Indiana Metal Products Corp. v. National Labor Rel. Bd.

• Decision Date: 10 March 1953
• Docket Number: No. 10717.,10717.
• Citation: 202 F.2d 613
• Parties: INDIANA METAL PRODUCTS CORP. v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Seventh Circuit

202 F.2d 613 (1953)

INDIANA METAL PRODUCTS CORP. v. NATIONAL LABOR RELATIONS BOARD.

No. 10717.

United States Court of Appeals Seventh Circuit.

March 10, 1953.

Edward J. Fahy and Shultz & Fahy, Rockford, Ill., for petitioner.

David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, Marcel Mallet-Prevost, Atty. National Labor Relations Board, Washington, D. C., George J. Bott, Gen. Counsel and Ruth V. Reel, Attys., National Labor Relations Board, Washington, D. C., for respondent.

Before DUFFY, FINNEGAN and LINDLEY, Circuit Judges.

DUFFY, Circuit Judge.

This is a petition by the Indiana Metal Products Corporation (hereinafter called "company") to review and set aside an order of the National Labor Relations Board (hereinafter called "Board"). In its answer the Board requests the enforcement of said order. The Board's decision and order are reported in 100 N.L.R.B., No. 161.

The Board found the company violated Sec. 8 (a) (1) of the Act¹ by interfering with, restraining and coercing its employees in the exercise of their rights under Sec. 7; violated Sec. 8(a) (2) and (1) of the Act by dominating and supporting a labor organization known as the Advisory Committee; and violated Sec. 8(a) (3) and (1) of the Act by discriminatorily discharging employee Howard Meyer because of his union membership and activity. The Board ordered the company to immediately reinstate Meyer, to make him financially whole, and to withdraw and withhold all recognition from and completely disestablish the Advisory Committee.

The company employed about 60 people and manufactured screws and metal stampings at its only plant located about 4½ miles from Rochester, Indiana, a city having a population of approximately 4,600 people. N. F. Schroeder was the general manager of the company.

Meyer was employed by the company in 1948, and worked in the tool room as a machinist and Class B tool maker. Although Meyer had little or no experience in this line of work when first employed, he learned it rapidly. In December, 1948, Meyer requested a wage increase and when this was refused unless he agreed to work on the night shift, he determined to quit. However, upon the urging of General Manager Schroeder that he think it over, he reconsidered and went back to his job at the rate of pay he had been receiving.

There was testimony that in December, 1948, Meyer had trouble with the superintendent, the foreman, and the master-mechanic, and they decided to "let him go." However, Schroeder, who had taken a liking to Meyer, intervened and saved his job. Later Foreman Babarik complained of Meyer's work and asked Foreman Howton not to let Meyer do work for his department.

On April 22, 1950, Meyer and employee John Sanders were separated from their employment with the company. On that day, at about 3:15 P. M., Plant Superintendent Bietz "pulled" Sanders' card from the time card rack. Meyer noticed this and walked over to the rack to ascertain whose card had been pulled. He then walked back past his own bench some 25 feet to 30 feet, and talked with employee Peterson.² This conduct was observed by his foreman, Howton. It appears that at least on one previous occasion when another card had been pulled from the rack Meyer had inspected the rack and thereafter visited with a workman.

Foreman Howton complained of Meyer's conduct to Superintendent Bietz, stating he desired to discharge Meyer. Howton and Bietz then conferred with Manager Schroeder, who acquiesced in their joint request. By this time Meyer had left the shop and did not know until he reported for work on Monday morning, April 24, that his card had been pulled. On that day Meyer and Sanders met with Manager Schroeder and asked him why their cards had been pulled. Schroeder told Sanders he had been discharged for absenteeism. He gave as the reasons for Meyer's discharge, dissatisfaction with his job, not taking an interest in his work, and causing too much trouble in the plant among the employees.³ As the conversation was concluded, Meyer remarked, "I think I should have had a warning." At the conference nothing was said by anyone with reference to the union or union activities.

On May 2, 1950, the union⁴ filed its charge that the company violated Secs. 8 (a) (1) and 8(a) (3) by the discharge of Sanders and Meyer. The Board found that the separation of Sanders from his employment was not a discriminatory discharge, but found that Meyer was discharged because of his support and activity upon behalf of the union. We shall therefore consider first whether, on the record as a whole, there is substantial evidence to sustain the Board's finding as to Meyer's discharge.

About the first of April, 1950, employee Sanders contacted a representative of the union. Thereafter, on the evening of April 8, 1950, which was two weeks prior to the date of Meyer's discharge, Sanders, Peterson, Dorson and Meyer, all employees of the company, met with two union organizers at the Farm Bureau Hall at Rochester. Meyer and the three other employees each signed a union application card. A week later, at the same place, a second meeting was held which was attended by 8 or 10 employees, including Meyer. A third meeting, attended by 12 or 14 employees, was held on the evening of the day Sanders and Meyer were discharged.

On a number of evenings after April 8, Meyer, usually accompanied by Peterson, visited various employees at their respective homes, soliciting union membership. Also during lunch hours he spoke to employees about the union, while seated in their automobiles either in the parking lot or while driving to or from Rochester. Meyer testified that his organizational activities were very quiet. He also testified as follows:

"Q. Did you ever discuss the union at the plant? A. Very little.

"Q. Did you sign up any employees at or around the plant? A. No, sir."

To prove that management was aware of Meyer's activities upon behalf of the union, the Board largely relied on an incident occurring April 8. Sanders, upon returning from the meeting hereinbefore mentioned, saw Foreman Dorsett and his wife sitting at a table in a restaurant. Sanders tossed onto Dorsett's table a pad of matches on which union advertising was printed, including the slogan, "Join UAW-CIO," and said something to Dorsett about joining a good union. Dorsett is reported as saying, "Oh, brother," or "Oh, my God." Dorsett testified that he did not consider the incident of any significance and related it to no-one.

It is clear that the record discloses nothing that happened prior to the date of Meyer's discharge which would sustain the Board's findings that it was his activity upon behalf of the union which was the cause of his discharge. The burden was on the General Counsel of the Board to prove affirmatively, by substantial evidence, that Meyer's discharge was due to union activities. N. L. R. B. v. Reynolds International Pen Co., 7 Cir., 162 F.2d 680, 690; Interlake Iron Corp. v. N. L. R. B., 7 Cir., 131 F.2d 129, 134. In the latter case, this court, in an opinion by Judge Minton, said, "The company does not have to prove nondiscrimination because of union activities. The Board must prove discrimination because thereof. This burden of the Board to prove discrimination and to prove that discrimination was employed in the hiring or firing of a man because of his union activities does not shift from the Board. Citing."

In order to find that the company knew of the union activity, that Meyer was engaged in it, and that he was fired because of it, the Board drew an inference that because the factory was located near a relatively small town the company must have become aware of such union activity as a matter of common knowledge, even though such activity was carried on very quietly, and further, that in some manner the company officials must have learned of Meyer's organizational efforts in behalf of the union. Based on these inferences, the Board found he was fired for union activities. However, it is well established that inference piled on inference is not a substitute for evidence. Interlake Iron Corp. v. N. L. R. B., supra, 131 F.2d at page 133; N. L. R. B. v. Illinois Tool Works, 7 Cir., 119 F.2d 356, 364.

The Board however also relies upon two incidents which occurred after the date of Meyer's discharge. Employee Sheetz testified that on April 24, her foreman, Richard Roe, said to her, "You didn't sign any union card, did you?" to which she answered, "No," and he said, "Well, that is good, because there are 50 people that did and they are all going to get fired." The other incident relied on occurred sometime after the middle of May, 1950. Employee Gilliland testified that foreman Lewis said to him that "if I joined a union or signed any papers, my days would be numbered."

On April 26, four days after Meyer's discharge, the union wrote to the company, claiming a representative status. As far as the record discloses this was the first information Manager Schroeder or any company officer had of any union activities at the plant. On May 2 he received a copy of the union's charges. On the days when he received the union letter as well as the copy of the charge he called all of the foremen into the office, told them of the receipt of the respective documents, and instructed them not to threaten, intimidate or coerce any employee for any union activity.

The Board's decision states, "Like the trial examiner, we are not convinced by the explanation offered by the respondent for Meyer's discharge." The Board's approach seems to be that the burden of proof was upon the company. Of course an employer may discharge an employee for many reasons so long as such action is not taken because of union activities of such employee. In N. L. R. B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 45, 57 S.Ct. 615, 81 L.Ed. 893, the court pointed out that the Act does not interfere with the normal exercise of the right of the employer to...