Bussmann Mfg. Co. v. National Labor Relations Board

• Decision Date: 14 May 1940
• Docket Number: No. 447,459.,447
• Parties: BUSSMANN MFG. CO. et al. v. NATIONAL LABOR RELATIONS BOARD. BUSSMANN EMPLOYEES' ASS'N v. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

111 F.2d 783 (1940)

BUSSMANN MFG. CO. et al. v. NATIONAL LABOR RELATIONS BOARD. BUSSMANN EMPLOYEES' ASS'N v. SAME.

Nos. 447, 459.

Circuit Court of Appeals, Eighth Circuit.

May 14, 1940.

George B. Logan, of St. Louis, Mo. (William H. Armstrong and Cobbs, Logan, Roos & Armstrong, all of St. Louis, Mo., on the brief), for Bussmann Mfg. Co. and McGraw Electric Co.

Isaac C. Orr, of St. Louis, Mo., for Bussmann Employees' Ass'n.

Alvin J. Rockwell, of Washington, D. C. (Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, Laurence A. Knapp, Asst. Gen. Counsel, and Allen Heald and Owsley Vose, all of Washington, D. C., on the brief), for respondent.

Before GARDNER, WOODROUGH, and THOMAS, Circuit Judges.

THOMAS, Circuit Judge.

These are separate petitions filed in this court for a review of an order of the National Labor Relations Board. The petitions refer to the same order, and the cases may conveniently be disposed of in a single opinion.

The petitioner in No. 447, hereinafter referred to as the employer, is a corporation engaged in manufacturing electrical appliances at two plants situated in the City of St. Louis, Missouri. The petitioner in No. 459 is an independent union among the employees of the petitioner in No. 447. For brevity the petitioner in No. 459 will be referred to as the Association. The Association was permitted to intervene in the proceedings in which the employer was charged with unfair labor practices in violation of the National Labor Relations Act. 49 Stat. 449, 29 U.S.C.A. § 151 et seq.

The petitioners seek a decree setting aside certain designated parts of the order, and the Board requests enforcement of its order. Jurisdiction of the Board and of this court is conceded, and there is no objection to the proceedings preliminary to the order.

That part of the order complained of directs the employer, (1) to cease and desist from discouraging membership in, and from refusing to bargain collectively with, the International Association of Machinists, District No. 9 (hereinafter referred to as the Local), as the exclusive representative of the tool and die makers and apprentices, and from in any manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization; and (2), affirmatively, (a) upon request to bargain collectively with the Local and (b) to reinstate with back pay Likert and Hogge, two employees found by the Board to have been discharged because of their union activities.

The cease and desist part of the order is not resisted on the ground that the finding of the unfair labor practices charged in the complaint is not supported by substantial evidence. The contentions of the petitioners are (1) that the tool and die makers are not such a segregated group as to constitute a proper unit for collective bargaining; (2) that the order requiring the employer to offer to bargain collectively with the Local is illegal and beyond the jurisdiction of the Board because its enforcement will interfere with an existing contract between the employer and the Association, which claims to represent a majority of all the employees at the two plants; (3) that the discharge of Likert and Hogge was justifiable and the evidence does not support the finding that they were discharged because of their union activities; and (4) that the Board erroneously found that the Local represented a majority of the tool and die makers at the time of the hearing before the Board.

1. Section 9 of the Act commits to the Board the power to determine the appropriate unit for collective bargaining in each case; and, unless the decision of the Board is arbitrary and unreasonable, it is binding upon the court on review. National Labor Relations Board v. Lund, 8 Cir., 103 F.2d 815; National Labor Relations Board v. Carlisle Lumber Co., 9 Cir., 94 F.2d 138; International Ass'n., etc., v. National Labor Relations Board, App.D.C., 110 F.2d 29, 46. The finding of the Board is supported by substantial evidence. It is not, therefore, arbitrary. The evidence shows that the tool and die makers have long been regarded as a separate craft with a unity of interest all their own. Their duties require skill, and they perform a class of work different from that of the other employees. They were separately organized long before the Association came into existence.

2. The claim that the enforcement of the order will impair the obligations of the contract existing between the employer and the Association is without merit. The order is not directed to the Association, but only to the employer. The Board recognized the existence of the contract and found that it "does not specifically relate to the working conditions of the tool and die makers and the apprentices", and that it is no bar to bargaining between the local and the employer. It is not denied that the local represented a majority of the tool and die makers and the apprentices at the time the employer refused to bargain collectively with them. That was an unfair labor practice, and the making of a contract subsequently with the Association does not relieve the employer from the consequences of its refusal. National Licorice Company v. National Labor Relations Board, 60 S.Ct. 569, 84 L.Ed. ___ (decided March 4, 1940). If the tool and die makers and apprentices desire to recognize the Association instead of the Local as their bargaining representative the order does not prevent them from doing so. The order preserves for them the right of choice under section 9 of the Act after the coercive influence of the unfair labor practices of the employer has been removed. In so doing it seeks to enforce the public policy declared by Congress in the Act prior to the inception of the contract with the Association. Under these circumstances neither the employer nor the Association has a right to complain.

3. Likert and Hogge were tool and die makers in the St. Louis plants of the employer. They were both charter members of the Local. They were both discharged June 23, 1937. The Board found that they were discharged because of their union membership and activities and ordered their reinstatement with back pay. The employer says the evidence does not support the finding upon which the order rests, and that the only inference warranted by the testimony is that they were both discharged for disobedience to orders.

In some respects the facts in the two cases are the same while they differ in other particulars. Hogge and Likert were the only charter members of the Local at the time they were discharged. The Local was the oldest union organization among the employees at the plants. In the spring of 1937 there were eight tool and die makers at the plant and five apprentices. Ten of these were members of the Local and the others had applied for membership. The Local applied to the employer for recognition as the exclusive agency for collective bargaining for the tool and die makers and sought to negotiate a contract covering various conditions of employment. Both Likert and Hogge participated in these negotiations. Their efforts were unsuccessful and in May, 1937, the employer finally refused to recognize the Local.

Meanwhile the Association was in process of organization, and on June 17, 1937, the employer and the Association entered into a contract relating to conditions of employment. In this contract the Association purports to represent all the employees in the plants including the tool and die makers.

In the organization of the local and in soliciting members for it Likert took an active and aggressive part. Hogge was not active, but maintained his membership and remained loyal to it.

The circumstances in connection with the discharge of the two men are not identical, although the discharges occurred at the same time and for the same alleged reason. The testimony, viewed in its most favorable light to support the findings of the Board, discloses that at about 5 or 10 minutes before quitting time on Tuesday June 22, 1937, Butler, Hogge's foreman, notified him that he would be expected to work overtime that day. He informed Butler that he had something else to do. Butler made no reply. Hogge assumed that Butler assented to his going and accordingly punched his card and left the plant at 5 o'clock. He passed Butler on his way out, and Butler said nothing to him.

Hogge went to work at the usual hour the next morning and about two hours later Butler and Joe Bussmann approached him. Bussmann asked Hogge if Butler had requested him to work the night before and if he had refused. Hogge admitted that Butler had requested him to work but denied that he had refused. When he tried to explain Bussmann cut him off and discharged him.

Hogge during the course of his employment had never violated any rule of the employer. A few days before these occurrences he had been asked to work overtime and had been excused upon request. Butler testified: "We never insisted they (the employees) should work if they said they had to go some place, or any thing. They didn't have to have much of an excuse, most anything was good enough."

There is substantial evidence to support the finding of the Board that Hogge was not discharged because he had failed to work overtime, and that such claim is a mere pretext. Under these circumstances the Board was warranted in drawing the inference that Hogge was discharged because of his union membership and activities. The evidence discloses no other motive on the part of the employer. If the trial were to a jury the evidence is such that the court would be compelled to submit the question of the employer's motive to their determination. National Labor Relations Board v. Columbian Co., 306 U.S. 292, 59 S.Ct. 501, 83 L.Ed. 660. Refusal to bargain collectively with a union is sufficient, in the absence of any other satisfactory reason, to sustain a finding of discrimination in the discharge of an employee. National Labor...