Cleaver-Brooks Mfg. Corporation v. NLRB, 12429.

• Decision Date: 17 March 1959
• Docket Number: No. 12429.,12429.
• Citation: 264 F.2d 637
• Parties: CLEAVER-BROOKS MFG. CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

264 F.2d 637 (1959)

CLEAVER-BROOKS MFG. CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 12429.

United States Court of Appeals Seventh Circuit.

March 17, 1959.

Victor M. Harding, Milwaukee, Wis., for petitioner.

Thomas J. McDermott, Associate General Counsel, Frederick U. Reel, Attorney, National Labor Relations Board, Washington, D. C., Jerome D. Fenton, General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, James A. Flynn, Attorneys, National Labor Relations Board, Washington, D. C., for respondent.

Before SCHNACKENBERG, PARKINSON, and KNOCH, Circuit Judges.

KNOCH, Circuit Judge.

Cleaver-Brooks Manufacturing Corporation (hereinafter called the "Company") seeks to set aside an order of the National Labor Relations Board (hereinafter called the "Board") to reinstate Claire A. Houk, Thomas Zivkovich, Carl J. Holston, and Carl R. Olson, discharged employees with back pay; to withdraw recognition from Employees Independent Union of Cleaver-Brooks (hereinafter called the "Independent") as the collective bargaining representative of its employees pending certification of a representative; and to post certain notices. In its answer the Board has prayed enforcement of its order.

This Court acquires jurisdiction under the National Labor Relations Act, as amended (29 U.S.C.A. § 151 et seq.) Sec. 160, subsections (e) and (f).¹

The facts are largely undisputed.

The Company, a wholly-owned subsidiary of another Wisconsin corporation, Cleaver-Brooks Company, operates a plant in Waukesha, Wisconsin, where it manufactures water distilling units, special products, and tooling for its parent corporation at Milwaukee, whose works manager, Glenn W. Leupold, also exercised management control of the Company.

In May, 1956, Leupold found that the welders employed in the Waukesha plant lacked proper supervision and control with respect to assignment of work and loitering on the job. The welding foreman from the Milwaukee plant, after a week's inspection visit, reported that the welders were actually working an average of approximately two and one-half hours per 8-hour day. One of the difficulties arose in connection with leadman, Claire Houk, who admittedly regarded himself as an overseer rather than a production worker, although the works manager wanted him to work alongside the other welders and not to direct their activities, except when instructed to do so by the foreman.

During the spring and summer of 1956, the Company's workload had been augmented by two sizable Government contracts which were nearing completion. The number of hourly paid employees in the plant declined from a minimum of 80 in June and July, to a minimum of 47 in October. In November employees were stabilized at approximately 47 in number.

Effective October 10, 1956, Foreman Schwager was relieved of his jurisdiction over the welders. The new foreman was Frank Unold, who had been and continued as foreman of the Assembly department. Announcement of the change of foreman met with opposition.

Schwager testified that Carl R. Olson threw down his tools, and, using very intemperate language, said he would never work for the new foreman. All 15 welders left their place of work. There was a work stoppage of about 20 to 25 minutes. Schwager testified that Carl Holston and Thomas Zivkovich said they wouldn't work for the new foreman. Chester Tambert, production manager, promised to arrange a conference with the works manager, and the men all returned to work. Zivkovich, on cross examination, testified that he and Olson undertook to see Schwager to tell him they decided not to have Unold as their foreman, and to arrange a protest meeting with management.

At the meeting, after discussing the matter, Leupold declined to reconsider his appointment of Unold as foreman. Leupold testified regarding a later interview with Houk alone, at which Houk exhibited a "general attitude and indifference" toward the new foreman which convinced Leupold he would never accept or try to get along with Unold.

Following the protest meeting Leupold discussed the situation with the Vice President and decided to discharge Houk, Zivkovich, Holston and Olson. Tambert testified that he told all four that their attempt "to intimidate and influence management in selection of their supervisory personnel * * * left a bad taste in the Company's mouth * * *" and that none of the men protested the termination of their employment. He also testified to marked improvement in efficiency under the new foreman. Tambert and Leupold testified that decrease in volume of business made reduction in work force necessary; that these particular four men were discharged because they had shown that they would never accept any foreman placed over them. No new employees were hired to replace them.

The Board found that the Company discharged the four for engaging in a concerted activity for mutual aid and protection in protesting the appointment of a new foreman, a protected activity under Sec. 7 of the Act; that these were discriminating discharges, tending to discourage employees in the exercise of their rights in violation of Secs. 8(a) (1) and 8(a) (3).

The Board concluded that, in any event, notwithstanding the temporary work stoppage and use of intemperate language, the welders had all returned to work and that the Company had failed to assert any right (if any existed) to discharge employees for misconduct.

The evidence, however, clearly showed that the Company, faced with the necessity of laying off welders for lack of work, singled out those who had shown unwillingness to accept the new foreman. The fact that the four and other employees also participated in a protest meeting does not of itself bring the concerted activity within the scope of Sec. 7.

The Act does not protect activities during working hours which disturb the efficient operation of the Company's business. Caterpillar Tractor Co. v. N. L. R. B., 7 Cir., 1956, 230 F.2d 357.

The Board takes the position that protest over the appointment of a foreman is a concerted activity protected by the Act, citing as authority our ruling in N. L. R. B. v. Phoenix Mutual Life Insurance Co., 7 Cir., 1948, 167 F.2d 983, 6 A.L.R.2d 408, certiorari denied 335 U.S. 845, 69 S.Ct. 68, 93 L.Ed. 395.

The Phoenix case is easily distinguished from the case before us. There no work stoppage, intemperate language, or refusal to accept supervision was involved. Several insurance salesmen were discharged for becoming involved, apparently on their own time, in drafting a letter, proposed to be submitted on behalf of all salesmen, recommending the assistant cashier to fill the vacant post of cashier. The four men discharged here adopted no such moderate conduct in making known to management their views on, not a vacancy, but an appointment already made, in which the Board contends they had a legitimate interest.

The Board, on the other hand, sees a distinction between this case and N. L. R. B. v. Reynolds International Pen Co., 7 Cir., 1947, 162 F.2d 680 and Fontaine Converting Works, Inc., 77 N.L.R. B. 1386 (1948) wherein employees who struck in protest over demotion of a foreman were held not protected by the Act. We cannot agree. Otherwise, on the facts of this case, one would have to argue that it was in the employees' legitimate interest to maintain the inefficient and inadequate supervision previously provided. The evidence showed a mere personal antipathy to Unold, whose experience and qualifications were not demonstrably inferior to those of Schwager and Houk. It is conceded that appointment of the foreman was not a bargainable issue. The Board's conclusion that the four were discharged as spokesmen is not supported by the Trial Examiners' findings of fact.

We find no merit in the contention that delay in notification of discharge for some two days' time resulted in "condonation" of misconduct. The Company was obliged of necessity to cut its work force. The choice of personnel to be discharged was made after consultation and consideration....