Before MAJOR, Chief Judge, FINNEGAN and LINDLEY, Circuit Judges.
This case is here on petition of Kearney & Trecker Corporation (hereinafter referred to as petitioner or the company), to review and set aside an order of the National Labor Relations Board issued against it on December 31, 1952, following the usual proceedings under Sec. 10(c) of the National Labor Relations Act, as amended (29 U.S.C. Supp. V, Sec. 151, et seq. ). In its answer, the Board requested enforcement of its order. The order directs petitioner to cease and desist from refusing to bargain collectively with Local 1083 of United Automobile, Aircraft & Agricultural Implement Workers of America, CIO (hereinafter referred to as Local 1083 or CIO), pursuant to a certification of that union as the exclusive bargaining representative of the company's production and maintenance employees, entered on November 2, 1951, as the result of an election conducted by the Board on September 12, 1951. Admittedly the company has refused to bargain with Local 1083 but seeks to justify such refusal on the ground that the Board's certification of that Local was invalid for reasons which will subsequently be stated and discussed. A phase of this case relative in the main to the procedure employed by the Board in its conduct of the investigation and hearing which led to the Board's decision calling for an election has heretofore been considered and decided by this Court. Kearney & Trecker Corp. v. National Labor Relations Board, 209 F.2d 782.
The company's refusal to bargain as directed may be generalized under two categories, (1) that Direction of Election by the Board was erroneous, and (2) that the election was conducted under such circumstances as to invalidate the result. We shall later consider these issues in more detail.
We have accorded a great deal of study to the voluminous record before us but, in view of the conclusion which we have reached, we think that a relatively brief statement of the facts will suffice.
In 1945, Employees Independent Union (hereinafter called EIU) was certified by the Board and recognized by the company as the bargaining representative of its approximately 1500 employees. During this period EIU was affiliated with Confederated Unions of America (hereinafter called CUA), but conducted negotiations and made contracts with the company through its own officers exclusively. Following bargaining negotiations during the spring of 1950, EIU and the company executed a collective agreement on July 2, 1950, extending for a period of two years, with a provision for reopening wage rates after the end of the first year.
There commenced in September, 1950, a succession of events which supply the ammunition for this unfortunate controversy. Rather than delay all expression of opinion until after we have stated the facts, we think it would be appropriate, at least in some instances, to express our views concerning these various incidents as we go along. A regular meeting of the EIU was held September 10, 1950, the announced agenda for which was the election of delegates to the annual convention of the CUA. The president of EIU at that time, as the presiding officer at this meeting, was Elmer DeWitte. According to the minutes, a motion to send a delegate to the CUA convention was ruled out of order by the chairman, and this notwithstanding that the meeting was called for that purpose. A motion not to send a delegate was carried. A motion "that we disaffiliate from the CUA" was carried. The minutes do not disclose the number in attendance at this meeting, but there is oral testimony to the effect that 41 members were registered, of whom 22 were identified as officers of EIU. Predicated solely on the action taken at this meeting, the officers of EIU returned its charter to CUA, with notification of disaffiliation. At the time of this meeting and the action thus taken, EIU had 580 dues-paying members, which number was increased to 959 by the following month. Shortly after this meeting, a group of EIU members notified the headquarters of CUA of what had happened and requested a return of the charter, which was done. That charter is still in existence and EIU has continued to function as a labor organization.
It is self-evident, we think, that action taken at the September meeting insofar as any disaffiliation is concerned was void and of no effect and that the attempted surrender of the charter of EIU must be similarly characterized. EIU meetings were held on November 5 and December 17, 1950, and January 7, 1951, the details of which are not important other than that they show that the matter of disaffiliation was a live subject. At the last named meeting, it was decided to call a special meeting for the purpose of hearing representatives of international labor organizations. This meeting was called for January 21, 1951, and notices were distributed throughout the plant which stated, so far as now pertinent, "The purpose of this meeting is to definitely determine the wishes of the members of the Employees Independent Union, by majority decision, as to whether the necessary processes should be instituted which would result in affiliation with one of the larger, national organizations." At this meeting, a motion to set a date for a special meeting for the sole purpose of voting on which union to affiliate with was withdrawn and it was requested that the balloting proceed. The result was 68 votes for CIO, 28 votes for AFL and 3 votes for EIU. It will be noted that the membership of EIU had no notice that the special meeting of January 21 was for the purpose of voting upon affiliation with an international union, and neither was this special meeting called for such purpose, but only to determine "whether the necessary processes should be instituted which would result in affiliation" with one of such organizations.
We think it open to serious question whether the result of the vote thus taken, under the circumstances related, had any binding effect upon members of EIU who were not present. True, it is claimed they had notice of the meeting and an opportunity to be present and be heard, but the point is, they had no notice that a vote upon such an important step would be taken at that meeting, and neither was the action thus taken within the stated purpose for which the meeting was called. Thereupon, as stated by the Board in its Decision and Direction of Election, "The officers of the E.I.U. thereupon applied for a charter from the U.A.W.-C.I.O. On March 4, the charter was received. The organization thus formed was thereafter known as Local 1083 (the Petitioner herein).A majority of the officers of the E.I.U., including Elmer DeWitte, its president, continued in the same offices in Local 1083, without any new general election." And as stated by the Board in its brief, "Immediately following the formal organization of Local 1083, its officers took steps to align the operations of their upon with its new status. Thus, on March 5, 1951, the lock on the door of the union's office was changed, and a formal transfer was made to Local 1083 of all assets which had belonged to E.I.U. Similarly, on March 20 , notice was given to the Company that all deductions of union dues from wages should be delivered to the treasurer of Local 1083." It might be added that the assets transferred by DeWitte and his group as former officials of EIU to themselves as officials of Local 1083 consisted of about $32,500 in cash and government bonds and some $9,300 cash from a commissary fund. After this transfer was made and the locks on the door changed, neither EIU members nor their officers were permitted to have access to books, records or other properties.
It is urgently insisted by Local 1083 that there was never but one union in the plant and that the controversy arose between factions, in other words, that Local 1083 was only a successor to EIU and that when the former was organized the latter passed out of existence. It states in its brief, "The present officers of * * * Local 1083 * * * have at all times since their election in November, 1950, been legally and factually in possession and occupation of the offices of the union," and "All of the property of the union was at all times since their election in November, 1950, legally and factually in the possession and under the control of the officers of the Employees Independent Union which changed its name to * * * Local 1083 * * *." This theory that Local 1083 was not a separate and independent labor organization but that it merely supplanted or was a successor to EIU evidently is important to Local 1083 because, otherwise, how could it justify the alleged seizure of the money, property, books, records and office of EIU?
On March 9, 1951, Local 1083 petitioned the Board to amend the certification issued in 1945, by which EIU had been named bargaining representative of the company's employees and to substitute the name "Local 1083" for EIU on the ground that the latter organization had changed its name. This petition was denied by the Board, "for the reason that over six years have elapsed since the issuance of the certificate herein," which no doubt was a good reason, but an equally good reason would have been that Local 1083 had made no showing that the situation was as represented by it.
In reading the Board's brief we have difficulty in determining whether it stands for the theory of one or two unions; however, an election was called, as stated in the Board's Direction of Election, "to determine whether they desire to be represented, for purposes of collective bargaining, by Local 1083, International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, C.I.O. or by Employees Independent Union, affiliated with Confederated Unions of America, or by neither."
At the Board-directed election held September 12, 1951, there were 1,504 eligible voters, of whom 752 cast votes for Local 1083 and 588 cast votes for EIU (a few ballots were cast against participating with any labor organization and some ballots were void). Thus, Local 1083 obtained a clear majority of the eligible voters. The point now, however, is that the Board on the form of ballot prepared by it afforded the employees an opportunity to vote for one or the other of these two unions. This action of the Board in its call for an election and in the form of ballot submitted certainly is inconsistent with the theory advanced by Local 1083 that there was only a single union and that it was merely a successor to EIU, and well it might be because, in our view, there is not a particle of merit to the contention advanced by Local 1083 on this score. From what we have heretofore shown, we seriously question if there ever was any action taken by EIU, binding upon its members, authorizing affiliation with the CIO. Of course, those who desired, including DeWitte and his group, had a right to change their affiliation any time they saw fit, but we think they had no right under the circumstances to take along with them some six or seven hundred members of EIU. And even if it be assumed that they did, they had no authority to change the name of the union from EIU to Local 1083. What they did was to form a new union under the pretext of its being a successor to the old. They were not even elected officers of Local 1083, and their claim that they were officers of that union by reason of their election in November, 1950, as officers of EIU, borders on the preposterous.The members of EIU elected DeWitte and the other officials to serve as officers of that union, but not a single member has voted for them to serve as officials of a different union. They were self-appointed officials of Local 1083, and at most they were nothing more than de facto officers.
A few words now concerning EIU. As might be expected, its activities were stymied and its members thrown into a state of confusion by the activities of those who left the organization and affiliated with Local 1083, as above related. Particularly was this so inasmuch as those who left included most of the elected officials of EIU. However, for reasons above shown, the attempt to surrender the CUA charter was abortive and EIU continued to operate under and recognize it. Shortly after the January 21, 1951 meeting, members of EIU obtained 160 signatures to a resolution ousting DeWitte and other former EIU officials who had gone over to Local 1083. In March, 1951, EIU elected new officials to take the place of those who had left. At a meeting on April 8, 1951, formal action was taken to expel from membership the former officers who had gone over to Local 1083, and formal action was taken repudiating all previous actions regarding disaffiliation with CUA. After the September, 1950, meeting and through January, 1951, the officers and bargaining committee who in the main were those who had quit the EIU continued to meet regularly with officials of the company, without notifying it or making any public announcement of any change in their status. During that time the company had no knowledge of the alleged change which had taken place. The company did not acquire this knowledge until January 27, 1951, and it was not until February 8, 1951 that DeWitte as president of Local 1083 requested permission for Mr. Cappel, a representative of the CIO, to sit in with the bargaining committee in its meeting with the company. This request was denied, with a statement by the company that it would continue to bargain and negotiate with EIU. This position of the company was continuously maintained until August, ...