National Labor Relations Board v. National Casket Co., 8.

Decision Date11 December 1939
Docket NumberNo. 8.,8.
Citation107 F.2d 992
CourtU.S. Court of Appeals — Second Circuit


Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, and Samuel Edes and Marcel Mallet-Prevost, all of Washington, D. C. (Gerhard P. Van Arkel, of Washington, D. C., of counsel), for petitioner.

Greene & Greene, of New York City (Richard T. Greene, Daniel S. Murphy, and Malcolm C. Law, all of New York City, of counsel), for respondent.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

SWAN, Circuit Judge.

This case is before us on a petition by the National Labor Relations Board for enforcement of an order made by it on June 20, 1936 as amended by its order of April 10, 1939. The respondent is a New York corporation engaged in manufacturing wooden caskets and funeral accessories. A substantial proportion of its product moves in interstate commerce; it is concededly subject to the jurisdiction of the Board. It has a manufacturing plant and its principal office at Oneida, N. Y. In substance the amended order directs the reinstatement with back pay of one employee who was discharged on July 15, 1935, ten days after the National Labor Relations Act went into effect, 29 U.S.C.A. § 151 et seq., and the "reinstatement" of six former employees who were discharged several months prior to the effective date of the Act, and payment to them of the wages they would have earned, less their "net earnings" from working elsewhere, if the respondent had employed them on the respective dates, or shortly thereafter, when they applied for reemployment after the Act became effective. It also orders the Company to cease and desist from discouraging membership in Casket Makers Union 19559 or in any other manner interfering with its employees in the exercise of their right to self-organization.

Before passing to a consideration of the validity of the order it seems desirable to explain the astonishingly long time that has elapsed between the filing of the charges of unfair labor practices and the presentation of the case in court. Charges on behalf of the discharged men were filed in October 1935 by Casket Makers Union 19559. The Board filed its complaint on November 4, 1935 and appointed a trial examiner who held hearings during that month. On December 16, 1935 the Board ordered the case transferred to and continued before it. Thereafter counsel for the respondent was permitted to file a brief and on June 20, 1936, without any report by the trial examiner who had taken the testimony, the Board made its findings of fact and law and issued its order. In August 1937, a petition for enforcement of this order was filed in this court, but before the case was reached for argument the Board, apparently realizing that its proof was insufficient in certain respects, obtained an order remanding the cause for the taking of further evidence "on the question of the availability of positions or employment in respondent's Oneida, New York, plant during or subsequent to the period of respondent's refusal to reinstate the persons named in the complaint issued by the Board; and for no other purpose." Thereafter a one day hearing was had before another trial examiner in April 1938; he reported to the Board in July 1938; and on April 10, 1939 the Board issued its supplemental findings of fact, conclusions of law and recommendation for modification of its former order, with a request that the order as modified be enforced by this court. No effort was made to bring on the case for argument before the summer recess, and in due course it was reached and heard in October 1939. When a complaint involves the granting of affirmative relief against an employer, it is particularly desirable that the case be prosecuted to conclusion with as much expedition as is reasonably practicable, for any unnecessary delay results in obvious hardship to the employer, since the longer the delay the larger the sum he must pay as wages for work never performed, if the order requires reinstatement of employees with back pay. But the fact that there appears to have been unnecessary delay on the part of the Board in the case at bar has not been urged by the respondent as a factor to be considered by the court in passing upon the Board's petition for enforcement of its order, and we shall assume that any such delay is immaterial.

With respect to the six men who were discharged several months before the Act became effective, this case raises an interesting and novel question of statutory construction. As the Board itself has held, the discharges themselves are not the subject of complaint; it is the failure to reemploy the men after the Act came into force that is charged as an unfair labor practice. Nevertheless, the Board took evidence as to the circumstances surrounding the discharges for the light they might throw on the respondent's refusals to reemploy. It appears that in May 1934 a charter was obtained from the American Federation of Labor, and Casket Makers Union 19559 was formed. All seven of the discharged employees mentioned in the complaint were leaders of the movement to organize this union. They attempted to keep secret the formation of it; no formal notice of the organization of the union was at any time given the respondent and at no time did the union request the respondent to bargain collectively. In the autumn of 1934 the membership of the union embraced 60 to 65 per cent. of the 265 employees in the Oneida plant, but at the time of the hearings in November 1935 the membership had dwindled to about seven, barely sufficient to retain the union charter. Of the six men discharged prior to July 1935, one was discharged in November 1934, four in December 1934 and one in February 1935; they were refused reemployment shortly after the Act became effective. On their behalf evidence was offered that their union activity was the cause of their discharge and the reason for not reemploying them. The respondent gave testimony to show other and justifiable reasons, but the Board made a finding (at folio 1288) that the respondent discriminated against its employees in regard to hire and tenure of employment, which we think may be taken as a sufficiently explicit finding that the men were denied reemployment because of their union activities; and in the Board's supplemental decision are findings to the effect that positions substantially equivalent to those they formerly held were available at the Oneida plant on the dates, or shortly thereafter, when they respectively applied for reemployment, and were filled by the employment of other workmen. While the sufficiency of the evidence to sustain these findings is challenged, there is certainly some evidence to support them. Under section 10(e) the court's power to reverse findings of fact is limited to cases where there is no substantial evidence to support the findings. Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126; Ballston-Stillwater Co. v. National Labor Relations Board, 2 Cir., 98 F.2d 758, 760. On this record we must accept them. Therefore the legal question presented is whether it was an unfair labor practice to refuse to employ, because of their prior union activities, workmen who had ceased to be employees long before the Act came into effect but who thereafter and when work was available applied for employment.

The provisions of the Act upon which the Board relies are two, section 8(3), 29 U.S.C.A. § 158(3), and section 10(c), 29 U.S.C.A. § 160(c). The former declares —

"It shall be an unfair labor practice for an employer —

* * * * * *

"(3) By discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this chapter * * * shall preclude an employer from making an agreement with a labor organization * * * to require as a condition of employment membership therein, if such labor organization is the representative of the employees as provided in section 159(a) of this title, * * *."

Section 10(c) states that the Board shall order "* * * such affirmative action, including reinstatement of employees with or without back pay, as will effectuate the policies of this chapter," i. e., of the Act.

It must be emphasized at the outset of the discussion that we are not dealing with the "reinstatement of employees" in considering the cases of the six men who were discharged before the Act went into effect. They had long ceased to be employees of the respondent. Nor did they retain their former status by virtue of the definition of "employee" in section 2(3), 29 U.S.C.A. § 152(3), which includes any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment. Concededly their discharge was not an unfair labor practice. Nor had their work ceased in consequence of any labor dispute that was "current" when the Act went into effect, as was the case in Jeffery-DeWitt Insulator Co. v. National Labor Relations Board, 4 Cir., 91 F.2d 134, 112 A.L.R. 948 where employees were out on strike when the Act became effective. See also, National Labor Relations Board v. Carlisle Lumber Co., 9 Cir., 94 F.2d 138. After the Act comes into force its definition of "employee" becomes operative and may declare that an individual "whose work has ceased" because of certain types of conduct by his employer shall still be treated as an employee for the purposes of the statute; but to hold that the definition includes workmen who were discharged months or even years before would give the definition a retroactive effect contrary to the customary canons of interpretation and not required by the statutory...

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