National Labor Relations Bd. v. Sheboygan Chair Co.
| Decision Date | 04 February 1942 |
| Docket Number | No. 7835.,7835. |
| Citation | 125 F.2d 436 |
| Parties | NATIONAL LABOR RELATIONS BOARD v. SHEBOYGAN CHAIR CO. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Robert B. Watts and John H. Dorsey, both of Washington, D. C., I. S. Dorfman, of Chicago, Ill., and Laurence A. Knapp, Associate Gen. Counsel, Ernest A. Gross, Asst. Gen. Counsel, and Louis Libbin, and Thomas E. Shroyer, all of Washington, D. C., for National Labor Relations Board.
Herbert S. Humke, Paul L. Axel, John M. Poole, and Bassuener, Humke & Poole, all of Sheboygan, Wis., for respondent.
Before MAJOR and MINTON, Circuit Judges, and LINDLEY, District Judge.
The National Labor Relations Board seeks to enforce its order of July 21, 1941 against the respondent. In this order the Board found the respondent guilty of unfair labor practices in violation of Sections 8(1) and 8(3) of the National Labor Relations Act, 29 U.S.C.A. § 158(1, 3). The trial examiner found there was no violation of the Act, and recommended dismissal of the complaint. The order affects the status of only one man, William Moegenburg. The Board entered a cease and desist order and provided that Moegenburg be reinstated with back pay. The only question presented is the sufficiency of the evidence to support the Board's findings.
The respondent manufactures chairs and tables at Sheboygan, Wisconsin. Efforts had been made in 1934, 1937 and 1939 to organize respondent's plant by the Furniture Workers and Finishers, Local 133-B of the Upholsterers International Union of North America, affiliated with the American Federation of Labor, hereinafter called the union.
After the efforts of 1939, an election was held on March 15, 1940 and the union was designated as the bargaining agent. An effort was made to negotiate a contract but no agreement was ever reached.
Immediately following the election, the union held a meeting. William Moegenburg, a fireman in respondent's plant, attended. He had formerly belonged to the union but had dropped out and had only recently rejoined. He complained at the union meeting about the firemen having to work seven days a week. The union took this up with the respondent, and the latter promptly arranged for the firemen to have one day off each week. There is no evidence that the respondent knew that Moegenburg had complained to the union or that he had attended the union meeting, or even that he was a union member.
While Moegenburg and another fireman were discussing the change in their working conditions with engineer Nelson, the plant superintendent, Hamilton, came up and according to Moegenburg, "bawled me out for squawking to other people and not coming to him."
The evidence showed without dispute that Moegenburg was always "squawking" and there is no evidence as to what particular "squawk" of Moengenburg Hamilton had reference to or what "other people" he had in mind. There is no evidence that Hamilton knew Moegenburg was a union man or that he had attended the union meeting or that he had made a complaint at such meeting. It was common knowledge among those who worked with Moegenburg that he was not only a "squawker" but that he did not do his share of the work and was generally very non-cooperative. The trial examiner who saw and heard Moegenburg testify stated in his findings: "The undersigned, from his observation of Moegenburg during this testimony, concludes that Moegenburg has a very definite non-cooperative attitude."
Moegenburg had been a fireman in the respondent's plant since February, 1934. He was discharged May 4, 1940, for the reason, as assigned by the respondent, that he had failed to perform his work properly.
As stated before, the undisputed evidence shows that Moegenburg was non-cooperative, that he did not do his share of the work and that he was always complaining to his fellow employees. He was a "trouble maker," as his fellow firemen characterized him. He would not even cooperate in the affairs affecting the union that seeks now to protect him. On the day of the election for the purpose of determining the collective bargaining agent, Moegenburg was requested by his superior officer to come down and fire the boilers for a half-hour on that day to enable the other firemen to go vote, and he was promised pay for that half-hour. He said he was not interested in the union, he wanted to get his sleep, and he did not come down; but he had the effrontery to request the half-hour's pay for services he never rendered.
Nelson, the engineer, plainly became annoyed with Moegenburg, due to his noncooperative attitude and his failure to perform his duties. It became so bad that Nelson said either Moegenburg must go or he would go. There is not the slightest evidence that Nelson's attitude was in the least influenced by Moegenburg's membership in, association with or activities in the union.
The climax was reached the day before his discharge, when Nelson gave Moegenburg eighteen boiler caps to clean. This job should have taken Moegenburg not more than twenty or thirty minutes to perform. Moegenburg, however, had on previous occasions said to his fellow firemen that this was not a fireman's job, to clean boiler caps. Before his shift ended, he had cleaned only four caps, although he had had ample time to clean all of them, and he left the balance for the fireman on the succeeding shift to clean. Nelson had been watching Moegenburg and knew he had shirked his work. Nelson called the superintendent, Hamilton, and asked that Moengenburg be discharged.
Even after the decision, when Nelson and Hamilton communicated the facts concerning Moegenburg's conduct to the personnel man, McNeill, who was also president of the company, the latter said: "Well, if that's the case, why don't you fire the man on account of this boiler cap business?"
In the meantime, Mr. Fred Braasch, active in the company's management, joined in the discussion relating to Moegenburg and said:
"Surely," (McNeil said)
The decision was to discharge Moegenburg because of his failure...
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