Boeing Airplane Co. v. National Labor Relations Board
| Decision Date | 17 January 1944 |
| Docket Number | No. 2681.,2681. |
| Citation | 140 F.2d 423 |
| Parties | BOEING AIRPLANE CO., WICHITA DIVISION, v. NATIONAL LABOR RELATIONS BOARD. |
| Court | U.S. Court of Appeals — Tenth Circuit |
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George Siefkin, of Wichita, Kan. (Robert C. Foulston, Samuel E. Bartlett, George B. Powers, and John F. Eberhardt, all of Wichita, Kan., and Chandler F. Jarvis, of Winfield, Kan., on the brief), for petitioner.
Charles F. McErlean, of Washington, D. C. (Robert B. Watts, Gen. Counsel, Howard Lichtenstein, Asst. Gen. Counsel, David Findling and Maurice R. Kraines, Attys., all with National Labor Relations Board, all of Washington, D. C., on the brief), for respondent.
Before, PHILLIPS, BRATTON, and MURRAH, Circuit Judges.
By this proceeding, the Boeing Airplane Company, of Wichita, Kansas (herein called Boeing)1 seeks reversal, and the National Labor Relations Board (herein called Board) seeks enforcement, of the Board's order which found that Boeing had engaged in unfair labor practices within the meaning of Sections 7 and 8(1) and (3) of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C.A. § 151 et seq.2 and ordered Boeing to cease and desist from such practices; to post the usual notices and to make whole certain of its employees whom the Board found had been discriminatorily discharged because of affiliation with and activities in behalf of labor organizations. The sole question here is whether there is any substantial evidence to support the order of the Board and a recital of the factual details is essential to a proper consideration of that question.
In March, 1938, and during the early history of the National Labor Relations Act Boeing requested and received advice from counsel concerning its duties and obligations under the Act. It was advised that any expression of its views to its employees concerning labor organization might be construed as an attempt to "coerce, interfere, influence or direct their activities".
Accordingly, on August 1, 1938, Boeing posted a notice on its bulletin board which, after quoting sections 7 and 8 of the National Labor Relations Act, advised the employees that the Company intended to live up to the spirit of the Act, which it interpreted to mean that each employee was to exercise his individual judgment regarding affiliation with labor organizations without any interference or domination of the employer, but the employees were admonished not to discuss labor organizations on company time or property. This notice remained on the bulletin board until March 28, 1940.
On April 2, 1940, the Company posted a notice to the effect that Boeing did not approve or adopt any of the unfair labor practices charged against its predecessor the Stearman Aircraft Company;3 that Boeing guaranteed to each employee all rights under the National Labor Relations Act, again quoting sections 7 and 8 thereof. The notice reaffirmed Boeing's intention "to live up to the spirit as well as the letter of the National Labor Relations Act * * * every employee is free to join any Union of his choice and this company may not do anything to interfere with, restrain or coerce its employees in the exercise of this right". All supervisory employees were instructed to make no statement or take any action in conflict with this announced policy.
On January 17, 1941, the Boeing addressed an open letter to all the employees in which the history of the Company was traced and the future outlined in some detail, doubtlessly intended to promote friendly employer-employee relations. Inter alia it was stated that the Company was operating under the National Labor Relations Act; that membership in a labor union was not essential to a job with the Company, neither was it a hindrance.4 All foremen and supervisory employees were "instructed and directed to abide strictly by the rules herein described and by the laws herein referred to * * *." The employees were urged to cooperate in carrying out the spirit and the letter of the notice and to that end it was suggested that the contents of the notice be freely and openly discussed between the management and employees. The letter further stated that it was not necessary to discuss labor organization "behind one's back". .
On March 13, 1941, Vice-President and General Manager, J. E. Schaefer, issued written instructions to all foremen and crew-chiefs in which he again cautioned them "to avoid every evidence of participation or prejudice in any unionization activities".5
Again on July 22, 1941, Schaefer caused to be posted on all bulletin boards in both plants another notice which referred to the letter of March 13, to the foremen and crew-chiefs (see Note 5) and quoted Sections 7 and 8 of the National Labor Relations Act. The crew-chiefs and foremen were "enjoined" to familiarize themselves with their obligations under the Act and "not to take any steps which will place the Company in an embarrassing light or in violation of the Act".
On or about this same date (July 22, 1941), approximately 6000 anti-union handbills were distributed to Boeing employees at the plant gates. The handbills, signed "We The Loyal Employees" were headed "There Is A Sucker Born Every Minute", and continued "evidently the Stearman employees who are the Stooges for the Labor Union Racketeers haven't forgotten what Barnum said, and now they are trying to revive the old Myth, * *" and closed by saying "If you are so in love with a Union why don't you quit here and go to work where they have one and stop bothering us who know when we are well off."
On July 29, 1941, the Company posted on all bulletin boards a statement expressly repudiating knowledge or responsibility for the handbills; reaffirming the right of employees to join any union they desired; stating that the Company could not and would not take any part therein, and whatever they did would not affect their employment in any manner; that the supervisory employees had been specifically instructed they must not violate the Company's policy in this regard, and anything done by a supervisory employee which attempted to give any different attitude of the Company other than that of strictest impartiality was unauthorized and forbidden. .
On the same date (July 29, 1941) Mr. Siefkin, Counsel for Boeing appeared before all supervisory employees for the purpose of interpreting the National Labor Relations Act and its application and effect upon the supervisory employees. Sections 7 and 8 of the Act were read and the supervisory employees were told that they had the absolute right to join or not join any Union, but that they were "spokesmen" for the Company and as such they had no right to do or say anything which might be construed as influencing or interfering with the rights of the employees to form or join a union. Attention was called to the various notices which had been placed upon the bulletin boards from time to time and they were specifically admonished to observe the announced policy of the Company.6
On, or about August 2, 1941, several thousand more anti-union handbills were distributed to the Company's employees at the plant gates. These handbills were also signed "We The Loyal Employees" and contained many violent and scurrilous statements against the unions — "the gangsters who control American labor unions are the lowest creatures on earth * * *".
On, or about September 20, 1941, the employees were again flooded with anti-union handbills, headed "Fellow Employees" and signed "We The Loyal Employees". These handbills were distributed at the plant gates and contained another violent attack upon unions, union leaders and organizers.
In the latter part of September, 1941, the Company issued a printed slip which was attached to the paycheck of every employee and the handbook of every new employee. It called attention to the previous oral and written instructions concerning the attitude of management with regard to labor unions — "its attitude must be one of absolute impartiality". Foremen and crew-chiefs were instructed to maintain a neutral attitude at all times on or off the job, and all employees were instructed not to engage in union activities on Company time or property and "any violation of this order is ground for immediate discharge". Apparently by way of reference to the anti-union handbills it was stated
On November 13, 1941, another lecture was conducted by Mr. Siefkin for all the supervisory employees. They were advised that charges of unlawful interference with union activities had been made by both the CIO and the A. F. of L. He reiterated the policy of the company as announced in its previous bulletins, letters and other open communications, and the employees were again admonished not to express any view whatsoever concerning labor unions or the rights of employees to join a union of their choice.7
On January 1, 1942, the Company addressed another open letter to all of its employees which in form and substance was similar to the open letter of January 17, 1941. It reviewed the course of operations during the past year, noted the tremendous growth of the Company, and again stated that it was operating under the National Labor Relations Act and that it had always been the...
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