National Labor Rel. Bd. v. Laister-Kauffmann A. Corp.

Citation144 F.2d 9
Decision Date07 September 1944
Docket NumberNo. 12784.,12784.
PartiesNATIONAL LABOR RELATIONS BOARD v. LAISTER-KAUFFMANN AIRCRAFT CORPORATION.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Stephen M. Reynolds, of Minneapolis, Minn. (Alvin J. Rockwell, Gen. Counsel, Malcolm F. Halliday, Associate Gen. Counsel, Howard Lichtenstein, Ass't Gen. Counsel, and Owsley Vose and William T. Whitsett, Attys., National Labor Relations Board, all of Washington, D. C., on the brief), for petitioner.

Robert D. Abbott, of St. Louis, Mo., for respondent.

Before SANBORN, WOODROUGH, and THOMAS, Circuit Judges.

WOODROUGH, Circuit Judge.

This is a petition to enforce an order of the National Labor Relations Board requiring respondent to cease and desist from certain unfair labor practices, set out in the margin hereof,1 to offer reinstatement with back pay to Marie Noeth, to make whole Emma Schaper, an employee not desiring reinstatement, to post appropriate notices and notify the regional director. The Board's order was based on its conclusions of law, drawn from its findings, that "By discriminating in regard to the hire and tenure of employment of Emma Schaper and Marie Noeth, and thereby discouraging membership in International Association of Machinists, District No. 9, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8(3) of the Act 29 U.S.C.A. § 158(3);" and that "By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act 29 U.S.C.A. § 157, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8(1) of the Act."

Respondent on this appeal contends (1) that there was no substantial evidence to support the finding of the Board that respondent was guilty of interference with and restraint of its employees in their right to self organization in violation of Section 8(1) of the Act; (2) that there was no substantial evidence to support the finding of the Board that Emma Schaper and Marie Noeth were discharged because of their union affiliations and activities in violation of Section 8(3) of the Act; (3) that the Board erred in finding that Bertha Rice was a representative of management for whose statements respondent was responsible; (4) that the Board erred in overruling the examiner's denial of a motion to strike testimony pertaining to the arrest of a witness for the Board; (5) that the Board erred in finding that certain supervisory and executive personnel made the statements attributed to them, and that the testimony given by the Board's witnesses on this point was not substantial evidence.

1. The Board had before it substantial evidence from which it could infer and find as a fact that respondent was guilty of interference with and restraint of its employees in their right to self organization in violation of Section 8(1). A detailed discussion of the evidence is unnecessary.2 It appears that respondent was organized and began the production of airplane gliders in St. Louis in the fall of 1941. Its executives were, at all the times mentioned herein, John W. Laister, president and general manager; M. N. Whitehead, vice-president and director of personnel; J. R. Kauffmann, secretary-treasurer; and W. F. Nesbit, assistant secretary. The latter also had certain managerial functions. Organizational efforts on behalf of the Union were begun in September, 1942. The circumstances upon which the Board based its findings of unfair labor practices may be summarized as follows: At a meeting of employees interested in the Union, Emma Schaper, an employee in the rib assembly section of the woodshop, was chosen "Steward." Union bargaining authorizations were signed, and Union buttons distributed. Emma Schaper received a button somewhat larger than those given the other employees and bearing the designation "Steward" thereon. On the following day Nesbit, during an inspection of the plant, noticed the button and requested Emma to come to his office and discuss the Union. There is testimony that he asked her how many of respondent's employees belonged to the Union, "what she thought she would gain by trying to get a Union in there;" threatened that the plant would shut down if the Union came into the plant, asked her to influence the other girls in the woodshop to cease their organizational activities, and hinted at a promotion in store for her. That on the same day Guy E. Williams, supervisor of the woodshop, asked a group of the girl workers in the rib assembly section what they expected to gain from getting a union in the shop, and on receiving a reply indicating that the girls expected wage increases, stated: "Well, you know, I have belonged to a union too, and all you do is pay your money in and don't get nothing out of it." That on the following day, September 24, Nesbit, in the presence of Williams, remarked to Pfeiffer, an employee, concerning Emma Schaper and Marie Noeth: "I see we got a couple of union stewards in here * * * Emma and Marie must have went out with some union official and got drunk and joined the Union." That Bertha Rice, lead girl in the rib assembly section of the woodshop, told Andrew Eckert, an employee, that "she didn't think the company would stand for it the Union because she didn't think they had enough money to pay any more salaries." That in October, after Schaper and Noeth had been discharged, Rice remarked to Eckert that "if we didn't all be careful we would all get it;" and that Rice, after ascertaining that employee Hairgrove was planning to attend a Union meeting, asked her to "come back and let me know who all is there and let me know what goes on." That after the meeting Rice asked Hairgrove for information as to the persons attending and asserted that Kauffmann had asked her "to come into the office and talk anything over with him that she didn't think was just right," and that Kauffmann had asked with respect to the Union activities in the plant: "How is everything going along? * * * Have they settled down? * * * Is there any union talk?"

Under the facts and circumstances and the inferences to be drawn therefrom the Board was within its rights in concluding under the evidence that respondent had engaged in unfair labor practices in violation of Section 8(1) of the Act. The acts and conduct of respondent present a pattern expressive of management hostility to the rights of its employees to choose their labor affiliations independently of management interference; and respondent's attempts to discourage the employees from affiliating with the Union by statement evincing hostility to the Union, veiled threats of discharge, warnings that the plant would shut down because of the Union and interrogation of employees concerning Union affiliation and activities constitute well recognized forms of interference, restraint, and coercion, in violation of Section 8(1) of the Act. Cf. International Association of Machinists v. N. L. R. B., 311 U.S. 72, 78, 61 S.Ct. 83, 85 L.Ed. 50; H. J. Heinz Co. v. N. L. R. B., 311 U.S. 514, 518, 61 S.Ct. 320, 85 L.Ed. 309; N. L. R. B. v. Brashear Freight Lines, Inc., 8 Cir., 119 F.2d 379, 381; American Smelting & Ref. Co. v. N. L. R. B., 8 Cir., 126 F.2d 680, 684, 685; Canyon Corporation v. N. L. R. B., 8 Cir., 128 F.2d 953, 955; Gamble-Robinson Co. v. N. L. R. B., 8 Cir., 129 F.2d 588, 590; N. L. R. B. v. Locomotive Finished Material Co., 8 Cir., 133 F.2d 233, 234; N. L. R. B. v. Harbison-Walker Refractories Co., 8 Cir., 135 F.2d 837, 838; N. L. R. B. v. Glenn R. Martin-Nebraska Co., 8 Cir., supra; N. L. R. B. v. Crown Can Co., 8 Cir., 138 F.2d 263.

Respondent urges that the Board's findings and order are in conflict with Boeing Airplane Co. v. N. L. R. B., 10 Cir., 140 F.2d 423, and points to a correspondence between the expansion of personnel at the Boeing plant and the expansion of personnel at its own, and to an alleged similarity of steps taken by both employers to assure the employees that they were free to join the Union. We do not have here, as in the Boeing case, a widespread understanding on the part of the employees, and a sincere disclosure to them of a management's honest policy of impartiality, neutrality and "resolution to prevent injection of the slightest managerial influence into the employees' collective organization." Cf. N. L. R. B. v. Duncan Foundry & Machine Works, Inc., 7 Cir., 142 F.2d 594, 597. In the Boeing case every effort was made to assure the employees of the company's strictly neutral attitude, and these assurances were given directly to the employees as a whole. While in the instant case there is some testimony to the effect that respondent's supervisory employees were notified not to interfere with Union activities, there is no showing that the employees collectively were notified of the respondent's alleged attitude. Even where assurances are made to the employees, the actions of executives may be looked to to determine the policy of the company. Lip service to the policy and purposes of the Act is not sufficient. Birmingham Post Co. v. N. L. R. B., 5 Cir., 140 F.2d 638, 640. Under the Act Congress evinced its determination that industrial peace will be promoted if the steps of the employees toward collective bargaining are not hampered or interfered with by the employer, N. L. R. B. v. Hearst Publications, 322 U.S. 111, 64 S.Ct. 851, and the employee is given the right to choose independently and without fear whether to become a Union member or not. It devolves upon the employer, therefore, to assume a position of honest impartiality and neutrality and to refrain from communicating its managerial prejudices in an effort to sway the employees from making a free choice, or pursuing it once it has been made.3 This was a fairly new plant and one in which there was, as yet, no crystalization of employee labor affiliation. Under such circumstances, it is...

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