Standard Lime & Stone Co. v. National Labor R. Board, 4319.

Decision Date13 June 1938
Docket NumberNo. 4319.,4319.
Citation97 F.2d 531
CourtU.S. Court of Appeals — Fourth Circuit

Charles Markell, of Baltimore, Md., and Harry H. Byrer, of Martinsburg, W. Va. (Lacey I. Rice, of Martinsburg, W. Va., on the brief), for petitioner.

Clifford D. O'Brien, Atty., National Labor Relations Board, of Washington, D. C. (Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, and Laurence A. Knapp and Owsley Vose, Attys., National Labor Relations Board, all of Washington, D. C., on the brief), for respondent.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

SOPER, Circuit Judge.

The National Labor Relations Board ordered the Standard Lime and Stone Company to bargain collectively with Branch No. 175, Quarry Workers International Union of North America, as the exclusive representative of all the employees at its Martinsburg plant; and upon application to offer to employees who were on strike on July 15, 1935, immediate and full reinstatement to their former positions dismissing, if necessary, such employees as it had hired since July 15, 1935. The order of the Board was not passed until February 4, 1938. From the order were excepted eight former employees who, upon pleas of guilty, had been given indeterminate sentences of from one to ten years in the penitentiary for feloniously conspiring to destroy and feloniously destroying the property of a power company which served their employer's plant or for the larceny of dynamite to be used in the perpetration of the crime. But the order required the employer to re-employ, upon application, eight other employees, including the president, the corresponding secretary and the secretary-treasurer of the Union, who, upon pleas of guilty, had been sentenced to jail for conspiring to destroy the property of the power company, or for assault and battery upon fellow employees.

All of these crimes were committed by members of the Union for purposes of intimidation in furtherance of the strike; and all were committed before July 15, 1935, when, according to the finding of the Board, the employer infringed the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., by refusing to bargain with the Union. The principal questions which arise are: (1) Whether the Board was justified by the evidence in finding that the employer was guilty of unfair labor practice on July 15, 1935; and (2) if so, whether the Board was justified in directing the employer on February 4, 1938, to offer re-employment to all of the strikers except the eight who had been convicted of felony.

The Standard Lime and Stone Company has its main office at Baltimore, and operates amongst other properties a plant near Martinsburg, West Virginia, where it is engaged in quarrying limestone and in the manufacture of cement, staflux and other limestone products. Limestone and shale are quarried at the plant, but gypsum and mill scale, constituting a small percentage of the materials used in the manufacture, are brought from New York, Pennsylvania and New Jersey. During 1935, 83% of the products of the plant was sold and distributed in states other than West Virginia. It seems clear that the company is subject to the terms of the Act, and no contention to the contrary is made. See National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352; National Labor Relations Board v. Fruehauf Trailer Co., 301 U.S. 49, 57 S.Ct. 642, 630, 81 L.Ed. 918, 108 A.L.R. 1352; National Labor Relations Board v. Friedman-Harry Marks Clothing Co., 301 U.S. 58, 57 S.Ct. 645, 81 L.Ed. 893, 108 A.L.R. 1352; National Labor Relations Board v. Santa Cruz Fruit Packing Co., 9 Cir., 91 F.2d 790, affirmed by the Supreme Court on March 28, 1938, 58 S.Ct. 656, 82 L.Ed. ___.

The Union was formed among a substantial group of the employees in 1933. It was recognized by the company. Representatives of both sides met periodically to discuss grievances and until April, 1935 difficulties that arose were satisfactorily adjusted. During March of that year, officials of the company met with a committee of the Union two or three times a week to discuss the terms of a proposed agreement providing for a closed shop, wage increases and other features relating to working conditions. A draft of the agreement was submitted to the company on April 2, 1935, and for three weeks meetings for the discussion of its terms were continued. The discussion centered upon the provision for a closed shop and a proposal of the Union that the final terms should be incorporated in a written contract. On April 23 the committee of the Union informed the company that a strike would be called on April 24 unless the company would consent to a signed agreement, but the company refused. The company then endeavored to get a conciliator from the U. S. Department of Labor. None was available until April 26. But the Union refused meanwhile to postpone the strike, and it was accordingly called. At that time the Union represented 98% of the 390 employees. The company shut down the plant.

The conciliator arrived on April 26 and conferences were resumed. He suggested that the men return to work during further negotiations and that a copy of the terms eventually agreed upon be sent to the Department of Labor and a copy posted on the company's bulletin board. But this suggestion was unacceptable to the Union. A second fruitless conference took place in May and another on June 3 when the Union offered to give up its demand for a closed shop; but the question of a signed agreement proved insuperable.

On June 9 a few men asked the superintendent of the mill to reopen the plant and they were told to get the Union to vote upon the question. What effort they made to secure an election is not clearly shown by the evidence; but no vote was taken. On June 11 another conference was held at which the superintendent announced that as the Union would not permit a vote, he would open the plant and give those who desired to return to work an opportunity to do so; and he read an advertisement which was to be inserted that evening in a local newspaper wherein all employees were invited to return at the rate of pay previously existing and were advised that they must report for work on June 13 or they would be considered as no longer in the company's service.

On June 13 the plant reopened and 23 employees returned to work. At 7 o'clock in the morning the Union had 250 pickets at the entrance to the plant. A group of state police were also present at the request of the sheriff of the county, and they continued surveillance of the plant until July 26, the number of pickets gradually diminishing in the meantime. Picketing was finally abandoned in the middle of September. There was no violence during working hours on June 13. The police found 11 quarts of ammonia concealed under rubbish in the midst of the strikers, and they induced the strikers to throw away 50 or 60 clubs with which they were armed. Subsequently, acts of violence occurred. On the evening of June 13 an old colored man who had worked for the company 35 years was beaten by strikers, and later in the month there were two other assaults on workers for which certain strikers subsequently pleaded guilty. One of these was the secretary-treasurer of the Union. Dynamiting of the power lines leading to the plant occurred on June 19 and 26. Later the president and corresponding secretary of the Union pleaded guilty to conspiracy to dynamite the power lines and other strikers confessed the perpetration of the overt act. These acts of violence and many threats from unidentified persons instilled a sense of fear in the company's workers. As a result, the company quartered a number of the employees at the plant, additional guards were hired and an auxiliary lighting system was procured in order to protect the workers. Those who did not remain at the plant were transported to and from work in buses hired by the company and were permitted to enter the plant only upon the presentation of passes.

Having notified its employees to return to work on June 13, and having succeeded in opening its plant, the company took the position that the strikers were no longer its employees. Accordingly, it declined to attend a conference on June 17 which another conciliator of the Department of Labor, an international officer of the Union and the president of the West Virginia Federation of Labor sought to arrange. On July 5, the National Labor Relations Act went into effect. On July 15 the local Union, by letter, requested the company to confer with its representatives for the purpose of obtaining "a settlement of the present labor difficulties". The company ignored this request; and it is this action which the Board found to be a refusal to bargain collectively with duly designated representatives of a majority of its employees in respect to conditions of employment. As a result, the Board reached the conclusions of law that the company had violated the Act, in that it had committed unfair labor practices under Section 8 (1) and Section 8 (5) of the Act, 29 U.S.C.A. § 158 (1, 5), by interfering with its employees in the exercise of the right to bargain collectively granted them by Section 7 of the Act, 29 U.S.C.A. § 157, and by refusing to bargain collectively with them.

In view of the attitude of the employer, the first question which presents itself is whether the strikers may be considered as employees of the company on July 15 when the alleged unfair labor practice took place. The term "employee" as defined in Section 2(3) of the Act, 29 U.S.C.A. § 152(3),...

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