National Labor Relations Bd. v. Illinois Tool Works, 8950.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation153 F.2d 811
Docket NumberNo. 8950.,8950.
Decision Date27 February 1946

Mozart G. Ratner, David A. Morse, Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, and Morris P. Glushien, Dominick L. Manoli, and Mozart G. Ratner, Attys., National Labor Relations Board, all of Washington, D. C., for petitioner.

Alfred T. Carton, Erwin W. Roemer, and James A. Velde, all of Chicago, Ill., for respondent.

Before EVANS, MAJOR, and KERNER, Circuit Judges.

KERNER, Circuit Judge.

This is a petition of the National Labor Relations Board for the enforcement of its order directing that the respondent cease and desist from unfair labor practices, rescind a rule regulating the conduct of its employees, make whole two of its employees for their losses resulting from respondent's discrimination against them, and post notices to this effect. Enforcement is resisted only upon the ground that the findings are not supported by any substantial evidence.

Respondent is engaged in the manufacture and sale of machine tools in Chicago, Illinois. Beginning in the summer of 1942 and extending into May, 1943, it employed about 2,000 men in its production unit. There were about a dozen foremen with the title of "general foremen," each of whom was the head of a department; about six supervisory employees with the title of "assistant to the general foreman"; and between 65 and 75 "assistant foremen." Late in 1942, Amalgamated Machine, Tool and Die Local 1114 of the United Electrical, Radio and Machine Workers of America initiated an active campaign to organize respondent's employees. The union distributed a bulletin inviting applications for membership and listing the names of 17 employees as members of the organization committee. Among those named were Thomas M. McKenna and Victor Marsich. Between September and November, 1942, there was a large influx of new members into the union, and the members began wearing their union buttons. Respondent learned of these activities, and during the late part of March, 1943, Russell M. Wicks, assistant to respondent's factory manager, Charles J. Irwin, sent for employee William Wasinger, who came to Irwin's office and was questioned about his attendance at a union meeting and as to the number of employees who had signed up. In April, 1943, general foreman Biemeck sent for six employees who worked under his supervision and asked them if they had joined the union, and when Spacko, an employee, informed Biemeck that he had signed a pledge card, Biemeck told Spacko he was foolish and asked him if he "thought it would do any good, do * * * him any good." About the same time assistant foreman Rowe told Marsich to stop talking union. It also appears that when McKenna requested Irwin to meet with a union committee, Irwin refused, and said that he would "not meet with any person to represent another person, but would meet only with individuals in connection with their own grievances."

In November, 1942, general foreman Mulder warned employees Marsich and Friedman not to engage in solicitation for the union at the plant at any time, and in January, 1943, he re-stated the ban with the warning that "any solicitation on company property meant instant dismissal." March 6, 1943, respondent posted a notice on a bulletin board in which it stated that "no collection of any sort will be permitted in any of the shop or office departments for anything except Community Fund, U. S. O., Red Cross, and the sale of tickets to employee affairs such as the company picnic, parties and athletic events," and in April, 1943, in another communication addressed to the employees, respondent enjoined the employees from engaging in "the solicitation of union memberships on the company premises and during working hours." When the employees sought to elicit a clarifying opinion as to whether this prohibition included solicitation during the employees' free time at the plant, respondent failed to resolve their doubts or make clear that there was no bar to solicitation during non-working hours. On the contrary, in a booklet distributed to the employees in May, 1943, respondent prohibited, under penalty of discharge and without limitation as to time, solicitation of any kind without the express permission of respondent's personnel manager. With the exception of Marsich, presently to be discussed, no one was ever discharged for violating the rule against solicitation.

The Board found that promulgation of the rule against solicitation on behalf of the union at the plant during non-working hours was unduly restrictive of legitimate union activities in violation of § 8(1), 29 U.S.C.A. § 158(1), and that respondent in violation of § 8(1) and (3) of the Act had engaged in a course of conduct whereby it had interfered with, restrained and coerced its employees in the exercise of the rights guaranteed them by § 7 of the Act, 29 U.S. C.A. § 157.

It is true that an employer may promulgate and enforce a rule prohibiting union solicitation during working hours. It is also true that time outside working hours is an employee's time to use as he wishes without unreasonable restraint, although the employee is on company property. Republic Aviation Corp. v. National Labor Relations Board, 324 U.S. 793, 65 S.Ct. 982, 157 A.L.R. 1081. In the case before us, the record does not reveal that the rule prohibiting union solicitation during non-working hours was necessary in order to maintain production or to preserve discipline at the plant. In such a situation, the rule was an unlawful restraint upon the rights of the employees to engage in concerted union activities. Republic Aviation Corp. v. National Labor Relations Board, supra, and National Labor Relations Board v. American Pearl Button Co., 8 Cir., 149 F.2d 258.

Respondent contends that the conduct of Wicks and Biemeck did not violate the Act because each testified that he did not intend to coerce the employees and because the record does not disclose that the employees were in fact coerced, and that Rowe's prohibition of union talk and Irwin's assertion that he would meet only with individuals in connection with their own grievances were not evidence of the Board's conclusion that respondent had violated § 8(1) of the Act.

In answer to these contentions it will be enough to say that this court, National Labor Relations Board v. Burry Biscuit Corp., 7 Cir., 123 F.2d 540, has recognized that the test of interference, restraint and coercion under § 8(1) of the Act does not turn on the employer's motive or on whether the coercion succeeded or failed. Western Cartridge Co. v. National Labor Relations Board, 7 Cir., 134 F.2d 240, and Rapid Roller Co. v. National Labor Relations Board, 7 Cir., 126 F.2d 452. The test is whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act. Indianapolis Power & Light Co. v. National Labor Relations Board, 7 Cir., 122 F.2d 757; National Labor Relations Board v. Jahn & Ollier Engraving Co., 7 Cir., 123 F.2d 589; Reliance Mfg. Co. v. National Labor Relations Board, 7 Cir., 125 F.2d 311; National Labor Relations Board v. Aluminum Goods Mfg. Co., 7 Cir., 125 F.2d 353; National Labor Relations Board v. William Davies Co., Inc., 7 Cir., 135 F.2d 179. We conclude that the Board was justified in holding that respondent had engaged in a course of conduct whereby it had interfered with, restrained and coerced its employees in the exercise of the rights guaranteed them in § 7 of the Act, 29 U.S.C.A. § 157.

The Discharge of Marsich.

Respondent contends that Marsich was discharged because he had engaged in soliciting union members during working hours.

Marsich was discharged on April 30, 1943. He entered responden...

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