UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
January 30, 1941
A. E. STALEY MFG. CO.
NATIONAL LABOR RELATIONS BOARD.
On Request for Decree of Enforcement.
MAJOR, Circuit Judge.
Opinion in the above-entitled cause was filed November 14, 1940. Each side has submitted a proposed enforcement decree and each claims that its proposal is in conformity with the opinion. Briefs and arguments have been submitted which necessitate some further expression by us.
In a form of decree proposed by the Board, petitioner is ordered to cease and desist from -
"(a) Dominating or interfering with the administration of Employees' Representation Plan or Staley Employee's Organization, or with the formation or administration of any other labor organization of its employees, and from contributing financial or other support to Employees' Representation Plan or Staley Employee's Organization, or to any other labor organization of its employees;
"(b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their 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 purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act."
The decree, as submitted, then requires affirmative action consistent with these paragraphs.
The Board argues that its proposal is proper in view of our opinion, while the petitioner argues to the contrary.
It is the position of the petitioner that inasmuch as the opinion held it was not guilty of dominating or interfering with any labor organization other than the Employees' Representation Plan and Staley Employee's Organization, it should not be required to cease and desist with the formation or administration of any other labor organization, or from contributing financial or other support to any other labor organization of its employees. Paragraph (a) is predicated upon Section 8(2) of the Act, 29 U.S.C.A. § 158(2), and petitioner's contention is not without merit in view of the fact, as the opinion discloses, that petitioner ceased to recognize such organizations four months prior to the time when the complaint in the case issued. In view of the broad power of the Board in this respect, however, as construed by the courts generally, we are not justified in denying the validity of this paragraph. We think this is consistent with our holding in National Labor Relations Board v. Swift & Company, 7 Cir., 108 F.2d 988. See cases therein cited.
We do not agree, however, with the Board's contention as to Paragraph (b), which enjoins the interference with, restraining and coercing of petitioner's employees as guaranteed in Section 7 of the Act, 29 U.S.C.A. § 157. In National Labor Relations Board v. Swift & Company, supra, 108 F.2d at page 990, considering a similar provision, the court said: " * * * In truth, the conduct enjoined has no fair relation to the issue which was heard and determined by the Board. * * * " We think that is clearly the situation in the instant case. Concerning the violation of Section 7, the Board, in its decision and order, said: "As we have already found that the respondent dominated and interfered with the formation and administration of the I.S.W.U. and contributed financial and other support thereto, we further find that the use by the respondent of the grievance machinery set up by it in conjunction with the I.S.W.U. operated in this instance as a device to interfere with, restrain, and coerce the employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and that the respondent thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act."
The opinion holds that the I.S.W.U. organization was not company dominated or controlled and that it was a valid, bona fide labor organization. No violation of Section 7 was charged or found except as the violation of 8(2) might constitute a violation of 8(1), and therefore a violation of 7. In other words, any violation of 7 was merely incidental to that of 8(2). We are of the opinion that there is no reasonable excuse to now enjoin petitioner from any and all acts which might constitute a violation of Section 7, when the court has expressly absolved it from all unlawful conduct except domination of two labor organizations in violation of 8(2) and as to which recognition was denied prior to the hearing.
It is therefore our view, under the circumstances of this case, as outlined in our opinion, and in harmony with the conclusion reached, that the cease and desist portion of the decree should embrace nothing more than that included in Paragraph (a) of the decree as proposed by the Board. The affirmative action as proposed, should, of course, be consistent therewith. The Board may prepare and submit an enforcement decree in conformity with the views herein expressed.
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