National Labor Relations Board v. Clausen

• Decision Date: 02 April 1951
• Docket Number: No. 10374.,10374.
• Citation: 188 F.2d 439
• Parties: NATIONAL LABOR RELATIONS BOARD v. CLAUSEN et al.
• Court: U.S. Court of Appeals — Third Circuit

188 F.2d 439 (1951)

NATIONAL LABOR RELATIONS BOARD v. CLAUSEN et al.

No. 10374.

United States Court of Appeals Third Circuit.

Argued March 6, 1951.

Filed April 2, 1951.

Rehearing Denied June 8, 1951.

George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel (Fannie M. Boyls, and Samuel M. Singer, all of Washington, D. C., on the brief), for National Labor Relations Board.

Irving Herman, Washington, D. C., for petitioner.

Conrad A. Falvello, Hazelton, Pa., for respondent.

Rocco C. Falvello, Hazleton, Pa., on the brief, for respondent-appellee.

Before MARIS, McLAUGHLIN and HASTIE, Circuit Judges.

McLAUGHLIN, Circuit Judge.

The Labor Board here applies for enforcement of its order issued against respondent following a Section 10 hearing. National Labor Relations Act, as amended, 61 Stat. 136, 29 U.S.C.A. § 141 et seq. The alleged unfair labor practices occurred at respondent's plant in Nescopeck, Pennsylvania. It is conceded that respondent is engaged in interstate commerce.

The respondent's chief contention is that there was no substantial evidence to support the Board's finding that the respondent committed an unfair labor practice. The rule on which to judge the Board's conclusions is whether there was substantial evidence to support them on the record considered as a whole. Universal Camera Corporation v. Labor Board, 71 S.Ct. 456; Labor Board v. Pittsburgh Steamship Co., 71 S.Ct. 453.

The Board found that: (1) on July 6, 1948 when respondent's employees, who had been on strike, collectively applied for reinstatement, "Respondent applied a discriminatory basis for the selection of employees among its strikers to fill the remaining vacancies on its staff"; (2) after July 6, 1948, respondent continued to discriminate "* * * against applicants for employment because of their adherence to a union or because they have engaged in a protected concerted activity"; (3) employee Schloyer was discharged July 8, 1948 "* * * because of his purported union activities and thereby discouraging membership in a labor organization and participation in concerted activities".

The Board found as a fact that the charges in this matter were served on respondent no later than January 5, 1949. There is substantial evidence to support this on the record considered as a whole. There is no denial by respondent that the charges were served upon her by, at least, January 5, 1949. Under Section 10(b) of the Act "* * * no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made * * *." The alleged unfair labor practices stated in the complaint as amended at the hearing, and found by the Board, occurred on July 6, 1948 and thereafter and were within six months of the service upon respondent of the charges.

Respondent, Mrs. Clausen, and her two sons, who were in the Luzerne Company with her, became aware of a union organizational campaign among the company employees about the middle of March, 1948. From that time on the evidence justifies the conclusion that the unionization drive was vigorously opposed by the Clausens.

On March 18 and 20, five employees, active in union affairs, were discharged by respondent. On March 29, 1948, the union filed a petition for election with the Pennsylvania Labor Relations Board and on April 15, 1948, filed charges with that Board of interference, restraint and coercion and also of the discriminatory discharge in March of the five employees. A complaint was issued by the Board which later made a nisi finding that the discharges were discriminatory and that there had been interference, restraint and coercion. An election was held on May 12, 1948 and on August 18, 1948 a nisi certification of the union was issued. Additional charges filed with the State Board by the union on or about May 20, 1948 alleged the discharge of employee John Morgan to be discriminatory and also alleged interference, restraint and coercion. There was a hearing on those charges June 7, 1948. On July 28, 1948 there was a nisi decision holding the Morgan discharge to have been discriminatory and finding interference, restraint and coercion. On October 5, 1948 the Pennsylvania Board set aside its decisions in all three cases on the ground that respondent was engaged in interstate commerce. Other charges covering substantially the alleged conduct in the matter before us were filed by the union with the State Board on July 20, 1948. Those were dismissed on October 25, 1948 on the ground that respondent was engaged in interstate commerce.

On June 30, 1948 there was a strike in respondent's plant. It was basically for recognition and for better working conditions. A clique of five strikers formed during the strike. Those men had either been opposed to the union or were uninterested regarding it. On July 6, 1948 they declared themselves to be in favor of abandoning the strike and returning to work. Later that morning all of the strikers voted to abandon the strike and apply for their jobs. The Examiner found, and his finding was approved by the Board, "* * * that this was unconditionally voted and * * * unconditionally carried out that afternoon." That same day respondent rehired or arranged to rehire the five employees in the group above mentioned and one more person, Beathier Schloyer. Five new employees were taken on later that month and several others during August, September and October.

Nine of the original seventeen strikers had either returned or had been requested to return by July 6, 1948. Two of the others did not request reinstatement then or at any later time. The remaining six who requested reemployment and were not taken back are six of the seven complainants in this proceeding, respectively, Harry Kishbaugh, Sterling Kishbaugh, Sr., Lee Schell, Lester Roth, Henry Ertwine and Howard Yoder. Harry Kishbaugh is president of the union. Schell is vice-president. Sterling Kishbaugh, Sr. and Ertwine are committeemen. The evidence strongly indicates that all of these men were prominent in the union movement.

Schloyer, the seventh complainant, and the one striker outside of the group of five rehired on July 6th, had remained away from work on July 7th. As found by the Board, on the 8th he was asked by William Clausen, "Did the boys try to keep you from coming to work last night?" Schloyer admitted that such was the fact but that the plan had not worked. Clausen then discharged him stating that he had no cause to fear any union interference and that he was "* * * as bad as the rest of them."

There is ample evidence of the Clausen opposition to the unionization of their plant. The reemployment situation shows clearly that the employees favoring the union were consciously discarded for those who did not. Considered as a whole the record justifies the Board's conclusion that respondent did apply a discriminatory basis on July 6, 1948 in obtaining her employee quota and that as it found "* * * there was a marked failure to reinstate anyone known to be active in union leadership activities, and Respondent reinstated only men whom it knew or had reason to believe were opposed to the Union or merely quiescent in going along with the union leadership." The reported cases support the Board's conclusions. See F. W. Woolworth Co. v. National Labor Relations Board, 2 Cir., 121 F.2d 658, 661, 662; National Labor Relations Board v. Sandy Hill Iron & Brass Works, 2 Cir., 165 F.2d 660, 662; National Labor Relations Board v. Chattanooga Bakery, Inc., 6 Cir., 127 F.2d 201, 204; Montgomery Ward & Co., Inc. v. National Labor Relations Board, 7 Cir., 107 F.2d 555, 559; National Labor Relations Board v. Bachelder, 7 Cir., 120 F.2d 574, 578, certiorari denied 314 U.S. 647, 62 S.Ct. 90, 86 L.Ed. 519; National Labor Relations Board v. Aladdin Industries, Inc., 7 Cir., 125 F.2d 377, 386, certiorari denied 316 U.S. 706, 62 S.Ct. 1310, 86 L.Ed. 1773; Hamilton-Brown Shoe Co. v. National Labor Relations Board, 8 Cir., 104 F.2d 49, 53; North Whittier Heights Citrus Ass'n. v. National Labor Relations Board, 9 Cir., 109 F.2d 76, 78-79, certiorari denied 310 U.S. 632, 60 S.Ct. 1075, 84 L.Ed. 1402; National Labor Relations Board v. Sifers, 10 Cir., 171 F.2d 63, 65-66.

The evidence also bears out the Board's finding that the Clausens continued their discrimination by not taking back the Kishbaughs, Roth, Ertwine, Yoder, Schell and Schloyer after July 6, 1948. Relatively speaking, there was considerable further hiring of employees; five later that same month, others in August, September and October, and all of the replacements in the same classifications as the barred union men. Respondent's testimony before the Pennsylvania Labor Board in connection with the question of rehiring any of the above men was stipulated as part of the record in this litigation. There,...