National Labor Relations Board v. William Davies Co.

• Decision Date: 20 May 1943
• Docket Number: No. 8123.,8123.
• Citation: 135 F.2d 179
• Parties: NATIONAL LABOR RELATIONS BOARD v. WILLIAM DAVIES CO., Inc.
• Court: U.S. Court of Appeals — Seventh Circuit

135 F.2d 179 (1943)

NATIONAL LABOR RELATIONS BOARD v. WILLIAM DAVIES CO., Inc.

No. 8123.

Circuit Court of Appeals, Seventh Circuit.

April 21, 1943.

Rehearing Denied May 20, 1943.

Robert B. Watts and Max W. Johnstone, General Counsel, Ernest A. Gross, Associate General Counsel, Howard Lichtenstein, Asst. General Counsel, and Jacob I. Karro and Margaret M. Farmer, Attys., National Labor Relations Board, all of Washington, D. C., and Charles K. Hackler, of Warrensburg, Mo., for petitioner.

Lewis F. Jacobson, Sidney C. Nierman, and David Silbert, all of Chicago, Ill., for respondent.

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

MINTON, Circuit Judge.

The National Labor Relations Board has petitioned for the enforcement of its order of December 15, 1941. The Board found that the respondent was 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 Board ordered the respondent to cease and desist from discouraging membership in the United Packinghouse Workers of America, affiliated with the Congress of Industrial Organizations, hereinafter referred to as the union, or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to the hire and tenure of employment, or any term or condition of employment of its employees; to cease and desist from in any manner interfering with, restraining or coercing its employees in the exercise of the right to self-organization; to take affirmative action by offering to James McNally, James Allen, Michael Moriarity, and John Canning immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and to make them whole by awarding to them back pay, less their net earnings; and to post the usual notices.

The questions presented on this appeal are whether the Board's order is sustained by substantial evidence, and whether the alleged laches of the Board shall be visited upon the employees found to have been discriminated against.

This company, as far as the record shows, had no background of anti-union activity. In the summer of 1939, the respondent's employees began to talk about a union. Michael Moriarity, who was among the first to interest himself in and to join the union, joined December 13, 1939, and the agitation for the union continued with increased tempo thereafter. John Canning, an employee in one of the departments, was on December 16, 1939, while at work approached by the respondent's plant superintendent, who asked him how long he had been in the respondent's employ and whether he could obtain a job elsewhere if he were discharged, and stated to him that there were "men walking the streets today that are laid off on account of trying to organize the Union." Canning at that time was not a union member, but did thereafter join and was steward in his department. On the first day he wore his button at the plant, his foreman, McMahon, asked him "who I was stewarding it over," and on a subsequent pay day brought his pay check to him and said: "Here is your check, pin it on your button so you won't lose it because you seem to know all the answers." McMahon also said to employee Ahern, "I hear you are organizing a union again," and questioned another employee about the union strength.

While granting an increase in pay to a number of the employees, the respondent's plant manager said to one of these employees at the time the union was being organized in the plant and the increase in pay was put into effect: "You are getting more pay now than fellows across the street, although they have a contract there." The plant manager was referring to another packing concern across the street that had a contract with the union.

Moriarity was the leader of the union in the plant, and the secretary of the local. He had passed out cards and leaflets concerning the union and had held at least one meeting for organization purposes outside the plant, at which a union organizer was present and addressed the meeting. Moriarity received the distinction of being summoned before the plant superintendent, the plant manager, the vice president and the respondent's Canadian representative for a conference, at which conference union activities were discussed, although in a thoroughly friendly manner. It is a fair inference that Moriarity, who was just an ordinary laborer in the plant, would not have been so honored if the high officials of the respondent had not wished to convey to Moriarity their views about unionization, or to probe Moriarity about his.

On January 6, 1940, during the union's membership campaign, the respondent posted in its plant a notice prohibiting "The solicitation on company premises for membership in or for the purpose of collecting dues for any labor organization * * *" upon penalty of dismissal for violation thereof. The notice was directed only at those who solicited on behalf of the union, and applied whether such solicitation or other activities took place during working hours or upon the employees' own time. It is a fair inference from the posting of this notice and the scope thereof that it was intended to be antagonistic and discriminatory toward the union. Solicitation by others upon the company's premises at any time and a discussion of other subjects on the company's premises at any time were in no manner prohibited by the order.

We think these facts are sufficient to constitute substantial evidence that the respondent did interfere with, intimidate and coerce its employees in violation of Section 8(1) of the Act. While the circumstances are not numerous or particularly flagrant, yet they do indicate a purpose to interfere with the exclusive right of the employees to engage in organizational activities for the purpose of collective bargaining, as guaranteed by the Act. It seems to be necessary to emphasize again that the question of organization by the employees for the purpose of collective bargaining is the exclusive business and concern of the employees. It is the mandate of the statute that the employer shall not intrude himself into the picture. The slightest interference, intimidation or coercion by the employer of the employees in the rights guaranteed to the employees by the statute constitutes an unfair labor practice in violation of Section 8(1) of the Act. National Labor Relations Board v. W. A. Jones Foundry & Machine Co., 7 Cir., 123 F.2d 552; Rapid Roller Co. v. National Labor Relations Board, 7 Cir., 126 F.2d 452; National Labor Relations Board v. Falk Corp., 7 Cir., 102 F.2d 383.

We come now to a consideration of the Board's finding of discrimination in violation of Section 8(3) of the Act. Four men were found to have been discriminated against: McNally, Allen, and Canning in their discharge, and Moriarity in the refusal to rehire.

McNally was employed continuously from May, 1938 to January 22, 1940, when he was discharged for his alleged violation of the rule of the company to which we have referred, which forbade solicitation of membership or for collection of dues upon the company's premises. McNally joined the union on January 1, 1940 and started wearing his button. He participated actively in the organization, and was one of the union stewards. On January 8, 1940, the plant superintendent told McNally that he had received complaints that...