National Labor Rel. Board v. Walt Disney Productions, 10603.

• Decision Date: 11 January 1945
• Docket Number: No. 10603.,10603.
• Citation: 146 F.2d 44
• Parties: NATIONAL LABOR RELATIONS BOARD v. WALT DISNEY PRODUCTIONS.
• Court: U.S. Court of Appeals — Ninth Circuit

146 F.2d 44 (1944)

NATIONAL LABOR RELATIONS BOARD v. WALT DISNEY PRODUCTIONS.

No. 10603.

Circuit Court of Appeals, Ninth Circuit.

December 5, 1944.

Rehearing Denied January 11, 1945.

Alvin J. Rockwell, Gen. Counsel, N.L. R.B., Malcolm F. Halliday, Associate Gen. Counsel, and David Finding and Charles Ryan, Attys., N.L.R.B., all of Washington, D.C., for petitioner.

Gunther R. Lessing, O'Melveney & Myers, and Jackson W. Chance, all of Los Angeles, Cal., for respondent.

Before GARRECHT, STEPHENS, and HEALY, Circuit Judges.

STEPHENS, Circuit Judge.

The National Labor Relations Board petitions for the enforcement of its order directed against respondent Walt Disney Productions, a California corporation and a producer and mover into interstate commerce of motion picture sound cartoons.

The Board issued a complaint against respondent alleging unfair labor practices within the meaning of § 8(1) and (3) of the National Labor Relations Act, 29 U.S. C.A. § 158(1) and (3),¹ on the ground that respondent through its officers, agents and attorney had pursued a critical course toward unions within the hearing and with the knowledge of its employees and had on November 24, 1941, discharged Arthur Babbitt, one of its cartoon animators, for engaging in union activities. Babbitt was a member of Screen Cartoonists Local 852, affiliated with the American Federation of Labor's Brotherhood of Painters, Decorators, and Paperhangers of America, herein called the Union.

The Board ordered respondent to cease and desist (1) from discouraging membership in the Union or other labor organization by discriminating in regard to any condition of employment and (2) from interfering with its employees in the exercise of rights guaranteed by § 7 of the Act, 29 U.S.C.A. § 157. The Board also ordered respondent to reinstate Babbitt upon his application within forty days after his discharge from the armed forces of the United States, to make him whole for the loss of back pay from the time of his discharge until the time of his reinstatement excluding the period of his service in the armed forces, and to post appropriate notices.

The Board's finding that Arthur Babbitt was discriminatorily discharged is claimed by respondent to be without substantial evidential support.

The evidence shows that Babbitt was an expert animator, that he had worked for respondent for approximately nine years at a continually increasing salary until eventually in 1941 only six of respondent's thirty-one animators were receiving salaries equal to or greater than his, that he was listed in one of the two highest groups under the studio salary classification plan, that his work generally received a high studio rating, that he was considered by experts as one of the top animators in the industry.

When a company union was proposed in 1937, Babbitt took an interest in its organization and was elected its first president. However, it became inactive when respondent refused to enter into a collective bargaining agreement with it. On two occasions Babbitt verbally disapproved the efforts of management to block other unions by favoring the company union. The latter was disestablished in 1941 following the filing of charges by the Union involved herein.

Babbitt joined the Union in 1941 and publicly advocated that others should join. He testified to various strongly anti-union statements by Walt Disney, by respondent's lawyer, and by respondent's casting director. Walt Disney is respondent's president and head of production.

In the spring of 1941 respondent found necessary the curtailment of production and the reduction of personnel because war conditions had adversely affected its foreign market. As a result, twenty-four employees, seventeen of them Union members, were released in May. Respondent refused to discuss its action with the Union, and a strike was proposed. Immediately, respondent dismissed union-chairman Babbitt, explaining in a letter from respondent's attorney that Babbitt had "on numerous occasions engaged in union activities of various kinds and descriptions on the Company's property and on the Company's time," despite repeated warnings, in violation of a rule against such practices. A strike, under the direction of Babbitt, by four hundred of respondent's eleven hundred employees began and continued for nine weeks. Finally, the Union and respondent agreed to arbitrate their differences, the strike ended, and all dismissed union employees were reinstated.

The arbitration proceedings resulted in an award settling a contract between Union and respondent. A method for dismissing employees was agreed upon with a provision for a closed shop and a grievance and arbitration procedure for all disputes included. The arbitration award specially referred to Babbitt, recommended his reinstatement, and decreed that he was not to be "subject to discharge incident to reorganization except for cause."

Almost immediately after the effective date of the contract, a list of employees to be laid off in order to accomplish the impending reduction in personnel was prepared by respondent, disapproved by the Union, and submitted to arbitration according to plan. In the meantime the studio was closed. A new list was drawn up by respondent and agreed to by the Union. The studio reopened, and the employees to be retained returned to work. Babbitt, though retained as an animator, testified that thereafter he was assigned a less comfortable office, less complete equipment and less important work than previously, and that he was given no work at all after November 15 although all the other animators had assignments during this period.

A further decrease in personnel being necessary because of curtailed production, casting director Harold Adelquist selected certain employees to be released as of November 24, 1941, and checked with various directors as to the wisdom of his choice. The resulting list was approved in toto by Walt Disney, and a copy was submitted to the Union. Babbitt was one of the six animators whose names appeared on the list for discharge. It may be noted that he outranked the other five in work rating, salary, and seniority, and similarly that he outranked many others who were retained in employment. All complaints arising out of the layoffs, with the exception of Babbitt's, were settled through the grievance procedure of the labor contract. Babbitt's case was handled separately because of the provision in the arbitrators' award of August 2, 1941, referring specially to him.

Although the testimony herein is susceptible of varying interpretations, evidence in support of the Board's findings is substantial to the effect "that Adelquist purposely avoided assigning work to Babbitt * * * while the real reason was his Babbitt's Union leadership and activity before and during the strike," "that the respondent had no intention of re-employing Babbitt, after November 24, 1941, and that the alleged layoff was, in fact, a discharge," and therefore "that the respondent, by discharging Arthur Babbitt on November 24, 1941, has discriminated in regard to his hire and tenure of employment."

Reference to the function of this court in its consideration of enforcement petitions is made in our recent opinion of National Labor Relations Board v. Idaho Refining Co., 9 Cir., 1944, 143 F.2d 246, 247: "This case presents the situation, not unusual in Board order enforcement cases, in which the employer earnestly believes in his case, and asks us to consider the evidence as a whole and decide that it does not support the findings of the Board. The employer is remotely aware of the fact that we cannot weigh the evidence and that our only function is to decide whether or not the Board has acted within the law, including, as this function does, the decision as to whether there is any supporting evidence for the findings. Section 10(e) of the Act, 29 U.S.C.A. § 160(e): `The findings of the Board as to the facts, if supported by evidence, shall be conclusive.' The employer, however, argues that all of the evidence put together produces a whole which, reasonably viewed, does not show unfair labor practices. Usually he means that the evidence does not show intention to be unfair, but he understands the word `unfair' in its common meaning and not in its meaning as defined in the labor act. * *" The comment is particularly appropriate to the instant case in view of the detailed argument of respondent herein that, relating the different items of evidence to an over-all viewpoint, there is clearly no substantial evidence to support the Board's finding and conclusion of discriminatory discharge. We do not suggest that in rare cases seemingly reasonable inferences drawable from detached items of evidence may not prove to be wholly untenable from the over-all viewpoint. After a very careful review of all of the evidence in this case with respondent's argument and the above set out principles in mind, we are unable to agree that the Board's findings, excepting those supporting parts of the order which we refuse to order enforced, are without support in the evidence.

Because respondent's collective bargaining agreement with Union contains a grievance and arbitration procedure for the settlement of disputes, respondent contends that the unfair labor practice alleged, namely the discharge of Babbitt for his union activities, could not affect interstate commerce and therefore that the Board had no jurisdiction over the proceeding. According to respondent's theory the collective bargaining agreement provides a peaceable means of settling labor disputes; the tranquil disposition of such disputes negatives the possibility of burdening or obstructing interstate commerce; therefore there exists no unfair labor practice over which the Board has jurisdiction under the Act. The Board found the contention without merit.

The basic purpose of the Act is to free interstate commerce of obstructions resulting...