National Labor Relations Bd. v. Montgomery Ward & Co.

• Decision Date: 23 October 1946
• Docket Number: No. 13332.,13332.
• Citation: 157 F.2d 486
• Parties: NATIONAL LABOR RELATIONS BOARD v. MONTGOMERY WARD & CO., Inc.
• Court: U.S. Court of Appeals — Eighth Circuit

157 F.2d 486 (1946)

NATIONAL LABOR RELATIONS BOARD v. MONTGOMERY WARD & CO., Inc.

No. 13332.

Circuit Court of Appeals, Eighth Circuit.

October 23, 1946.

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Robert Fousek, Regional Atty., National Labor Relations Board, of Kansas City, Mo. (Gerhard P. Van Arkel, Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, and G. Mallet-Prevost and Robert E. Mullin, D. C. Attys., all of Washington, D.C., on the brief), for petitioner.

Stuart S. Ball, of Chicago, Ill. (John A. Barr and William L. Lamey, both of Chicago, Ill., on the brief), for respondent.

Before GARDNER, WOODROUGH, and RIDDICK, Circuit Judges.

GARDNER, Circuit Judge.

This is a petition by the National Labor Relations Board for the enforcement of an order entered by it requiring Montgomery Ward & Co., respondent, to cease and desist from certain alleged unfair labor practices, to offer reinstatement with back pay to certain discharged employees, and to post appropriate notices.

The respondent, Montgomery Ward & Co., is engaged in the sale and distribution of general merchandise throughout the United States. It operates nine retail order houses and more than 500 retail stores in various states, including a mail order house and retail store in Kansas City, Missouri.

Upon charges filed by United Mail Order, Warehouse & Retail Employees Union, Local 131, affiliated with United Retail, Wholesale and Department Store Employees of America, C. I. O., the National Labor Relations Board, on the 4th day of October, 1944, issued its complaint against respondent, alleging that respondent had engaged in and was engaging in certain unfair labor practices. Upon issue joined by answer of the respondent a hearing was held before a trial examiner who made an intermediate report sustaining the charges, and on exceptions filed by respondent the Board adopted the findings of the examiner which in effect found that respondent had violated Section 8(3) of the National Labor Relations Act, 29 U.S.C.A. § 158(3), by discharging Henry Medlin, Roy Skinner and Walter Smith in June and July, 1943, and by refusing to reinstate Helen Slanko, Ramona Sullivan and Marvel Gaylord on April 24, 1944. The Board also found that respondent had violated Section 8(1) of the Act by these discharges, by a speech to employees made on January 4 and 5, 1944, by respondent's Manager of Labor Relations, and by certain remarks during a period of fifteen months made by certain minor supervisory employees. Respondent was accordingly ordered to cease and desist from discouraging membership in the union or any other labor organization by discharging or refusing to reinstate any of its employees or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of their employment, and from in any manner interfering with, restraining or coercing its employees in the exercise of the right to self organization, to form labor organizations, to join or assist the union or any other labor organization, 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 and protection as guaranteed in Section 7 of the National Labor Relations Act, 29 U.S.C.A. § 157. Respondent was ordered to offer to the discharged employees immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or to their rights and privileges and to make them whole for any losses of pay they had suffered by reason of the discriminatory discharges.

The C. I. O. had sought to organize respondent's Kansas City plant since 1937. In March, 1943, it began an active campaign which reached its height in June and July, 1943. As the campaign progressed the union petitioned the National Labor Relations Board to conduct an election at respondent's plant. In response to this request the Board directed that an election be held January 11, 1944. On January 4 and 5, 1944, respondent summoned its employees to leave their work in a series of small groups and assemble in the girl's recreation room to hear a speech by John A. Barr, respondent's Labor Relation Manager. Nine such meetings were held in the plant and Barr's remarks were substantially the same at each meeting. At the election the union lost in the mail order unit and won in the retail store unit. So far as appears the election has not been set aside nor the result directly challenged.

On this review respondent contends that (1) the Board's findings as to the discharges of Medlin, Skinner and Smith are not supported by substantial evidence and are based upon erroneous applications of the law; (2) the Board erred in holding that Helen Slanko, Ramona Sullivan and Marvel Gaylord could not properly be discharged for their admitted insubordination and in ordering them to be reinstated; (3) the Board, in holding that respondent violated the Act by the talk to employees made by its Labor Relation Manager, has misconstrued the applicable law and has denied respondent the right of free speech guaranteed by the First Amendment to the Constitution; (4) the Board's finding that respondent interfered with, restrained or coerced its employees by isolated remarks made over a period of fifteen months by five minor supervisory employees is not supported by substantial evidence; (5) the Board's inferential finding that respondent's entire course of conduct was unlawful is based upon the unfounded inference that Barr's talk to employees was evidence of an implacable hostility to the union.

We shall first consider the discharges of Medlin, Skinner and Smith. In considering the propriety of these discharges the question is not whether they were merited or unmerited, just or unjust, nor whether as disciplinary measures they were mild or drastic. These are matters to be determined by the management, the jurisdiction of the Board being limited to whether or not the discharges were for union activities or affiliations of the employees.

The reason assigned for Medlin's discharge was the pasting of union labels on furniture in respondent's plant "and other complaints." He was employed as an elevator operator on December 4, 1942, and was discharged June 16, 1943. The Board found that Medlin "did in fact paste one label and admitted doing so." It appears from the evidence that there had been promiscuous pasting of labels on company property, and repair work that was expensive, such as repainting, had to follow the removal of the labels. When Medlin was discharged he protested against being discharged for pasting the label and was informed that the discharge was based upon past complaints as well. These may be summarized as follows: (1) A complaint in January, 1943, for failing to give prompt service to customers on "house sales"; (2) a complaint in February, 1943, that he had used improper language in the presence of female employees; (3) a complaint in February, 1943, that he was giving poor service in handling the schedules of his elevator; (4) a complaint in May, 1943, that he had visited with employees, interfering with their work during working hours; (5) a complaint in May, 1943, that he was found talking and laughing and having a regular picnic with a number of the female employees in the plant. Each of these five complaints was discussed with Medlin and he was warned of the necessity of caution. After the second and fifth complaints he was moved to a different elevator in the hope of correcting the situation, and after the fifth complaint he was specifically warned that a further breach of discipline would result in his discharge. This evidence was undisputed.

Medlin was active in union affairs and wore a button. In January, 1943, he became union steward of respondent's elevator department and subsequently received some publicity for his contribution of an idea for a cartoon which appeared in the May 7, 1943, issue of the union bulletin, "The Spotlight." He testified that during an exchange of remarks between him and a Mr. Wood, five months before his discharge, he erroneously accused Wood of wearing an anti-union button, in reply to which Wood said that he, Medlin, should not be wearing a union button; that he should be ashamed of doing so, and that he would get along better if he were not a member of the union. Medlin did not work for or under Wood and Wood had nothing to do with his discharge. During his employment he had received three raises in pay, the third two weeks before he was discharged.

It is not here contended that respondent would not be justified in discharging Medlin for defacing respondent's property and other admitted infractions of the proprieties, but it is contended that these were not the reasons but that his union affiliations and activities were the basis for this action. The burden of proof was, of course, upon the Board. There was no dispute that there numerous complaints relative to his conduct prior to his being discharged. As has been observed, he was twice moved to other elevators with the hope of correcting the situation, and he was warned that a further breach of discipline would result in his discharge. It is argued that there was a manpower shortage and that Medlin had been given increases in pay. However, even during a shortage of manpower, employers do discharge employees for cause and manifestly may be required to do so. The increase in pay would certainly be evidence that respondent, then cognizant of his union affiliations and activities, was not hostile to him on that account. When he committed this last breach of conduct, he was, in accordance with the warning, discharged. There is, we think, no evidence that respondent had an implacable hostility to the union in the sense that it would take unlawful steps to prevent the employees from selecting the union as their bargaining agent. As we have...