AMERICAN NAT. BANK, ETC. v. National Labor Relations Bd.

• Citation: 144 F.2d 268
• Decision Date: 16 August 1944
• Docket Number: No. 12786.,12786.
• Parties: AMERICAN NAT. BANK OF ST. PAUL v. NATIONAL LABOR RELATIONS BOARD.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

144 F.2d 268 (1944)

AMERICAN NAT. BANK OF ST. PAUL v. NATIONAL LABOR RELATIONS BOARD.

No. 12786.

Circuit Court of Appeals, Eighth Circuit.

August 16, 1944.

Samuel Lipschultz, of St. Paul, Minn. (Lipschultz & Lipschultz, of St. Paul, Minn., on the brief), for petitioner.

Francis X. Helgesen, Atty., National Labor Relations Board, of Minneapolis, Minn. (Alvin J. Rockwell, Gen. Counsel, Malcolm F. Halliday, Associate Gen. Counsel, and William J. Isaacson, Atty., all of Washington, D. C., and Laurence H. Whitlow, Atty., National Labor Relations Board, of New Orleans, La., on the brief), for respondent.

Before GARDNER, JOHNSEN, and RIDDICK, Circuit Judges.

JOHNSEN, Circuit Judge.

The American National Bank of St. Paul seeks to review and set aside an order of the National Labor Relations Board. The Board asks that the order be enforced.

The Board had found that the Bank was guilty of unfair labor practices under section 8(1) and (3) of the National Labor Relations Act, 29 U.S.C.A. § 158(1) and (3), in discharging five employees for union membership and activity, and, by this and other means, in interfering with the employees' right of self-organization. The Board's order required the Bank to cease and desist from these unfair labor practices; to reinstate the five discharged employees with back pay; and to post appropriate dissipating notices.

The primary question is whether there is substantial evidence in the record from which the Board could legitimately find that the five employees were discharged for union membership and activity. We think there is — tested by the principles of National Labor Relations Board v. Nevada Consolidated Copper Corporation, 316 U.S. 105, 62 S.Ct. 960, 86 L.Ed. 1305, reversing 10 Cir., 122 F.2d 587; National Labor Relations Board v. Link-Belt Co., 311 U.S. 584, 61 S.Ct. 358, 85 L.Ed. 368; National Labor Relations Board v. Waterman S. S. Corporation, 309 U.S. 206, 60 S.Ct. 493, 84 L.Ed. 704; Onan v. National Labor Relations Board, 8 Cir., 139 F.2d 728; National Labor Relations Board v. Central Steel Tube Co., 8 Cir., 139 F.2d 489; and a long line of other recent similar decisions. The Bank's brief does not make reference to the Nevada Consolidated Copper Corporation case, supra — which must be accepted as controlling on a review of a general circumstantial situation such as is here involved — except to quote a portion of the opinion of the Circuit Court of Appeals in that case, whose decision the Supreme Court reversed.

We shall not attempt to set out all the circumstances in the record from which the Board's inference flowed, but only enough of the evidentiary situation to show that the inference was capable of resting upon probative substantialities and not upon mere conjectural tenebrosities, under the standards by which National Labor Relations Act cases are to be controlled on review.

In March 1943, 25 of the Bank's 90 employees held a meeting to discuss union organization. Those who were spearheading the movement had been suggesting to the other employees that the Bank's salaries should be increased, and that a union organization was the only way this could be hoped to be accomplished. Two of those who were active in doing the organizational work had been with the Bank for 16 years and were receiving salaries of $135 and $140 a month. A third had been with the Bank for 12 years and was receiving $105 a month.

A week or so after the first meeting, another meeting was held to elect officers for the Union. By that time interest in the Bank had grown to the point where 40 employees attended.

Five days after this meeting, the Bank's officers, at one of their daily conferences, peremptorily discharged the president of the Union, three persons who had been elected to serve as departmental representatives, and a fifth member who had spoken to a number of the other employees in favor of union organization.

The reason given by the officers for the discharges was incompetency and inefficiency. Two of the employees had been with the Bank since 1927, a third since 1931, and the two others for a period of six to nine months during which time they both had been given two salary increases. The union president, who was one of those that had been in the Bank's employ for 16 years, testified that when he protested that the excuse that his work was unsatisfactory "is kind of weak, isn't it?" the Bank's officer had replied, "Well, Fred, that is all I can tell you." None of the employees discharged had ever been warned that, unless his work was improved, his services would have to be dispensed with. The Bank's practice in the past had always been, not to discharge employees directly for unsatisfactory services, but to give them an opportunity to submit their resignations.

The discharges were made at a time when the Bank was admittedly short-handed due to the war situation; when the Bank's annual vacation period was approaching; and when such replacement help as the Bank had at all been able to get for some time consisted entirely of young, inexperienced girls.

Under these conditions, the Bank contended that it was simply discharging these five from its depleted staff of experienced employees, in mass, for incompetency and inefficiency, and without following its previous practice of allowing employees whose services were unsatisfactory to submit their resignations; that the officers of the Bank were not trying to choke off the union organization (and a reasonably inferable approaching demand for employee salary increases); that they did not in fact know anything about the union activities or relations of the employees discharged; and that they had no concern about whether the Bank was unionized or not.

There was testimony by two disinterested witnesses that prior to the discharges the union was being generally and spiritedly discussed among the employees during banking hours. Within a day or two after the union election, the supervisor of the Bank's stenographic department had stated to two employees that she thought a union had no place in the Bank, and that, if it came, "it would be hard for Mr. Bremer (Chairman of the Board) to take it." The supervisor was not called as a witness to explain her statement, nor did Mr. Bremer take the stand to show that his union attitude had been misrepresented. One of the vice-presidents admitted in his testimony that he had "noticed employees talking together in groups among themselves"; that "it was quite apparent that there was a feeling of unrest among the employees"; that he realized that this was due to union activity; that he had been told by a representative of the American Federation of Labor that the rival C.I.O. was attempting to organize the Bank; that "we were a little surprised to learn of that activity"; and that the officers "discussed this feeling that there was in the Bank." He would not directly admit, however, that this was before the discharges were made but attempted to equivocate, saying at one point that he thought it was after the discharges; at another, that it may have been after March (the discharges occurred March 31st); at another, that it may have been in March; and at another, that "I don't remember whether we knew it then time of discharge or not."

There was other testimony, however, showing that sometime during the latter part of March an employee who was in charge of the time-contract payment department had reported to the comptroller of the Bank that "I think they are trying...