E. Anthony & Sons v. National Labor Relations Board

• Decision Date: 23 June 1947
• Docket Number: No. 9385.,9385.
• Citation: 163 F.2d 22,82 US App. DC 249
• Court: U.S. Court of Appeals — District of Columbia Circuit
• Parties: E. ANTHONY & SONS, Inc., v. NATIONAL LABOR RELATIONS BOARD.

82 US App. DC 249, 163 F.2d 22 (1947)

E. ANTHONY & SONS, Inc., v. NATIONAL LABOR RELATIONS BOARD.

No. 9385.

United States Court of Appeals District of Columbia.

Argued March 11, 1947.

Decided June 23, 1947.

Writ of Certiorari Denied October 13, 1947.

Mr. Elisha Hanson, of Washington, D. C., with whom Messrs. William K. Van Allen, of Washington, D. C., and Arthur B. Hanson, of Washington, D. C., were on the brief, for petitioner.

Mr. David Findling, Attorney, National Labor Relations Board, with whom Mr. A. Norman Somers, Assistant General Counsel, National Labor Relations Board, and Mr. Henry W. Lehmann, Attorney, National Labor Relations Board, both of Washington, D. C., were on the brief, for respondent.

Before GRONER, Chief Justice, and CLARK and PRETTYMAN, Associate Justices.

Writ of Certiorari Denied October 13, 1947. See 68 S.Ct. 89.

PRETTYMAN, Associate Justice.

This case is here upon a petition by E. Anthony & Sons, Inc. (hereinafter called the company or the petitioner), praying that the court review and set aside an order issued by the National Labor Relations Board (hereinafter called the Board);¹ and upon a petition by the Board, praying that the court enter a decree enforcing the order of the Board and requiring the company and its officers, etc., to comply therewith.²

The company is the publisher of two newspapers at New Bedford and Hyannis, Massachusetts. The Board issued a complaint against it, alleging that it had violated Sections 8(1) and 8(3) of the National Labor Relations Act.³ Testimony was taken before an examiner, who filed an intermediate report with findings of fact, conclusions of law, and recommendations. Exceptions to the report were taken by the company, and the matter was heard by the Board. The Board, with one member dissenting, issued an order requiring the company to cease and desist from discouraging membership of its employees in the American Newspaper Guild or in any other labor organization, and from interfering in any manner with the exercise by the employees of the right to self-organization. The order also required the company to reinstate five employees who had been discharged, and to pay them sums equivalent to the wages which they would have earned during the period of their discharge, and to make whole two other discharged employees for loss of pay suffered by the company's discrimination against them.

It appears that an organization known as the Newspaper and Radio Workers' Protective Association of Southeastern Massachusetts was formed among the company's employees. The principal organizers were one Kramer, who was then or had been the general business manager of the company, and one Cooper, who was then or had been its circulation director. There is a dispute at to whether Kramer and Cooper actually organized the union while they were supervisory employees of the company or whether they first resigned. In any event, they did resign at or about the time of the meeting for the organization of the union. Shortly after this meeting, the seven employees involved in this case were severally discharged. On February 18th the original union was dissolved and its members joined the American Newspaper Guild, except that Kramer and Cooper were ineligible to membership in the Guild and did not join it.

The Board held that the company's conduct constituted a violation of Section 8(1) of the Act, which provides that it shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by the Act; and it held that the company had discriminated against the seven employees by discharging them for the purpose of discouraging their membership in a labor organization, in violation of Section 8(3) of the Act, which provides that it shall be an unfair labor practice for an employer, by discrimination in regard to tenure of employment or any term or condition of employment, to encourage or discourage membership in any labor organization. Thereupon the company filed its petition in this court, and the Board answered and petitioned for a decree enforcing the order. The case is in two phases, the first relating to the validity of the order itself and the second relating to the refusal of the Board to admit certain proffered evidence.

On the first phase of the case the company makes two contentions. First it says that these seven employees were discharged for reasons wholly apart from their union activities. Second it says that the company had a right to discharge them for activity or membership in the union, because the union was illegal and therefore not a labor organization within the meaning and protection of the statute having been formed in violation of Section 8(2) of the Act.⁴ The first contention raises questions of fact. As to them we are limited in our review to a determination whether the findings are supported by substantial evidence.⁵ The second contention raises a question of law, which is for us to determine.⁶

In our examination of the sufficiency of the evidence to support the Board's findings of fact, we must look first to the evidence cited to us by the Board as being in support of the findings. If that evidence is substantial, our inquiry is at an end. We cannot weigh the evidence or resolve contradictions in it if that supporting each conclusion is substantial.⁷

The seven employees involved were Silveira, Ellison, Harden, Boff, Thompson, Ainsworth, and Simas. John Silveira had been in the company's employ for fourteen or fifteen years. He became its city circulation manager in New Bedford, in charge of district managers, who were in charge of branch managers. He joined the union, became active in securing members and, at its first meeting, January 30, January 31, or February 1, 1945, was elected vice president. A day or two later the business manager of the company asked Silveira about the operation of a "kitty". In another day or two Silveira was relieved of his duties. Two weeks later he was given a letter of discharge, which said that he had been collecting a kitty from newspaper carriers, without the knowledge or consent of the company and without accounting for the money. The kitty was a fund which the two city circulation managers had, made up of money collected from news carriers in their first week of employment on a paper route, and used to pay for broken windows or other damages by the newsboys, and to balance dead accounts of carriers who left their routes without paying their bills in full. Silveira testified that the prior business manager, Cooper, his superior, had always known about the kitty and had approved the practice, and that the bookkeepers and all the district managers knew of it.

Silveira took the letter of discharge as a suggestion of dishonesty and was insistent that his name be cleared. He testified that, when he talked to the business manager, "He wanted me to break away from the gang. To break away from the group that I was connected with, the union." Silveira resigned from the union. The business manager later assembled the district managers and permitted Silveira to make a statement to them that he had been cleared of all charges in connection with the kitty. Meantime, on the day following Silveira's discharge, the business manager told another person, "we got rid of two members of the union this morning, John Silveira, who was vice-president, and Mary Harden, who was secretary."

Edmund Ellison had been employed for seventeen years and became circulation manager at Hyannis. He joined the union, attending the first meeting, and was thereafter active in it. The day after the first meeting, the business manager of the company sent for him and for four hours discussed the union, asking Ellison why a man of his intelligence and ability decided it was necessary to join a union and telling him that his future was apparently being jeopardized and that he could not understand why a man in Ellison's situation would consider joining the union. Three times later officials of the company asked Ellison about the union. On February 14th they asked him whether he had maintained a kitty. Ellison replied that he and all the district managers, with one exception, maintained kitties and that the business manager, his superior, had known of it and had indicated his approval. That same day Ellison was given a letter, stating that he was discharged for inducing carriers to break their contracts with the company, collecting money for which no accounting was made, and participating in outside business activities on company time. The reference to inducing carriers to break their contracts was to Ellison's activity in getting members for the union.

Mary Harden had worked for petitioner for more than thirteen years and had become head bookkeeper and secretary to Cooper, the circulation director. Her work had always been complimented by the company's executives. She was active in securing members for the union and was elected its secretary at the first meeting. The next day the new business manager called her into the office and questioned her about the union. He asked her, "Just as a matter of curiosity, what does an intelligent girl like you except to get out of a union?" She testified that he "went on to argue with me pro and con on what a union would get me," and also that "He at that time expressed the fact that he thought my work was very satisfactory, that I was one of the most intelligent girls working for the Standard-Times." The following day her old duties were taken from her and no effort was made to find other work for her to do. On February 15th she was discharged with a letter which assigned neglect of work, disregard of instructions, and interference with the work of others of the department. The business manager's remark concerning her discharge and that of John Silveira has already been quoted.

Sylvester Boff had been with the company only a few months...