# International Ass'n v. National Labor Relations Board

> Court of Appeals for the D.C. Circuit · November 20, 1939 · 110 F.2d 29

URL: https://www.frixlaw.com/law-library/cases/9642855

## Case

- **Full name:** International Ass’n of MacHinists, Tool and Die Makers Lodge No. 35, v. National Labor Relations Board
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** November 20, 1939
- **Citations:** 110 F.2d 29; 71 App. D.C. 175; 5 L.R.R.M. (BNA) 887; 1939 U.S. App. LEXIS 4626
- **Precedential status:** Published
- **Opinion:** Dissent by Groner
- **Judges:** Groner, Miller, Rutledge
- **Cited by:** 38 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

GRONER, C. J.
(dissenting).
I am unable to agree in so much of the decision as affirms the order of the Board holding invalid the closed shop contract covering the tool room workers. The opinion, as I think, spends itself upon the effort to establish the hostility of Serrick Corporation to United Automobile Workers of America (U.A.W.). Concededly, hostility existed and justified the Board’s findings of unfair labor practices in the ^employer’s efforts to sustain its old company union, but it had nothing to do with the controversy involved on this appeal. In this view, the opinion overlooks the single vital issue we have to determine— the issue involving the respective rights of two rival labor organizations whose existence is independent of the employer. For that reason, I am not concerned with the attitude of Serrick Corporation to U. A.W. The employer is not a party to this appeal. It has accepted the Board’s ruling,, and even before that, had abandoned support of the company union as a collective bargaining agency. Nothing that it did thereafter is shown either directly or impliedly to have had any relation to the tool room controversy. The right of International Association of Machinists (I.A.M.) Lodge 35 to represent the tool *47 room workers was fixed before the date of its contract. A majority of this particular craft had exercised their rights under the Act to choose their representative, and this right was not challenged by the filing of the original complaint. Only by subsequent amendment was it brought into the proceedings. The Board has taken punitive action against this labor organization and its members, as to whom nothing has been charged or shown violative of the Act. The decision rests on the finding that, because the corporation had shown great hostility to U.A.W. in a contest to enroll its production force, and later had acquiesced without protest in the organization by I.A.M. of the tool room force, a separate unit, it had unfairly assisted the latter in enrolling its majority. The condemned assistance is shown to be the activity of some of the tool room men, who are called supervisory employees.
If the question turned upon the weight to be given to the evidence, I should, of course, without hesitation acquiesce in the Board’s decision. But since the Board, in my opinion, has erroneously decided a question of law, the rule which binds me to accept its findings has no bearing.
The unfair labor practive found by the Board concerns the activities of six tool room employees: Fouts, Shock, Byroad, Bolander, Baker, and Dininger; and the responsibility of the employer for their - acts is, as I have said, placed upon the Board’s conclusion that they were supervisory employees and as such should be regarded as acting for the employer. Except for this definite finding, it is obvious the Board would have followed the recommendation df its examiner. But the admitted fact is that all of the above named employees were tool room workers and not “supervisory” in any sense which would make their organizational activities attributable to the employer. This is vouched by a stipulation filed in the record which the examiner and all of counsel considered as binding until its effect was for the first time challenged by the Board’s decision. 1
The findings, both of the examiner and of the Board, show that in the spring of 1937 one of the C.I.O.-affiliated unions (U.A.W.) began an intensive campaign to enroll members in the production department of the plant of Serriek Corporation. When this activity was at its height, the tool room employees, who compose a separate group of skilled machinists and receive higher wages, and whose working quarters are separated from the production department of the plant — and who are recognized in the industry as a separate unit — and so recognized by the Board, 2 — determined to join a union of their own choosing.
A majority preference for I.A.M. having been determined 'on July 28, 1937, a meeting with an outside organizer was held, and 34 of the 63 employees of the tool room signed application cards, paid their dues, and obtained a charter. And within a few days thereafter their representative signed a closed shop contract with the employer. The Board’s examiner, who heard all of the evidence, found that the impetus to the organization under the auspices of I.A.M. came from the unwillingness of the majority to go along with U.A.W., and this unwillingness, he concluded, though agreeable to the corporation, was not inspired by any action on its part. On this basis he recommended that the contract dated August 6, 1937, should be held in all respects valid.
*48 The Board set aside this recommendation, notwithstanding the statute itself preserves a closed shop contract made with representatives of the majority. 29 U.S.C.A. § 158 (3). It took this action on the ground that the corporation had influenced the choice of the men. Except for a reference, too trivial to notice, 3 to two minor company officials — Shimer and Lewis — this charge is based upon acts of the workers themselves. True enough, the organizers were trusted employees of long standing, and because of their skill had greater responsibility than the newer men in the technical work of the tool room. But aside from this they were ordinary employees. Nothing in the evidence shows that they acted in such a supervisory capacity as to make their organization of the I.A.M. Lodge 35 attributable to their employer. See National Labor Relations Board v. A. S. Abell Co., 4 Cir., 97 F.2d 951 . Their apparent loyalty to the old company union, while it existed, of which much is said in the opinion, is nowhere shown to have been “servile”. Nor is there anywhere evidence, entitled to be dignified as substantial, that after realization that the old order was to be succeeded by the new, they were influenced by anything other than their own free will in choosing the labor organization to which they would belong. Their mistaken classification by the Board as “supervisory employees” is an obvious recognition of this fact, for as I have shown, it was on this ground, namely that they represented and spoke officially for the employer, that the Board based its ruling dissolving their contract.
The opinion of the court appears to be largely influenced by the impression that the admitted hostility of the employer to the unionization of its plant by U.A.W. justifies the inference that the employer inspired and intended to inspire the tool room men to organize separately. This fancied strategy the opinion speaks of as the “policy of 'divide and conquer’,” but the record does not sustain this inference, and even if it did, such partiality, without more, never has been and never ought to be held an unfair labor practice. Cf. Jefferson Electric Co. v. National Labor Relations Board, 7 Cir., 102 F.2d 949, 957 . If the rule were otherwise, it would afford the employer an easy method to control employee representation by simulated préference. The case we have does not turn upon any of these conditions, but rather upon the authority of Fouts and his companions to speak for the employer. If they were not authorized, then obviously their activities cannot be labeled employer activities. If the Board’s classification of these men is wrong, the ruling cannot be sustained. I think the decision as to the tool room contract should be set aside.
“Comes now The Serriek Corporation, respondent, by White & Raymond, its attorneys, Tho National Labor Relations Board by Colonel O. Sawyer, regional attorney for said Board, The International Union United Automobile Workers of America, Local No. 459, by Paul Brady, its attorney, and C. E. McDonald, representing tho International Association of Machinists, affiliated with the American Federation of Labor, and stipulate the following facts, to wit:
That the following list of names includes all tho employees of The Serriek Corporation at its Muncie Plant * * * with the * * * exception of foremen, office employees and other supervisory employees which were on the pay roll, which pay roll included the date of July 9, 1937 * * * ” (Italics supplied.)
Among the names of employees other than supervisory employees appear the names of Pout3, Shock, Byroad, Bolander, Baker, and Dininger.
This statement is conceded in the Board’s findings as follows:
“While ordinarily we have regarded as controlling the free choice of a majority of the employees in a well-defined craft as to the form of organization they desire, in the present case the respondent’s conduct in influencing such choice precludes the application of this doctrine in the determination of the appropriate unit or units.”
Cf. National Labor Relations Board v. Sands Mfg. Co., 306 U.S. 332, 342 , 59 S.Ct. 508 , 63 L.Ed. 682 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9642855. Public record. Not legal advice.