National Labor Relations Bd. v. Skinner & Kennedy S. Co.

• Decision Date: 16 August 1940
• Docket Number: No. 472.,472.
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: NATIONAL LABOR RELATIONS BOARD v. SKINNER & KENNEDY STATIONERY CO.

113 F.2d 667 (1940)

NATIONAL LABOR RELATIONS BOARD v. SKINNER & KENNEDY STATIONERY CO.

No. 472.

Circuit Court of Appeals, Eighth Circuit.

July 25, 1940.

Rehearing Denied August 16, 1940.

Maurice J. Nicoson, of Washington, D. C. (Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, Laurence A. Knapp, Asst. Gen. Counsel, and Samuel Edes and William J. Isaacson, all of Washington, D. C., on the brief), for petitioner.

Richard F. Moll, of St. Louis, Mo. (Francis M. Curlee, of St. Louis, Mo., on the brief), for respondent.

Before WOODROUGH and THOMAS, Circuit Judges, and BELL, District Judge.

THOMAS, Circuit Judge.

In this proceeding the National Labor Relations Board petitions for the enforcement of its order of July 26, 1939, against the Skinner & Kennedy Stationery Company of St. Louis, Missouri. The order was issued pursuant to section 10(c) of the National Labor Relations Act, 49 Stat. 449, U.S.C.Supp. IV, Title 29 sec. 151 et seq., 29 U.S.C.A. § 151 et seq.

The respondent resists the enforcement of the order, prays that the petition be dismissed and the order set aside. Resistance to enforcement is based upon the ground that the findings of fact and conclusions of law resulting in the order are not supported by the evidence or the law.

The respondent is engaged in commercial printing, binding and distributing books, calendars and stationery supplies and other products at its plant in St. Louis, Missouri. During the month of April, 1938, it employed 120 persons in its business, 67 as factory employees and 53 in office and clerical work. In the proceedings before the Board a complaint was filed May 27, 1938. The complaint was based upon charges filed by St. Louis Printing Pressmen's Union No. 6, Inc., St. Louis Typographical Union No. 8, Bookbinder's Union No. 18, Franklin Association No. 43, and Bindery Women's Union No. 55, members of the Allied Printing Trades Council of St. Louis, Missouri, hereinafter called the Union. The complaint, in so far as material in this proceeding, alleged that respondent (1) had dominated and interfered with the formation of a labor organization of its employees known as the Grasshopper Welfare Association, hereinafter called the Association, and contributed to its support; (2) had discriminatorily discharged and refused to reinstate two of its employees, Mathias W. Eckert and Joseph Hillgaertner, because of their union activities; and (3) that by these acts and in other ways it had interfered with, restrained and coerced its employees in the exercise of their rights guaranteed in section 7 of the Act, and that it had engaged in and was engaging in unfair labor practices within the meaning of section 8 of the Act.

After hearing and argument the Board sustained the foregoing allegations of the complaint and ordered respondent (1) to cease and desist from (a) dominating and supporting the Association, (b) discouraging membership in the Union or other organization of its employees; and (2) (a) to withdraw recognition from the Association as the representative of its employees for the purpose of collective bargaining and to disestablish it as such representative, (b) to reinstate Eckert and to make him whole for any loss suffered by him from the date of his discharge to the date of the offer of reinstatement, and (c) to make Hillgaertner whole for any loss suffered by him. Hillgaertner since his discharge having accepted another position does not seek reinstatement.

Under the heading "The Unfair Labor Practices" the Board found "that the respondent dominated and interfered with the formation and administration of the Association, and contributed support to it, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act." The facts upon which this finding is based are not in dispute. In brief these facts are: In May, 1937, a committee of the Union began a drive to organize respondent's employees. "Authorization for representation" cards and circulars announcing an organization meeting for June 9 were distributed among them. Between 25 and 40 of the employees attended the meeting. On the day following the meeting, Crossman, respondent's vice president in charge of production, stated to Mathias W. Eckert, a foreman: "We can't wait any longer. We have got to do something now. We have got to do something to counteract this thing." Later in the day, the respondent's foremen met for the purpose of organizing an "inside" union. Shortly thereafter Eckert distributed among the employees ballots printed in the plant. The ballots propounded the question whether the employees desired an "inside" union. Fifty-four employees voted for and 18 against an "inside" union. Thereupon the Association was organized, officers were elected, and a committee was appointed to draft by-laws. Crossman furnished a member of the committee forms of by-laws suitable for use. With respondent's consent by-laws were prepared in its office with the aid of a stenographer; and, after certain changes had been recommended by Crossman, they were adopted and printed at respondent's expense.

Respondent's president then told a member of the committee: "The next thing you want to do is to ask the Company for recognition of your union." A letter under date of June 29 requested recognition of the Association as the sole bargaining agency for all the production employees. Respondent requested proof that it represented a majority of the employees. A list of members was submitted on July 5. On July 13, respondent wrote that it "cheerfully" recognized the Association as the sole bargaining agency of all its production employees. The Association, however, never entered into collective bargaining negotiations with the respondent.

In August, 1937, respondent contributed $40 toward the expenses of a picnic sponsored by the Association. In December the Association experienced difficulties in securing attendance at its meetings. Respondent's superintendent instructed the foremen to notify the employees to attend such meetings.

Respondent admits all the foregoing facts but says there are other circumstances which show that the Association was a truly independent organization. The circumstances cited are that (1) the employees had an opportunity by secret ballot to express their desires as to what organization should represent them; (2) that at the election of officers Emery, one of the foremen, presented a slate which was rejected; and (3) there is testimony that employees attended outside union meetings and informed the foremen of their activity and membership in the outside unions.

The fact that the record contains testimony inconsistent with the findings of the Board, where as here there is substantial testimony supporting the Board's findings, would not justify the court in setting aside the Board's findings nor in refusing to enforce its order based thereon. "The findings of the Board as to the facts, if supported by evidence, shall be conclusive." 49 Stat. 449, 453, § 10(e); National Labor Relations Board v. Waterman Steamship Corp., 309 U.S. 206, 208, 60 S.Ct. 493, 84 L.Ed. 704. The law does not require that the evidence to support the Board's findings must all be consistent nor undisputed.

The respondent resists the enforcement of the order to offer Eckert reinstatement to his former position and to make him whole for loss of pay on the alleged grounds that (a) he is not an employee within the meaning of the Act; (b) he has obtained regular and substantially equivalent employment; (c) he was discharged for reasons of economy and...