1. Upon review of an order of the National Labor Relations
Board, the Circuit Court of Appeals may consider additional facts,
occurring before the decision and order of the Board had been
promulgated, which the Board in a supplemental certificate
certified as part of the record. P.
308 U. S.
248.
2. Upon review of an order of the National Labor Relations
Board, the Circuit Court of Appeals may not consider facts
contained in briefs filed in the proceeding in that court, but
which are not a part of the record certified by the Board. Such
facts may be added to the certified record only in the manner
prescribed by § 10(e) of the Act. P.
308 U. S.
249.
3. A finding by the National Labor Relations Board that an
employer had dominated, given financial and other assistance to,
and interfered with the administration of a labor organization of
its employees,
held supported by substantial evidence. P.
308 U. S.
250.
4. A provision in a plan for the governance of a labor
organization whereby the plan may not be amended without the
approval of the employer deprives the employees of the complete
freedom of action guaranteed to them by the National Labor
Relations Act. P.
308 U. S.
249.
5. An order of the National Labor Relations Board requiring an
employer to withdraw recognition from an organization of its
employees and to disestablish it -- based upon the Board's finding,
supported by evidence, that the employer had for years dominated
and interfered with the organization, and the Board's conclusion,
warranted by the record, that, because of that history, the
organization was incapable of serving the employees as their
genuine representative for the purpose of collective bargaining --
sustained. P.
308 U. S.
251.
Upon the record in this case, the Board was authorized to order
the disestablishment of the labor organization, notwithstanding the
facts that the organization had operated to the apparent
satisfaction of the employees; that no serious labor disputes
had
Page 308 U. S. 242
occurred during its existence, and that, in a referendum, the
employees had signified their desire for its continuance.
101 F.2d 841 reversed.
Certiorari, 307 U.S. 617, to review a decree modifying and
directing the enforcement, as modified, of an order of the National
Labor Relations Board.
MR. JUSTICE ROBERTS delivered the opinion of the Court.
In a case duly instituted and heard, the National Labor
Relations Board issued an order [
Footnote 1] pursuant to the provisions of § 10(c)
[
Footnote 2] of the National
Labor Relations Act, requiring the respondent, Newport News
Shipbuilding & Dry Dock Company: (1) to cease and desist from
(a) dominating or otherwise interfering with the administration of
the Employees' Representative Committee, a labor organization,
[
Footnote 3] or the formation
or administration of any other labor organization of its employees;
(b) from
Page 308 U. S. 243
interfering with, restraining, or coercing its employees in the
exercise of the right guaranteed them by § 7 [
Footnote 4] of the Act. The order further required
the company (2) to take affirmative action, namely: (a) to withdraw
all recognition from the Committee as the representative of any of
its employees for the purpose of dealing with the company
concerning labor conditions and wages, and completely to
disestablish the Committee as such representative; (b) to post
copies of the order throughout the plant; (c) to maintain said
notices for thirty days, and (d) to notify the Board's Regional
Director of the steps taken to comply with the order.
The order was based upon findings that the respondent had
dominated and interfered with the formation and administration of
the Committee, had contributed to it financial and other support,
and was still dominating and interfering with the Committee,
contrary to § 8(1) and (2) [
Footnote 5] of the Act. [
Footnote 6]
The Company petitioned the Circuit Court of Appeals for review.
The Board answered praying that the court dismiss the company's
petition and decree enforcement. The court held that the Board had
jurisdiction of the cause, but that its holding that the company
had dominated and interfered with the formation and administration
of the Committee was without support in the evidence. The court
decreed that §§ 1(a) and (b) and §§ 2(b), (c), and (d) of the
Board's order should be enforced, but that § 2(a), which required
the withdrawal of recognition of the Committee and its
disestablishment as a representative of the employees, should be
stricken from
Page 308 U. S. 244
the order. We granted certiorari, 307 U.S. 617, because of
asserted conflict with decisions of this court. [
Footnote 7]
The respondent does not press the claim advanced in the court
below that the Board lacked jurisdiction. The sole issue here
joined is as to the propriety of that portion of the Board's order
which constrained the respondent to withdraw recognition of the
Committee and to disestablish it as the bargaining representative
of the employees. Resolution of the issue requires that we
determine whether the Board's ultimate finding of domination and
interference by the employer has substantial support in the
evidence.
The Board's subsidiary findings of fact are not the subject of
serious controversy. The respondent attacks the ultimate conclusion
of fact as unjustified by the subsidiary findings, and further
contends that the conclusion could not have been reached had not
the Board ignored and refused to find other relevant facts which
were either stipulated or proved without contradiction.
The Board's findings were to the following effect: in 1927, in
cooperation with its employees, the respondent put into effect a
plan of employee representation known as "Representation of
Employes." The preamble of the plan stated that its purpose was to
give employees a voice in respect of the conditions of their labor,
and to provide a procedure for the prevention and adjustment of
future differences. Under the plan, the employees were to elect
representatives, each of whom was paid $100 per year for services
as such. No one holding a supervisory position was eligible to
serve as a representative or to vote for a representative.
Administration of the plan was vested in certain joint committees,
each of which consisted
Page 308 U. S. 245
of five elected representatives and not more than five
representatives chosen from amongst the employees by the
management. There was provision for a Management's Representative,
whose function was "to keep the management in touch with the
representatives and represent the management in negotiations with
their officers and committees." A provision calling for the
arbitration of differences was to become operative only upon
concurrence of the respondent's president.
Amendment of the plan could be made only by the affirmative vote
of two-thirds of the full membership of the Joint Committee on
Rules or of a majority of all the employees' representatives and
all the representatives of the management at an annual conference.
The plan set forth that independence of action of elected
representatives was guaranteed by permitting them to take questions
of discrimination to any of the superior officers, to the Joint
Committee, and to the president of the company. There was no
provision for the payment of dues.
The original plan was revised in 1929, 1931, 1934, 1936, and
1937.
By the 1931 revision, which was not materially altered until
1937, a General Joint Committee was set up in lieu of several joint
committees theretofore constituted, and two representatives were to
be elected by the employees in each department, while the
respondent was to appoint an equal number of management
representatives, a majority of each class of representatives
constituting a quorum. The annual remuneration to be paid elected
representatives by the company was reduced to $60.00. The secretary
of the General Joint Committee was paid $5.00 monthly by the
company. An Executive Committee was also established, constituted
of five elected employee representatives and five representatives
of management.
Page 308 U. S. 246
Elections were arranged for by the management representatives
but, insofar as possible, were conducted by the employees
themselves.
A procedure was established for the adjustment of individual
employee grievances whereby, in event of failure of settlement,
notice was to be given to the president of the company. Under the
revised plan, the General Joint Committee met monthly to take
action upon matters presented by the Management Representative or
by employee representatives or subcommittees; but finality of the
action of the General Joint Committee was dependent upon approval
by the respondent's president. Amendment of the plan, which could
be accomplished by a two-thirds vote of the entire General Joint
Committee, became effective when approved by the president of the
company.
The last revision made in May, 1937, after the validity of the
National Labor Relations Act had been sustained by this court,
originated in the General Joint Committee, one-half of whose
members represented the interests of the respondent. The amended
plan was referred to the Executive Committee, similarly
constituted, and to the elected employee representatives,
respectively. After announcement by the Management Representative
that the revision was acceptable to the respondent, it was adopted
by the General Joint Committee. The personnel manager, and the
general manager of the respondent, took part in the revision of the
plan. The secretary of the Committee testified that this revision
was undertaken in order to bring the plan within the letter, as
well as within the spirit, of the Act.
The two principal changes made were the elimination of payment
of compensation by the respondent to elected representatives of the
employees and the substitution of an Employes' Representative
Committee, composed solely of employee representatives elected by
employees, for the
Page 308 U. S. 247
former General Joint Committee and the Joint Executive
Committee. The revised plan provides that action of the Employes'
Representative Committee "shall be final and become effective upon
agreement by the company," and further, that any article of the
plan may be amended by a vote of two-thirds of the entire
membership of the committee, and
"amendments shall be in effect at the time specified by the
Employes' Representative Committee, unless disapproved by the
company within fifteen days after their passage."
The grievance procedure permits the presentation of a grievance
to the respondent's personnel manager, or its general manager, in
the event no settlement has theretofore been effected.
Upon the basis of these findings, the Board concluded that, from
the inception of the plan in 1927 until its final revision in 1937,
the respondent dominated, assisted, and interfered with the
administration of the labor organization, and that the method
followed for amendment of the plan in 1937, and the provisions of
the final revision, left the company still in the position of
dominating and interfering in the formulation and administration of
the plan, contrary to the provisions of § 7 of the Act. The Board
held that the Committee is, in the circumstances, incapable of
serving the employees as their genuine representative for the
purpose of collective bargaining.
The respondent criticizes several of the findings as without
support or contrary to uncontradicted evidence. We do not stop to
consider these contentions, since, without such findings, there
would still be a basis in the record for the Board's
conclusions.
The principal contention of the respondent is that the Board
ignored uncontradicted facts and refused to make findings
respecting them. The Board replies that it did not ignore these
facts, but omitted to find them because they were immaterial to the
pivotal issues in the case. It
Page 308 U. S. 248
is uncontradicted that labor disputes have repeatedly been
settled under the plan; that, since 1927, no labor dispute has
caused cessation of activities at the respondent's plant; that
overwhelming majorities of the employees have participated in the
election of representatives; that the company has never objected to
its employees' joining labor unions; that no discrimination has
been practiced against them because of their membership in outside
unions, and that neither officials nor superior employees not
eligible to vote in the election of employees' representatives,
have interfered, or attempted to interfere, or use any influence,
in connection with the election of representatives.
Before the Board's decision and order had been promulgated, a
referendum was held at which a sweeping majority of the company's
employees signified by secret ballot their satisfaction with the
plan as revised in 1937 and their desire for its continuance.
Counsel for the Committee requested the Board to certify these
facts to the Circuit Court of Appeals as part of the record before
the court. The Board, though not bound so to do, embodied these
facts in a supplementary certificate. It now takes the position
that the only proper way to bring these additional facts to the
attention of the reviewing court would have been by application to
the court to remand the cause for further findings, and, as this
was not done, the certificate was irregular, and should not have
been considered. We are unable to agree with this contention. We
think the Circuit Court of Appeals cannot be convicted of error in
accepting the Board's supplemental certificate.
The Board urges that, notwithstanding the facts on which the
respondent relies, the structure of the Committee, under the 1937
plan, renders the organization incompetent to meet the requirements
of the National Labor Relations Act, and further that, if its
fundamental
Page 308 U. S. 249
law were free from defect, the history of its organization and
administration would require that it be disestablished as the
bargaining agency of the employees.
Prior to the adoption of the Wagner Act, the plan did not run
counter to any federal law, either in conception or administration.
The respondent, however, concedes that sundry features of the plan,
as then formulated, conflict with the provisions of the statute.
Both employer and employees so recognized when they undertook the
revision of 1937 for the purpose of bringing the plan within the
spirit and the letter of the Act.
The Board has concluded that the provisions embodied in the
final revision, whereby action of the Committee requires, for its
effectiveness, the agreement of the company, and whereby amendment
of the plan can become effective only if the company fails to
signify its disapproval within fifteen days of adoption, still give
the respondent such power of control that the plan is in the teeth
of the expressed policy and the specific prohibitions of the Act.
The respondent argues that these provisions affect only the
company, and not the employees; that, in collective bargaining,
there is always reserved to the employer the right to qualify or to
reject the propositions advanced by the employees. Whatever may be
said of the first mentioned provision, this explanation will not
hold for the second. The plan may not be amended if the company
disapproves the amendment. Such control of the form and structure
of an employee organization deprives the employees of the complete
freedom of action guaranteed to them by the Act, and justifies an
order such as was here entered. The court below, in its opinion,
states it was advised, in a brief after the hearing in that court,
that the plan had been amended by striking out the provisions in
question. It concludes, therefore, that their previous existence is
immaterial. The statute expressly deprives the reviewing court of
power to consider
Page 308 U. S. 250
facts thus brought to its attention. The case must be heard on
the record as certified by the Board. The appropriate procedure to
add facts to the record as certified is prescribed in § 10(e) of
the Act.
But we think that, if the record disclosed such an alteration of
the plan, the order of the Board could not be held erroneous. The
Board held that, where an organization has existed for ten years
and has functioned in the way that the Committee has functioned,
with a joint control vested in management and men, the effects of
the long practice cannot be eliminated, and the employees rendered
entirely free to act upon their own initiative without the complete
disestablishment of the plan. On the record as made, we cannot say
this was error.
While the men are free to adopt any form of organization and
representation, whether purely local or connected with a national
body, their purpose so to do may be obstructed by the existence and
recognition by the management of an old plan or organization the
original structure or operation of which was not in accordance with
the provisions of the law. Sec. 10(c) was not intended to give the
Board power of punishment or retribution for past wrongs or errors.
Action under that section must be limited to the effectuation of
the policies of the Act. One of these is that the employees shall
be free to choose such form of organization as they wish.
As pointed out in
Labor Board v. Pennsylvania Greyhound
Lines, 303 U. S. 261,
disestablishment of a bargaining unit previously dominated by the
employer may be the only effective way of wiping the slate clean
and affording the employees an opportunity to start afresh in
organizing for the adjustment of their relations with the employer.
Compare Labor Board v. Fansteel Metallurgical Corp.,
306 U. S. 240,
306 U. S.
262.
Page 308 U. S. 251
The court below agreed with the respondent that, as the
Committee had operated to the apparent satisfaction of the
employees; as serious labor disputes had not occurred during its
existence, and as the men at an election held under the auspices of
the Committee had signified their desire for its continuance, it
would be a proper medium and one which the employer might continue
to recognize for the adjustment of labor disputes. The difficulty
with the position is that the provisions of the statute preclude
such a disposition of the case. The law provides that an employee
organization shall be free from interference or dominance by the
employer. We cannot say that, upon the uncontradicted facts, the
Board erred in its conclusion that the purpose of the law could not
be attained without complete disestablishment of the existing
organization which had been dominated and controlled to a greater
or less extent by the respondent. In applying the statutory test of
independence, it is immaterial that the plan had, in fact, not
engendered, or indeed had obviated, serious labor disputes in the
past, or that any company interference in the administration of the
plan had been incidental, rather than fundamental and with good
motives. It was for Congress to determine whether, as a matter of
policy, such a plan should be permitted to continue in force. We
think the statute plainly evinces a contrary purpose, and that the
Board's conclusions are in accord with that purpose.
The decree must be reversed, and the cause remanded for further
proceedings in conformity to this opinion.
Reversed.
[
Footnote 1]
8 N.L.R.B. 866.
[
Footnote 2]
49 Stat. 449, 454, 29 U.S.C.Supp. IV, § 160(c).
[
Footnote 3]
The Committee was granted leave to intervene, produced evidence,
and participated in the argument before the Board, and was heard in
the court below and in this Court.
[
Footnote 4]
49 Stat. 449, 452, 29 U.S.C.Supp. IV.
[
Footnote 5]
49 Stat. 449, 452, 29 U.S.C.Supp. IV, § 158.
[
Footnote 6]
The complaint also charged that the respondent had discharged
certain employees for union activity, and had thus violated § 8(3)
of the Act, but the Board dismissed this charge.
[
Footnote 7]
Labor Board v. Pennsylvania Greyhound Lines,
303 U. S. 261;
Labor Board v. Fansteel Metallurgical Corp., 306 U.
S. 240.