Owens-Illinois Glass Co. v. National Labor R. Board

• Decision Date: 02 December 1941
• Docket Number: No. 8707.,8707.
• Citation: 123 F.2d 670
• Parties: OWENS-ILLINOIS GLASS CO. v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Sixth Circuit

123 F.2d 670 (1941)

OWENS-ILLINOIS GLASS CO. v. NATIONAL LABOR RELATIONS BOARD.

No. 8707.

Circuit Court of Appeals, Sixth Circuit.

December 2, 1941.

Charles W. Racine, of Toledo, Ohio (Williams, Eversman & Morgan, Henry A. Middleton, Charles W. Racine, Alfred C. Hirth, and John L. Gushman, all of Toledo, Ohio, on the brief), for petitioner.

Robert Kleeb, of Washington, D. C. (Robert B. Watts, Laurence A. Knapp, Ernest A. Gross, Richard C. Barrett, and Frank Donner, all of Washington, D. C., on the brief), for respondent.

Before SIMONS, ALLEN, and HAMILTON, Circuit Judges.

HAMILTON, Circuit judge (dissenting).

Petition by the Owens-Illinois Glass Company to review and set aside an order of the National Labor Relations Board, issued pursuant to Section 10(c) of the National Labor Relations Act (49 Stat. 449; 29 U.S.C.A. § 151, et seq.) and also petition per contra of the Board for the enforcement of its order.

The order complained of directs petitioner to cease and desist from discouraging membership in the Federation of Flat Glass Workers of America, or any other labor organization, of its employees by discriminating in regard to their hire and tenure of employment, or any terms or conditions of employment, or in any other manner interfering with, restraining, or coercing, its employees in the exercise of their right to self-organization and other rights guaranteed under Section 7 of the Act;

Also to reinstate four employees without prejudice to their seniority and other rights and privileges and to make whole those four employees and also seven other employees for any loss of pay they may have suffered by reason of discrimination in regard to their hire and tenure of employment, less their respective net earnings and also less monies received by them on work relief projects, the latter to be repaid to the proper governmental agency;

Also post and maintain for a period of sixty consecutive days at its plant at Fairmont, West Virginia, notice to its employees that petitioner will not engage in the conduct from which it is ordered to cease and desist, and will take affirmative action regarding the rehiring and reimbursing of the employees affected and that all its employees are free to become or remain members of the Federation of Flat Glass Workers of America, and that petitioner will not discriminate against any employee because of membership or activity in the organization;

Also notify the Regional Director within ten days from the date of the order of the steps taken to comply therewith.

Petitioner is an Ohio corporation having six wholly-owned subsidiaries in Delaware, Ohio, Oklahoma and Massachusetts, and with plants in Illinois, Indiana, New Jersey, Ohio, Pennsylvania and West Virginia and is engaged at Fairmont, West Virginia, in the manufacture and sale of glass containers.

The primary question for determination is whether the Board's order is supported by substantial evidence.

The National Labor Relations Act, by its terms, provides the findings of the Board as to the facts, if supported by evidence, shall be conclusive, 49 Stat. 449, 453, Sec. 10(e), 29 U.S.C.A. Sec. 160(e). However, in applying the statute, the evidence relied on by the Board must be more than a mere scintilla. It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Company v. National Labor Relations Board, 305 U.S. 197, 229, 59 S. Ct. 206, 217, 83 L.Ed. 126.

In reviewing the substantiality of evidence to support the Board's order, the court follows in principle the long-recognized rule applied in determining the sufficiency of the evidence to submit a law action to a jury. National Labor Relations Board v. Columbia Enameling & Stamping Company, 306 U.S. 292, 300, 59 S.Ct. 501, 83 L.Ed. 660.

This proposition is not merely whether there is any evidence to support the Board's order, but the responsibility rests on the court to review the evidence as a whole and acting judicially, to determine whether or not there are facts in evidence, or fair inferences to be drawn therefrom which, if unanswered, would justify men of ordinary reason and fairness in affirming the issue which complainant is bound to maintain. The Board is the sole judge of the sufficiency of the evidence in fact; the court is the sole judge of its sufficiency in law. If this were not so, the power to determine questions of law, as well as questions of fact, would be lodged in the Board and the statutory right of review by the court would be a nugatory power.

This is a matter of importance for the subject of judicial review of the Board's orders is material to the philosophy of the act. National Labor Relations Board v. Thompson Products, Inc., 6 Cir., 97 F.2d 13. Our industrial system maintains itself and develops only where great numbers of men work in peace together for common ends. With this object in view the National Labor Relations Act conferred on employees the right to organize and bargain collectively free from interference, restraint or coercion of the employer, but the purpose of the act is not accomplished by subjecting either the employer or employee to external regimentation. Compare National Labor Relations Board v. Jones & Laughlin, Steel Corp., 301 U.S. 1, 45, 57 S. Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352. The National Labor Relations Act envisages that the entire matter of a hearing between the parties shall be carried on before an impartial examiner under the general supervision and control of the members of the Board and that the truth as to the facts shall be arrived at upon a consideration of the entire evidence and proof presented by the respective parties in support of their claims. It is fundamental that an issue arising between the employer and employee must be tried by a general, rational, or reasoning process both as to the ascertainment of facts and the application of the law. The existence or non-existence of ultimate issuable facts must be determined from the whole evidence produced and whether the determination is made by the Board or the court it must be by a process of rationalization and judgment and by the application of the thinking faculties of the human mind to the whole mass of evidence.

The testimony of a single witness should not be weighed to the exclusion of that of other witnesses or other evidence on the same subject matter. Peninsular & Occidental S. S. Co. v. N. L. R. B., 5 Cir., 98 F.2d 411. There are always present peculiar conditions and circumstances which influence the deeds and color the words of men. No fair appraisal can be made of evidence without taking into consideration all of the surrounding facts and circumstances admitted or proven in any case. Where there is a seeming conflict of evidence or inferences to be drawn therefrom, the trier of the facts has the duty to scrutinize them carefully to ascertain whether susceptible of explanation or incapable of being reconciled.

If, by the application of their intellectual processes, reasonable minds could arrive at but one conclusion from the whole of the evidence and the inferences to be drawn therefrom, then the question as to whether the complainant, having the burden of proof, has established the issuable facts in the particular case is one to be decided by the court. If, on the other hand, different conclusions may be drawn from the evidence any one of which supports the order of the Board, the court lacks the power to set aside the Board's order even though the reviewing court would reach a different conclusion on the facts. If the proof offered before the Board in support of the existence of the ultimate issuable fact is so meager that a reasonable mind could not therefrom arrive at the existence of the ultimate fact, the Board's order must be denied for lack of substantial evidence to support it. The credibility of witnesses, even though wicked and depraved, is for the Board and if the Board believes them, the appellate court is without power to declare them unworthy of credit or belief.

With these general observations, resort must be had to a consideration of the facts to answer the questions at issue. It is the duty of the court to consider the evidence in the light of labor conditions prevailing in petitioner's plant at the time of the alleged violations. Martel Mills Corporation v. National Labor Relations Board, 4 Cir., 114 F.2d 624.

For many years before July 6, 1937, operators of the bottle machines in petitioner's plant were within the jurisdiction and members of the Glass Blowers Association, an affiliate of the American Federation of Labor and employees in its central mold shop and its mold repair department were members of the American Flint Glass Workers Union, also affiliated with the American Federation of Labor. The evidence shows that petitioner had entered into employees' agreements with these unions and that all of the officials of petitioner, including its plant managers, had been fair in their dealings with these organized employees. Prior to July 6, 1937, the American Federation of Labor and the Congress of Industrial Organization commenced a campaign for organization among petitioner's unorganized employees, and on July 6, 1937, a meeting of some of them was held at Fairmont, West Virginia, for organization purposes. Temporary officers of a local union were elected at this meeting and on July 31st of the same year, a charter was issued by the American Federation of Labor to Local No. 55, Flat Glass Workers of America, an affiliate. On August 15, 1937, the Congress of Industrial Organization displaced the American Federation of Labor and issued its charter to Local No. 55, which thereafter became its affiliate. On February 4, 1938, the American Federation of Labor officially revoked its charter with the local and thereafter some of petitioner's employees continued with the local as an affiliate of the Congress of Industrial Organization.

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