Independent Employees Ass'n of Neptune Meter Co. v. National Labor Relations Board

158 F.2d 448, 19 L.R.R.M. (BNA) 2107, 1946 U.S. App. LEXIS 3942
CourtCourt of Appeals for the Second Circuit
DecidedNovember 29, 1946
DocketNos. 70, 78, 79, Dockets 20276, 20242, 20246
StatusPublished
Cited by13 cases

This text of 158 F.2d 448 (Independent Employees Ass'n of Neptune Meter Co. v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Independent Employees Ass'n of Neptune Meter Co. v. National Labor Relations Board, 158 F.2d 448, 19 L.R.R.M. (BNA) 2107, 1946 U.S. App. LEXIS 3942 (2d Cir. 1946).

Opinions

FRANK, Circuit Judge.

We have before us here two related orders: (1) The Board petitions for enforcement of its order, dated October 21, 1944, directing the “disestablishment” by Neptune Meter Company of a labor union, Employees’ Representative Organization (E. R. O.)1 (2) Neptune Meter Company and a labor union, Independent Employees’ Association of Neptune Meter Company (I. E. A.) each petition us to review and set aside a Board order, dated March 6, 1946, directing the “disestablishment” of I. E. A. by the company;2 the Board petitions for enforcement of that order.

The Statutory Provisions

The Board based its orders on findings of violations by the company, as employer, of § 8(1) and (2) of the National Labor Relations Act, 29 U.S.C.A. § 158(1, 2). Since experience indicates that, in argument of cases like this, the language of the statute is often forgotten, we quote the pertinent provisions:

“Sec. 7. Employees shall have the right to self-organization, to form, join, or assist 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.
“Sec. 8. It shall be an unfair labor practice for an employer—
(1) To interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.
(2) To dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it: Provided, That subject .to rules and regulations made and published by the Board pursuant to section 6(a), an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay.”

Section 8(2) is the principle-basis of the Board’s orders. It “Does not forbid merely ‘interference’ by an employer. It also, disjunctively, provides that ‘domination’ of a union by an employer is unlawful. Domination arising from earlier acts of an employer may be violative of the Act even when the employer has stopped all active ‘interference/ * * * And, in applying that provision, the courts and the Board must be guided by the statutory interpretation of the Supreme Court. The central factor, we are told, is the state of mind of the employees. In International Ass’n. of Machinists v. N. L. R. B., 311 U.S. 72, 80, 61 S.Ct. 83, 88, 85 L.Ed. 50, the Supreme Court said that ‘where the employees would have just cause to believe that solicitors professedly for a labor organization were acting for and on behalf of the management, the Board would be justified in concluding that they did not have the complete and unhampered freedom of choice which the Act contemplates.’ And the court further said that such a conclusion may be reached by the Board ‘even though the acts of the so-called agents were not expressly authorized or might not be attributable to’ the employer ‘on strict application of the rules of respondeat- superior,’ since under that Act ‘we are dealing * * * not with * * * technical concepts pertinent to an employer’s legal responsibility to third persons for acts of his servants, but with a clear legislative policy to free the collective bargaining-process from all taint of an employer’s compulsion, domination, or influence.’ ”3

The Board, in connection with its first order, decided that the Neptune Company dominated E. R. O.; this the company virtually conceded in its briefs and oral argument in this court. In connection with its second order, the Board decided that the company also dominated I. E. A. The principal question for our decision is whether, in reaching this conclusion, the Board acted upon findings of fact supported by substantial evidence and upon rational factual inferences drawn from those findings.

The Facts as Found by The Board

[451]*451We think there is substantial evidence to support the Board’s findings of fact which are, in effect, as follows:

For some sixteen years, from 1919 to August 1, 1935, the company had dominated a labor organization of its employees, the Congress of the Neptune Meter Company. The Congress consisted of a House of Representatives, a Senate, and a Cabinet. The House was composed of representatives of the non-supervisory employees of various departments; the Senate represented the foremen and supervisory employees; and the Cabinet, in which the executive power of the Congress was vested, was composed solely of representatives of the directors and officers of respondent. “Bills” passed by the House, and concurred in by the Senate, relating to wages, hours, or working conditions as well as amendments to the constitution became effective only with the approval of the Cabinet. Membership in the Congress of all employees was automatic and conferred only the right to vote in an annual election of representatives. It carried no obligation to pay dues. No provision was made for participation in the affairs of the Congress by the employees generally. No meetings of the general membership were held. The House officers were elected, not by the employees generally, but by the representatives. The company paid various expenses to the Congress. It furnished to the Congress stenographic service, printing and mimeographing machines and paper fo' ballots and notices. It permitted the Congress to use plant bulletin boards. It paid the representatives for all time spent in meetings of the organization or on other business of the Congress. All meetings and business of the Congress were conducted on respondent’s premises.

On August 1, 1935, about a month after the effective date of the National Labor Relations Act, Ricketts, vice-president and manager of the company, advised a meeting of the House that the Act made it unlawful for the company to contribute support to a labor organization and that the Congress plan must be discontinued. He announced that thereafter the Senate would be a Foreman’s Meeting, but that “if the majority of employees so desire, they can continue this representative plan and the company will allow them to meet in the regular meeting-room once every two weeks on the company’s time.” Minutes of this meeting were posted on the bulletin-boards in the plant. A poll of the employees was conducted at the plant during working hours, the employees balloting on several questions including, “Are you satisfied with the present form of Representation? Are you satisfied with your present Representatives?” The great majority having answered yes, the president of the House appointed a Committee of Representatives to draft a Constitution for a revised representative organization, called the Employees’ Representative Organization (E. R. O.). On October 1, 1935, the House amended the draft presented by the Committee and adopted it.

The structure of E. R. O., except for the elimination of employer participation, was substantially like that of the Congress: All employees automatically became members ; there were no dues and no membership meetings. With a few exceptions, the employees who had constituted the old House remained as representatives of E. R. O., and House officers and House Committee members continued in corresponding posts in E. R. O. The Company permitted meetings of E. R. O. on company property during working hours. It paid the representatives of E. R. O.

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Bluebook (online)
158 F.2d 448, 19 L.R.R.M. (BNA) 2107, 1946 U.S. App. LEXIS 3942, Counsel Stack Legal Research, https://law.counselstack.com/opinion/independent-employees-assn-of-neptune-meter-co-v-national-labor-ca2-1946.