National Labor Relations Board v. Brown Co.

FORD, District Judge

(dissenting).

I find myself in disagreement with my colleagues and must dissent for the following reasons:

The principal issue before the Board was whether the employees had just cause to believe that the supervisors were acting for and on behalf of the management. Cf. International Ass’n of Machinists v. Labor Board, 311 U.S. 72, 80, 61 S.Ct. 83, 85 L. Ed. 50. Admittedly, the employer’s opposition to unionism has generally been one of the factors on Which the Board has based its order in this type of case. So where an employer has previously complied with the provisions and spirit of the Wagner Act, there is absent a common basis for an inference that the employees had just cause for such a belief. But there may be other bases. For the strict “hands off” policy enunciated by the Supreme Court in the International Ass’n of Machinists v. National Labor Relations Board, 311 U.S. 72, 61 S.Ct. 83, 85 L.Ed. 50, H. J. Heinz Co. v. National Labor Relations Board, 311 U.S. 514, 61 S.Ct. 320, 85 L.Ed. 309, and National Labor Relations Board v. Link-Belt Co., 311 U.S. 584, 61 S.Ct. 358, 85 L.Ed. 368, cases cited in the majority opinion, embraces all labor organization, whether conducted against a background of peaceful or antagonistic labor relations. In those cases there existed the definite possibility that the minor supervisory employees, none of whom had the power to hire and *457fire, were acting individually as prospective union members and not as representatives of the management. The chief significance of the employers’ anti-union attitude was in linking the activities of the minor supervisory employees to the management. Here we have a different situation. Recommendations for discharge by eight of the active supervisors were unquestioned by the management. Surely none of these men was a prospective proper member of a union of office workers. Therefore, the respondent’s attitude while concededly benevolent toward the unionization of its factory workers, is less significant than in the Supreme Court cases cited.

In International Ass’n of Machinists v. Labor Board, 311 U.S. page 80, 61 S.Ct. 88, 85 L.Ed. 50, Mr. Justice Douglas cautioned that subtle factors may restrain the “complete and unhampered freedom of choice which the Act contemplates.” The respondent’s supervisory employees seem by their conduct to have exerted such subtle 'restraint in the instant case.

The ratio of supervisors to office workers signing the first petition was 1 to 13. Eight of them had the authority to effect the immediate discharge of their subordinates ; the remaining eleven had the power to recommend discharges. All but one attended the first organizational meeting, held after 247 of the 269 office workers had been signed up within two or three days. Their very presence would have the tendency to restrain the employees’ choice and thus affect the employees’ rights of self-organization. After all, the question of interference or coercion should be looked at from the employees’ standpoint.

It is true that when the bargaining committee of the Association presented the petition to respondent for the purpose of obtaining recognition, respondent objected to the membership of department heads, supervisors in the stenographic pool, and certain other confidential employees. But a week later, 15 supervisors signed the “Articles of Agreement”. Five weeks thereafter, supervisors moved the nomination of two directors at a meeting to elect the Association’s officers and directors. At no time did the respondent declare its neutrality to the employees as a whole. These facts might well persuade the ordinary employee, having in mind the actual authority of the supervisors, that their participation in the formation of the Association had the approval of the management. H. J. Heinz Co. v. Labor Board, supra, 311 U.S. page 521, 61 S.Ct. 320, 85 L.Ed. 309; National Labor Board v. Link-Belt Co., supra, 311 U.S. page 599, 61 S.Ct 358, 85 L.Ed. 368.

Our scope of review here is narrow and it is my view there was substantial support in the evidence for the finding of the Board that the respondent has interfered with its employees in the exercise of rights guaranteed by Section 7 of the Act and is thereby guilty of an unfair labor practice as defined by Section 8(1) of the Act. I would enforce the Board’s order.