Citations
- 292 F.2d 130
Full opinion text
CASTLE, Circuit Judge.
This case is before the Court on the petition of the National Labor Relations Board, pursuant to Section 10(e) of the National Labor Relations Act, as amended (29 U.S.C.A. § 160(e)) for enforcement of the Board’s order issued against Kiekhaefer Corporation, respondent.
The Board’s decision and order followed proceedings under the Act which culminated in findings that respondent violated Section 8(a) (1), (2) and (3). The Board found that respondent violated Section 8(a) (3) by engaging in acts of reprisal against employees who were seeking to disaffiliate from Kiekhaefer Independent Workers Association (KIWA) and affiliate with International Association of Machinists (IAM). These included a reduction in employee working hours, layoffs, and the transfer of an employee. The Board further found that by such conduct, as well as by threats of reprisal, the withdrawal of employee privileges, and the promulgation of an unlawful no-solicitation rule, respondent interfered with, restrained and coerced employees in violation of Section 8(a) (1). The Board concluded that this entire course of conduct constituted assistance and support to KIWA in violation of Section 8(a) (2) and (1).
The Board’s order requires respondent to cease and desist from the unfair labor practices found. Affirmatively, it directs respondent to make whole, for any loss of earnings, the employees who were reduced in working time, laid-off or transferred. In addition, the order requires respondent to withdraw recognition from KIWA as the representative of its employees and to cease giving further effect to the current collective bargaining agreement with KIWA, or any extensions or renewals thereof, unless and until respondent’s employees have demonstrated their choice of majority representative pursuant to a Board-conducted election.
The main contested issues presented for our determination are:
(1) Whether substantial evidence, on the record considered as a whole, supports the Board’s finding that respondent violated Section 8(a) (3) and (1) of the Act by making reprisals and threats thereof to discourage employee adherence to IAM.
(2) Whether such substantial evidence supports the finding that respondent violated Section 8(a) (2) of the Act.
(3) Whether, if the Board’s finding and conclusion that KIWA was assisted and supported in violation of Section 8(a) (2) and (1) is so supported, the Board’s order in so far as it requires withdrawal of recognition of KIWA as the employees’ representative and that no further effect be given the collective bargaining agreement executed with KIWA, or any extension or renewal thereof, unless and until KIWA shall have been newly certified as majority representative of the employees, is authorized and proper.
Contentions advanced by respondent relating to additional questions include whether respondent was denied a fair hearing, whether the complaint contained allegations not supported by a timely charge, and whether motions for production of statements of witnesses to the General Counsel were erroneously denied.
We have carefully reviewed the record, the intermediate report of the trial examiner, and the decision and order of the Board. Our review in so far as the factual findings of the Board are concerned is limited to a determination of whether or not those findings are supported by substantial evidence on the record considered as a whole. Board findings so supported are conclusive. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 487-488, 71 S.Ct. 456, 95 L.Ed. 456. With that rule in mind the facts and circumstances upon which the Board’s findings are based may be summarized as follows:
In August, 1957, the Board conducted a representation election among the respondent’s production and maintenance employees at its Cedarburg, Wisconsin, plants. IAM and KIWA appeared on the ballot, the latter receiving a majority of the votes cast. The election was set aside because of respondent’s interference with the employees’ free choice by making economic concessions to KIWA shortly before the election and by favoring KIWA in the enforcement of a no-solicitation rule. At a subsequent Board-conducted election KIWA again polled a majority of the votes and was certified May 21, 1958 as the exclusive representative of respondent’s employees at the Cedarburg plants. The validity of this election is not assailed.
Respondent and KIWA held several collective bargaining sessions between May and mid-September 1958. Respondent’s highest wage offer during that period was a proposed hourly increase of 3