National Labor Relations Board v. Dow Chemical Co.

• Decision Date: 06 February 1941
• Docket Number: No. 8618.,8618.
• Citation: 117 F.2d 455
• Parties: NATIONAL LABOR RELATIONS BOARD v. DOW CHEMICAL CO. (MIDLAND CHEMICAL WORKERS' ASS'N, Intervenor).
• Court: U.S. Court of Appeals — Sixth Circuit

117 F.2d 455 (1941)

NATIONAL LABOR RELATIONS BOARD v. DOW CHEMICAL CO. (MIDLAND CHEMICAL WORKERS' ASS'N, Intervenor).

No. 8618.

Circuit Court of Appeals, Sixth Circuit.

February 6, 1941.

Philip G. Phillips, of Cincinnati, Ohio, (Robert B. Watts, Laurence A. Knapp, Richard C. Barrett, Samuel Edes, and Leonard Appel, all of Washington, D. C., and Philip G. Phillips, of Cincinnati, Ohio, on the brief), for petitioner.

Calvin A. Campbell, of Midland, Mich. (Calvin A. Campbell, C. Emerson Price, and Wm. A. Groening, Jr., all of Midland, Mich., on the brief), for respondent.

Walter B. Brown, of Midland, Mich., for intervenor.

Before SIMONS, ALLEN and MARTIN, Circuit Judges.

MARTIN, Circuit Judge.

Based on exhaustive findings of fact and succinct conclusions of law (13 N.L.R.B. 993), the National Labor Relations Board, pursuant to Title 29, Section 160(c) U.S. C.A., 49 Stat. 453, issued on July 25, 1939, against respondent, the Dow Chemical Company, an order which this court is petitioned to enforce.

The Board has directed respondent to (1) cease and desist from contributing support to, interfering with, or dominating the Midland Chemical Workers' Association, or recognizing it as the representative or bargaining agent of employees of respondent, or from effectuating any agreement made by the company with the labor association concerning wages, pay, work hours, or other conditions of work; and from discouraging membership in United Mine Workers of America, District No. 50, or any other organization of its employees, or encouraging membership in any labor organization by discharging, laying off, or refusing to reinstate any of its employees, or in any other manner discriminating in regard to any condition of work; and from "in any other manner interfering with, restraining or coercing its employees in the exercise of their rights to 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 in Section 7 of the National Labor Relations Act, 29 U.S.C.A. § 157."

(2) The respondent was ordered to take the affirmative action of withdrawing recognition of the Midland Chemical Workers' Association as representative of any employees of the company in dealings with the company concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work, and to disestablish completely the Midland Chemical Workers' Association as such representative.

(3) Respondent was further ordered to reinstate immediately, in the manner required, twenty-five named employees to their former, or substantially equivalent positions, without prejudice to their seniority and other rights and privileges; to make whole sixteen of these employees and four others named, for any loss of pay resultant from respondent's discrimination against them, by paying each of them what he would have earned as wages from the date of discrimination to the date of offer of reinstatement, less net earnings as provided; to make whole nine of the reinstated employees for any loss of pay in consequence of discrimination, by paying each of them his lost wages "from the date of the discrimination to the date of the intermediate report of the Trial Examiner, and from the date of this order to the date of the offer of reinstatement, less his net earnings," with deductions to be made in the manner described in the order.

(4) It was directed that one individual employee, Guy Lewis, should be placed upon a preferential list for reinstatement when his former, or a substantially equivalent position should become available; and that he be paid wage losses as prescribed in the order.

(5) Further direction was given that notices, as prescribed, should be posted and maintained in conspicuous places in each department of the respondent's plant, and that the Regional Director should be notified as to what steps respondent has taken to comply with the order.

(6) The complaint of six employees was dismissed, and the complaint of ten other employees was dismissed without prejudice.

Procedure in conformity with the statute, Title 29, Section 160(e), U.S.C.A., has brought the validity of this order within the circumscribed power of review of the United States Circuit Court of Appeals. As usual in cases of this category, the sole issue for determination here is whether the record reveals substantial evidence to support the findings of fact upon which the National Labor Relations Board based its order, commanding respondent to cease and desist and to obey by affirmative action, as therein directed.

It is recognized that "the findings of the Board as to the facts, if supported by evidence, shall be conclusive." 49 Stat. 449, Section 10(e).

The respondent, a Michigan manufacturer of industrial and pharmaceutical chemicals distributed throughout the nation, contends, however, that its discharge of the supposed ring leaders of a suspected strike movement and its participation with many of its employees in an effort to thwart the possibility of a strike were not a violation of the National Labor Relations Act, Sections 8(1) and 8(2), 29 U.S.C.A. § 158(1, 2).

In support of its insistence, respondent quotes the language of this court in National Labor Relations Board v. Ford Motor Company, 6 Cir., 114 F.2d 905, 911: "In this situation it may be assumed that the respondent was justified in the precautions it took to protect its plant from seizure, either by employees from within, or by others from without. It had reason to fear that there would be an attempt to seize the gates of the River Rouge plant and to invade it for the purpose of staging a sit-down strike."

But the situation presented here is utterly different from that encountered in the Ford case. The fear of the respondent, Dow Chemical Company, of a sit down strike rested wholly on mere suspicion and rumor. There is shown in the record no evidence of threats or overt acts on the part of any of its employees. The supervisor who was in charge of production in respondent's foundry, fabrication plant, and alloy and die casting departments admitted that his expectation of a meeting of employees for "sit down strike" discussion had been based on "nothing but hearsay" and rumor. Moreover, the company's "chief operator engineer" admitted that he had possessed no fear of a plant seizure.

The Board was clearly right in finding that "the record is devoid of evidence to show that the rumor (of a sit down strike) had any factual basis or that it emanated from union sources."

Respondent charges that no substantial evidence can be found in the record to support the findings of the Board that respondent (1) dominated or interfered with the formation or administration of the Midland Chemical Workers' Association in violation of Section 8(2) of the National Labor Relations Act; or (2) discharged eight employees between March and November, 1937; and (3) discriminated against nineteen employees during the general crew reductions, between November, 1937, and February, 1938, in violation of Section 8(3) of the Act.

The record does not justify the position taken by respondent. The Board has surveyed the evidence comprehensively, and in 137 pages of discussion has pointed pertinently and in detail to facts...