149 F.2d 987 (7th Cir. 1945), 8711, N.L.R.B. v. Indiana Desk Co.

Docket Nº:8711.
Citation:149 F.2d 987
Case Date:June 15, 1945
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 987

149 F.2d 987 (7th Cir. 1945)




No. 8711.

United States Court of Appeals, Seventh Circuit.

June 15, 1945

Page 988

Alvin J. Rockwell and Malcolm F. Halliday, Associate Gen. Counsel, National Labor Relations Board, both of Washington, D.C., and Jack G. Evans, National Labor Relations Board, of Chicago, Ill., for petitioner.

Isidor Kahn and William F. Little, both of Evansville, Ind., for respondent.

Before EVANS, SPARKS, and MAJOR, Circuit Judges.

MAJOR, Circuit Judge.

This case is here upon petition of the National Labor Relations Board, pursuant to Sec. 10(e) of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C.A. § 151 et seq., for enforcement of its order issued against respondent on April 29, 1944, following the usual proceedings under Sec. 10, 29 U.S.C.A. § 160, of the Act.

The Board's order is based upon findings that respondent has engaged and is engaging in unfair labor practices affecting commerce, within the meaning of Sec. 2(6) and (7) of the Act. The unfair labor practices charged and found are that respondent (1) violated Sec. 8(3) of the Act by discriminating against a number of its employees because of their participation in a strike, and (2) interfered with, restrained and coerced its employees in the exercise of rights guaranteed in Sec. 7 of the Act, in violation of Sec. 8(1), by threats that employees who had engaged in the strike would be denied further employment in the community and other statements calculated to discourage membership in the union. The union referred to is the charging union, the United Furniture Workers of America, Local No. 331, affiliated with the C.I.O. The contested issues in the main are (1) whether the findings as to the unfair labor practices are supported by substantial evidence, and (2) even so, whether such findings support the Board's conclusions of law that the Act has been violated as charged.

We shall first consider the situation as it pertains to the alleged violation of Sec. 8(3). In view of the contentions advanced by respondent, it seems appropriate to consider the evidence with reference to two events, (1) that of the strike and (2) that pertaining to respondent's refusal to recognize the strikers as employees at the termination of the strike.

Respondent contends that because of the nature of the strike it had a right to discharge those who participated therein. The strike occurred on October 9, 1942, at respondent's plant located at Jasper, Indiana. Respondent, as its name indicates, was and is engaged in the manufacture of furniture, partly (the record does not show to what extent) for use of the government in its war activities. It is pertinent to note that the record is silent as to any anti-union background or activity on the part of respondent. In fact, there is no evidence of any organizational activity on behalf of any union either at the time of or prior to the strike. There is evidence that some few of the strikers, perhaps not more than three, were affiliated with the union.

Some time before nine o'clock on the morning of October 9, 1942, a group of 23 employees who worked in the lower machine room went to the office of superintendent Krodel and requested a wage increase. Krodel, after conferring with respondent's general manager, told the group that their demand could not be granted and that they must either return to work or

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punch out. This group thereupon punched out and left the premises.

About ten o'clock, 14 employees from the upper mill room punched out and also left the premises. This group so acted without talking to any representative of management, without warning of any kind, without having made any demand for a pay increase or any other change in the condition of their employment. Fourteen employees in the finishing room failed to return to work after the noon hour lunch. These, too, gave no explanation and made no previous demands on management. It appears that the latter two groups struck in sympathy after learning of the strike by the first group. Thus, 51 of respondent's 135 employees participated in the strike.

The Board found that these 51 employees 'went out on strike because of a wage dispute.' As to what happened on the evening of the strike, the Board found:

'That evening the strikers attended a meeting of the Union and those strikers who were not already union members then joined. At the meeting, the Union formally called a strike and decided to picket the respondent's plant and to request of the respondent wage increases for the employees and recognition of the Union as exclusive bargaining representative. * * * At the outset of the strike, the respondent handed each striker, except George Gardner, an individual separation report, stating that he had 'voluntarily' left the respondent's employ 'without good cause, ' and the respondent paid each striker his accrued wages.'

The finding thus made is substantially accurate although there is no proof that all the strikers attended or joined the union meeting. It is also pertinent to keep in mind that the union did not at any time represent a majority of respondent's employees. 1

The Board's finding regarding the 'individual separation report' handed to each of the strikers is correct but needs some amplification. October 9, the date of the strike, was on Friday. Respondent's pay week ended on Thursday, and for such week its employees were paid on each following Saturday. Thus, on Saturday, October 10, each employee was entitled to his wages for the week ending Thursday, October 8. On Saturday, the two groups of employees who struck in the morning of October 9 were paid their wages for the week ending the preceding Thursday and also what they had earned on Friday prior to the time they quit. Those who did not return to work on the afternoon of October 9 were not paid the amount they had earned on the morning of October 9, as respondent did not know whether their absence was due to having joined the strike or to other conditions.

Those who struck on the morning of October 9 were handed separation reports in connection with their pay checks, stating that they had voluntarily quit and left respondent's employ without good cause. These reports were given in accordance with the requirements of the Indiana Unemployment Compensation Act. Burns' Ann. St. Sec. 52-1501 et seq. The group which quit on the afternoon of October 9 were not given such separation reports at the time they were paid on the 10th, as respondent did not know what they intended to do. On October 10, all employees, except those who had struck on the morning of October 9, were given a notice calling attention to the President's Executive Order of September 15, 1942, and stating, 'Therefore, it is illegal to increase wages at this time without permission of the National War Labor Board.' Also, on the same date, the group which did not return to work on the afternoon of October 9 were handed a notice which stated in effect that unless they returned to work at the regular time on Monday morning, October 12, respondent would conclude that they had voluntarily left its employ without good cause. When they failed to return to work on October 12, respondent delivered to each of them as separation report with pay for the time they worked on the morning of October 9.

The Board did not find, in fact there is no intimation, that respondent committed an unfair labor practice either on October 9 or theretofore. It does find, as already noted, that the 51 strikers ceased work as a result of a 'wage dispute.' It follows, so the Board argues, that they remained employees entitled to the protection of the Act. On the other hand, respondent contends that the strike on October 9 was instituted

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and prosecuted in order to compel respondent to violate the Act of October 2, 1942, and Executive Orders No. 9250 and No. 9017, 50 U.S.C.A.Appendix, §§ 901 note, 1507 note. The contention follows that the strike was illegal, or at any rate its purpose was illegal, and that respondent had a right to sever the employer-employee relationship with those who participated therein.

Sec. 5 of the Act of 1942, Sec. 965, Title 50 U.S.C.A.Appendix, known, as the Stabilization Act, provides:

'No employer shall pay, and no employee shall receive, wages or salaries in contravention of the regulations promulgated by the President under this Act.'

Sec. 11 of the Stabilization Act, Sec. 971, Title 50, U.S.C.A. Appendix provides:

'Any individual, corporation, partnership, or association willfully violating any provision of this Act, or any regulation promulgated thereunder, shall, upon conviction thereof, be subject to a fine of not more than $1, 000, or to imprisonment for not more than one year, or to both such fine and imprisonment.'

Executive Order No. 9250 (Secs. 1 and 2 of Title II) provides:

'No increases in wage rates, granted as a result of voluntary agreement, collective bargaining, * * * shall be authorized unless notice of such increases * * * shall have been filed with the National War Labor Board, and unless the National War Labor Board has approved such increases * * * .'

Sec. 2 of the Order precludes an approval of an increase in wages by the War Labor Board except under certain conditions therein enumerated.

Sec. 2 of the National Labor Relations Act provides:

'The term 'employee' shall include * * * any individual whose work has ceased as a...

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