NLRB v. Berg-Airlectro Products Company

• Decision Date: 01 May 1962
• Docket Number: No. 13464.,13464.
• Citation: 302 F.2d 474
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BERG-AIRLECTRO PRODUCTS COMPANY, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

302 F.2d 474 (1962)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BERG-AIRLECTRO PRODUCTS COMPANY, Respondent.

No. 13464.

United States Court of Appeals Seventh Circuit.

May 1, 1962.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Solomon I. Hirsh, Atty., National Labor Relations Board, Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Allison W. Brown, Jr., Atty., National Labor Relations Board, Washington, D. C., for petitioner.

Russell Packard, Chicago, Ill., for respondent.

Before CASTLE, KILEY and SWYGERT, Circuit Judges.

KILEY, Circuit Judge.

This is a petition to enforce an order of the National Labor Relations Board¹ entered in a proceeding under § 10(e) of the National Labor Relations Act as amended.² The Board, so far as pertinent here, found that respondent discharged employee Odessa Stewart because of union activity in violation of §§ 8(a) (1) and (3)³ of the Act, and ordered respondent to restore her to the position formerly held by her.

Respondent is a Chicago manufacturer, and Odessa Stewart was its employee from 1953 until July 2, 1959.⁴ She was also vice-president of Local 5806, of the United Steelworkers of America, AFL- CIO, from its formation in March, 1959. The Local was formed following a collective bargaining agreement made in March, 1959 between respondent and the parent union. Disappointed over the conduct of the Local officials in resolving disputes with respondent's owner, Odessa Stewart left work early July 1 to file a complaint before the NLRB office in Chicago. What transpired soon after she left and on the next day gave rise to this proceeding.

The factual issue before the trial examiner was whether Odessa Stewart had quit work or was discharged. The trial examiner decided the issue in her favor, and the Board adopted the examiner's findings, conclusions, and recommendations with respect to that issue, which alone is relevant on this appeal, and entered the order sought to be enforced. The question is whether there is substantial evidence "in the light that the record in its entirety furnishes," Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 488, 71 S. Ct. 456, 95 L.Ed. 456 (1951), to support the Board's decision.

In addition to her vice-presidency of the Local, Odessa Stewart was a member of the negotiating committee working out an agreement on wages with respondent before midnight of June 30, 1959 in accordance with the collective bargaining agreement.

About the middle of June, 1959, when women employees alone were laid off in the movement of defendant's machinery to a new building, she complained to respondent's owner, Berg, of violation of seniority provisions of the collective bargaining agreement. On June 17 the union threatened a strike over Berg's statement that he could not afford a wage increase. He countered with a forty-five minute lockout, but the employees did not return to work until June 22. The Local, on June 28, with only fourteen of about seventy-eight members being present, voted to strike June 30 if no raise was given. At noon on the 30th of June fifty members, after a meeting with Berg, voted to extend the contract, due to expire at midnight, rather than to strike. In the afternoon the owner and the negotiating committee reached an impasse on the duration of the extension. That evening the committee, with Odessa Stewart absent, agreed to the extension which Berg had offered.

The next morning, July 1, the employees were gathered to learn of the extension agreement. Odessa Stewart, whose anger had been increasing daily, learned of the previous night's agreement. She "pulled" her time card, erased the "punch in time," demanded to know who filed the agreement, asked, "I wonder how much did they get paid for this," left the meeting and went to the NLRB office. She there filed charges against the president of the Local, not in issue in this proceeding, and was told to return to work. She called the plant and spoke to the brother of the Local president, who told her she had been discharged. She reported at the plant the next morning, and, after a conversation with superintendent Porter, left the plant.

There was no doubt that Odessa Stewart was a "tense and aggressive woman,"⁵ and in pursuing her function as an officer of the Local and a member of the negotiating committee she antagonized her employers, superiors, union officers, and some members of the union. She was suspicious and critical of the president of the Local and it is plain that he, Berg, and superintendent Porter would have been glad to have her quit work. This has considerable bearing on the resolution of the question whether she quit or was discharged.

We think the record amply supports the trial examiner's finding that the conduct of the respondent was "tantamount to discharging" Odessa Stewart.

About twenty minutes after she left the plant July 1 to go to the NLRB office, Porter discovered that she had gone. He took her time card out of the rack after saying she "had automatically quit her job when she walked off without telling anyone where she was going." But Porter testified that employees "take a day off" without permission "all of the time." For these infractions, customary disciplines were warning slips and layoffs. The Board found that respondent's treatment of Odessa Stewart was "scarcely in keeping" with the company's custom.

July 2, when she came to the plant and found her time card missing, Odessa Stewart asked superintendent Porter...