National Labor Relations Board v. Weirton Steel Co.

• Decision Date: 04 May 1943
• Docket Number: No. 8041.,8041.
• Parties: NATIONAL LABOR RELATIONS BOARD v. WEIRTON STEEL CO.
• Court: U.S. Court of Appeals — Third Circuit

135 F.2d 494 (1943)

NATIONAL LABOR RELATIONS BOARD v. WEIRTON STEEL CO.

No. 8041.

Circuit Court of Appeals, Third Circuit.

Argued March 15, 1943.

Decided May 4, 1943.

Ruth Weyand, of Washington, D. C. (Robert B. Watts, Gen. Counsel, Ernest A. Gross, Associate Gen. Counsel, Howard Lichtenstein and Gerhard P. Van Arkel, Asst. Gen. Counsels, and Winthrop A. Johns, Malcolm A. Hoffmann, and Morris P. Glushien, Attys., National Labor Relations Board, all of Washington, D. C., on the brief), for petitioner.

John E. Laughlin, Jr., and Earl F. Reed, both of Pittsburgh, Pa. (Thorp, Bostwick, Reed & Armstrong, of Pittsburgh, Pa., on the brief), for respondent.

Before MARIS, JONES, and GOODRICH, Circuit Judges.

MARIS, Circuit Judge.

This case presents the now familiar pattern of labor relations in the "Little Steel" industry in 1936 and 1937.¹ The Weirton Steel Company, a Delaware corporation, in June, 1933, without prior consultation with or consent of its employees, installed in its plants what it called the Weirton Steel Employees Representation Plan. The Plan was modeled upon one previously developed by the Bethlehem Steel Company and provided for the election of employee representatives who should be empowered to discuss with representatives of the management matters of concern to the employees. The Plan was wholly financed by the Company and was unquestionably an employer-dominated organization within the meaning of section 8(2) of the National Labor Relations Act, 29 U.S.C.A. § 158(2).

In 1936 representatives of the Steel Workers Organizing Committee came to Weirton to try to organize the employees of the Company and form a local there of the Amalgamated Association of Iron, Steel and Tin Workers of North America. Their presence brought forth a flood of anti-union and pro-plan propaganda and some anti-union coercion of employees, for all of which the Company was largely responsible. The opposition to union organization did not end with words, however, but union organizers and their sympathizers among the employees were followed and in a number of cases brutally beaten by special watchmen of the Company, a number of the latter being employee representatives under the Plan. At this time, in order to implement the Plan, which had no membership or formal organization, the Weirton Steel Employees Security League was formed with the assistance of the Company. It adopted as its program the support of the officers of the Company and of the Plan and vigorous opposition to union organization. Against this opposition the union made little headway.

In April, 1937 after the Supreme Court had upheld the constitutionality of the act the union organizing campaign again became more active. Toward the end of that month a local lodge of the Amalgamated Association of Iron, Steel and Tin Workers was chartered and its officers were elected and became known. Very shortly thereafter a number of the employees who had affiliated with the Union, including its president, vice president, recording secretary and financial secretary, were forcibly evicted during working hours from their posts of duty in the Company's plants by large groups of other employees, including officers and members of the Security League, with the prior knowledge and approval of the Company's supervisory employees. No efforts were made by Company supervisors to prevent these evictions, nor, in spite of protestation by the management that the evicted employees had not been discharged, were 16 of those who had been evicted from the tin mill² and one of those who had been evicted from the sheet mill³ ever able to secure permanent reinstatement.

The facts thus briefly stated were found in full detail by the Board in its opinion. 32 N.L.R.B. 1145. Its findings as to these facts are fully supported by the evidence and, indeed, the Company does not vigorously controvert them. In addition the Board found that the Company had been guilty of labor espionage. This finding was based solely upon the testimony of the vice president of a corporation which had been employed by counsel for the Company to do certain investigating work for it. This witness, who had been called by the Board, stated unqualifiedly that his concern did not furnish to Weirton Steel Company the services of investigators who were to report on the labor activities of employees. The Board based its finding of espionage largely upon the fact that his testimony was evasive and unsatisfactory but we think that this was not sufficient to support the finding, especially in view of the witness' categorical denial of the fact. Accordingly the Board's finding upon this point and the conclusions and portion of the order based thereon must be set aside.

Based upon its findings of fact the Board concluded that the Company had violated the National Labor Relations Act and it accordingly ordered the Company to cease and desist from the unfair labor practices found and affirmatively to withdraw all recognition from the Plan and the Security League and its various units as the bargaining representatives of any of its employees and to completely disestablish these organizations as such representatives; to offer reinstatement to the 17 employees evicted from their work, to make them whole for their loss of wages and to post proper notices. We think that the action thus directed was appropriate under the circumstances disclosed by the fact findings and that the Board's order, modified by the deletion of paragraph 1(f) relating to espionage, should be enforced, unless the considerations next to be discussed call for other treatment.

By far the greater portion of the Company's argument is directed, not to the merits of the charges of unfair labor practices, but rather to the proposition that the prejudice and improprieties of the Board and its agents who investigated, prosecuted and heard the proceeding have disqualified the Board from making the order which it here seeks to enforce. At the outset we note that the trial examiner against whom most of the accusations of unfairness are made was superseded long before the end of the hearings and made no intermediate report and that the Board's final decision which was rendered by members against whom no accusations of any kind are made resulted in dismissing 115 cases of alleged discriminatory action by the Company against its employees and in sustaining only 17 such cases. In the light of these facts it becomes difficult for us to avoid the belief that the company's charges of prejudice and unfairness are not advanced on their own merits but rather were devised as a defense to the charges of unfair labor practices as to which no other defense was available. We have nevertheless carefully considered these accusations of unfairness so strongly urged by the Company to defeat enforcement of the order, but we find them to be wholly without merit.

It is true that the hearings got off to a bad start under the administration of a trial examiner whom the Board subsequently withdrew from the case.⁴ During this earlier period many thousands of pages of testimony were taken which were wholly irrelevant to the issues and which were subsequently stricken from the record by the second trial examiner whose impartiality and fairness the Company does not question. Many of the rulings of the first trial examiner were unquestionably erroneous but in nearly all cases the erroneous rulings related to matters subsequently eliminated from the record and as to the few remaining instances we are unable to find that the Company was substantially prejudiced by them. When the second trial examiner took charge of the hearings he afforded the Company a full opportunity to offer any evidence which it had previously been prevented from introducing. That it took full advantage of the opportunities for defense which were afforded it is attested by the fact that 16,000 of the 39,000 pages of testimony which were taken in the case represent testimony offered by the Company.

One incident is specially stressed. During the course of the hearings and after repeated warnings the first trial examiner excluded one of the Company's counsel from the case for contemptuous conduct. The counsel thus excluded appealed to the Board from the examiner's ruling and was accorded a hearing by the Board. After hearing and considering the circumstances the Board decided that the exclusion was justified and sustained the trial examiner's action. The Board undoubtedly has power in the exercise of its discretion to exclude counsel from hearings conducted by it when they are guilty of contemptuous conduct. We are satisfied that under the circumstances of this case its action was well within the bounds of its discretionary power.

The Company also charges that the attorneys for the Board who investigated and prosecuted the case were guilty of numerous improprieties. These...