130 F.2d 321 (8th Cir. 1942), 12113, Dannen Grain & Milling Co. v. N.L.R.B.

Docket Nº:12113.
Citation:130 F.2d 321
Case Date:August 19, 1942
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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130 F.2d 321 (8th Cir. 1942)




No. 12113.

United States Court of Appeals, Eighth Circuit.

August 19, 1942

H. Templeton Brown, of St. Joseph, Mo. (R. L. Douglas and R. A. Brown, Jr., both of St. Joseph, Mo., on the brief), for petitioner.

Winthrop A. Johns, Atty., National Labor Relations Board, of Washington, D.C. (Robert B. Watts, Gen. Counsel, National Labor Relations Board, Laurence A. Knapp, Associate Gen. Counsel, National Labor Relations Board, Ernest A. Gross, Asst. Gen. Counsel, National Labor Relations Board, and Louis Libbin and Robert E. Mullin, Attys., National Labor Relations Board, all of Washington, D.C., on the brief), for respondent.

Before STONE, THOMAS, and JOHNSEN, Circuit Judges.

STONE, Circuit Judge.

This is a petition to review a portion of an order directed by the Board against petitioner. The concise substance of the complaint before the Board consisted of two parts, as follows:

First, that petitioner had, since on or about June 30, 1939, interfered with, restrained, and coerced its employes by making remarks derogatory to the Union (Flour, Cereal, Feed Mill and Grain Elevator Workers, Federal Union No. 21008), by spying upon the Union activities of its employes, by discriminatorily transferring and demoting employes who were Union members, by threatening discharge of employes on account of Union affiliation, by withholding employment from former workers at the plant because of their Union affiliation, and by requiring applicants for employment to divulge their union affiliations.

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Second, that petitioner had, on or about December 5, 1939, discriminatorily demoted and, on or about February 21, 1940, discriminatorily discharged Edmond S. Fry because of his membership in and activities on behalf of the Union and, for the same reason, has at all times since refused to reinstate him. The examiner found:

(1) That petitioner had interfered with, restrained and coerced its employes in the exercise of their rights guaranteed in Section 7 of the Act, 29 U.S.C.A. § 157, by the use of certain objectionable employment application blanks and by statements of the superintendent of the plant (Albert J. Monach) to two employes (Fry and Kerns), in July, 1939, to the effect that 'he wouldn't have no damned union men down there telling him what to do, ' and his statement, about October 31, 1939, made in the mill room at the plant in the hearing of certain employes, that 'they were not going to have any union.'

(2) That there was no discrimination with respect to the hire and tenure of employment of Fry or conditions of his employment either at the time of his demotion or at the time of his discharge.

Therefore, the examiner recommended a cease and desist order from interfering with, restraining or coercing the employes in the exercise of their right to self-organization and to bargain collectively; and recommended dismissal of the complaint in so far as it concerned the demotion and discharge of Fry.

The Board followed the recommendations as to the cease and desist portion, but found that the discharge of Fry was discriminatory and required his reinstatement and reimbursement.

The petitioner complied with all portions of the order except that requiring reinstatement and reimbursement of Fry. The only broad issue presented by this petition to review is the existence of substantial testimony to support that portion of the order requiring such reinstatement and reimbursement. It is undisputed that Fry was demoted, about December 5, 1939, by being transferred to a different character of work at a lower wage; and that he was discharged on February 21, 1940. The contention of petitioner is that the evidence does not support the finding of the Board that such demotion and discharge were discriminatory but does show that such actions by petitioner were for cause.

Prior to July 1, 1939, a partnership conducted the business of manufacturing feeds for animals and poultry at St. Joseph, Missouri. The partners were H. L. Dannen, his son Dwight L., Alma B. Dannen and Arlene Mannschreck. At the same time H. L. and Dwight L. Dannen owned fifty per cent of the stock in the Dannen Soybean Corporation, a company engaged in processing and selling soybeans. On June 30, 1939, the assets of the partnership were sold to the corporation and the name of the latter changed to Dannen Grain and Milling Company. On July 1, 1939, H. L. Dannen, Dwight L. Dannen and Arlene Mannschreck purchased the other fifty percent stock interest in the corporation. After these transactions the operation of the feed business and that of the soybean business were consolidated although these operations were carried on in separate manufacturing plants suitable to the particular business. The active head of this business was H. L. Dannen, president of the company. Albert J. Monach was superintendent of the plant. William C. Crabtree was foreman of the feed plant. Edward Peek had a minor supervisory position variously described as a 'straw boss' or as night foreman 'part of the time.' While the number of employes in the feed plant had some variations, yet the average seems to have been about twenty-one for some months prior to July 1, 1939.

Prior to April 14, 1939, the employes of the feed plant had some sort of an organization which operated through a committee, of which Edward Peek was a member. On the above date the local representative of the Union notified petitioner that seventeen of its employes had designated the Union as their bargaining representative and he requested a conference for that purpose. Dwight L. Dannen wrote the representative suggesting a time for such conference and on the same day wrote a letter to Peek (as 'a member of the committee that our employes authorized to bargain with us, and with which committee a contract of employment was drawn up, signed and put into effect'), stating that a letter had been received that the Union was authorized to represent some of the employes and asking if the committee still represented the employes or if the employes had authorized the Union to represent them. Peek circulated and secured the signatures of seventeen employes to the effect that they did not want the Union

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to represent them. The lists of employes set forth in the letter from the Union representative and appearing on the paper circulated by Peek each show seventeen names of which thirteen are in common. There is evidence that at least some of the employes who signed the Peek paper did so under fear of losing their jobs because of statements by Peek. On receipt of the Peek paper, Dwight L. Dannen wrote the Union representative that he thought the representative did not represent a majority of the employes. On May 12, 1939, the Union representative filed a charge with the Acting Regional Director of the Board against the company based on the circulation of the Peek paper and upon the alleged discriminatory discharge of John Gillenwater 1 on April 15, 1939. There were conferences between the Union representative and Dwight L. Dannen concerning the complaint with the results that an oral agreement was reached and the Union representative withdrew the charge without prejudice. The main feature of this settlement agreement seems to have been the posting by petitioner of a notice setting forth the rights of employes under the Act and stating that all employes of petitioner were free to do as they wished without interference, domination or influence by petitioner. Nothing further seems to have been done by the Union to enforce any rights of representation.

The next occurrence has to do with the re-employment on July 1, 1939, necessitated by change in ownership. Late in June, a form letter was sent to every employe of the plant informing him of the change in ownership and that if he wished employment under the new ownership he should make an application on blanks which could be secured from Mr. Monach and which the applicant was to fill out 'as completely and carefully as possible and return it to him at once. ' This application was in a form which had been used by the partnership for a year or so prior to its absorption by the corporation. The application was quite extended and detailed in its inquiries as to a number of matters concerning the health, marital and financial situations and educational qualifications of the applicant. Also, it contained the following questions:

'Of which union have you been a member . . . . Are you now a member . . . . What are the monthly dues . . . . Have you even been out on strike . ., . When . . . . Number of men on strike . . . . At what company . . . . Have you ever worked in any plant or with any company while a strike was in progress against them . . . . Date . . . . What company . . . . What work did you do . . . .'

Apparently, all of the regular and extra men made such applications. All were reemployed except four: Edmond S. Fry, Ray Kerns, John L. Gillenwater and Carl Pennington.

On July 18th, the Union filed a charge...

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