National Labor R. Board v. HARBISON-WALKER R. CO., 12474.

• Decision Date: 01 June 1943
• Docket Number: No. 12474.,12474.
• Citation: 135 F.2d 837
• Parties: NATIONAL LABOR RELATIONS BOARD v. HARBISON-WALKER REFRACTORIES CO.
• Court: U.S. Court of Appeals — Eighth Circuit

135 F.2d 837 (1943)

NATIONAL LABOR RELATIONS BOARD v. HARBISON-WALKER REFRACTORIES CO.

No. 12474.

Circuit Court of Appeals, Eighth Circuit.

June 1, 1943.

Charles K. Hackler, Atty., National Labor Relations Board, of Warrensburg, Mo. (Robert B. Watts, General Counsel, Ernest A. Gross, Associate General Counsel, Howard Lichtenstein, Asst. General Counsel, and Ruth Weyand and Leo J. Halloran, Attys., National Labor Relations Board, all of Washington, D. C., were on the brief), for petitioner.

Frank B. Edwards and W. Wallace Fry, both of Mexico, Mo., for respondent.

Before STONE, WOODROUGH, and JOHNSEN, Circuit Judges.

WOODROUGH, Circuit Judge.

This case is before this court upon petition of the National Labor Relations Board for the enforcement of an order issued against respondent pursuant to section 10(c) of the National Labor Relations Act, 29 U.S.C.A. § 160(c). The order sought to be enforced directed respondent to cease and desist from the unfair labor practices found; to offer reinstatement with back pay to one Herbert Hillebrand, and to post appropriate notices. Enforcement is resisted on the grounds that the findings of fact made by the Board are not supported by substantial evidence and that the Board acted in excess of its authority in entering the order.

The Board found that respondent violated section 8(1) of the Act, 29 U.S.C.A. § 158(1), by making various anti-union statements, threats of discharge, by prohibition of union activity on company property while permiting anti-union activity thereon, and by posting an anti-union notice, and concluded that such activity constituted interference, restraint and coercion of its employees in the exercise of the rights guaranteed in section 7 of the Act, 29 U.S.C.A. § 157, and was an unfair labor practice within the meaning of section 8(1). These findings are sought to be sustained by evidence of the course of conduct pursued by respondent's supervisory employees.

Respondent is a Pennsylvania corporation, having its principal office at Pittsburgh, Pennsylvania, and is engaged in the manufacture and sale of fire brick and other refractory products. The corporation operates several plants located in Pennsylvania, Missouri, Texas, Indiana, Ohio and Kentucky. The only plant involved in this proceeding is located at Vandalia, Missouri, where respondent employs in excess of 500 employees at all times.

It appears that prior to September, 1941, no labor organization existed among the company's employees at the Vandalia plant. On September 24, 1941, a preliminary meeting for the purpose of organizing a local branch of United Brick and Clay Workers of America was held, and at a subsequent meeting on October 1, 1941, an organization was perfected and an organizing committee named, consisting of Herbert Hillebrand and four other employees in the plant's shipping department. By November 1, 1941, about 42 employees, 28 to 30 of whom were employed in the shipping department, had become members of the union.

There is evidence that on October 3, 1941, respondent's superintendent Hardy and foreman Maune engaged in conversation with Martin Hillebrand, a brother of Herbert and member of the organizing committee, in which, after comment about a prize won in a dog show on the evening of October 2, Hardy remarked, "I didn't hear you won any prize the night before" — (which was the night of the union meeting). Hillebrand answered, "I am not so sure all the prizes have been given out," and later said, "Mr. Hardy, that thing is coming just as sure as death and taxes." Hardy's answer was, "That depends on the individual." There is evidence that it was not Hardy's custom to engage in conversation with Hillebrand while at work and the Board inferred that the conversation was sought by Hardy for the purpose of remarking on Hillebrand's union activity.

Martin Hillebrand also testified that on that same day Sub-foreman Jordan said to him, "I surely hate to see it come here — the first thing they want to do is strike", and later said, "I am going to get you. * * * I am going to bend down and sooner or later I am going to get you." Morris, another member of the organizing committee, testified that on the same day Jordan told him it was not permissible to solicit for the union, and said, "We don't want any union here. We can't fire for talking about the union, but we can find something to fire for." Jordan denied making these statements.

There is evidence of another incident occurring sometime in October 1941, when Foreman Maune came upon Martin Hillebrand telling other men at the plant that another company under union contract was paying a higher hourly rate than they were receiving for the same type of work. Maune is said to have stated that Hillebrand's statement was not true and that "all the union organizer there wanted was the membership fees."

It appears also that sometime in October after respondent's supervisory employees had made it clear to the employees that no solicitation for union membership was permissible on company property, one Brown, employed in the shipping department, caused an anti-union petition to be prepared, signed it and posted it in a conspicuous place near the shipping office. The petition remained posted for several hours until Foreman Maune ordered Brown to remove it, but there is evidence to justify the inference that it was not removed until it was noted that no one else had signed...