Goodman Manufacturing Co. v. National Labor Relations Board (227 F.2d 465, 1955)

MAJOR, Circuit Judge.

This is a petition to review and set aside an order of the National Labor Relations Board, entered January 28, 1955, against Goodman Manufacturing Company of Chicago, Illinois. By the Board’s order, petitioner was found guilty of an unfair labor practice under § 8(a) (5) and (1) of the National Labor Relations Act, 29 U.S.C.A. § 158(a) (5) and (1), because of its refusal to bargain with the United Electrical Radio and Machine Workers of America as the exclusive representative of certain of petitioner’s employees who are in what the Board had determined to be the “appropriate unit." Petitioner was ordered to cease and desist from the unfair practice and to take the customary affirmative steps to give effect to the Board’s order. By its answer the Board requested enforcement of its order.

The composition of the “appropriate unit” is the generating cause of this controversy. The facts from which the controversy developed are these: In 1944, United Electrical, Radio and Machine Workers of America (hereinafter called the International) was certified as the exclusive bargaining agent for certain factory production and maintenance employees at petitioner’s Chicago plant. At that time, the Board determined that the employees who were then styled “timekeeping clerks” should not be included in the bargaining unit. Subsequently, in 1951, upon a petition filed by the International, the Board changed its position. Over petitioner’s objections, the Board decided that these timekeeping clerks or “timekeepers,” as they are presently styled, could be appropriately included in the previously certified bargaining unit if they so desired. Two elections were held in which the timekeepers were permitted to choose either to be included in the unit with the production and maintenance workers or to have no collective bargaining representation. The record does not show the results of the first election, although it is stated in the Board’s brief that all of the timekeepers voted for inclusion. In the second election, the result of which was certified on September 17, 1952, a majority of the timekeepers again voted for inclusion. After the second election, petitioner refused to bargain with Local No. 1150 of the International (hereinafter called the Local Union) as the timekeepers’ representative. On November 19, 1952, the Local Union charged petitioner with unfair labor practices, and on February 5, 1953, the general counsel of the Board issued a complaint.

Throughout these proceedings petitioner has sought to justify its refusal to bargain on two grounds. The first is the claimed impropriety of the Board’s inclusion of the timekeepers in the bargaining unit with the production and maintenance workers. The timekeepers, says petitioner, are an echelon of management, and the Board’s action creates a serious situation of divided loyalties, and is so arbitrary and unreasonable as to be unlawful. The second ground is the asserted non-compliance by the International, District Council No. 11 of the U. E. R. & M. W. A., and the Local Union with the non-communist affidavit provision added to the National Labor Relations Act in 1947, 29 U.S.C.A. § 159(h). The statute requires that local union officers and the officers of any labor organization with which the local is affiliated file non-communist affidavits as a prerequisite to the Board’s authority to issue a complaint. The District Secretaries and Trustees of the International, at times relevant to this unfair labor practice proceeding, had not filed such affidavits. These officials, according to petitioner, are officers within the meaning of the statute; hence, the charge of non-compliance.

The first of these grounds directly involves the substantive merits of the controversy, while the second is jurisdictional in character. Accordingly, we should first direct