American Rubber Prod. Corp. v. National Labor Rel. Bd.

• Decision Date: 18 June 1954
• Docket Number: No. 10990.,10990.
• Citation: 214 F.2d 47
• Parties: AMERICAN RUBBER PRODUCTS CORP. v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Seventh Circuit

214 F.2d 47 (1954)

AMERICAN RUBBER PRODUCTS CORP. v. NATIONAL LABOR RELATIONS BOARD.

No. 10990.

United States Court of Appeals, Seventh Circuit.

June 18, 1954.

COPYRIGHT MATERIAL OMITTED

T. C. Kammholz, N. E. Anderson, Chicago, Ill., Norman H. Sallwasser, La Porte, Ind., Henry M. Thullen, Chicago, Ill., for petitioner, Vedder, Price, Kaufman & Kammholz, Chicago, Ill., of counsel.

George J. Bott, Gen. Counsel, Arnold Ordman, Franklin C. Milliken, Attys., David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, National Labor Relations Board, Washington, D. C., for respondent.

Before DUFFY, SWAIM and SCHNACKENBERG, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

A petition was filed here pursuant to section 10(f) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 151 et seq., by American Rubber Products Corporation, hereinafter called petitioner, to review and set aside an order of the National Labor Relations Board issued against the petitioner July 10, 1953. In its answer to the petition the Board has requested enforcement of its order. It is not denied that petitioner at all relevant times has been a manufacturer subject to the National Labor Relations Act.

The complaint was issued upon a charge filed by United Electrical, Radio and Machine Workers of America, Local 914, hereinafter called the union, a labor organization within the meaning of section 2(5) of the act.

From the evidence in the record it appears that the series of events leading up to the present controversy began on January 15, 1952, when the union called a strike at petitioner's plant. On the following day the union informed petitioner that it represented a majority of petitioner's employees and demanded that petitioner recognize it as the collective bargaining representative of the employees. On January 21, 1952, petitioner granted the union recognition as bargaining agent by executing a formal agreement with it. On the same day, the union agreed to call off the strike and petitioner's employees returned to work on January 22, 1952. Thereafter, the parties submitted contract proposals to each other and commenced a series of collective bargaining conferences, meeting two or three times each week. During these meetings agreement was reached in respect to the bargaining unit, scope of the agreement, recognition, union shop and check-off of dues, shop representation, grievance procedure, time off with pay for union representatives, suspension and discharge, hours of work, overtime and holiday pay, general working conditions, seniority, vacations, time off for elections, military service, furloughs and leaves of absence, and wages for female employees. On April 14, 1952, however, petitioner and the union reached an impasse on the question of a wage increase for male employees. Petitioner advised the union that wage increases for male employees could not be granted without prior approval by the Wage Stabilization Board. Nevertheless, the union insisted that male employees be given a wage increase immediately, rejected other proposals of petitioner, and stated that, unless petitioner agreed to an immediate increase, the union would launch a strike in accordance with a strike vote previously taken by the union membership. Petitioner declined the union's demands and the employees went on strike on that same day.

On April 28, 1952, May 14, 1952, and June 4, 1952, the union requested that petitioner resume bargaining negotiations. Petitioner refused stating among other things that it doubted that the union represented a majority of the employees. During the strike, in April, May, and June, 1952, two employees whom the Board found to be supervisors within the meaning of the act contacted certain other employees and attempted to persuade them to abandon the strike, return to work, give up their membership in the union, and withdraw their designation of the union as their statutory representative. These attempts were accompanied by promises of benefit and threats of reprisal.

The complaint, issued August 6, 1952, alleged in substance that (1) about January 21, 1952, a majority of petitioner's employees selected the union as their bargaining representative, (2) about January 21, 1952, petitioner recognized the union as exclusive representative of its employees, (3) about April 12 (sic), 1952, petitioner's employees went on strike, and (4) since about April 12 (sic), 1952, petitioner has refused to bargain collectively with the union in violation of section 8(a) (1) and (5) of the act,¹ and, by the acts of two of its supervisory employees, has interfered with, restrained, and coerced its employees in violation of the same sections. Petitioner by its answer denied the commission of any unfair labor practice, set forth certain affirmative defenses, and questioned the union's compliance with section 9(h) of the act which requires union officers to file non-communist affidavits with the Board.

A hearing was held on August 19 and 20, 1952, at which time the strike was still in progress. The trial examiner found that the strike was called to enforce the union's demand for an immediate wage increase which, if granted, would have been in violation of the regulations of the Wage Stabilization act. He thereupon concluded that petitioner's duty to bargain was suspended for the duration of the strike and that petitioner had not violated section 8(a) (5) of the National Labor Relations act, since the strike was called for an unlawful purpose and was therefore unprotected concerted activity. Having disposed of the refusal to bargain charge on these grounds, the trial examiner did not consider petitioner's other defenses to that charge. As to the activities of petitioner's two supervisory employees during the strike, the trial examiner found that by such activities petitioner interfered with, restrained, and coerced its employees in violation of section 8(a) (1) of the act, but not in violation of section 8(a) (5) thereof.

The Board adopted the trial examiner's finding that the strike was called by the union for the purpose of compelling petitioner to grant an immediate wage increase and adopted his findings of credibility. Contrary to the trial examiner, however, the Board held that petitioner was obligated to bargain with the union on and after April 14, 1952, since there was "no probative evidence to show that the strike, presumptively a protected concerted activity, was unlawful, nor in fact, that the Respondent² refused to bargain because it believed the strike to be unlawful". The Board also held that there was no merit in petitioner's contentions that it was relieved of its obligation to bargain with the union on the grounds that (1) there was no request to bargain in an appropriate unit because the union requested the inclusion of watchmen in the unit; (2) the union itself did not bargain in good faith; and (3) the petitioner in good faith doubted the union's majority status. The Board therefore found that petitioner refused to bargain with the union in violation of section 8(a) (1) and (5) of the act, and that the activities of the two supervisors were violative of the same sections.

1. Is there substantial evidence in the record, considered as a whole,³ to support the finding of the Board that the strike of April 14, 1952, was protected concerted activity which did not relieve petitioner of its obligation to bargain with the union?

If the granting of an immediate wage increase to petitioner's male employees would have violated Wage Stabilization Board rules, the strike was unlawful and petitioner's refusal to bargain with the union thereafter was not an unfair labor practice. N. L. R. B. v. Indiana Desk Co., 7 Cir., 149 F.2d 987.

The only evidence concerning the legality of such wage increase is the testimony of P. G. Torosian, vice-president and treasurer of petitioner. On direct examination as a witness for petitioner, he testified that prior to April 14, 1952, company auditors had made an examination of petitioner's pay adjustments for the purpose of determining whether or not, under the existing federal wages and salary stabilization regulations, the company was allowed to make any more adjustments in men's rates without prior Stabilization Board approval. He was allowed to state, over objection, that the auditor had then advised him that the company could not grant a wage increase to male employees without first getting Stabilization Board approval. Later, he was again permitted to state without objection that the auditor had so advised him. On cross-examination by counsel for the union he also testified, without objection by Board counsel or petitioner's counsel, that the auditor informed him by letter that a wage increase for male employees could not be granted without prior approval from the Stabilization Board. There is no evidence in the record tending to contradict Torosian's testimony, nor is there any evidence tending to show that Stabilization Board approval was not necessary before petitioner could grant a wage increase to male employees. The Board, however, in its decision and order, stated that Torosian's testimony was "obviously hearsay" and ruled that such testimony had "no probative value to establish the fact that the granting of wage increases would actually have violated WSB rules" and hence "there is no evidence whatsoever on which the Board could make an independent finding as to the legality under WSB rules of the increase demanded by the union". Petitioner thereupon moved for leave to introduce additional evidence in support of its contention that such a wage increase could not lawfully have been granted. This motion was denied.

We are of the opinion that the Board erred in holding Torosian's evidence lacked probative value to show that the demanded increase could not lawfully have been granted immediately. Torosian's testimony, although it was hearsay, was uncontradicted. His...