National Labor Relations Board v. Draper Corporation, 5239.

• Decision Date: 06 October 1944
• Docket Number: No. 5239.,5239.
• Citation: 145 F.2d 199
• Parties: NATIONAL LABOR RELATIONS BOARD v. DRAPER CORPORATION.
• Court: U.S. Court of Appeals — Fourth Circuit

145 F.2d 199 (1944)

NATIONAL LABOR RELATIONS BOARD v. DRAPER CORPORATION.

No. 5239.

Circuit Court of Appeals, Fourth Circuit.

October 6, 1944.

Guy Farmer, Associate General Counsel, National Labor Relations Board, of Washington, D. C. (Alvin J. Rockwell, General Counsel, Malcolm F. Halliday, Associate General Counsel, Joseph B. Robison, and Dominick L. Manoli, Attorney, National Labor Relations Board, all of Washington, D. C., on the brief), for petitioner.

L. W. Perrin, of Spartanburg, S. C., and O. A. Schlaikjer, of Boston, Mass. (Herrick, Smith, Donald, Farley & Ketchum and Warren D. Oliver, all of Boston, Mass., on the brief), for respondent.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

PARKER, Circuit Judge.

This is a petition to enforce an order of the National Labor Relations Board which directed the Draper Corporation to cease and desist from unfair labor practices, in violation of sections 8(1) and 8(3) of the National Labor Relations Act, 29 U.S.C.A. § 158(1, 3), at its Spartanburg, S. C. plant, and to make whole fifty-four of its employees for loss of wages resulting from discriminatory discharge and failure to reemploy. These employees had been reinstated by the company prior to the order and the wage order related to losses sustained prior to reinstatement. The complaint before the Board charged the company with unfair labor practices, (1) in connection with the circulation among its employees of petitions derogatory to a union which had been chosen as their bargaining representative, (2) in the discharge of certain striking employees and the failure to reemploy them and (3) in the failure to bargain in good faith with the union. The Board held that the charge of failure to bargain was not sustained by the proofs but that the other charges were sustained and entered the order appropriate to such findings.

There is little real dispute as to the controlling facts, which are fully set forth in the Intermediate Report of the Trial Examiner, attached to the Report of the Board. They may be summarized as follows: In 1941 the union was chosen as bargaining representative of the employees of the company at its Spartanburg plant and entered into a contract with the company which was to last for the term of one year. A conference to negotiate a new contract was held on August 13, 1942, at which the union demanded, among other things, a closed shop and a 20 per cent wage increase. The company, while evincing a willingness to agree to a number of the union's proposals, would not agree to these; and the conference broke up when one of the officials of the company alluded to a petition of certain employees derogatory to union representation as possibly establishing a lack of bargaining authority on the part of the union. A complaint for failure to bargain was filed against the company but this was subsequently withdrawn and the company, giving unqualified recognition to the union as the bargaining representative of the employees, agreed that a conference to negotiate a contract be held with its representatives on October 8th, later changed to October 15th.

On October 14th, the union representative arrived in Spartanburg for the purpose of attending the conference and was advised that one Snieder, secretary of the company and its bargaining representative, was ill in Massachusetts and for that reason unable to attend the conference. Snieder was in fact ill, as the Board found; but some of the employees thought that his illness was feigned as an excuse for delay and became angry and resentful. Next morning forty-one of the foundry employees under the leadership of one Taylor, an officer of the union, gathered in a corner of the foundry building and failed to go to work at 7 o'clock, as they were supposed to do. When approached by the superintendent of the plant, they said that they were carrying on a "wild cat strike", that they considered that the company was "stalling" and that they wanted "action" and would get it. The superintendent ordered them to go to work, which they refused to do, and both he and the company's attorney, who had been called in the meantime, argued with them, telling them that they ought to return to work and that, if they did not do so, they would be discharged. Snieder was called over the 'phone by the superintendent, and, pursuant to instructions from him, the men were told either to go to work or to get out of the plant. They then retired to the locker room where they took a vote on whether to go out on strike or not and decided to do so by a vote of 28 to 13. The superintendent was notified of the result of the vote and the men departed peacefully without further ado. There was no violence at any time and no seizure of the company's property except such as may have been involved in the persistence of the 41 men, constituting 25 per cent of the total working force, in remaining in the plant and continuing the discussion, contrary to orders, for two hours while the plant was in operation. The next day the men were paid off in full and were given or were mailed settlement forms showing that they were discharged for engaging in a "sit down strike". The union, which the employees had chosen as bargaining representative, did not call or authorize the strike or sanction it in any way.

After the men had left the plant on October 15th, an offer was made in their behalf that they would return to work if they were assured that any wage increase which might be agreed upon as the result of negotiations would be made retroactive; but the company refused this offer. On October 19th the director of the United States Conciliation Service wired both sides asking that operations be resumed immediately and that the status quo prior to the work stoppage be maintained. The men agreed to this and all on strike presented themselves at the plant next morning October 20th. The company declined to permit those who had been discharged to return to work; and they and some other employees who were making common cause with them went away. Finally, on December 29th, the company agreed that all might return to work, and they were accordingly reinstated.

The number of men discharged on October 15th was forty-one. By mistake, however, a discharge notice for the same cause was mailed next day to one Mabry, who had not been working on the 15th, and he subsequently made common cause with the others. The company has offered to pay his wages from the time of his discharge until he was sent notice that he might return to work. Twelve other employees likewise joined the strikers. Three of these went to work on October 20th, thinking that all were returning to work, and worked for one day, but, on learning that the discharged employees were not allowed to work, they did not return thereafter until all were taken back. In refusing to allow the discharged employees to return to work, the company did not refuse to allow others who had joined in the strike to return, and would have permitted them to work if they had presented themselves.

With respect to the circulation of the petitions, it appears that officers of the union complained, about two weeks in advance of the meeting of August 13th, that anti-union petitions were being circulated, whereupon the superintendent promised that this would not be allowed. On August 12th, however, it appears that an employee was engaged in circulating such a petition in the presence of one of the foremen, but it does not appear that the company had anything to do with its circulation or that it was called to the attention of the superintendent. A petition was circulated also on the 13th, but when complaint thereof was made to the superintendent, he reprimanded the employee for circulating it. In the conference on the 13th, the petitions were referred to by the secretary of the company as casting doubt on the right of the union to represent the employees, but the company subsequently recognized the union as the bargaining representative of the employees and efforts to negotiate a contract were resumed.

The principal question in the case is whether the discharge of the forty-one employees on October 15th and the subsequent refusal to reemploy them were unfair labor practices within the meaning of the National Labor Relations Act.

On behalf of the Board, it is argued that the employees who went on the "wild cat" strike were engaged in "concerted activities, for the purpose of collective bargaining or other mutual aid or protection", within the meaning of section 7 of the act, 29 U.S.C.A. § 157, and that the discharge and refusal to reemploy on this account was interference, restraint or coercion with respect to the right to engage in such concerted activities, denounced as an unfair labor practice by section 8(1) of the act, 29 U.S.C.A. § 158(1). It is argued also that the discharge and refusal to reemploy constituted "discrimination in regard to hire or tenure of employment * * * to encourage or discourage membership in any labor organization", condemned as an unfair labor practice by section 8(3) of the Act, 29 U.S.C.A. § 158(3).

It is perfectly clear that, in the discharge and refusal to reemploy, there was no intent to discourage membership in any labor organization, within the meaning of section 8(3) of the act. The great majority of the employees, who were members of the union, continued to work; the company continued to recognize the union as the bargaining representative of its employees; the discharge and refusal to employ did not affect and could not have affected the status of the union as bargaining representative; and there is not a scintilla of evidence to support the conclusion that the discharge of the "wild cat" strikers or the refusal to reemploy them encouraged or discouraged membership in any labor organization or was intended to have any such effect. Western Cartridge Co. v. N. L. R. B., 7 Cir., 139 F.2d 855.

The question is narrowed, then, to whether...