National Labor Relations Board v. Bachelder

• Decision Date: 14 April 1941
• Docket Number: No. 7514.,7514.
• Citation: 120 F.2d 574
• Parties: NATIONAL LABOR RELATIONS BOARD v. BACHELDER.
• Court: U.S. Court of Appeals — Seventh Circuit

120 F.2d 574 (1941)

NATIONAL LABOR RELATIONS BOARD v. BACHELDER.

No. 7514.

Circuit Court of Appeals, Seventh Circuit.

March 13, 1941.

Rehearing Denied April 14, 1941.

Robert B. Watts, Gen. Counsel, NLRB, of Washington, D. C., for petitioner.

Harold K. Bachelder, of Indianapolis, Ind., for respondent.

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

KERNER, Circuit Judge.

This case is before us upon the petition of the National Labor Relations Board for a decree of enforcement of the Board's order, based upon findings of fact and issued against the respondent employer under the authority of § 10(c) of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C. A., § 151 et seq., requiring respondent (1) to cease and desist (a) from refusing to bargain collectively with United Veneer & Lumber Workers Local Industrial Union No. 607 (hereafter referred to as "United"); (b) from discouraging membership in United; (c) from interfering with, restraining or coercing its employees in the exercise of their rights to self-organization guaranteed them by § 7 of the Act. The order further required the employer (2) to take affirmative action (a) upon request, bargain collectively with United as representative of the employees; (b) offer to certain employees full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and (c-d-e) make whole certain employees for any loss of pay they may have suffered.

The proceeding before the Board was originally instituted by United against the Hoosier Veneer Company and Frank Woolling, who had been appointed receiver of Hoosier by the Circuit Court of Marion County, Indiana, prior to the enactment of the Labor Relations Act. After hearing and before the Board had rendered its decision Woolling died, and W. C. Bachelder, having been appointed receiver in lieu of Woolling, deceased, was substituted as respondent.

The contested issues are (1) did the Board have jurisdiction of the respondent, (2) are the findings supported by substantial evidence and (3) is the order valid and proper.

Respondent, as successor receiver for Hoosier Veneer Company, an Indiana corporation, is engaged at Indianapolis, Indiana, in the manufacture, sale and distribution of veneer and related products. January 17, 1933 the business of Hoosier was placed in charge of Woolling by the Circuit Court of Marion County, Indiana, who from that date until his death on January 15, 1939 continued in full charge of it. During his administration Woolling retained H. E. Daugherty, former president of Hoosier, as general-manager and James C. Daugherty, former secretary-treasurer, as sales manager and to them he delegated responsibilities for production, sales and personnel, including the hiring and discharging of employees. January 17, 1939 Bachelder succeeded Woolling as receiver.

First. It is contended that the Labor Relations Act is not applicable to respondent. In support of this contention counsel asserts (a) the evidence fails to show any unfair practice affecting commerce, (b) the Board failed to obtain the consent of the court appointing the receiver, (c) the Act does not apply to a receivership, and (d) no complaint was filed which charged that respondent had violated the Act.

The facts, as found by the Board, are that Woolling, in the course of operations during 1937, imported 73 carloads of logs which were shipped to respondent's plant from points outside the state of Indiana, including one carload from British Columbia and five from West Africa and that from 1933 to 1937 the major portion of the products sold by the receiver, ranging in value from approximately one-quarter million to over one-half million dollars per year, was shipped to out-of-state points and salesmen were maintained in nine principal furniture manufacturing areas in the United States. The Board concluded that the unfair labor practices had led and intended to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. We need say no more than that there was evidence justifying the finding and that support for the conclusion may be found in National Labor Relations, Board v. Fainblatt, 306 U.S. 601, 604, 59 S.Ct. 668, 83 L.Ed. 1014 and cases cited therein. See also National Labor Relations Board v. Bradford Dyeing Ass'n, 310 U.S. 318, 60 S.Ct. 918, 84 L.Ed. 1226.

We are of the opinion that there is no merit to the claim that before filing the complaint it was necessary to obtain the consent of the court appointing the receiver. The Labor Relations Act entrusted the exclusive power to prevent unfair labor practices with the Board and designated the Circuit Court of Appeals of the United States as the forum to which petitions for the enforcement or review of Board orders shall be addressed, § 10(a), (e) and (f), 29 U.S.C.A. § 160(a, e, f). See also Amalgamated Workers v. Consolidated Edison Co., 309 U.S. 261, 266-269, 60 S.Ct. 561, 84 L.Ed. 738. The exercise of that jurisdiction does not depend upon the prior leave of a state receivership court. McNulta v. Lockridge, 137 Ill. 270, 27 N.E. 452, 31 Am.St.Rep. 362, Id., 141 U.S. 327, 12 S.Ct. 11, 35 L.Ed. 796; United States v. Illinois Surety Co., D.C., 238 F. 840; Hopkins v. United States, 246 U.S. 655, 38 S. Ct. 423, 62 L.Ed. 924; United States v. Federal Surety Co., 4 Cir., 72 F.2d 961.

Equally unsound is the contention that the Act does not apply to a receivership. § 10(a) of the Act empowers the Board to prevent any person from engaging in any unfair labor practice (listed in Section 8) affecting commerce, and § 2(1) defines the term "person" as including "one or more individuals, partnerships * * * or receivers." A somewhat similar contention was made in National Labor Relations Board v. Colten, 6 Cir., 105 F.2d 179.

As to the point that no complaint was filed which charged that respondent had violated the Act, it will suffice to say that on May 3, 1939 a supplemental complaint was filed substituting Bachelder in place of Woolling as the respondent.

Second. The respondent contends that the findings are not supported by substantial evidence. The Board found that Woolling has interfered with, restrained and coerced his employees in the exercise of their rights in violation of § 8(1). It also found that he refused to bargain collectively with United as the exclusive representative of his employees, and thereby violated § 8(5) of the Act and that he violated § 8(3) of the Act by discriminating against 14 of his employees in regard to hire and tenure of employment.

United commenced organization activities at the plant among respondent-receiver's employees in July 1937 and continued through September 1937, at which time three-fourths of the employees had signed membership applications. The Board found that a majority of Woolling's employees in the appropriate unit had designated United as their collective bargaining agent. September 30, 1937 United organizer Whitman notified Woolling of United's majority status and submitted to him a proposed collective agreement. Woolling refused to discuss the proposals, asserting that he had no specific authorization from the court appointing him. October 6 Whitman met with Woolling and his attorney, H. K. Bachelder, and requested that the proposed contract be considered and a tentative agreement formulated for presentation to the Marion Circuit Court. Thereafter Woolling applied to the court for instructions. The court on October 11, 1937 entered an order directing Woolling to terminate all manufacturing operations, excepting only such as are necessary for the fulfillment of orders or to prevent unusual depreciation, and authorized him to enter into discussion, at any time, with his employees regarding wages, hours and conditions of employment. Woolling closed the plant, but within 2 or 3 days operations were gradually resumed until on November 1, 1937 some 57 employees were at work. Woolling recalled all but 3 of the 31 nonunion employees, but only 29 of the 96 members of United. Among those refused reinstatement were the 14 persons found by the Board to be the victims of unlawful discrimination.

Beginning about the latter part of August 1937 Woolling, the two Daughertys, and superintendents Connor and Randall interrogated certain employees concerning their membership in United and inquired whether other employees had joined and, while questioning the men, they indicated displeasure at the activities of United and sought to block the spread of the organizing movement. The following are illustrative of such conduct. James C. Daugherty asked one Scott whether he belonged to United and when Scott told him he did, Daugherty replied: "Well, Scotty, I hate that, I think the old man H. E. Daugherty will shut the plant down." Connor, on learning that employee Maynard was a member of United, said to Maynard "You may lose your job" and under similar circumstances Connor said to other employees "that their adherence to United would result in the closing of the plant." On October 11 H. E. Daugherty dismissed Scott thus: "Scotty, one time you stood mighty high with me, but that is all over now. When 4 o'clock comes * * * your work here is over. * * * You are permanently away from here." About two weeks after the plant had resumed operations and after one Peters had informed this same Daugherty that he was a member of United, Daugherty said to Peters:...