Harnischfeger Corp. v. NATIONAL LABOR RELATIONS BOARD

• Decision Date: 26 October 1953
• Docket Number: No. 10843.,10843.
• Citation: 207 F.2d 575
• Parties: HARNISCHFEGER CORP. v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Seventh Circuit

207 F.2d 575 (1953)

HARNISCHFEGER CORP. v. NATIONAL LABOR RELATIONS BOARD.

No. 10843.

United States Court of Appeals Seventh Circuit.

October 26, 1953.

Victor M. Harding, Milwaukee, Wis., for petitioner.

David P. Findling, Associate General Counsel, A. Norman Somers, Asst. Gen. Counsel, Bernard Dunau, George J. Bott, General Counsel, Washington, D. C., Lewis C. Green, Washington, D. C., Attorneys, National Labor Relations Board, for respondent.

Before FINNEGAN, LINDLEY and SWAIM, Circuit Judges.

FINNEGAN, Circuit Judge.

This is a petition by Harnischfeger Corporation, hereinafter referred to as the Company, to review and set aside an order of the National Labor Relations Board, entered on February 27, 1953. In its answer the National Labor Relations Board prayed for the enforcement of its order.

Since the Company is a Wisconsin Corporation, having its principal place of business in Milwaukee within the Seventh Judicial Circuit, this court has jurisdiction pursuant to sections 10 (e) and (f) of the National Labor Relations Act. 29 U.S.C.A. § 160(e, f).

On a charge filed by Amalgamated Local 632, U. A. W.-C. I. O., on September 20, 1951, supplemented by an amended charge on March 10, 1952, the General Counsel of the National Labor Relations Board, on June 17, 1952, issued his complaint against the Harnischfeger Corporation.

As amended at the hearing before the Trial Examiner, the complaint alleged that the respondent Company, on or about September 14, 1951, did lay off and discharge and afterwards did refuse to reinstate three employees because they had joined, assisted and supported the Union and for the further reason that they had engaged in concerted activities with other employees for the purpose of collective bargaining and other mutual aid and protection. The Company's answer admitted the discharge of the men, but denied the commission of any unfair labor practices. The answer alleged that the three men were discharged because they participated in a work stoppage during working hours in violation of the instructions and directions of the officers of their Union, and in violation of the Company's rules and regulations. The answer also alleged that the stoppage violated a contract then in effect between the respondent company and the Union.

The trial examiner reported that the Company had engaged and was engaging in unfair labor practices within the meaning of sections 8(a)(2) and (3) of the Act, 29 U.S.C.A. § 158(a)(2, 3), and recommended that it be ordered to cease and desist therefrom. The respondent company filed exceptions to the intermediate report and requested oral argument. The Board denied the request for oral argument and overruled the exceptions. It adopted the finding, conclusion and recommendation of the Trial Examiner. The Board ordered the Company to cease and desist from the unfair labor practices, alleged and found by the Examiner, or from interfering in any other manner, with its employees, in the exercise of their rights guaranteed by section 7 of the Act, 29 U.S.C.A. § 157. The Company was also ordered to reinstate three employees, Connelly, Ohlen, and Wheatley, with back pay, and to post appropriate notices.

The record discloses that the Company, which is engaged mainly in the manufacture of construction machinery, over-head cranes, welding equipment, welding rods, prefabricated houses and Diesel engines, maintains two plants at Escanaba, Michigan, located about a mile and a half apart, one being referred to as the truck-crane plant, and the other as the welder plant. At the time of the occurrences involved in this proceeding, the Company had about 425 employees, 275 in the truck-crane plant and 150 in the welder plant. The Union, Local 632 U. A. W.-C. I. O., was the certified bargaining agent of the employees, and it or its predecessor locals had represented them since the plants first began operating.

Early in 1951, the Union and the Company had begun collective bargaining meetings to negotiate the terms of a new contract to take the place of an existing contract which by its terms was to expire on May 15, 1951. Agreement had been reached on practically all issues except wages which issue was apparently complicated by the regulations of the War Stabilization Board. Relations between the Union and the Company seemed to be cordial; they met on September 12, 1951, and arranged for another meeting a few days later.

The Company, it appears, allowed their employees a mid-morning break during each working day, lasting for ten minutes from 9:25 to 9:35 A.M. On the morning of Thursday, September 13, 1951, a group of employees in the truck-crane plant met at a time clock on the Company's premises. The apparent purpose of the meeting was to find out from their Union bargaining agent what was going on at their sessions with the Company. As one of them expressed it, they were going "to put a little heat on the Committee and see what they were going to do."

The president of the Union had heard of the proposed meeting only a few minutes before 9:25 A.M. He appeared at the place of meeting and tried to explain to the group there assembled how the bargaining negotiations were proceeding. When the rest period ended at 9:35, the employees took their belongings and punched out on the time clock and proceeded across the road from the Company's property to continue their meeting. The time clock records show that the men whose discharges form the basis of complaint punched out at 9:31. More than 200 of the workers employed at the truck-crane plant checked out at 9:37, or later.

At this time Company vice-president Menck and general manager Timms drove up to the plant. They had been at the welder plant when the walkout began and a call had been put through to them by the superintendent at the truck-crane plant.

A group of the employees, headed by union president Larson, then left the meeting in the field and came into the plant to talk to Menck and Timms. On being asked by Menck whether the walk out was a union-called strike, Larson replied that the Union had not called it but had tried to stop it. Larson suggested that Menck come over and talk to the group of employees in the field and get the men back to work but Menck refused. Larson then returned to the group in the field and tried once more to persuade the men to return to work. Larson found he had difficulty making himself understood in the open field, and saw that the group would not return to work. He therefore suggested adjourning to a meeting in a hall downtown, where he could explain what had already been accomplished in the negotiations with the Company, and said that the parties had almost reached final agreement on all issues.

The group in the field then left for the Union hall downtown, and the Union officers then called the employees from the welder plant to join the group in the hall downtown. The Company gave permission to the welder plant employees to leave work to attend this meeting. Apparently the 100 employees on the night shift were notified at their homes and also attended the meeting downtown, because the entire membership was at the downtown meeting.

At the meeting held at the hall of the entire membership, the Union president was able to satisfy the employees of the progress being made in collective bargaining, and it was decided to go back to work the following morning. A strike vote was taken to authorize the Union officers to call a strike should they deem it necessary, but this authority was never exercised, and no strike was ever called by the Union.

Following this meeting and on the afternoon of the same day, the Union officers were asked if the Union had authorized the walk out. They protested that they had not authorized it, but had tried to prevent it. They did indicate to the Company, however, that impetus for the walk out came from certain individuals who were dissatisfied with the way the Union officers were handling the negotiations.

After the Union committee left, the Company called in the foremen to find out who the individuals were who had caused the walk out. On the basis of what it learned from the foremen, and from what Management already knew of former activity by certain individuals, it was decided to discharge three employees for "leading an illegal walk out."

One of the dischargees, Wheatley, had led the only previous walk out, which had occurred at the plant without warning and which had lasted only an hour. Wheatley had then been warned that there should be no recurrence....