National Labor Relations Bd. v. Knight Morley Corp.

• Decision Date: 13 February 1958
• Docket Number: No. 13116.,13116.
• Citation: 251 F.2d 753
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. KNIGHT MORLEY CORPORATION, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

251 F.2d 753 (1958)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. KNIGHT MORLEY CORPORATION, Respondent.

No. 13116.

United States Court of Appeals Sixth Circuit.

December 18, 1957.

Rehearing Denied February 13, 1958.

COPYRIGHT MATERIAL OMITTED

Owsley Vose, Washington, D. C. (Jerome D. Fenton, Gen. Counsel, Stephen Leonard, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Rose Mary Filipowicz, Atty., N. L. R. B., Washington, D. C., on the brief), for N. L. R. B.

John F. Langs, Detroit, Mich. (Richard F. Molyneaux (of Langs, Molyneaux & Armstrong), Detroit, Mich., on the brief), for Knight Morley Corp.

Before SIMONS, Chief Judge, and ALLEN and McALLISTER, Circuit Judges.

ALLEN, Circuit Judge.

This case arises on petition for enforcement of a decision and order of the National Labor Relations Board which held that respondent had violated Section 8(a) (1) (3) and (5) of the Labor Management Relations Act, 1947, 29 U. S.C. § 141 et seq., 29 U.S.C.A. § 141 et seq., and ordered reinstatement with back pay of certain employees whom it found to have been improperly discharged.

While the material evidence is in sharp controversy, the trial examiner and the Board found, based upon substantial testimony, the following facts:

Respondent operates a manufacturing plant at Richmond, Mich., engaged in the production of rear view mirrors and other automobile accessories. Its bargaining contract with the union, CIO, contained a no-strike clause. Under Mich.Stat.Ann. Sections 17.26 and 17.36 to 17.39, Comp.Laws 1948, §§ 408.66, 408.77-408.80, respondent was required to provide in its buffing room exhaust fans for the purpose of carrying off dust from emery wheels and grinders and dust-creating machinery. Sections 17.36 and 17.37 read together require that blowers and hoods be provided to protect the persons using buffing wheels from dust produced thereby and to catch and dispose of the dust thrown off by centrifugal force.

The initial difficulty in the immediate case arose out of the breakdown of respondent's blower system in its buffing room. Beginning Friday, August 21, 1953, the blower, which when in operation properly sucked up much of the dirt, dust, lint and abrasives thrown off in the buffing process, was out of order on various occasions. Serious trouble arose on August 28 when a fire destroyed the switchbox which controlled the blower. On Saturday, August 29, a new switchbox was installed but in this operation the wires of the motor were reversed. This caused the fan to run in reverse so that there was not enough suction in the blower system to draw off the waste material resulting from the polishing and buffing. On Monday, August 31, because of this situation, the morning shift of buffers was sent home after two hours work. The blower pipes were immediately cleaned, but in the afternoon of August 31 the blower still blew dirt, grit and abrasives into the men's faces, irritating eyes, ears and throats. On this day the temperature was from 96° to 98° in the shade and the atmosphere was very humid. A thermometer inside the buffing room showed the temperature there to be 110°. The buffers complained through their union steward and the union president to their foreman and to management. Respondent's president, Morley, made a cursory examination, putting his hand near the wheels of some of the buffing machines. He testified that the blower sucked in smoke from his cigar. Morley concluded that the blower was operating properly and rejected a suggestion from an experienced employee that the wires should be reversed. It was shown by the great weight of the testimony that the blower system on this day did not dispose of much of the dirt. The buffers, through their union steward and president, asked permission to stop working, but were told that they must continue and that anyone who left the plant would be discharged. All 17 of the afternoon buffers walked out of the plant at 5:15 p. m. Several of them testified at the hearing that they believed it would be injurious to their health to work under the conditions of the heat and dust.

On the morning of September 1 there was no improvement in the operation and the rest of the men threatened to leave if the blower was not fixed. One buffer, Herbert Fox, was told to quit if he wanted to lose his job and he immediately quit. Thereafter Morley had the wires changed to the proper position. The blower then operated normally. When the afternoon buffers returned to work September 1 they learned that they had been discharged.

At the time the union was in process of negotiating a new contract with respondent, the original contract being due to expire on September 25, 1953. The union protested discharge of the 17 buffers and, in accordance with its collective bargaining contract which established a detailed grievance procedure, it submitted a formal written grievance with reference to the matter. As to this grievance, the first four steps of the grievance procedure were followed by the parties, but neither party receded from its position, respondent asserting that the buffers had been discharged for violation of proper management orders. Under step 5 of the grievance procedure it was optional with the parties to proceed to arbitrate. Neither party pursued arbitration to settlement of the particular controversy. Upon the ground that the grievance procedure should have been followed to its ultimate conclusion, respondent refused to bargain on matters relating to the buffers' discharge in connection with negotiations for a new collective bargaining contract.

No meeting was held with respondent after September 25 and on September 30 two thirds of the employees walked out on strike, although Morley sent them word and also told them personally that they would be discharged if they ceased work. Respondent then notified all strikers to return to the plant by October 5 and, as to those who did not return, cancelled group insurance and treated their employment as terminated.

The Board found that the buffers quit work in good faith because of abnormally dangerous working conditions and that respondent violated Section 8(a) (1) and (3) of the Act in discharging them. It decided that in spite of the no-strike provision of the bargaining contract the cessation of work by the 17 buffers was protected under Section 502 of the Labor Management Relations Act of 1947, 29 U.S.C. § 143, 29 U.S.C.A. § 143, the pertinent portion of which provides that "the quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions for work at the place of employment of such employee or employees" shall not be "deemed a strike under this Act." The Board also decided that respondent violated the statute by discharging 86 other employees who struck in protest against respondent's unfair labor practice; in dismissing the buffers and in refusing to reinstate certain employees who applied for reinstatement; and by threatening to discharge its employees if they went out on strike. Lastly the Board found that respondent violated Section 8(a) (1) and (5) of the Act by refusing to bargain with its employees' union representative in regard to the discharged buffers' grievance, and by insisting that any new contract apply only to employees who had not struck.

We deem it unnecessary to discuss every point raised by astute counsel for respondent. The contention that the Board improperly found that respondent, in violation of Section 8(a) (1) of the Act, threatened to discharge several employees if they joined the strike of September 30, was raised neither before the trial examiner had issued his intermediate order nor before the Board and therefore we do not consider it. Section 10(e). Cf. Federal Power Commission v. Colorado Interstate Gas Company, 348 U.S. 492, 497-502, 75 S.Ct. 467, 99 L.Ed. 583; National Labor Relations Board v. Vulcan Forging Company, 6 Cir., 188 F.2d 927, 929-930.

The Board's decision depends largely upon questions of fact as to which it made findings which are vigorously attacked by respondent. The findings are sustained by substantial evidence upon the record considered as a whole and in general the Board must be sustained.

Respondent contends that the discharge of the buffers held to be wrongful cannot be considered because respondent had no notice until the filing of the amended complaint on July 30, 1954, of the charge that the buffers' cessation of work on August 31, 1953, was protected under Section 502 because the 17 buffers in good faith believed that conditions in their workroom were abnormally dangerous. The charge filed October 14, 1953, complained that on Monday, August 31, respondent discharged its employees in the buffing room because of their activities "in attempting to obtain correction of a faulty blower system." The amended charge filed December 11, 1953, set up that respondent, on or about Monday, August 31, 1953, discharged "all its employees in the buffing room because of their concerted activities in attempting to obtain correction of a faulty blower system." Both charges were filed within the six-month period specified in 29 U.S.C. § 160(b), 29 U.S.C.A. § 160(b).

The purpose of a charge is to set in motion the machinery of an inquiry. National Labor Relations Board v. Westex Boot & Shoe Co., 5 Cir., 190 F.2d 12, 13; National Labor Relations Board v. General Shoe Corporation, 6 Cir., 192 F.2d 504, 505. The charge is not a pleading. National Labor Relations Board v. Indiana & Michigan Electric Co., 318 U.S. 9, 63 S.Ct. 394, 87 L.Ed. 579; National Labor Relations Board v. General Shoe Corporation, supra, 192 F.2d 505; Kansas Milling Co. v. National Labor Relations Board, 10 Cir., 185 F.2d 413, 415. The strictness of formal pleadings should not be required therein. Kansas Milling Co. v. National Labor Relations Board, supra; National Labor Relations Board v. Kingston Cake Co., Inc., 3 Cir., 191 F.2d 563, 567.

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