National Labor Relations Board v. La Salle Steel Co.

• Decision Date: 09 December 1949
• Docket Number: No. 9863.,9863.
• Parties: NATIONAL LABOR RELATIONS BOARD v. LA SALLE STEEL CO.
• Court: U.S. Court of Appeals — Seventh Circuit

178 F.2d 829 (1949)

NATIONAL LABOR RELATIONS BOARD v. LA SALLE STEEL CO.

No. 9863.

United States Court of Appeals Seventh Circuit.

December 9, 1949.

David P. Findling, Associate General Counsel, A. Norman Somers, Assistant General Counsel, National Labor Relations Board, Washington, D. C., Robert Ackerberg, Chief Law Officer, National Labor Relations Board, Chicago, Ill., Dominick L. Manoli and Rosanna A. Blake, Washington, D. C., for petitioner.

James J. Cusack, Jr., John F. Cusack, Robert E. Cusack, Chicago, Ill., for intervenor LaSalle Steel Employees Ass'n, Inc.

Lee C. Shaw, Charles D. Preston, Chicago, Ill., for respondent.

Before FINNEGAN, LINDLEY and SWAIM, Circuit Judges

LINDLEY, Circuit Judge.

The National Labor Relations Board seeks, pursuant to Section 10(e) of the National Labor Relations Act, 29 U.S.C.A. § 160(e), enforcement of its order issued February 6, 1947, based upon the finding that respondent had violated Section 8(1) of the National Labor Relations Act, 29 U. S.C.A. § 158(1), by interrogating employees concerning their union activities, by prohibiting all union activity on company property, whether during working time or during non-working time, and by interfering with its employees' freedom of choice in the course of an election ordered by the Board to determine which of two rival unions should be recognized as the exclusive bargaining representative of respondent's employees.

In August, 1937, respondent recognized the La Salle Steel Employees' Association, Inc., an Indiana not for profit corporation, as the exclusive bargaining representative of its employees. The United Steel Workers of America, C. I. O., which had unsuccessfully attempted to organize respondent's employees in the summer of 1937, renewed its activities in September, 1944, and, on February 1, 1945, filed with NLRB a petition for the determination and certification of bargaining representative pursuant to Section 9 of the Act. 29 U.S.C.A. § 159. On March 30, 1945, the Board, having decided that a question of representation had arisen, directed that an election be held. This election, conducted under the Board's supervision on April 20, 1945, resulted in a victory for the Association, which received 106 votes to C. I. O.'s 93. However, because C. I. O. had filed with the Board certain objections to the conduct of the election, certification of the Association as exclusive bargaining representative of respondent's employees was withheld by the Board. The Regional Director reported that the objections filed by C. I. O. raised substantial and material issues as to the conduct of the election and recommended that the election be set aside. Meanwhile, as the result of additional charges filed by C. I. O., a complaint had been issued against respondent averring that it had engaged in and was engaging in unfair labor practices within the meaning of Section 8, subsections (1) and (2), of the Act. The Board ordered that the complaint and the objections to the election be consolidated.

At the conclusion of the hearing, the trial examiner issued an intermediate report, finding that, although there was no evidence to show that respondent had violated Section 8 (2), the evidence did sustain the charge that respondent had violated Section 8(1) of the Act. Exceptions to this report were filed with the Board, who, adopting, with slight modifications, the examiner's report, dismissed the complaint insofar as it alleged violations of Section 8(2), but found that respondent had violated Section 8(1) of the Act by promulgation of a no-solicitation rule; by indicating, through the statements of its supervisory officials and employees, its preference for the Association and its hostility to the C. I. O., and, by announcing, on the day of the election, that the War Labor Board had approved wage increases for its employees, thereby interfering with their freedom of choice and intentionally attempting to influence their votes in that election. This decision, rendered February 6, 1947, was accompanied by an order directing respondent to cease and desist from: (1) encouraging activity on behalf of the Association and against the C. I. O.; (2) prohibiting union activity on company property during non-working time; or (3) otherwise interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them by the Act. Respondent was ordered to: (1) rescind its rule prohibiting union activity on company property during non-working time; (2) refrain from bargaining with the Association as the representative of any of its employees; and (3) post the customary notices of compliance at its plant. It is this order which the Board now asks this court to enforce.¹

Respondent, resisting the Board's petition for enforcement, urges that it was seriously prejudiced, in its right to a fair trial, by the Board's consolidation of the hearing on the objections to the conduct of the election with that concerning the unfair labor practices charged; that the evidence relied on by the Board in concluding that respondent had violated Section 8(1) of the Act does not support such conclusion and that that portion of the order directing respondent to refrain from bargaining with the Association, considered separately and apart from the remainder of the order, is not supported by the Board's findings of fact and is improper even should the court conclude that the findings are supported by adequate evidence.

Respondent, in contending that it was prejudiced by the consolidated hearing ordered by the Board, insists that this type of hearing, at which counsel for the Board introduced evidence without indicating to respondent to which charge said evidence related, misled the respondent and confused the Board. This contention seems to us without merit. That there is no intrinsic evil in such a consolidated hearing has been established, N. L. R. B. v. American Laundry Machinery Co., 2 Cir., 152 F.2d 400, and we find no reason to conclude that the procedure followed in this case misled respondent or otherwise operated to its prejudice. Respondent asserts that it believed that the statements of its supervisory employees were introduced only in support of the objections to the election. However, it is difficult to understand how respondent could be justified in indulging such assumption, for the unfair labor practices complaint expressly charged that respondent had assisted the Association and had interrogated its employees concerning their union activities, so that respondent must have been aware that the statements of its supervisory officials and employees, which tended to prove that such assistance had been given and that such interrogation had occurred, were offered in connection therewith. Especially is this true where respondent knew, — and this is evident from the respondent's brief, — that those statements, because they had been made prior to the filing of the C. I. O.'s petition for a representation election, were not revelant to the objections to the conduct of the election, Matter of Maywood Hosiery Mills, Inc., 64 N.L.R.B. 146, and therefore could not have been offered in connection with that issue.

Respondent insists that the Board's finding that respondent had engaged in unfair labor practices in violation of Section 8(1) of the Act is not supported by adequate evidence. This finding, based on the interrogation of respondent's employees by certain of respondent's supervisory officers (Vice President See, Superintendent Evens, and Foreman Sylwestrowicz), on respondent's announcement, on the day of the election, of the War Labor Board's approval of a pay increase negotiated between the respondent and the association, and on the respondent's no-solicitation rule, would seem to have ample support in the evidence. H. J. Heinz Co. v. N. L. R. B., 311 U.S. 514, 61 S.Ct. 320, 85 L.Ed. 309; International Association of Machinists v. N. L. R. B., 311 U.S. 72, 61 S.Ct. 83, 85 L.Ed. 50; N. L. R. B. v. S. Frieder & Sons Co., 3 Cir., 155 F.2d. 266 enforcing 62 N.L.R.B. 880; N. L. R. B. v. Illinois Tool Works, 7 Cir., 153 F.2d 811; N. L. R. B. v. American Furnace Co., 7 Cir., 158 F.2d 376, 380. Respondent, however, urges that the statements attributed to its supervisory officials and employees were within the realm of free speech, guaranteed by the First Amendment and Section 8(c) of the amended Act, and that, in any event, the statements of Foreman Sylwestrowicz cannot be attributed to respondent. It insists that the Board's conclusion with respect to the no-solicitation rule is not supported by the record, and, finally, that the Board, in determining if respondent had violated the Act, could not consider any events which occurred prior to the filing of the C. I. O.'s election petition.

The fallacy in respondent's contention that the statements of See, Evens, and Sylwestrowicz could not be considered by the Board because they were made prior to the date on which the petition for an election was filed stems from the respondent's unwarranted assumption that these statements were introduced in connection with the objections to the conduct of the election. The rule urged by the respondent, based on the Board's decision in Matter of Maywood Hosiery Mills, Inc., 64 N.L.R.B. 146, would prevent the Board from considering these statements in determining whether the election should be set aside, but, as has been pointed out, these statements were pertinent in support of specific allegations in the unfair labor practices complaint and, as to the issues raised by that complaint, the Board was not estopped from considering them because they were made prior to the filing of the election petition. N. L. R. B. v. Clark Bros. Co., 2 Cir., 163 F.2d 373, enforcing 70 N.L.R.B. 802; N. L. R. B. v. Phillips Gas & Oil Co., 3 Cir., 141 F.2d 304.

In arguing that the statements of Foreman Sylwestrowicz are not attributable to it, respondent relies on the...