National Labor Rel. Bd. v. Reynolds Internat. Pen Co.

• Decision Date: 24 June 1947
• Docket Number: No. 9287.,9287.
• Citation: 162 F.2d 680
• Parties: NATIONAL LABOR RELATIONS BOARD v. REYNOLDS INTERNATIONAL PEN CO.
• Court: U.S. Court of Appeals — Seventh Circuit

162 F.2d 680 (1947)

NATIONAL LABOR RELATIONS BOARD v. REYNOLDS INTERNATIONAL PEN CO.

No. 9287.

Circuit Court of Appeals, Seventh Circuit.

June 24, 1947.

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Gerhard P. Van Arkel, Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, William R. Consedine and Morris P. Glushien, Associate Gen. Counsels, and Dominick L. Manoli and Ben Grodsky, all of Washington, D. C., for petitioner.

Claude A. Roth, Harry Schulman and H. R. Begley, all of Chicago, Ill. (Gottlieb, Schwartz & Friedman, of Chicago, Ill., of counsel), for respondent.

Before SPARKS, MAJOR and KERNER, Circuit Judges.

MAJOR, Circuit Judge.

This case is here upon petition of National Labor Relations Board, pursuant to Sec. 10 (e) of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., for enforcement of its order issued against respondent on August 30, 1946, following the usual proceedings under Sec. 10 of the Act. The Board's order is based on findings that respondent (1) in violation of Sec. 8 (1) of the Act interfered with, restrained and coerced its employees by various acts and statements calculated to thwart their efforts at self-organization, and (2) in violation of Sec. 8(3) and (1), discriminatorily discharged employees Bullard and Lingle because of their leadership and affiliation with and activities on behalf of the union (Fountain Pen and Pencil Makers' Union, Local 13,318, A. F. of L.).

The Board's order requires respondent to cease and desist from its unfair labor practices, to reinstate with back pay the employees discriminatorily discharged and to post appropriate notices.

The contested issues rise in the main from respondent's contention that the Board's findings are not supported by substantial evidence, and in some instances that the findings even though thus supported are insufficient as a basis for the Board's order.

The oral argument before this court, as well as a study of the briefs submitted by the respective parties, raises a doubt as to the propriety of the Board's order, which has caused us to read all the testimony before the Board as shown in the appendix to the briefs of both the petitioner and the respondent. We have done this not for the purpose of weighing the evidence but to satisfy our own minds as to whether it furnishes substantial support for the findings and the order sought to be enforced.

The Board's findings are predicated almost entirely upon statements found to have been made by respondent's supervisory employees.¹ The practices complained of are narrowly limited as to time and those affected. They all occurred between January 5 and January 21, 1946, and the employees involved were about 22 women employed on the night shift in respondent's ball-point department. At that time respondent employed about 500 persons, almost equally divided between day and night shifts, 95% of whom were women. The record is not clear as to whether respondent's employees generally were organized or represented by a union. The proof shows conclusively, however, and there is no contention to the contrary, that the employees involved in this proceeding were not members of a union and that no effort had been made at organization prior to the happening of the events in controversy. It is also pertinent to note that there is no proof and no contention that respondent prior to the happening of the events connected with the instant proceeding manifested any hostility toward unions or was opposed to or interfered with the right of its employees to organize. In other words, no unfavorable background is shown, a factor so frequently relied upon to characterize the practices complained of.

While there are numerous incidents relied upon by the Board, we think its findings as to two major events are largely determinative of the validity of its order, especially as it relates to Sec. 8(1) of the Act. These two findings relate to a walkout on January 5, 1946, and a speech made by Reynolds to all of respondent's employees on January 12, 1946.

As to the walkout, we quote from the Board's brief: "On January 5, 1946, Foreman Kaiser, of the night shift in respondent's ball-point department, informed his subordinates that he was being demoted. This announcement stirred up considerable unrest and discussion among the employees, particularly because of earlier rumors of impending wage reductions which had been current in the department. The employees feared that Kaiser's reported demotion presaged a decrease in their own rates of pay. After discussion, they authorized Employee Helen Fisher to ask General Manager Fleishhacker to talk to them and give a definite explanation of the situation. Fleishhacker was not present at the plant and the employees, upon the suggestion of Employee Margaret Bullard, decided to stage a walk-out. All but one of them punched out their time cards and left the plant."

The leaders in the walkout movement were employees Lingle and Bullard (subsequently discharged) and Fisher. After leaving the plant the employees gathered at a nearby cafe and attempted unsuccessfully to get in contact with Fleishhacker. While at the cafe they decided, at the suggestion of Kaiser, to seek the aid of a labor organization. On the following morning, January 6, Fisher telephoned Fleishhacker and asked him whether "she had a job." Fleishhacker answered that if she reapplied for employment he would give her a job but stated that "Marge Bullard and her girl friend by whom the Board found he meant Elsie Lingle were the instigators of the girls walking out, and they were going to be fired." From this finding the Board concludes: "It is self-evident that for the respondent thus to single out two of the leaders of the employees' legitimate concerted activities, and to threaten them with discharge in reprisal for such leadership, was calculated to interfere with, restrain, and coerce the employees in their exercise of the rights protected by Section 7 of the Act."

The validity of this conclusion can be sustained only if the employees who participated in the walkout were engaged in "legitimate concerted activities." The Board's conclusion is predicated upon its finding that the walkout was due to an apprehension on the part of the employees that their pay was to be decreased. We think there is no substantial evidence in support of this finding. True, there was some testimony that there had been a rumor among the employees of a wage cut, and certain witnesses obviously as an afterthought and for the purpose of bolstering the Board's case attempted to couple this rumor with the actual reason for the walkout. The proof shows, however, without any room for a contrary view, that the walkout was staged in protest over the demotion of Kaiser who was at that time night foreman.

Foreman Kaiser was not in respondent's employment at the time of the hearing; in fact, he appeared as a representative of the union and was a witness for the Board. In his testimony he makes no mention of any rumor concerning a wage decrease as a reason for the walkout. Subsequent to the walkout Fisher, at the request of the other employees participating in the walkout, contacted officials of the union and arranged for a meeting, which was held on January 7, 1946. Cortese, the president of the union, with whom this meeting was held, was a witness for the Board. He testified that when Fisher sought to arrange for the meeting he asked her the reason for the walkout and that she replied that they thought the foreman was efficient to carry out his duties and that they were sympathizing with him. At the meeting which was held with Cortese on January 7, the employees assigned the same reason. Cortese testified that he told them at the meeting that "the foreman was purely a management prerogative and that they were wrong in walking out in sympathy with their foreman," and that he advised them to go back to work.

We reject the finding as to the cause of the walkout, and it follows that we must also reject the conclusion based thereon, that it was an unfair labor practice to threaten the discharge of Bullard and Lingle. Cf. National Labor Relations Board v. Draper Corp., 4 Cir., 145 F.2d 199, 156 A.L.R. 989. These employees who walked out because they were dissatisfied with the change of a foreman which, as the union leader told them was a prerogative of management, were not protected by the Act. In fact, as they all recognized by making application for reinstatement, they severed their relations as employees and we are of the view that respondent would have committed no unfair labor practice if it had threatened to discharge all of those involved or had refused to reinstate them. The fact that respondent threatened to discharge only Bullard and Lingle, two of the leaders in the walkout, does not alter the situation. Neither does the fact that respondent saw fit to reinstate all of those who had walked out, including Lingle and Bullard, aid the Board's cause. Respondent should not be condemned because of its willingness to overlook their unjustifiable conduct.

Moreover, assuming the validity of the Board's finding that the walkout was attributable to rumors of a wage decrease, we still think it was unauthorized. It must be kept in mind that at the time of the walkout no demand had been made upon management concerning wages and no bargaining in reference thereto had been undertaken or suggested. In fact, there was no existing labor dispute or controversy of any character. The so-called justification for the walkout admittedly was based entirely upon rumor. The record further discloses that there was no reasonable basis even for this rumor because on January 3, two days before the walkout, a speech was made by Superintendent Heil to all of respondent's employees, including those here involved, in which he took cognizance of the rumor concerning a wage cut and informed them definitely that there would be no reduction in wages but if anything an increase.

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