National Labor Rel. Bd. v. American Pearl Button Co.

• Decision Date: 08 May 1945
• Docket Number: No. 12971.,12971.
• Parties: NATIONAL LABOR RELATIONS BOARD v. AMERICAN PEARL BUTTON CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

149 F.2d 311 (1945)

NATIONAL LABOR RELATIONS BOARD v. AMERICAN PEARL BUTTON CO. et al.

No. 12971.

Circuit Court of Appeals, Eighth Circuit.

May 8, 1945.

COPYRIGHT MATERIAL OMITTED

Stephen M. Reynolds, Atty., National Labor Relations Board, of Minneapolis, Minn. (Alvin J. Rockwell, Gen. Counsel, Malcolm F. Halliday, Associate Gen. Counsel, and Winthrop A. Johns and Irene Shriber, Attys., National Labor Relations Board, all of Washington, D. C., on the brief), for petitioner.

Roscoe P. Thoma, of Fairfield, Iowa, for respondent American Pearl Button Co.

Richard A. Stewart, of Washington, Iowa (Carlton C. Wilson, of Washington, Iowa, on the brief), for respondent Washington Chamber of Commerce.

Before GARDNER, THOMAS, and JOHNSEN, Circuit Judges.

GARDNER, Circuit Judge, delivered the opinion of the Court.

The National Labor Relations Board seeks enforcement of its order in which it found the American Pearl Button Company and the Washington Chamber of Commerce, of Washington, Iowa, jointly and severally guilty of unfair labor practices within the meaning of Section 8(1) of the National Labor Relations Act, 29 U.S.C.A. § 158(1). The complaint, prompted by charges by the Amalgamated Clothing Workers of America, C.I.O., alleged substantially: (1) That the American Pearl Button Company and Washington Chamber of Commerce, named as respondents, jointly and severally by their officers and agents, from on or about March 9, 1943, to the date of the issuance of the complaint, made and caused to be published and circulated derogatory and disparaging statements about unions and union leaders; warned and discouraged employees of the Button Company against affiliation with or activities on behalf of the Amalgamated Clothing Workers' Union; questioned employees concerning their union activities and solicited them to resign from the union; and (2) that by said acts they jointly and severally interfered with, restrained and coerced their employees in the exercise of the rights guaranteed in Section 6 of the Act, 29 U.S.C.A. § 156. The complaint specifically alleged that the Chamber of Commerce was an employer of the Button Company's employees within the meaning of Section 2 of the Act, 29 U.S.C.A. § 152.

On hearing before a trial examiner he made his intermediate report, finding that the Company had engaged in unfair labor practices as alleged, but that the Chamber of Commerce had not engaged in such practices. He recommended that the complaint be dismissed as to the Chamber of Commerce and that a cease and desist order be entered against the Button Company. On review before the Board the findings, conclusions, and recommendations of the trial examiner, so far as they affected the Button Company, were adopted and approved. The findings relative to the Chamber of Commerce and the recommendation that the complaint be dismissed as to it, however, were disapproved by the Board and by its findings it held the Chamber of Commerce guilty of the unfair labor practices found to have been indulged in by the Button Company. Each respondent filed a separate answer and each was represented by separate counsel; each has separately appealed, being represented by separate counsel in this court. Both the respondents resist the enforcement of the cease and desist order and ask that the decision and order entered by the Board be set aside. We shall first consider the contention of the Button Company.

In resisting enforcement of the order the Button Company contends: (1) That the complained of statements of its president do not constitute interference, restraint or coercion of its employees in the exercise of the rights guaranteed them by the National Labor Relations Act, and do not constitute a violation of Section 8(1) of the Act; (2) that there is no substantial evidence justifying the conclusion of the Board that the Company restrained, coerced or interfered with its employees in exercising their rights under the National Labor Relations Act; (3) that the complained of statements of the Company's minor supervisory employees Bey, Murdock, Burham, Brown and Enslin, do not as a matter of law constitute "interference, restraint or coercion" by the Company of its employees, nor do these statements constitute substantial evidence sufficient to justify a conclusion of "interference, restraint or coercion" by the Company; (4) that the Company was not responsible for the conduct or statements of its employee John Blodgett because he was not a supervisory employee; that in any event the statements and conduct of said Blodgett did not constitute "interference, restraint or coercion" by the Company of its employees.

No authorized bargaining unit has ever been established in respondent's plant at Washington, Iowa, and there has never been a contract of employment between respondent and its employees. In February, 1943, the Amalgamated Clothing Workers of America, C.I.O., which will hereafter be referred to as the Union, began its efforts to organize the Company's employees. In March, 1943, the Union's requested recognition as bargaining representative was declined, following which the Union and the respondent Company agreed to the holding of an election under the supervision of the National Labor Relations Board for the purpose of determining the Union's majority status. The election was held April 9, 1943, the majority voting against naming the Union as the bargaining representative of the employees. The acts of unfair labor practice charged are those occurring during the campaign which preceded this election.

The Button Company is an Iowa corporation, with its principal place of business at Washington, Iowa, where it is engaged in the manufacture and sale and distribution of pearl buttons. There was evidence tending to show that during the time the Union was engaged in organizing the employees of the Company, and prior to the election for the purpose of determining whether the Union should be chosen as the bargaining agent for the employees, Carl Jungbluth, president and general manager of the Company, in conference with a committee of the cutting department of the Company, stated that if the Union were successful in getting into the plant the hours would be reduced to forty hours a week, and there would be no more overtime. He told Mr. Wilson, a member of the cutters' committee that he had three or four buyers for his shells, the material from which the Company manufactured buttons; that the Company was making only nominal profits and if demands were made upon the Company which would preclude its making a profit that "the only recourse then would be to sell their shells and blanks to competitors and eventually even close down because we could not run and could not afford to run without a profit." On another occasion he asked an employee who called at his office whether she had attended the Union meeting on the previous night, saying that he "wanted to find out the straight of some things that was going around." He also asked her if any of the other girls had gone to the Union meeting. He also said: "Mr. Schultheis (the Union organizer) told you that I couldn't go to 40 hours. I can too. I can go to ten hours if I want to." He also said he did not have to continue working fifty hours, forty hours, or thirty hours, or "even run at all if conditions don't warrant it, or if we don't see fit to do so."

Foreman Bey, during this same period, in answer to advice from an employee that she had signed an application for membership in the Union, said: "What did you want to do that for? Don't you think this company has been treating you pretty good around here? Mr. Jungbluth didn't tell me this — I read between the lines — they might even close this plant down;" that she would make less money if the Union came into the plant. Bey also said to another employee, in answer to an inquiry as to why he took 168 buttons for the test instead of 144; "This is where your damn Union comes in." He also said that he did not want the Union in the plant; that if it got in all the employees would be looking for other jobs; that Jungbluth said if the Union got in the plant he would "shut the damn factory down." In a later conversation, after the election but just prior to the hearing, the same employee said to Mr. Bey that she was going to testify and tell what he had said to her about the Union; that he had replied then, "It's going to be too bad for you." Foreman Bey had a conversation with another employee with reference to an increase in the number of buttons required, to which Bey replied: "That's what this Union is going to do for you — you ought to know, you have been to every one of the meetings."

Foreman Murdock, in conversation with an employee about the price of buttons, in which the employee said there ought to be more money for the smaller shells, replied: "Well, after you get your Union in here it will be cut down, forty hours a week. Maybe we will both be out of a job for good." At a later time, Murdock said to this employee, referring to the organizer of the Union: "After that guy sells you what he wants to sell you, why, he will up and quit you. That's the way he makes his living." Another employee in conversation with foreman Murdock was told: "Bob, I don't believe button cutters can hold together in the Union. I've been in a Union before and they have never stuck together. * * * If the Union comes in Bob, you won't be making as much money as you are. I will be making the same but I will have more time to go fishing and work in the garden, but yours will not be the same and you will not have any overtime and the shop will go to forty hours." To another employee, Murdock said that if the Union came in the plant the hours would be reduced to forty hours, to which the employee replied: "If they reduce the hours they will be discriminating against the Union." Murdock then said: "Well, then, they will shut it down. Carl Jungbluth told me they would." A...