National Labor Relations Board v. Winona Knitting Mills

• Decision Date: 06 August 1947
• Docket Number: No. 13491.,13491.
• Citation: 163 F.2d 156
• Parties: NATIONAL LABOR RELATIONS BOARD v. WINONA KNITTING MILLS, Inc.
• Court: U.S. Court of Appeals — Eighth Circuit

163 F.2d 156 (1947)

NATIONAL LABOR RELATIONS BOARD v. WINONA KNITTING MILLS, Inc.

No. 13491.

Circuit Court of Appeals, Eighth Circuit.

August 6, 1947.

Clarence Meter, Atty., National Labor Relations Board, of Minneapolis, Minn. (Gerhard P. Van Arkel, General Counsel, Morris P. Glushien, Associate General Counsel, A. Norman Somers, Asst. General Counsel, and Fannie M. Boyls and Robert Silagi, Attys., National Labor Relations Board, all of Washington, D. C., on the brief), for petitioner.

M. Alfred Roemisch and Benjamin H. Schwartz, both of Cleveland, Ohio (Rocker & Schwartz, of Cleveland, Ohio, on the brief), for respondent.

Before SANBORN, JOHNSEN, and RIDDICK, Circuit Judges.

SANBORN, Circuit Judge.

The order of the National Labor Relations Board, under review, in substance requires the respondent to refrain from (1) discouraging membership in the International Ladies Garment Workers Union (hereinafter called "the union"), or any other labor organization of respondent's employees, by discharging or discriminating against such employees; (2) recognizing the Independent Textile Workers Union (hereinafter called "the Independent") as the representative of respondent's employees unless and until the Independent shall have been certified as such representative by the Board; (3) in any other manner interfering with, restraining or coercing its employees in the exercise of the rights guaranteed them in § 7 of the National Labor Relations Act, 29 U.S.C.A. § 157. The order also requires the respondent (1) to pay to certain employees, found by the Board to have been discriminatorily laid off for one night, the wages each would have earned except for the layoff; (2) to reinstate Linda Nelsestuen (who was found by the Board to have been, constructively, discriminatorily discharged) without loss of rights or wages; and (3) to post the usual notices of compliance.

The respondent asserts that the Board's order and the findings upon which it is based are without adequate evidentiary support. We are required to decide whether there was substantial evidence that the respondent had discriminated against any of its employees or had in any other manner interfered with, restrained or coerced its employees in the exercise of their rights of self-organization, and whether, under the evidence and the law, the Board was justified in ordering the respondent to refrain from recognizing the Independent unless and until it was certified by the Board.

Upon charges filed by the Union, the Board had accused the respondent of (1) sponsoring and dominating the Independent, in violation of § 8(2) of the Act, 29 U.S.C.A. § 158(2); (2) constructively discharging Linda Nelsestuen for union activities, in violation of § 8(3) of the Act, 29 U.S.C.A. § 158(3); (3) discriminatorily laying off its night-shift employees for one night, in violation of § 8(3); (4) restraining and discouraging its employees from joining the Union, by granting them a wage increase on February 14, 1945, and by warning them against affiliating with the Union; by questioning them about union affiliations and activities; by threatening to lay off and discharge them, to discontinue its bonus system, to close the Plant, and to decrease wages if the Union became the bargaining agent for the employees; and, by threats of reprisal, forcing the withdrawal of its employees from the Union, all in violation of § 8(1) of the Act, 29 U.S.C.A. § 158(1).

The respondent denied the charges made by the Board, and the usual proceedings followed. The Trial Examiner, in his Intermediate Report, found against the Board upon the charge that the respondent had sponsored, dominated and supported the Independent in violation of § 8(2) of the Act; but found that the respondent had shown favoritism to the Independent sufficient to constitute a violation of § 8(1) of the Act. The findings of the Trial Examiner with respect to the alleged constructive discharge of Linda Nelsestuen, the asserted discriminatory layoff of night-shift sewers, and the alleged interference, restraint and coercion of the respondent's employees, were in favor of the Board.

We shall not attempt to state the evidence in detail. The respondent is an Ohio corporation, with a plant at Winona, Minnesota, where it manufactures knit goods. It is engaged in interstate commerce. Its officers reside in Cleveland, Ohio.

Early in February, 1945, the Union, by sending to each of the respondent's employees a communication inviting them to attend a union meeting on February 15, started a campaign to organize the plant. The communication referred to "The Story of the farmer who tried to save money by cutting his horse's rations. He figured his horse would never know the difference if he held out just One Oat a day and replaced it with a grain of sawdust. The Farmer Saved Money But The Poor Horse Died." In the communication the Union outlined its program to benefit respondent's employees. William Brown, the Plant Superintendent, sent a copy of this communication to Walker Woodworth, the Secretary-Treasurer of respondent in Cleveland, Ohio.

On February 14, in the afternoon, the respondent called together all the employees in its plant to hear a prepared address by Woodworth. His address dealt with the reasons for having located the plant in Winona and with the things the respondent had done and intended to do to benefit its employees, and denied that these benefits were "sawdust in the oats." The address contained the following statements:

"Now, Mr. Dubinsky, Mr. Katovsky and Mr. Slaughter mention other benefits to be desired, too numerous to mention. Well, if Mr. Dubinsky can talk about the sawdust in the oats, perhaps we have an equal right to mention the sawdust in their oats.

"Now, at Cleveland, the dues for this union who is contacting you, the fee formerly $1.00, is now $6.50 with additional dues of $1.35 every month. The employees who are in this union are called upon to contribute a day or half a day's pay from time to time for union relief. They are required to attend meetings, and if they fail to do so, are fined $1.00 or so for not coming.

"They also require the workers to take 10% of their pay in Government bonds, and while we believe in Government bonds and hope you buy as many as you can, this is a matter each employee should decide and there is no use in your being required to buy more than you can afford.

"What I have told you today about the things we have done, and what we intend doing will not be changed by any decision you may make as to how you are to be represented, whether individually, by committee appointed by yourselves to deal directly with management, or by a union to whom you pay initiation dues and assessments. However, regardless of your decision, you are not compelled to sign any agreement of any kind with this company."

After Woodworth's address, the Independent was organized. Herbert Nichols, a shipping clerk, and Ceil Stanley, a sewing-room employee, appear to have been promoters of the Independent. A rash of signs and stickers broke out in the plant, some pro and some anti Union. The Board's evidence indicated that anti Union signs were the more prominent and were not removed as promptly as they might have been; that favors were shown by respondent to the organizers of the Independent; that there was some questioning of employees by supervisors as to their union affiliations; that anti Union statements were made by supervisors; and that the respondent issued several communications to its employees, denying the charges of unfair labor practices which had been filed by the Union with the Board, and stating respondent's position relative to such charges.

The respondent asserts that the address of Walker Woodworth and respondent's subsequent communications to its employees were noncoercive and nonintimidating and were protected by the First Amendment to the Constitution of the United States. We think it is unnecessary to rule upon this question. The Board has not, as we understand it, held that the address and subsequent communications were per se unfair labor practices. The Board, in its decision and order, said: "We agree with the Trial Examiner that the respondent engaged in a coercive course of conduct to discourage the employees' self-organizational activities. In such a setting, and more specifically in the light of the respondent's threats of and actual economic reprisals against its employees for engaging in union activities, as disclosed in the Intermediate Report, Secretary-Treasurer Woodworth's speech to the employees on February 14, 1945, at the beginning of the Union's organizational campaign, and the respondent's letter to the employees, dated May 3, 1945, became an inseparable part of the respondent's coercive course of conduct violative of Section 8(1) of the Act. However, in concluding that Woodworth's speech fell outside the protection of the privilege of free speech, the Trial Examiner relied, in part, upon the fact that the speech was made to a compulsory audience of employees. We need not, and do not, pass upon or adopt the Trial Examiner's rationale in this regard."

If the address and communications of respondent were fairly to be considered a part of the totality of respondent's activities during the period in question, "we may not consider the findings of the Board as to the coercive effect" of the address and communications "in isolation from the findings as respects the other conduct of the Company." National Labor Relations Board v. Virginia Electric & Power Co., 314 U.S. 469, 477, 62 S.Ct. 344, 348, 86 L.Ed. 348; May Department Stores Co. v. National Labor Relations Board, 326 U.S. 376, 386, 66 S.Ct. 203, 90 L.Ed. 145. See and compare, Thomas v. Collins, 323 U.S. 516, 537, 538, 543, 544, 547, 548, 65 S.Ct. 315, 89 L.Ed. 430; National Labor Relations Board v. J. L. Brandeis & Sons, 8 Cir., 145 F.2d 556, 558-566; National Labor Relations Board v....