National Labor Relations Board v. A. Sartorius & Co.

• Decision Date: 31 January 1944
• Docket Number: No. 112.,112.
• Citation: 140 F.2d 203
• Parties: NATIONAL LABOR RELATIONS BOARD v. A. SARTORIUS & CO., Inc.
• Court: U.S. Court of Appeals — Second Circuit

140 F.2d 203 (1944)

NATIONAL LABOR RELATIONS BOARD v. A. SARTORIUS & CO., Inc.

No. 112.

Circuit Court of Appeals, Second Circuit.

January 31, 1944.

Robert B. Watts, General Counsel, Howard Lichtenstein, Asst. Gen. Counsel, Joseph B. Robison, and Dominick Manoli, Attys., National Labor Relations Board, all of Washington, D. C., for petitioner.

Samuel M. Birnbaum, of New York City (Samuel M. Birnbaum and Norma Rhoades, both of New York City, of counsel), for respondent.

Before L. HAND, CHASE, and FRANK, Circuit Judges.

CHASE, Circuit Judge.

This is a petition by the National Labor Relations Board for enforcement of its cease and desist order entered against the respondent corporation pursuant to a hearing before a trial examiner upon charges brought by District 50, Local 12090, United Mine Workers of America, charging various unfair labor practices.

Respondent is engaged in the manufacture of cosmetics and accessories, and maintains its plant in the City of New York. Jurisdiction is clear and unquestioned. The hearing before the Board's trial examiner lasted nearly six weeks and the record, which is correspondingly long, contains much conflicting evidence. The trial examiner did not file an intermediate report. The Board made its findings of fact and conclusions of law, upon which it based its order now sought to be enforced, after what was unquestionably a careful review of all the evidence. From its decision only such of the facts found as appear to bear upon the issues raised on this appeal will now be noticed. Many of these findings are challenged by the respondent, but we find substantial evidence to support those which follow.

The respondent is a corporation owned and managed by Franz Neuschaefer and his wife, who is known in the factory as Helen Greene. On June 15, 1938, a union organizer began an intensive campaign of soliciting membership among respondent's employees, a number of whom joined the union and thereafter assisted in the attempt to organize the plant. On June 24, a meeting was held, at which more employees joined the union. Miss Greene heard of these activities and stated to one of the new members that the management would not tolerate the union's presence and would move the plant to Connecticut if necessary. She warned other girls employed in the factory that if they attended the meeting, which was scheduled for that evening, they would probably be discharged. In fact, her foreman did lay off all but three of the girls who joined the union that evening.

The next day Miss Greene addressed all the union workers, disparaged unions generally, interrogated individuals as to their affiliation, and made various threats designed to discourage organizational activity. All these actions were relied on as showing a violation of § 8(1) of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C.A. § 158(1).

Many of the girls laid off during the week of July 24 had more seniority than the ones who remained, and none of the unorganized girls were laid off at all. The respondent's foreman kept Miss Greene informed as to which were the union girls, and the discriminatory layoffs followed. Two former employees came to the factory on June 27 and requested work, but upon being told of their attitude toward the union Miss Greene said she intended to lay off all union workers until they came to their senses.

On June 27, representatives of the union submitted membership cards to the management and asked for exclusive recognition as bargaining agent for the employees. The respondent requested a delay of eight days, pleading inexperience in such matters and other reasons; but the union declined to grant more than two days and the conference ended inconclusively. The next day the union filed charges with the Board, alleging violations of §§ 8(1) and (3) of the Act. On July 18 the union voted an immediate strike as the alternative to allowing the management's discriminatory tactics to destroy the union's hold in the shop. The strike lasted for four months.

Various efforts at settlement followed, and finally on December 23 an agreement was reached under which the union was to withdraw its charges and the respondent was to reinstate the former employees named in the union's application for reinstatement. But the respondent promptly commenced a studied program of persecution of four of the reinstated strikers, the Board found, giving them disagreeable work to do and imposing restrictive conditions and indignities upon them. This systematic course of harassment, which was in marked contrast with the considerate treatment accorded to the non-union employees, caused a number of the returned strikers to leave and induced several others not to return at all.

A number of the employees who had walked out then applied for rehiring because they stood in need of work, but they were permitted to come back only after writing letters in which they declared they had not left because of any discrimination against them. Others were closely questioned as to their union status.

One of the girls, Adeline Franco, was rehired when she stated that she was no longer a union member. She was well treated until she testified at a hearing by the Board on the union's charges of unfair labor practices. On her return to the plant she was mistreated in ways which included physical assault. After that she left.

As we have said, a great deal of the foregoing is flatly denied by the respondent, which has called to our attention a large amount of evidence tending to show that there was no discrimination at all and that whatever was done to the complaining employees was incidental to the maintenance of plant discipline. On this conflicting evidence the Board found violations of §§ 8(1), (3), and (4).

As is not unusual in cases like this, the respondent's objection that the Board's order is not supported by substantial evidence is founded largely upon the untenable idea that we can weigh conflicting testimony. A basis for this proposition is sought to be found in the fact that the Board was required to form its conclusions from a reading of the record, since it had not the assistance of an intermediate report by the trial examiner who presided at the hearing, and from the fact that the three members of the Board disagreed upon whether and when the alleged unfair labor practices occurred. In N. L. R. B. v. Standard Oil Co., 2 Cir., 138 F.2d 885, we discussed the law limiting our power to review the findings of administrative agencies like the Labor Board. We recognized that in cases like the present one we are in as good a position as was the Board to find the facts from a reading of the record. But we pointed out that for reasons of expediency — indeed, for the reason that if the increasing mass of litigation is to be handled by the courts at all — it is necessary in certain classes of cases that fact-finding be delegated to administrative bodies, and that the statute so provides. The law having followed this plain necessity, it is for the Board alone to perform this function when the evidence is adequate, and the sole ground upon which we have power to review a finding of fact made by it is a lack of substantial evidence in the record to support that finding. If such evidence is there it is idle to argue that we can read it as well as the Board, and thus...