National Labor Relations Board v. Ohio Calcium Co.

• Decision Date: 19 February 1943
• Docket Number: No. 9217.,9217.
• Citation: 133 F.2d 721
• Parties: NATIONAL LABOR RELATIONS BOARD v. OHIO CALCIUM CO.
• Court: U.S. Court of Appeals — Sixth Circuit

133 F.2d 721 (1943)

NATIONAL LABOR RELATIONS BOARD v. OHIO CALCIUM CO.

No. 9217.

Circuit Court of Appeals, Sixth Circuit.

February 19, 1943.

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Fannie M. Boyls, of Washington, D. C. (Robert B. Watts, Ernest A. Gross, Howard Lichtenstein, Ruth Weyand, and Fannie M. Boyls, all of Washington, D. C., on the brief), for petitioner.

Robert T. Caldwell, of Ashland, Ky. (Robert T. Caldwell and Porter M. Gray, both of Ashland, Ky., and A. J. Layne, of Ironton, Ohio, on the brief), for respondent.

Before HICKS, ALLEN, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

This case is before the court on petition of the National Labor Relations Board for enforcement of its order against respondent. The alleged unfair labor practices occurred in the State of Ohio.

The Board found that respondent had restrained and coerced its employees in the exercise of the right of self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed under Section 7 of the Act, 29 U.S.C.A. § 157, and had violated Section 8(1) of the Act, 29 U.S.C.A. § 158(1), by shutting down its plant and discriminatorily suspending five of its employees. It also found that respondent had violated Section 8(1) of the Act by refusing to bargain collectively with the United Brick & Clay Workers of America, Local 669, an affiliate of the American Federation of Labor, as the exclusive representative of its employees within the appropriate unit, and also that it had violated Section 8(3) (1) of the Act by refusing reinstatement to forty of its employees after a strike.

The Board ordered respondent —

(1) To cease and desist from engaging in the unfair labor practices found;

(2) Upon request to bargain collectively with the Union;

(3) To reinstate to their former or equivalent positions or places or upon a preferential list, thirty-nine of its striking employees. (One of the forty was omitted because he did not desire reinstatement.) In this connection the Board directed the respondent to dismiss, if necessary, new employees hired on and after June 2, 1938, in order to furnish employment to the striking employees;

(4) To make whole all striking employees to whom respondent had denied reinstatement and also five other employees whom respondent had suspended for a period of one day;

(5) Post notices.

Respondent resists enforcement of the Board's order on the following grounds:

(1) That the present decision and order of the Board is void because it was approved by the Chairman of the Board only and was not concurred in by a majority of the Board;

(2) That the findings of the Board are not sustained by substantial evidence;

(3) That the cease and desist order of the Board is not sustained or warranted by the findings of the Board or the evidence before it.

The order which is sought to be enforced is signed by Harry A. Mills, Chairman. Edwin S. Smith, another member, concurred in part and dissented in part to the decision and order. Member Smith concurred in the order insofar as it sustained the allegations of the complaint and dissented insofar as the decision and order failed to find that respondent had engaged in unfair labor practices immediately preceding and during the first strike commencing February 20, 1938, and also so much of the decision and the order as failed to find that respondent had committed an unfair labor practice by discharging eight of its employees.

Member William M. Leiserson, concurred in part and dissented in part to the decision and order. He approved so much of the decision and order as found that respondent interfered with, restrained and coerced its employees in the exercise of their rights guaranteed under Section 7, within the meaning of Section 8(1) of the Act and dissented from the remainder of the order.

It will thus be seen that two members of the Board concurred in the order in its entirety. Member Smith was of the opinion under the evidence that the respondent had committed other unfair labor practices denounced by the Act and Member Leiserson concurred in only one finding.

Section 3(a) of the Act, 29 U.S.C.A. Sec. 153(a), provides that the National Labor Relations Board shall be composed of three members and Section 3(b) of the Act, 29 U.S.C.A. Sec. 153(b), provides that two members of the Board shall at all times constitute a quorum. There is no provision of the Act requiring a unanimous vote of the Board.

Authority vested in a Board for public purposes may be executed by a majority of the members if all have had notice and an opportunity to act. Plymouth Coal Co. v. Commonwealth of Pennsylvania, 232 U.S. 531, 547, 34 S.Ct. 359, 58 L.Ed. 713. A majority of the members of the Board concurred in the present decision and order. It is therefore the act of the full Board and must be viewed as though all three members approved it. Baltimore & O. R. Co. v. United States, 298 U.S. 349, 362, 56 S.Ct. 797, 80 L.Ed. 1209; National Labor Relations Board v. Leviton Mfg. Co., 2 Cir., 111 F.2d 619.

Respondent is engaged in the mining of stone and reducing it to lime in kilns. Its product is sold under the trade name of "Calsifer," which is used largely in steel mills. The usual complement of men employed by respondent is about fifty. In midyear 1937, respondent's business became a victim of the current recession and by January 1938, it was faced with the problem of reducing wages and personnel. The carrying out of these retrenchments resulted in respondent's employees becoming dissatisfied and some of them made an attempt to organize collectively for the purpose of improving their working conditions and pay status. The whole matter finally culminated in a majority of respondent's employees, excluding supervisory and clerical workers, selecting the United Brick & Clay Workers Local 669, an affiliate of the American Federation of Labor as a bargaining agent.

In the course of negotiations between respondent and its employees' representative, controversies developed and resulted in a strike at respondent's mine and mill which lasted from February 20, 1938, to April 27, 1938. Much of the evidence in the record and the argument of counsel in their briefs, relate to events occurring immediately prior to April 27, 1938, but as we view the issue here, these matters are largely immaterial.

On April 27, 1938, respondent and its employees' representative, under the supervision of the Board's agent, entered into a settlement of all prior controversies and in the present decision and order a majority of the Board gave effect to that settlement and refused to consider evidence of any unfair labor practice immediately prior to that date.

The Board found, however, that after this settlement some employees were guilty of careless or willful abuse of respondent's property, which caused a partial stoppage of work for which respondent did not institute any punitive measures, but on the other hand that it made an effort to maintain amicable relations with its employees and the Union and on various occasions conferred with union grievance committeemen or with Charles S. Stinson, union representative, regarding complaints and adjustment thereof. Page 92, Board's decision and order.

Under the provisions of the Act the findings of the Board as to the facts will be re-examined to determine if they afford any legal basis for the order sought to be enforced and the ultimate facts relied upon by the Board may also be re-examined in the light of the evidence to determine if they are supported by the record.

In the following statement of facts we have conformed in the main to the findings of the Board, but we have added certain undisputed facts found in the record.

The Trial Examiner recommended that the complaint be dismissed as to all allegations of discrimination because of union membership as to allegations of failure to abide by the strike settlement agreement of April 27, 1938, as to allegations of refusal to bargain on May 22, 1938, or at any other time. He also recommended that the complaint be dismissed as to discharges of May 22, 1938, and refusals to reinstate on June 1, 1938, or thereafter.

One Board member supported the Trial Examiner and disagreed with his two associates. Under these circumstances a doubt may arise as to some of the basic findings of fact of the majority. Baltimore & O. R. Co. v. United States, supra (op., 298 U.S. 362, 56 S.Ct. 797, 80 L.Ed. 1209.)

In considering the issue of substantial evidence it is not inappropriate to give due weight to what had transpired between respondent and its employees immediately before the strike of May 24, 1938. When the earlier strike was terminated April 27, 1938, respondent entered into a collective bargaining agreement with the Union which had the approval of the Regional Office of the National Labor Relations Board. In May 1938, a controversy arose between respondent and some of its employees, which revolved around a demand that two employees be hired in the mines in addition to those usually doing the work of loading cars. The management met with the Union committee and sought to settle this difference but without success, and was informed by Shope, a member of the grievance committee, that the men would not work the next day, May 21, 1938, unless their demands were met. On May 21, 1938, respondent's president called Charles S. Stinson, an organizer for the A. F. of L. at Ashland, Kentucky, and asked him to come to the plant and assist in settling the dispute between respondent and its employees. On May 22nd, eight employees refused to work unless their demands were met and the management dismissed them. Stinson came on that date and met with respondent's officers and requested respondent to reinstate the discharged employees and threatened to call a...