Ballston-Stillwater K. Co. v. National Labor R. Board, 391.

Decision Date01 August 1938
Docket NumberNo. 391.,391.
Citation98 F.2d 758
CourtU.S. Court of Appeals — Second Circuit

James M. Noonan, of Albany, N. Y., for petitioner.

Robert B. Watts, Acting Gen. Counsel, Lawrence Hunt, Laurence A. Knapp, and Owsley Vose, all of Washington, D. C., for respondent.

Before MANTON, SWAN, and CHASE, Circuit Judges.

SWAN, Circuit Judge.

The case comes before this court, pursuant to section 10(f) of the National Labor Relations Act, 29 U.S.C.A. § 160(f), upon a petition by Ballston-Stillwater Knitting Co., Inc., to review and set aside an order of the Board issued under section 10(c) of the Act, 29 U.S.C.A. § 160(c). The Board's answer requests the court to affirm and enforce its order. The petitioner is a New York corporation engaged in the manufacture and sale of hosiery and sweaters. It has about 900 employees. Its main hosiery plant and its sweater plant are located at Ballston Spa, N. Y.; another hosiery plant is operated at Stillwater, N. Y. About 90 per cent. of the manufactured goods are sold outside the state and are transported in interstate commerce. No question is raised as to the jurisdiction of the Board.

The order complained of was issued April 7, 1938, after extensive hearings before a duly designated trial examiner at which two labor unions and the village of Ballston Spa, as well as the Board and the petitioner, were represented by counsel. The labor unions, Textile Workers Organizing Committee, which is affiliated with the Committee for Industrial Organization, and Employees Welfare and Protective Association, an unaffiliated organization admitting only employees of the petitioner, hereafter will be referred to respectively as the CIO and the Association. The Board found that the petitioner (1) had locked out its employees from March 27 to 30, 1937, for the purpose of discouraging their first efforts toward collective bargaining; (2) had dominated and interfered with the formation and administration of the Association; (3) had laid off certain employees at its Stillwater plant for the purpose of discouraging membership in the CIO; (4) had discharged certain employees at its Ballston Spa hosiery plant for a like purpose; and (5) that a strike, which was still in progress at the time of the hearings, was caused by the petitioner's discriminatory practices to discourage membership in the CIO and by its domination of the Association. As conclusions of law the Board found that the petitioner engaged in unfair labor practices in violation of section 8(1), (2) and (3), 29 U.S.C.A. § 158(1-3). Its order directed the petitioner to cease and desist therefrom and to take certain affirmative action. It is the contention of the petitioner that none of the Board's findings of fact is supported by substantial evidence.

Section 10(e) of the Act, 29 U.S.C.A. § 160(e), provides that "The findings of the Board as to the facts, if supported by evidence, shall be conclusive." Hence this court is not at liberty to review the evidence and make its own findings; but neither is it bound to accept findings based on evidence which merely creates a suspicion or gives rise to an inference that cannot reasonably be accepted. The statute means that the Board's findings are conclusive if supported by substantial evidence. Appalachian Electric Power Co. v. National Labor Relations Board, 4 Cir., 93 F.2d 985, 989; National Labor Relations Board v. Thompson Products, 6 Cir., 97 F.2d 13, 15; National Labor Relations Board v. Lion Shoe Co., 1 Cir., 97 F.2d 448. This is the yardstick to be applied to an examination of the record.

Applying it to the finding as to the lockout of employees, it is clear that that finding cannot stand. On Friday afternoon March 26, 1937, Mr. Mooney, president of the petitioner, found upon his desk petitions signed by 263 employees in five departments of the Ballston Spa hosiery mill, asking for a 15 per cent. wage increase. He immediately caused a notice to be posted to the effect that, since no representatives had been selected to confer with the management, the mill would not open on Saturday the 27th and the foreman of each department had been instructed to have representatives meet with the Company's officers at 2:30 P. M., March 29th. Representatives were selected and that meeting was held. Mr. Mooney stated reasons, which apparently satisfied the employees, why the requested wage increase could not immediately be granted. Throughout the following ten days he held numerous other conferences with representatives of various departments and straightened out special grievances brought to his attention. The mill was reopened at 11 P. M. March 29th, and all workers on the regular payroll were paid the amount they would have earned had the mill not been closed on Saturday and Monday. There is not a word of testimony to the contrary. Instead of proving that the plant was closed for the purpose of discouraging the employees' "first efforts toward collective bargaining", the record proves the exact opposite. It shows that the petitioner was entirely willing to bargain with representatives of its employees. Indeed, counsel for the Board conceded on the argument that the finding as to the lockout could not be supported. With its reversal falls also paragraph 2(c) of the order, which directed the petitioner to make good any loss sustained by its employees during the closing of the mill.

During the weeks immediately following the meeting of March 29th between Mr. Mooney and representatives of various departments of the Ballston hosiery plant, there developed pronounced union activity among the petitioner's employees. Some advocated a union affiliated with the Committee for Industrial Organization and asked its representatives to aid in getting members; others circulated petitions for an open shop, and still others circulated petitions for an unaffiliated "inside" union. Feeling in the community apparently ran high and some of the property owners refused to allow their premises to be used as a meeting place for the CIO, but the Board found that the petitioner did not participate in such discrimination. On April 9th, certain employees called a meeting to promote the formation of an unaffiliated union limited to workers at the Stillwater plant. Sam Jones was elected chairman, and thereafter wrote Mr. Mooney requesting him to meet representatives of various departments of the Stillwater mill. President Mooney again showed his willingness to confer with representatives of the petitioner's employees by accepting the invitation. Solicitation of employees by their fellow employees to form an unaffiliated union also developed at Ballston Spa. On May 9th there was held a meeting of the employees of both the Stillwater and Ballston plants and formal organization of the Association was effected. On the following day the Association's officers presented to president Mooney proof that it represented a majority of the petitioner's employees and requested that it be recognized as their exclusive collective bargaining agent. Such recognition was accorded it. On June 2nd the Association petitioned for a 10 per cent. increase in piece-work wages and an increase of 5 cents in hourly wages. The requested increases, effective June 14th, were granted by the petitioner. The Board has found that the petitioner dominated and interfered with the formation of the Association, and at all times thereafter dominated and interfered with its administration. Clause 2(f) of the Board's order requires the petitioner to withdraw recognition of the Association as representative of its employees and to "completely disestablish" it as such representative.

This is not the case of a "company union" whose formation was initiated by the employer in order to combat the efforts of an outside union to organize his employees. The testimony is uncontradicted that the officers of the petitioner had no hand in establishing the Association. It is true, as the Board found, that the chief reason for its formation was to keep out the CIO, but the plan of an "inside" union was apparently the spontaneous reaction of a group of the employees, who circulated their petitions, got up their own meetings, engaged their own attorney to draft the constitution and by-laws, and paid their expenses, without suggestion or help by the petitioner. Concededly the petitioner made no financial contributions. It is true that the petitions for membership were circulated in the mills without protest by the management, and that employees who attended the April 9th meetting during working hours were not docked in pay. But it is also true that solicitation of members for the CIO occurred, as Ingersoll testified, during working hours. Mrs. Dandareau, a witness not friendly to the petitioner, testified that a notice was posted on the time clock to the effect that it was not necessary to belong to any organization to work in the plant, and several other witnesses said that they were treated no differently by the petitioner after they joined the CIO. That certain CIO members were watched, or believed they were, more closely by the foreladies for infraction of the rules against leaving their machines and conversing is too weak a reed to support an inference of discrimination amounting to domination and interference in the formation of the Association. Nor is the fact that employees who attended the April 9th meeting were not docked in pay sufficient evidence of domination or interference. There was no discrimination between those who favored the "inside" union and those who favored the CIO. No one was docked, because, as the superintendent explained, he thought that if he was liberal and did not interfere with meetings the trouble would blow over. So far as we can see the officials of the petitioner held the scales evenly balanced while the contest for membership in the two labor organizations was...

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