National Labor Relations Board v. Waumbec Mills

• Decision Date: 20 August 1940
• Docket Number: No. 3528.,3528.
• Citation: 114 F.2d 226
• Parties: NATIONAL LABOR RELATIONS BOARD v. WAUMBEC MILLS, Inc.
• Court: U.S. Court of Appeals — First Circuit

114 F.2d 226 (1940)

NATIONAL LABOR RELATIONS BOARD v. WAUMBEC MILLS, Inc.

No. 3528.

Circuit Court of Appeals, First Circuit.

August 20, 1940.

Thomas E. Harris, Department of Justice, of Washington, D. C. (Charles Fahy, Robert B. Watts, Laurence A. Knapp, Mortimer B. Wolf, and Alvin Rockwell, all of Washington, D. C., on the brief), for petitioner.

John R. McLane, of Manchester, N. H. (McLane, Davis & Carleton, of Manchester, N. H., on the brief), for respondent.

Before MAGRUDER and MAHONEY, Circuit Judges, and PETERS, District Judge.

MAGRUDER, Circuit Judge.

On this petition by the National Labor Relations Board for enforcement of an order (49 Stat. 454, § 10(e), 29 U.S.C.A. § 160(e), the question presented is whether the Board can require an employer to offer employment, with back pay, to two applicants for employment who were turned away, but who, as the Board found, would have been hired but for their previous record of union activity.

Waumbec Mills, Inc., respondent, a New Hampshire corporation, was incorporated June 8, 1937. In July of that year it became engaged in the production, sale and distribution of rayon fabrics. Its plant is at Manchester, New Hampshire, one of the units of the former Amoskeag properties, which had been idle since 1935, following the general textile strike of 1934. The jurisdictional facts need not be stated since the company is without question subject to the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. National Labor Relations Board v. Fainblatt, 306 U.S. 601, 59 S.Ct. 668, 83 L.Ed. 1014.

With the commencement of production, and for some time thereafter, respondent was in need of experienced rayon loom fixers. Prior to the opening of the Waumbec Mills, applications for employment were received at the U. S. Silk Mills, also situated in Manchester, by William Zopfi, the respondent's superintendent, who had full authority to hire employees. Due to the existing unemployment in the industry, applications for employment greatly exceeded the available jobs, but applicants who had worked with cotton looms only, rather than with rayon looms, were considered not to have had the requisite experience.

Among the first to apply were Alphonse Chartier and Edward G. Geoffrion, the two men alleged to have been victims of an unfair labor practice by respondent.

Chartier, who was forty-six years old at the time of the hearing, had lived in Manchester for many years. He had worked in textiles for almost thirty years and had been a loom fixer for much of that time. At the time he applied for work with the respondent, he had had two and one-half years' experience as a rayon loom fixer and was employed in that capacity in the Pacific Mills in Lawrence, Massachusetts; he was later laid off due to a curtailment in production.

He was active in the affairs of the Union, Local 86 of the United Textile Workers, being its treasurer from 1929 until 1933, its president for four or five months, from about November, 1934, until the spring of 1935, and chairman of the negotiating committee for loom fixers in 1934 and 1935. As such he was on the Textile Council of all textile labor organizations in the city of Manchester. He apparently took an active part in negotiations with employers before, during, and after the general textile strike in 1934. Due to lack of employment in the industry in the vicinity of Manchester, the Union was virtually inactive for some time. It is not clear whether Chartier actually resigned as president of the Union or whether he merely considered the office as defunct in view of the inactivity of the Union.

Geoffrion was fifty years old at the time of the hearing, and had always lived in Manchester. He had been in the textile industry for thirty-three years, twenty-five years of which were spent as a loom fixer. At the time of his application with the respondent he had had about twenty-one months of experience as a rayon loom fixer at the Pacific Mills in Lawrence, Massachusetts, and he continued thereafter in the same position. He was secretary and treasurer of the Union from 1934 until the organization became inactive. He never resigned. He was also for a time treasurer of the Loom Fixers Social Club, a separate social organization for loom fixers to which members of the Union automatically belonged, and for an undefined period he was a trustee of the Union.

One day during the last week in June or early in July, 1937, Chartier and Geoffrion went together to interview Zopfi at the U. S. Silk Mills and asked for employment as rayon loom fixers in the Waumbec plant. Though both applicants were then employed in the same craft capacity by the Pacific Mills in Lawrence, Massachusetts, about thirty miles distant from Manchester, they preferred to work in Manchester where their families and homes were, rather than to continue their practice of commuting to and from Lawrence.

At this first interview Zopfi questioned Chartier and Geoffrion as to their general experience, their work and pay at Lawrence, and the type of looms which they tended there. He took their applications on a piece of paper since regular card forms had not been prepared. Details of wages and employment agreeable to all were discussed. Zopfi then raised the question of union affiliation. The two applicants told him that they had previously been officers of the Union but were no longer. According to Chartier, Zopfi said that he was glad they had told him this and that "We don't want any trouble; we don't want no union and we don't want no trouble."

Zopfi then invited the two men to accompany him to the Waumbec plant where they were introduced to the overseer Prokuski. Chartier and Geoffrion were shown the looms of which they would be in charge if they were employed, and again their experience on rayon looms at the Pacific Mills in Lawrence was discussed. Neither Zopfi nor Prokuski expressed doubt as to their experience or ability to take charge of the looms. Chartier testified: "Mr. Zopfi thought we had enough experience, and we felt we were hired then". Zopfi assured them that they would hear from him within a few days, after an "investigation".

No word reaching them, the two men again visited the respondent's plant on or shortly before July 15, 1937. As to this visit, Chartier testified:

"Q. You saw Mr. Zopfi with some people? A. Yes. He came over to us and he said, `No use, boys; we don't want any trouble; you are the president of the Union', and he said to Geoffrion, `You are the secretary. We won't want any trouble here'. I says, `Who told you that I was the president of the Union?' Then of course he wouldn't tell me.

"I told him, `Whoever told you that, it would be good for him to tell you the truth, that I am not'. I told him before that I had been but I resigned from the Union.

"Well, he said, `Don't go away like that. I am new in the city. I don't know all the people. Later on we might come to terms.'"

Geoffrion testified to the same effect.

In mid-August Chartier returned alone. His account of this visit is as follows:

"Well, I met Mr. Zopfi and he told me that he found that I have made a lot of trouble in the Amoskeag and he also had found I was a very good loom fixer. He says, `They tell me that you made some trouble in the Amoskeag; you told the Amoskeag who to hire and who to fire in the loom fixers. We don't want any trouble here. I am not ready to hire anybody that is making trouble.'"

Chartier made three or four subsequent applications but each time was refused employment either by Zopfi or Prokuski.

After the interview on or about July 15, 1937, Geoffrion did not visit the Waumbec Mills until February, 1938. During the latter month he learned from Maurice Huard, a weaver employed by the respondent, that the company was "badly in need of loom fixers with experience on rayon". Huard, who had worked with Geoffrion in Lawrence, urged him to apply. Geoffrion replied that his application had been on file for some months. A few days later Huard reported to Geoffrion, according to the testimony of both, that the "boss" at respondent's plant wished to see him. Geoffrion went to the plant and saw Prokuski who, he testified, asked him, "Aren't you the fellow who was here with Chartier before?" Prokuski admitted that he needed three or four good loom fixers at the time and promised to speak to the "other fellow", apparently referring to Zopfi. He asked Geoffrion if he then held any office in the Union. Geoffrion admitted that he was treasurer of the Loom Fixers Social Club. He received no further word from the management.

None of the above-recited testimony concerning the conversations and events at the various interviews between the two applicants and the respondent's advisory officials was contradicted by any evidence adduced by respondent at the hearing before the Board. Zopfi testified at length. Prokuski was not called.

In its answer to the Board's complaint, respondent stated "that the most that can be said on behalf of applicants Chartier and Geoffrion is that in competition with other applicants their record of activity and labor union organization was given consideration". What part this consideration played was a question of fact for the Board. The testimony of Zopfi, though vague and contradictory in places, contained admissions which the Board might legitimately regard as significant.¹ Zopfi sought to draw a distinction between "good" labor union records and "undesirable" labor union records. This distinction is expressed by respondent in its brief before us as follows:

"Respondent insists that there is a real difference between (1) the refusal to hire a man on account of his affiliation with the union and engaging actively in union affairs, and (2) refusal to hire a man because of an honest belief that his record and reputation as a union officer is unsatisfactory. To put it another way there is a difference between union affiliation and union record. It may be...