National Labor Relations Board v. Auburn Foundry, 7487.

• Decision Date: 02 April 1941
• Docket Number: No. 7487.,7487.
• Citation: 119 F.2d 331
• Parties: NATIONAL LABOR RELATIONS BOARD v. AUBURN FOUNDRY, Inc.
• Court: U.S. Court of Appeals — Seventh Circuit

119 F.2d 331 (1941)

NATIONAL LABOR RELATIONS BOARD v. AUBURN FOUNDRY, Inc.

No. 7487.

Circuit Court of Appeals, Seventh Circuit.

April 2, 1941.

Robert B. Watts, Gen. Counsel, and Edwin E. Huddleson, Jr., both of Washington, D. C., for petitioner.

Walter D. Stump, of Auburn, Ind., for intervener.

Dan M. Link, of Auburn, Ind., for respondent.

Before SPARKS and MAJOR, Circuit Judges, and WOODWARD, District Judge.

MAJOR, Circuit Judge.

This is a petition by the National Labor Relations Board for the enforcement of an order issued against respondent, pursuant to Section 10(c) of the National Labor Relations Act, Title 29 U.S.C.A. § 151 et seq.

Respondent is a manufacturing concern located in the City of Auburn, Indiana. The incidents relevant to the controversy occurred largely in the latter half of 1937, and the early part of 1938. Prior to the advent of the labor organizations involved, there had been no organization among respondent's employees. The complaint was filed with the Board March 28, 1938, by Lodge 1998 of Amalgamated Association of Iron, Steel and Tin Workers of North America, an affiliate of the C. I. O., (hereinafter referred to as the "C. I. O.") and alleged, in substance, that on or before September 17, 1937, a majority of respondent's employees had designated the C. I. O. as their representative for the purpose of collective bargaining, and that respondent had refused to recognize it as a bargaining agent. It was also charged that respondent had instigated the formation of the DeKalb Iron Workers Association, Inc. (hereinafter referred to as the "Association"), and had engaged in unfair labor practices in promoting and maintaining such organization. It was further charged that Robert Livergood and Arthur Miller were discharged on account of membership and activity in the C. I. O The Association was permitted to intervene, file an answer, and participate in the proceeding. At the hearing before the Examiner, the complaint was amended as to Arthur Miller so as to show that he was laid off rather than discharged, and that such lay off was due to his C. I. O. activities. During the hearing before the Examiner, it was conceded by counsel for the Board that the C. I. O. at no time had a majority of respondent's employees, and the charge that respondent had refused to bargain with it, was dismissed. The Board found jurisdiction (not in dispute) and that the respondent, by various acts of interference, restraint and coercion, had violated Section 8 of the Act; had dominated, interfered with and contributed to the Association in violation of Section 8(1) and (2); and had discharged Robert Livergood and laid off Arthur Miller because of their C. I. O. membership and activity in violation of Section 8(1) and (3). The usual cease and desist order was made, and respondent was affirmatively ordered (a) to withdraw all recognition from, and completely disestablish, the Association as a collective bargaining representative of the employees, and (b) to offer reinstatement with back pay to Livergood and Miller.

The essential question presented is whether the record substantially supports the finding of the Board. In view of our limited authority in a case of this character, it seems almost useless to undertake any detailed discussion of the facts and circumstances. Notwithstanding such limitation, however, we are charged with the duty of determining whether the finding of the Board, upon which its order rests, is supported by substantial evidence. This, of course, requires a study of the evidence in each case. Especially is this true in a case, such as the instant one, where counsel for the respondent insist, with a sincerity which can not be doubted and with considerable plausibility, that the findings of the Board are not supported by facts but are based largely upon unfair and unreasonable inferences, speculation, conjecture and surmise.

We shall make brief reference to some of the attacks made upon the findings of the Board. The first statement of the Board in its decision, as well as in its brief, in its discussion of unfair labor practices, refers to the fact that for several weeks after the C. I. O. started to organize, it was unable to obtain a meeting place in Auburn. There is not a scintilla of evidence that respondent was in any way responsible for this situation, and we agree that it is wholly immaterial to any issue involved, and we are unable to conceive its purpose. The fact that the businessmen of the community were opposed to the C. I. O. might indicate that that organization was in disrepute, but it is not a circumstance bearing directly or otherwise upon any issue in the case.

Respondent points out, in every instance where there was a conflict on a material matter between a witness for the Board and the Association or respondent, the Board gave credit to its own witness and found, as a fact, that such witness was stating the truth. A reading of the record leaves no room for doubt but that the situation is as charged. But even so, we do not think it is within our province to say that the Board was not within its legal right. The Board apparently has the right to place its stamp of approval upon its own witnesses as against the world, if it so desires.

Another charge directed at the Board has to do with a stipulation entered into, at the commencement of the hearing before the Examiner, on behalf of the Board, respondent and the Association, providing that an election would be held for the purpose of determining a bargaining agent for the employees. It was a part of the stipulation that if the Board should hold the Association was a lawful union, then the names of both the Association and the C. I. O. should be placed upon the ballot; but if the Board should hold the Association was not a lawful union and entitled to recognition as such, then, in that event, an election nevertheless should be held but the ballot should be made up so that the employees could simply express their preference for or against the C. I. O. Pursuant to this stipulation, the Board ordered an election without fixing the date therefor. On October 20, 1939, the Board issued a supplemental decision and amended direction of election, providing that the same be held not later than 30 days therefrom. It was stated in this amended direction that the purpose of delaying the election formerly directed "was to allow time for the dissipation of the effects of the unfair labor practices directed by the company against the Amalgamated." On November 16, 1939, a second amended direction of election was issued by the Board providing that the election be held not later than 60 days from that date. A third amended direction of election was issued by the Board on December 15, 1939, indefinitely postponing the election. On August 20, 1940, the Board issued an order vacating and setting aside all previous orders with reference to an election.

It is argued that the Board, realizing that a majority of the employees were opposed to the C. I. O., refused to abide by its agreement and thereby displayed its partisan attitude. We judge from statements contained in the orders continuing and finally vacating the orders for direction of an election that the Board's theory was that a fair election could not be held. To our minds this is a feeble excuse in any event, and especially so in view of its solemn agreement to call an election. This case is another illustration where, in our judgment, a controversy could have been amicably adjusted by an election where the employees could have, by secret ballot, expressed their preference. We have no sympathy with the theory sometimes advanced, that employees in any ordinary situation are incapable of expressing themselves by secret ballot in a manner consistent with their welfare. To think otherwise is to disparage their intelligence. While we agree that the failure of the Board to do that which it agreed to do was without justification, yet respondent fails to point out any relief which we can give in the matter. We think we are without authority to compel compliance with the stipulation, and we do not see how the Board's failure to perform can be assigned as a reason for denying its petition for enforcement.

The Board found that the distribution of certain literature constituted a violation of Section 8(1) of the Act. We agree with respondent that this finding is not tenable. The literature referred to appears to have been prepared by the National Association of Manufacturers, and purports to contain facts concerning the Wagner Act. Admittedly, it was distributed among the employees by respondent. The pamphlets, in question and answer form, contain six questions and the answers thereto. In answering these questions, Senator Wagner of New York, author of the bill, and Senator Walsh of Massachusetts, one of its active proponents, are quoted. Statements from opinions of the Supreme Court of the United States, as well as from the report of the Committee on Labor of the United States House of Representatives, are also used in answering questions. It is not disputed but that the questions were correctly answered, but it is said it avoids "any description of the true intendment of the statute." The theory seems to be that it was calculated to mislead with respect to employees' rights under the act. We do not believe it is reasonably capable of such construction. It does not purport to be a copy of the act, but correctly answers certain questions then much in controversy. A copy of the act itself would have been even less illuminating, as is evidenced by the fact that the Board, as well as many courts, has devoted much effort to its interpretation, and in defining the rights of both the employer and employees. There was no evidence that the pamphlet actually deceived any person, and, in our judgment, it is not susceptible of the construction that it was calculated so to do.

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