National Labor Relations Board v. Remington Rand, Inc.

Decision Date29 September 1942
Docket NumberNo. 153.,153.
Citation130 F.2d 919
PartiesNATIONAL LABOR RELATIONS BOARD v. REMINGTON RAND, Inc.
CourtU.S. Court of Appeals — Second Circuit

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Robert B. Watts, Gen. Counsel, Malcolm F. Halliday, Asst. Gen. Counsel, Gerhard P. Van Arkel, Louis Libbin, John H. Dorsey, Attys., and Harold S. Roberts, Economic Adviser, all of Washington, D.C., for petitioner.

Sullivan & Cromwell and Franchot & Schachtel, all of New York City (David W. Peck, of New York City, of counsel), for respondent.

Before AUGUSTUS N. HAND, CLARK, and FRANK, Circuit Judges.

FRANK, Circuit Judge.

This is the latest proceeding in a controversy which dates back to 1935. Upon petition of the National Labor Relations Board, the court issued an order on June 4, 1940, directed to Remington Rand, Inc., and its officers and agents to show cause why it should not be held in contempt for failure to comply with a decree of this court entered on March 10, 1938. N. L. R. B. v. Remington Rand, Inc., 2 Cir., 94 F.2d 862, certiorari denied, 304 U.S. 576, 58 S.Ct. 1046, 82 L.Ed. 1540. Thereafter, by an order of the court dated June 14, 1940, a Special Master was appointed "to take proof on the issues * * * and to report to the court thereon with finding of fact, conclusions of law, and recommendations as to disposition of the issues." This case now comes before us upon the ad interim report of the Master, which deals only with the dispute as to the Elmira and Middletown plants. No proof has as yet been taken before the Master as to the issues at respondent's other plants.

The facts of this controversy have been fully set forth in our previous opinion. 94 F.2d 862. The court there issued a decree, dated March 10, 1937, modifying and amending the order of the Board, and directing that it be enforced. This is the decree with which the Board charges a failure of compliance. On March 31, 1938, the Board moved to hold Remington Rand in contempt for failure to comply with the court's decree, and we denied that motion on June 1, 1938 without prejudice to its renewal it the decree had not been complied with on July 15, 1938. 97 F.2d 195. We remarked at that time the "unexampled persistence" with which the company had sought to fend off enforcement of the Board's order, and said that although "we are not convinced that it (Remington Rand) is as yet disposed to conform, we will not impose any penalty for the moment."

The following "Remedy" was provided for in our decree1: "The respondent will be ordered to reinstate all those production and maintenance employees involved who were employed on May 26, 1938, and who have not since received regular and substantially equivalent employment elsewhere. As the first step in carrying out this general order, such production and maintenance employees shall be reinstated to their former classifications, on the basis of seniority by classifications, where positions in such classifications are now open or have been filled by individuals employed since May 26, 1936, who were not employed on that date, the respondent dismissing such individuals if that is necessary to accomplish the reinstatement so ordered. In this fashion, as far as possible, employees will be reinstated in the plants in their own towns and will not be required to move elsewhere. But after such reinstatement, there will still be a large group of employees, composed almost exclusively of Norwood, Syracuse and Middletown employees, who will have to move to other cities in order to obtain reinstatement. Consequently, all such production and maintenance employees not reinstated in the plant in their own towns shall be grouped together, regardless of the plant in which they were previously employed, on a single preferential list on the basis of seniority by classifications, to be offered the positions at the Elmira plant, and any positions still available at any of the other plants after those who struck at such plants have been reinstated. At Elmira, as well as elsewhere, individuals employed since May 26, 1936, who were not employed on that date must be dismissed if such action is necessary to effectuate such reinstatement. Thereafter, this list shall be drawn upon whenever further employees are needed at any of the plants involved, including the Elmira plant, preference being given to employees on the list then residing in the locality in which employment is available."

It should be noted at the outset that Rule 53(e) (2) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, provides that "* * * the court shall accept the master's findings of fact unless clearly erroneous." While that Rule literally applies solely to the District Courts, we think it should be applied here by analogy, especially as it conforms with the general practice existing before the promulgation of that Rule.2 We have applied Rule 41, by analogy, to practice in this court. In re Barnett, 2 Cir., 124 F.2d 1005, 1013.

The Board has not suggested any impropriety in our reference of the issues to the Master. Indeed in another case,3 in May 1941 (subsequent to our order of reference in the instant case), the Board filed a memorandum in this Court objecting to a proposal by an employer-respondent that questions as to compliance with an enforcing decree of this Court should be referred to the Board rather than to a Master; in that memorandum the Board said: "In such a proceeding the Board and the employer are in an adversary relation. If the Board proceeded to make findings of compliance, there is nothing in the statute which would entitle such findings to greater weight than the statements of any other litigant. The Board has no power to determine what constitutes compliance with the decree of this Court." And we know of nothing in the decisions of the Supreme Court which, in general, suggests that the Board's views on that subject should be disregarded.4

I. The Elmira Plant

Twenty-seven polishers in respondent's Elmira plant were discharged in June, 1939, following a strike there. The Board claims that the respondent discharged and locked out union employees who had ceased work in a labor dispute. The facts are as follows: Prior to May, 1939, the company had laid off employees in disregard of seniority. The union protested and the matter was adjusted. In May, 1939, the company consulted Bassett, who was chairman of the shop committee, about a list of men to be laid off. Two of these, Mathews and Howell, were union men. The company, at Bassett's request, substituted the names of Maloney and Scheisepen, nonunion men, because the latter were less able workers. Mathews and Howell had only two days' less seniority than Maloney and Scheisepen. The agreement was carried out. On May 5, however, Maloney and Scheisepen were reinstated at their request, and Mathews and Howell were laid off. Bassett protested the violation of the agreement, and all four men were kept on. There was enough work for all, and all worked full time. Bassett continued to object, however, that, with Maloney and Scheisepen back at work, respondent was not keeping its May 4 agreement. He feared that, in time of slack, Mathews and Howell would be the first to be laid off.

On June 5, negotiations having broken down, the union men stood at their machines and refused to work until the company cured the violation of the agreement. The men were then asked to leave the plant peacefully, which they did. They were all discharged by letter the same day.

The Master found that the strike was not a lawful one, that no labor dispute was involved and that the discharge of the strikers was no violation of the decree. He further found that the dispute which existed was "determined" when the company heard grievances and made up its mind.

The Master's findings were clearly erroneous. Section 2(9) of the National Labor Relations Act, 29 U.S.C.A. § 152(9), defines a "labor dispute" as inclusive of "any controversy concerning terms, tenure or conditions of employment * * *." An "employee" is defined in § 2(3) of the Act, 29 U.S.C.A. § 152(3), as "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 * * *." Section 8(3), 29 U.S.C.A. § 158(3), provides that "it shall be an unfair labor practice for an employer * * * 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 * * *."

The above language of the statute does not lend itself readily to misinterpretation. If the Elmira strike was a "controversy concerning terms, tenure or conditions of employment," which it certainly was, then indubitably, it was a "labor dispute" within the meaning of the statute.

We cannot agree with the Master that there was no labor dispute here, merely because the dispute was "determined" when the company heard grievances and made up its mind. So to hold would go a long way towards emasculating the Act, and would render it difficult, if not impossible, ever to discover any state of industrial discord which could accurately be termed a labor dispute.

The real issue here is whether or not the respondent's act of firing the 27 strikers was contumacious and contemptuous of the court's decree. The Board claimed that the discharges violated Section 1(a) and 1(c) of the decree of the court. Section 1(a) of the decree required respondent to cease and desist "from in any manner interfering with, restraining or coercing its employees in the exercise of their right 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 purposes of collective bargaining and other mutual aid or protection * * *" Section 1(c)...

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