National Labor Relations Board v. Radcliffe

• Decision Date: 27 April 1954
• Docket Number: No. 13726.,13726.
• Citation: 211 F.2d 309
• Parties: NATIONAL LABOR RELATIONS BOARD v. RADCLIFFE et al.
• Court: U.S. Court of Appeals — Ninth Circuit

211 F.2d 309 (1954)

NATIONAL LABOR RELATIONS BOARD v. RADCLIFFE et al.

No. 13726.

United States Court of Appeals Ninth Circuit.

March 3, 1954.

As Modified on Denial of Rehearing April 27, 1954.

George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, Arnold Ordman, H. T. Herrick, Attys., NLRB, Washington, D. C., for petitioner.

Eli A. Weston, J. L. Eberle, Boise, Idaho, for respondents.

Before DENMAN, Chief Judge, POPE, Circuit Judge, and DRIVER, District Judge.

DRIVER, District Judge.

The National Labor Relations Board petitions for enforcement of its order, based upon findings that respondents C. W. Radcliffe and W. W. Mancke, co-partners doing business as Homedale Tractor & Equipment Company, engaged in unfair labor practices. Specifically, the Board's findings are that respondents interfered with union organizational activities of its employees by the strategically timed announcement of a profit-sharing plan, interrogated an employee regarding his and other employees' union sympathies, and threatened to close their establishment, if it were unionized, all in violation of Section 8(a) (1) of the National Labor Relations Act, 29 U.S.C.A. § 158(a) (1); and discriminatorily discharged, for their union activities, five employees, in violation of Section 8(a) (1) and (3) of the Act, 29 U.S.C.A. § 158 (a) (1) and (3). The Board's order directs respondents to cease and desist from engaging in such unfair practices, to offer re-employment to the three employees, not previously reinstated, and to make whole all five discharged employees for any loss of pay they may have suffered.

No jurisdictional issue is raised, as respondents concede and the record shows that they were engaged in commerce, within the meaning of the Act. The basic question presented is whether, considering the record as a whole, there is substantial evidence to support the Board's findings.

In June, 1951, respondents were engaged in the farm machinery and equipment business, in Homedale, Idaho, a town of 1500 to 2000 population, about forty-five miles from Boise. They had in their employ five mechanics and a number of set-up and delivery men, engaged in repair and maintenance work — just how many, the record does not show. Wilbur M. Snyder, a mechanic, and eight other men who worked with him in respondents' shop met at Snyder's residence, in Homedale, on the evening of June 4, to discuss unionization. Snyder, previously had obtained from the International Association of Machinists, hereinafter called the Union, blank authorization cards, and all of the men who attended the meeting signed the cards, authorizing the Union to represent them for collective bargaining purposes.

On June 13, there was another meeting at Snyder's home, attended by the men at the first meeting, except George Otto. Robert E. Watkins, a set-up and delivery man and Allen K. Walker, business agent of the Union, at Boise, also were present. Walker talked to the men about the operation and advantages of the Union, and unionization was further discussed. Watkins, at that time, signed an authorization card.

On the evening of June 20, respondents called a meeting of their employees, at their place of business. Such meetings, previously, had been held at odd times, on the average of once or twice a month. Respondent Radcliffe, in giving advance notice of the meeting of June 20, told one of the mechanics it was absolutely necessary to be there. He told other employees that they should let nothing short of a death in the family prevent them from attending. At the meeting, Radcliffe spoke concerning a profit-sharing plan, which he explained with the aid of a mimeographed statement, copies of which were passed out to the men. The statement set forth the plan in detail in nine numbered paragraphs. It was headed, "An Incentive Award Plan for Employees of Homedale Tractor & Equipment Company," and, in the first paragraph, stated: "We are pleased to announce the details of an employees' `profit-sharing plan', retroactive to January 1, 1951." The plan provided that the Company's employees were to share in the net profits under certain specified conditions. The division of profits was to be made quarterly, on March 31, June 30, September 30, and December 31 of each calendar year. At the end of each quarter, profits allocated to the program were to be set up in two reserves, one-half to be "paid out immediately" and the other one-half to be held until the end of the year, when it would be distributed along with the fourth quarterly payment.

Checks for the quarter ending March 31 were handed out to the eligible employees present at the meeting. The checks were in substantial amounts. Snyder received $47.00 or $49.00 for his one-half, quarterly payment. No other payment was ever made to the employees under the plan. Radcliffe testified that, upon the advice of an attorney, payments were "suspended," for the reason that rulings of the Wage Stabilization Board indicated that they "were not within the law." On December 24, 1950, respondents had told their employees that a profit-sharing plan was being considered, but apparently nothing was done about it, and no further information regarding it was given to the men until the meeting of June 20.

After he had explained the profit-sharing plan at the meeting, on June 20, Radcliffe admonished the employees for slackness in their work, discourtesies to customers, and whisperings among themselves, particularly "during the past two weeks." He warned them that, if things did not improve, the guilty ones would be discharged. He said that they had a stack of applications about an inch thick and could replace any or all of the men at any time, if they did not "attend to business." Respondent Mancke then addressed the meeting and, in a loud and angry manner,¹ accused the employees of wasting time, visiting and talking and "fooling around," and threatened to "get tough," if conditions did not improve. Both Radcliffe and Mancke said that Watkins, who was not invited and did not attend the meeting, would be discharged the following day for his failure to perform a certain job of work.

Watkins had been employed on May 1, 1951, on a temporary, "trial basis" for three months. On June 20, he had steam-cleaned a mower, but had missed some spots on the under side. When Mancke inspected it, he told Watkins that it was not clean enough to be painted and would have to be done over. It was then only ten or fifteen minutes before quitting time, and Watkins said that he would "get it the first thing" the following day. Mancke left without further comment.

Snyder, Maybon, and Watkins reported for work at the usual time the next morning, but, because of their resentment at what had happened at the meeting the previous evening, decided to go to Boise to confer with the Union's business agent, Walker. Snyder went to the office to tell Radcliffe that he would not be working that day, but Radcliffe was not in and, after waiting for him for fifteen or twenty minutes, Snyder left. He and Maybon then picked up their tools and, accompanied by Watkins, who had no tools, went to Boise. They did not tell Howard Wilkin, the foreman, who was in the shop that morning, that they were leaving. In Boise, Walker heard what they had to say and advised them to return to work. All of them did report for work the next day, June 22. Some time during the forenoon, Radcliffe called Snyder to the office and asked him why he had not worked the day before. Snyder told him that he was so "mad at what had happened at the meeting, he was in no condition for work and, after reporting at the shop, had changed his mind and had gone home. Radcliffe said that he would "think it over" and call Snyder back to the office that afternoon. He told Snyder to go back to work in the meantime.

The same forenoon, Maybon, together with the foreman Wilkin, was summoned to the office. Radcliffe asked Maybon why he "hadn't been there" the previous day, and the latter said that it was on account of the meeting — he did not like to have people yell and scream at him. Radcliffe said, "How do we stand?" Maybon replied, "If it goes on like this, why, I will find something different." Radcliffe asked Maybon to work the rest of the day and get his check that night. Radcliffe also said that he should have let Maybon go three months earlier, because Maybon and the Company "couldn't see eye to eye."

Also, on the morning of June 22, Watkins was called to the office. Radcliffe told him that, since he could not see "eye to eye" with the Company and couldn't seem to get along "with them," he should not work there any more. He was, thereupon, discharged. That afternoon, Radcliffe told Snyder he had "fired" Maybon and Watkins, but had decided to keep Snyder on, as his work had been satisfactory, and that Snyder could keep his job with the Company as long as he wished to do so.

On June 25, respondents received from the Union a letter informing them that the Union represented the majority of respondents' employees. The next day, Mancke called the employees together, read the letter, and remarked that it was up to them to decide whether or not they wanted the Union.

On June 27,² respondent Radcliffe summoned to the office Robert D. Stimmel, an employee who had attended the two union meetings in Snyder's home and had signed a union authorization card. Radcliffe told Stimmel that he knew about the meetings the employees had held and said it wasn't necessary to have spies — things just got around. He also said he knew that Jack Thomas left a meeting early "to pick up his wife"³ and that he thought Wilbur Snyder was the "head of the business" and a troublemaker. Radcliffe said "four more guys" would be discharged and asked Stimmel how he felt about the Union and how the other employees felt about it. Stimmel was noncommittal. He said that he could get along with a union or...