National Labor Relations Bd. v. ALUMINUM G. MFG. CO., 7742.

• Decision Date: 02 February 1942
• Docket Number: No. 7742.,7742.
• Parties: NATIONAL LABOR RELATIONS BOARD v. ALUMINUM GOODS MFG. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

125 F.2d 353 (1942)

NATIONAL LABOR RELATIONS BOARD v. ALUMINUM GOODS MFG. CO.

No. 7742.

Circuit Court of Appeals, Seventh Circuit.

February 2, 1942.

Robert B. Watts, of Washington, D. C., I. S. Dorfman, of Chicago, Ill., and Malcolm F. Halliday, Laurence A. Knapp, Associate General Counsel, Ernest A. Gross, Asst. General Counsel, Owsley Vose, and William J. Isaacson, Attys., National Labor Relations Board, all of Washington, D. C., for petitioner.

A. L. Nash, W. J. Clark, A. F. Rankin, and John P. Nash, all of Manitowoc, Wis., for respondent.

Before EVANS and SPARKS, Circuit Judges, and LINDLEY, District Judge.

LINDLEY, District Judge.

The important question presented here is whether an order entered by the National Labor Relations Board, now sought to be enforced, is supported by substantial evidence. The Board found that respondent had interfered with, restrained and coerced its employees in the exercise of their right to self organization as defined in Section 7 of the Act, Title 29 U.S.C.A. § 157, interfered with the formation and administration of the G. M. Workers' Association, an unaffiliated employees' organization, and contributed support to it in violation of Section (8) (2) of the Act, 29 U.S.C.A. § 158(2), and discriminated against various members of the "Union," affiliated with the American Federation of Labor, in regard to their hire and tenure in violation of Section (8) (3) of the Act. The order, entered on July 27, 1940, directed respondent to cease and desist from the unfair practices and ordered it to refuse to recognize the "Association" as the collective bargaining agent of its employees, to reinstate, with back pay, the employees discriminated against and to post appropriate notices.

The testimony to which the Board gave credence bearing upon respondent's alleged interference with the Unions follows. In the summer of 1936 a plant manager said to an employee who had protested being laid off that "you union fellows are getting too smart. * * * You stuck your necks out until you got them cut off." He advised another employee seeking promotion that only "loyal" workers would be considered and that the employee should remind his father of what had previously happened to him and tell him "that he should drop the union." In the spring of 1937 the foreman of the riveting room warned employees that they would incur the displeasure of respondent by persisting in becoming or remaining union members. A meeting of certain employees resulted in a letter written by the leader of the group to a foreman requesting him to withdraw certain antiunion statements and to advise employees that they would not be punished for union activity. Following this letter the writer was summoned to the executive office where three of the force were present and told that they were aware of what had happened, saying that "you may think we don't know these things but we do." They asked him what he meant by sending the letter to the foreman and accused him of soliciting union memberships on company time (which he denied), warning him that respondent was warranted "in firing him" for such action. He was told also that he evidently did not appreciate that respondent "had given him a job when he first came to the plant a long time ago." Obviously, the legal duty of respondent, upon learning of the complaint against the foreman for making antiunion statements, was to have taken steps to remove any effect of his action. Heinz Co. v. N. L. R. B., 311 U.S. 514, 61 S.Ct. 320, 85 L.Ed. 309.

One of the superintendents asked an employee wearing a union button whether he or the union "had given her a job" and questioned her regarding her father's connection with the union. The foreman of the shipping department said to an employee wearing a union button, "so you are wearing one of those things * * * after I have given you a job, you take this and throw it back in my face." Another foreman asked an employee wearing a union button how the management would feel "if it should find out that he was not satisfied"; the employee thereupon removed his button. Thereafter the same foreman attempted to persuade the employee to renounce his membership. A foreman of the shipping department at Plant No. 1 said to an employee that "anyone who joined the union is a damn fool." An assistant foreman at Plant No. 2 told an employee that he and his fellow workers would never get any place if they belonged to the union. A foreman in the metal department at Plant No. 2 advised an employee "not to join the union; * * * wait about five years." Somewhat similar statements were made by two other foremen. Superintendent Becker, upon being asked when employees might return to work, said "if they had not listened to the union organizers the fall before, they would have a lot of work now."

Giving credibility to this and other similar testimony the Board concluded that the respondent had interfered with, restrained or coerced employees in the exercise of their right to self organization as provided in Section 7 of the act. The incidents relied upon covered a period of some three years and occurred in plants where there were some 3000 employees. Respondent in letters and notices advised employees of their protection under the act and of their right to select their own bargaining agent free of influence by respondent or any other person and assured them that whatever union they might select or whether they belonged to a union would be immaterial so far as fair treatment by respondent was concerned. But the Board believed that the series of events related by employees above referred to, including others of similar purport, was sufficient to overcome the expressed impartiality of respondent in its attitude toward the formation of unions affiliated with the A.F. of L. With this resolution of conflicting testimony we are not concerned. Our only inquiry can be as to whether the finding is supported by substantial evidence.

The recitals herein before included are of such character, in the way of threatening antiunion statements and questioning by respondent with regard to union activities and union officials as to prevent us from saying as a matter of law that the finding and the order in pursuance thereof were not justified. There was sufficient testimony which the Board believed and upon which it acted to support a reasonable inference that respondent did not observe that strict neutrality and impartiality imposed upon it by the Act when free selection by its employees of their bargaining agents was involved. N.L.R.B. v. Link-Belt Co., 311 U.S. 584, 61 S.Ct. 358, 85 L.Ed. 368; N.L.R.B. v. Burry Biscuit Corp., 7 Cir., 123 F.2d 540.

The Board found also that respondent had interfered with and supported an independent union, that is, the Association. This organization came into existence after a strike called by the affiliated unions had been terminated by a contract between respondent and the affiliated unions. Some of the employees preferred an independent union. They took steps to investigate such organizations, consulting an attorney and instructing him to draft constitution and by-laws. Election of officers followed and a drive for members began. During this drive one foreman advised an employee that the Association offered more cheaply everything the affiliated unions would secure. Another urged an employee that it would be better if she joined the Association because that "would be the best union." In December the latter foreman informed another employee that he was to be laid off and suggested that he had "better sign" an independent union card and thus "get a better chance" of getting back to work. A foreman at Plant No. 1 advised the wife of one of his employees that she should encourage her husband to join the independent, as, thus, "he would be sure to hold his job." Still another foreman suggested to an employee that the reason why he had failed to receive certain employment was because he was wearing a union button and told him "to join up with the rest of the gang * * * the independent."

The night die setters were active in this campaign. The Board found that their activity was of a supervisory character because at night they gave orders to other employees, reported employees' misconduct and, in the absence of representative foreman, took charge of the department. The testimony indicated that these die setters were ordinarily regarded as assistant foremen who helped the department and "took charge" when the foremen were gone. It accordingly concluded that they were supervisory employees for whose action respondent was accountable. Whether this was a correct solution it is not necessary to decide, even if it were within our province, but it would seem that a question of fact only was involved in such conclusion and that the finding of the Board upon it is conclusive. At any rate these employees openly solicited others under their supervision to join the Association, and warned them that they would be "fired if they did not join." Some of the foremen and supervisory employees held prominent positions in that organization.

These and other incidents the Board believed proved that respondent had attempted to promote the organization and success of the Association. Irrespective of the exact position of the die setters, the acts and statements of the executive officers, superintendents...