Midland Steel Products Co. v. National Labor R. Bd., 8318.

• Citation: 113 F.2d 800
• Decision Date: 27 June 1940
• Docket Number: No. 8318.,8318.
• Parties: MIDLAND STEEL PRODUCTS CO. v. NATIONAL LABOR RELATIONS BOARD.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

113 F.2d 800 (1940)

MIDLAND STEEL PRODUCTS CO. v. NATIONAL LABOR RELATIONS BOARD.

No. 8318.

Circuit Court of Appeals, Sixth Circuit.

June 27, 1940.

W. T. Kinder, of Cleveland, Ohio (Jones, Day, Cockley & Reavis, W. T. Kinder, and T. M. Harman, all of Cleveland, Ohio, on the brief), for petitioner.

Alvin J. Rockwell, of Washington, D. C. (Charles Fahy, Robert B. Watts, Laurence A. Knapp, Allen Heald, and Malcolm S. Mason, all of Washington, D. C., on the brief), for respondent.

Before HICKS, ALLEN, and HAMILTON, Circuit Judges.

ALLEN, Circuit Judge.

Petition to review and set aside an order of the National Labor Relations Board under § 10(f) Title 29, § 160(f), U.S.C., 29 U.S.C.A. § 160(f) of the National Labor Relations Act (49 Stat. 449, 29 U. S.C. § 151 et seq., 29 U.S.C.A. § 151 et seq.). In its answer the Board asks the court to enforce its order which requires that petitioner cease and desist from (1) discouraging membership in any labor organization or in any manner discriminating against employees because of membership in a union, and (2) in any manner interfering with or coercing its employees in the exercise of their right to self-organization for the purpose of collective bargaining, and that appropriate notices be posted. The order also requires petitioner to reinstate Mack Cheek as an employee, with compensation to him for loss of pay suffered by reason of his discharge. The interstate character of the operation is conceded.

The order was based upon a complaint which charged the petitioner with discharging Mack Cheek and Leon J. Murray because of union membership and activity, and also charged in substance that the petitioner had intimated and coerced its employees by using spies; by interrogating employees and prospective employees in regard to union activity; by suggesting that their belonging to the union would be detrimental; by showing preference to non-union men in case of lay-offs; by offering inducements for ceasing union activities; by ridiculing the union and endeavoring to embarrass members of the union.

The Board reversed the finding of the trial examiner that Leon J. Murray had been wrongfully discharged, and found that no evidence of espionage existed. It made no specific finding as to the other charges, but the uncontradicted evidence affirmatively shows that respondent practiced no discrimination against union members in the matter of lay-offs and in the handling of seniority rights or discharges, with the possible exception of the case of Cheek, which is discussed later. Numerous employee witnesses on behalf of the Board, as well as other employees, positively stated that no foreman, supervisor, or official ever ridiculed or disparaged the union. The petitioner was entitled to a finding in its favor upon these points.

The Board bases its cease and desist order on (1) A letter dated June 3, 1937, sent to the employees by petitioner's works manager at the time of the union's organization campaign, and (2) a comment by the general superintendent to the financial secretary of the union that the men in petitioner's Detroit branch "are disgusted with unionism. * * * They have lost all of their incentive to do good work and — just disgusted with unionism in general."

In view of petitioner's fair attitude toward organized labor and toward its employees, we think that the Board's finding that this letter interfered with, restrained and coerced its employees in the exercise of the rights guaranteed under § 7 of the National Labor Relations Act is supported by no substantial evidence. It is uncontroverted that petitioner's relations with its employees have always been friendly and sympathetic. The uniform policy of the company for years has been that its employees have a right to join any organization that they care to, or not to join an organization. The requirement of continued employment with the company has always been the quality of the work done, and that alone. In April, 1934, a notice was posted throughout the plant, which stated:

"No employee is obliged to join any union. This is not required or requested by the National Industrial Recovery Act, or by any act or edict of the President of the United States. Your jobs and wages do not depend upon your membership or nonmembership in any organization of any kind.

"No employee of this Company has been or will be discriminated against in any way because he does or does not belong to any union — all employees will be treated in exactly the same manner regardless of whether they hold a union card or not.

"Every employee may take up with the Management any matter in which he is interested, just as he has in the past. He need not appoint anyone to represent him.

"You do not need to pay dues to anyone to get a square deal at Midland.

"The Company will do everything that it lawfully can do to see that no employee is coerced, misled or intimidated to make him join any union or association."

The Board finds in effect that this communication, written before the National Labor Relations Act was passed, shows hostility to the unions. There is no substantial evidence to support this finding. The communication on its face shows absolute impartiality as between union and non-union men, and such impartiality was in fact observed by the management. The statements from which the Board drew its inference are fully explained and justified by the fact that reports had been circulated that petitioner's employees must join a labor union, and this communication was issued as an answer to such reports. The same notice was mailed to each of the employees personally, and the policy expressed therein was carried out up to the enactment of the National Labor Relations Act. At that time the employees began to discuss the Act and its meaning with reference to union organization, and Wallace, the company's works manager, called together and addressed different groups of employees upon this question. They were told in effect that it made no difference to the management whether the men belonged to a union or not. The supervisory employees were instructed not to discuss organization with the men, but were told that there would be no discrimination either because of membership or non-membership in a union. The men understood this perfectly, and there is no testimony to the contrary. Typical of numerous statements upon this subject are the following answers of Basch:

"Q. What was your understanding out there as to whether, so far as the company was concerned, a man could join or could not join the union, as they pleased? A. Well, there is no one told me I had to join the union, or no one told me I didn't have to join.

"Q. Do you feel yourself free to join the union if you want to? A. Oh, yes."

Check, who was president of the union, and found by the Board to have been discharged because of union membership and activity, said upon this subject that he knew, as far as the company was concerned, it was up to the individual to decide for himself. Seven employee witnesses called by the Board, and most of them members of the union who are still employed by petitioner, testified to the same effect.

The letter which the Board found to constitute interference, restraint and coercion, reads as follows:

"Dear Fellow Worker: During the past few weeks it has been my pleasure to have talked to the majority of you. We all realize the necessity for the closest cooperation in working out our problems.

"It has been the policy of our company and of you to be fair in all of our associations. A continuation of this policy will bring Happiness and Prosperity to us all.

"Many of our employees have recently requested information pertaining to their rights under `The Wagner Act.'

"Under this act you have the right to name anyone you choose to represent you. You do not have to join any organization.

"Our policy is to be fair to each employee in every way.

"I would appreciate your dropping in to my office at any time to discuss our future policies and your suggestions how to make this a happier and better plant in which to work.

"Thanking you for your interest and with best personal wishes,

"Sincerely yours "R. H. Wallace."

This letter speaks for itself, and on its face is nothing more than a communication informing the employees that they may or may not join a union, and that in either event petitioner will treat them impartially. The Board considered that the suggestion of "dropping into my office" was an appeal for the retention of individual bargaining, and that the letter was not an impartial resumé of the employees rights. The pertinent provisions of the statute held to have been violated by petitioner read as follows:

§ 157, Title 29, U.S.C. 29 U.S.C.A. § 157. "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection."

§ 158, Title 29, U.S.C., 29 U.S.C.A. § 158. "It shall be an unfair labor practice for an employer —

"(1) To interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title.

"(2) To dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it * * *."

Assuming that the Board was correct in regarding the last part of the letter as an appeal to individual bargaining, the Act does not prohibit this practice. National Labor Relations Board v. Sands Mfg. Co., 306 U.S. 332, 59 S.Ct. 508, 83 L.Ed. 682. We do not understand that the statute forbids the employer, where he is innocent of coercion, interference, or restraint, to suggest individual conferences with his men nor even to advocate the advantages which grow from individual conferences, nor do we understand that such a suggestion of itself...