National Labor Relations Board v. Thompson Products, 7863.

Decision Date10 May 1938
Docket NumberNo. 7863.,7863.
Citation97 F.2d 13
PartiesNATIONAL LABOR RELATIONS BOARD v. THOMPSON PRODUCTS, Inc.
CourtU.S. Court of Appeals — Sixth Circuit

Ernest A. Gross, of Washington, D. C. (Charles Fahy, Robert B. Watts, Laurence A. Knapp, and Marcel Mallet-Prevost, all of Washington, D. C., on the brief), for petitioner.

H. E. Smoyer, of Cleveland, Ohio (Stanley & Smoyer, of Cleveland, Ohio, on the brief), for respondent.

Before SIMONS, ALLEN, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

This case is before the court on petition of the National Labor Relations Board to enforce its order issued against respondent pursuant to section 10(c) of the National Labor Relations Act, 49 Stat. 449, 29 U. S.C.A. § 151 et seq. and section 160(c) and the cross-petition of the respondent for review. Jurisdiction is based on section 10(e) of the act, 49 Stat. 453, 29 U.S.C.A. § 160 (e).

The respondent is an Ohio corporation having its principal office and place of business in Cleveland, Ohio. The Board's order grew out of a complaint issued against the respondent at the instance of the United Automobile Workers of America, a national labor organization. Issues were joined and proof heard before a trial examiner designated by the Board, whose intermediate report showed the respondent had violated section 8(1), (3) of the act, 49 Stat. 452, 29 U.S.C.A. § 158(1), (3). The respondent excepted to the examiner's report and was overruled by the Board.

The finding of facts of the Board is not in the proper form. It has mingled therein statements of witnesses and expressions of opinion. No reference should be made to the evidence nor any discussion injected into the ultimate finding of facts upon which the Board rests its order. There should be a clean-cut statement of the ultimate facts without incorporating therein the evidence or the reasoning by which the Board arrived at its finding. If the Board desires to discuss or emphasize any part of the evidence or give its reason for its findings, it should do so in the form of an opinion or memorandum which should not be incorporated into, or connected with, the special finding of facts.

The respondent does not attack the form of the Board's finding, but rests its case on a cross-petition for review and contends there is no substantial evidence to support the finding of the Board or its order.

After discarding evidence and expressions of opinion, the facts found by the Board are substantially as follows:

The respondent is an Ohio corporation engaged, together with various wholly or partially owned subsidiaries and affiliates, in the manufacture, sale, and distribution of valves, pistons, rods, and similar metal products used in the automobile industry. It owns and operates manufacturing plants at Cleveland, Ohio, and Detroit, Mich. The greater part of the raw materials used at the Cleveland plant, the one involved in these proceedings, are purchased by respondent outside of the state of Ohio, and more than half of its manufactured products shipped outside the state.

Respondent maintains warehouse stocks in various cities throughout the United States and, through a subsidiary, in Toronto, Canada. Its products are handled by jobbers and dealers in all parts of the United States. The employees involved in these proceedings worked in its Cleveland plant.

The United Automobile Workers of America International Union is a national labor organization of approximately 350,000 members, workers in automobile and automobile accessory plants. In June, 1931, it affiliated with the Committee for Industrial Organization.

On April 2, 1937, representatives of the Union circulated handbills inviting all employees of the respondent to attend an open meeting in Cleveland, Ohio, to be held on Sunday, April 4, 1937, and about two hundred attended, some of whom were members of an Employees' Association.

A representative of the union addressed the meeting and was heckled. At the end of his address those not wishing to join the union were invited by him to leave the room. Some immediately retired; eighteen stayed, and others, one of whom was an employee in the personnel office of the respondent, and were thus able to identify those remaining, lingered at the door. Among those who stayed with the union group were George Casterline, Herman Schneider and Charles M. Schuller.

The managing officials of the respondent's Cleveland plant knew of the circulation of the handbills, the subsequent meeting of employees, and the result of their conference.

George Casterline was a forge pressman with a seniority rating of seven years and had been employed by the respondent since 1928 with infrequent layoffs due to slack business. He had satisfactorily discharged his duties and had been promoted to the position of pressman at an advanced wage about eighteen months before April 4, 1937. He became a member of the union about April 1, 1937, and was discharged by respondent's employment manager on April 6, 1937. Casterline, during his temporary layoffs, had been employed as a barker for a side show at the Great Lakes Exposition.

On March 6, 1937, the respondent gave a testimonial dinner to employees with a service record of five years or more, and as a part of the evening's entertainment free beer was furnished for drinking guests and hard liquor was brought by them. Pugilistic boxing matches were held, music for dancing was provided by an orchestra, and food and decorations prepared by a caterer. Casterline, among others, appropriated to his own use, without the consent of the owner, some decorations and personal property belonging to the caterer. The specific property taken by him was an ornamental lamp with a fair market value of 50 cents. He had partaken freely of beer during the evening and, when charged with taking the lamp by one of respondent's personnel employees, offered to pay for it or return it, and did abandon it in the banquet hall.

The employee who charged Casterline with taking the lamp reported his conduct about April 6, 1937, to respondent's director of personnel, who sent for him and discharged him. No other employee was discharged for taking property at the party.

Herman Schneider, twenty years of age, was first employed by respondent on November 17, 1936, and was promoted shortly thereafter from a pointer to a grinder, and received four wage increases. He was receiving 53 cents an hour when discharged.

He was an applicant for a promotion which he did not receive and about which he expressed his disappointment and showed resentment, claiming unfair treatment. On April 5, 1937, at the lunch counter on the property of the respondent, and during work hours, he engaged in a loud, heated argument over the superior merits of the union compared to those of the Employees' Association. Schneider's supervisor overheard his loud talking and immediately sent for him, accused him of arguing about the union on company time and property, and inquired the reason for his dissatisfaction. Schneider reiterated his disappointment and chagrin at failure to be promoted but denied arguing about the union. At the conclusion of the conversation, the supervisor told him he was discharged, and, when Schneider expressed fear of his father's anger if he learned he had lost his position, he was temporarily laid off and left the plant.

He returned April 14, 1937, and asked to be put back to work, but the supervisor stated that his services were no longer needed and that he was discharged.

Charles M. Schuller, twenty years of age, began work for the respondent on October 6, 1936, as a grinder of valve stems at a wage of 39 cents an hour and in nine days received an increase to 45 cents. He progressed rapidly in his work, receiving several salary increases and praise by the management, and at the time he was discharged was receiving 71 cents an hour. While working on the night shift on April 5 and 6, 1937, due to the faulty adjustment of his machine, of which he was aware and had complained, for the first time during his employment, he destroyed raw material, which had to be scrapped. On April 8th, without any further destruction of material, he was discharged by his department supervisor, who chided him at that time about his sympathy with the Union. On the date of his discharge, Schuller advocated the cause of the union and solicited employees to join.

From the foregoing facts, the Board concluded that Casterline, Schneider and Schuller were discharged because of their union activities, and that respondent by its conduct had interfered with, restrained and coerced its employees in the exercise of their right to organize.

The Board ordered the respondent to cease and desist from interfering with, restraining or coercing its employees in any manner in the exercise of their right to self-organization or to form or join labor organizations, or to bargain collectively through representatives of their choosing, and to cease and desist from discouraging membership in the United Automobile Workers of America or any other labor organization of its employees by discrimination in regard to hire or tenure or term or condition of employment.

The Board also ordered the respondent to reinstate immediately Casterline, Schneider and Schuller to their former positions, without prejudice to their seniority, and to compensate each of them for any loss of pay suffered by reason of his discharge, measured by a sum of money...

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