the Organizer and signer of the original Charge, had to be sold on the withdrawal of the complaint and was only sold because he received my personal assurance that there would be no delay whatever and that the Board is taking this procedure in order to expedite the matter. This case, you will remember, is the one I picked on to bring to a swift conclusion after the filing of the Charge. Ironical, isn't it? Now, let me go back to the shortening up of the staff. Several months ago, I was informed that a man named Considine had been detailed to the Legal Department. Considine is now classified with the mythical Paul Bunyon. We look on them to arrive at the same time. Nat, this is merely the pot boiling over. Nothing personal is intended as far as you are concerned, but with the situation as it exists in Detroit today I just can't help pulling out the tremulo stop and singing a low refrain. Personal and confidential. To: Frank H. Bowen, Director. FRANK. APRIL 26, 1938. DEAR FRANK: I have your letter of April 22nd. I am naturally kind of shocked to have such a pessimistic report. Perhaps I can clear up a couple of points for you. To begin with: 1. I have suggested that you could get along with five field examiners instead of six and have based this on the present case load in your office. This was done only after careful analysis of the case loads in all the offices, and after careful consideration of our budget problem. To begin with, we find that we are running very short of funds and are having difficulty in getting personnel in the field of our work where we still need them very badly-primarily trial examiners and review attorneys. Apparently we are well fixed with field examiners. An analysis of the total case load at the present time indicates that the average case load in the offices per examiner is 30. If we take the case load in your office as of April 9th, which is 128, the average for six examiners is about 21. Even with five examiners you will be better off as far as case load per examiner is concerned than most other offices. You say you have not considered the matter from the point of view of case load, but that everybody in the office is busy at all times. However, from the point of view of trying to judge the situation from Washington, we have no alternative except to take the best test that we have-which naturally is volume. It may be that you have a special situation in your office, different from that which obtains in most others, and which warrants special treatment. If you will present those factors, I am sure that the Board will give them sympathetic consideration. In any event, I think it rather important that you do look at your cases from the standpoint of definite case loads assigned to each examiner. I should think that under present conditions each examiner should have an approximately equal case load. |