John S. Barnes Corp. v. National Labor Relations Bd.
| Decision Date | 29 June 1951 |
| Docket Number | No. 10316.,10316. |
| Citation | 190 F.2d 127 |
| Parties | JOHN S. BARNES CORP. v. NATIONAL LABOR RELATIONS BOARD. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Edward A. Haight, Chicago, Ill., Edward Fahy, Rockford, Ill., for petitioner.
David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, Richard C. Swander, George J. Bott, Gen. Counsel, Frederick U. Reel, Mark C. Curran, attorneys, National Labor Relations Board, all of Washington, D. C., for respondent.
Before MAJOR, Chief Judge, DUFFY and SWAIM, Circuit Judges.
This is a petition to review a decision of the National Labor Relations Board finding petitioner, John S. Barnes Corporation, hereinafter called the "company," guilty of certain unfair labor practices in violation of § 8(a) (1) and § 8(a) (3) of the Labor Management Relations Act of 1947, 29 U.S. C.A. § 151, et seq. The company was found to have discharged and refused to reinstate three employees, Franklin, Shirk and Hudson, because of their union activities. The company was also found to have interfered with its employees in their concerted activities by warning them that it was regularly informing itself and had obtained knowledge concerning these concerted union activities. The National Labor Relations Board filed an answer asking that the petition be denied and that this court enter a decree for the enforcement of the Board's order.
These charges grew out of the attempts of District Lodge No. 101, International Association of Machinists, referred to herein as the "union," to organize the employees at the company's plant in Rockford, Illinois, in the latter part of 1948 and early in 1949. On Wednesday, October 27, 1948, the business representative of the union gave a supply of union application cards to two of the company's employees. The next day the active organizational campaign was started. Seemingly, the most active organizer among the employees was Franklin, whose inspecting job took him through various departments of the plant. Sometime during this period of organization the union's business agent telephoned Mr. Svenson, the company's general manager, demanding a conference to discuss recognition of the union as a bargaining agent. At Svenson's suggestion this request was repeated in writing, which letter was dated November 1, a Monday.
At nine o'clock in the morning of this same day Franklin was sent to Svenson's office by Foreman Hicks who said to Franklin, "You'd better get your fighting togs on, Svenson wants to see you." A discussion between Franklin and Svenson in the latter's office resulted in the termination of Franklin's employment. The Board accepted Franklin's description of this conversation which was that Svenson greeted him with "What have you got against the John S. Barnes Corporation?" Svenson then accused him of "* * * going around on company time engaging in activities, forming a union and engaging in activities which he (Svenson) did not think was good for the majority of the people." Svenson then said that "* * * we all have to get along in this world and it just didn't seem that I (Franklin) was fitting into this picture." Svenson also expressed the belief that since Franklin and the company did not seem to get along he thought perhaps it would be best if Franklin found another job and that he, Svenson, thought it best that he sever Franklin's connections with the company. Svenson then took Franklin to the pay office where he told Mr. Kent, in charge, to make out Franklin's pay check, that he, Svenson, was severing Franklin's connections with the company and that Franklin was agreeable. After Svenson left Kent's office Kent asked Franklin what it was all about and Franklin said, "Mr. Svenson found out that I was engaged in union activity and I got canned for it."
While this testimony was contradicted by Svenson, the Board found that Franklin had been discriminatorily discharged because of his union activity and ordered the company to offer him reinstatement and to make him whole as to his loss of earnings from the time he was discharged. The Board reached this result by believing the testimony of Franklin rather than the testimony of Svenson. That is peculiarly the function of the trier of the facts, based upon the sound reason that the trier of the facts when seeing and hearing a witness testify is in a much better position to judge as to who is telling the truth than is an appellate court which has only the printed record of the testimony. From our examination of the entire record in this case, we are convinced that the findings of the Board as to the discharge of Franklin are supported by substantial evidence.
On November 8, the company laid off or discharged Shirk and Hudson. Both were good workers and had considerable seniority in the plant. Both had joined the union and attended the first meeting. Shirk had distributed union application blanks to four other employees, and testified that Foreman Hicks had overheard him asking another employee if he was going to join the union (the trial examiner found that Shirk asked this employee to join the union, but Shirk's own testimony is that he only asked if he was going to join). Hudson apparently had done no organizational work. Petitioner argued that these men were laid off because of lack of work for them, and also because Shirk tended to disrupt work by his dangerous horseplay and Hudson was neglecting his work because of outside interests.
The Board also adopted the finding of the trial examiner that these two men were discriminatorily discharged because of their union activities. Hudson testified that when he was discharged by Svenson he was told that his work had been satisfactory and that the reason for his discharge was that the company was retooling the plant and didn't need his services. Svenson at the time also told him that if the company later needed his services he would be called back. Hudson testified that at the time he was discharged he was "the oldest man on the milling machines." However, mill operators with less seniority then he were not discharged. At the time of his discharge, Hudson's sole union activity had consisted of joining, and attending one meeting. After Hudson's discharge several other men were hired in the department but the foreman testified that the particular jobs held by Hudson and Shirk had not been filled.
Shirk testified that at the time he was laid off he was called to Svenson's office where Svenson said to him, When Shirk then asked Svenson if he would be rehired Svenson answered that he did not know.
There apparently was no spirit of animosity on the part of Svenson at the time Hudson and Shirk were laid off. There was no mention of the union nor of their membership in or activity on behalf of the union. Nor was there any background or pattern of anti-union activity on the part of the company from which a reasonable...
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