NLRB v. Kaye, 12617.

• Decision Date: 28 December 1959
• Docket Number: No. 12617.,12617.
• Citation: 272 F.2d 112
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Charles J. KAYE, Saima Kaye, David J. Kaye and Joan K. Engberg, d/b/a Arrow Press, Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

272 F.2d 112 (1959)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Charles J. KAYE, Saima Kaye, David J. Kaye and Joan K. Engberg, d/b/a Arrow Press, Respondents.

No. 12617.

United States Court of Appeals Seventh Circuit.

November 5, 1959.

Rehearing Denied December 28, 1959.

Stuart Rothman, Gen. Counsel, George Schatzki, Atty., Jerome D. Fenton, Gen. Counsel, Thomas J. McDermott, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Frederick U. Reel, Allison W. Brown, Jr., Attys., N.L.R.B., Washington, D. C., for petitioner.

John H. Doesburg, Jr., Chicago, Ill., for respondent.

Before MAJOR, PARKINSON and KNOCH, Circuit Judges.

MAJOR, Circuit Judge.

This case is before the court upon the petition of the National Labor Relations Board, pursuant to Section 10(e) of the National Labor Relations Act, as amended (61 Stat. 136, 29 U.S.C.A. § 151 et seq.), for enforcement of its order issued against respondent on January 12, 1959, following the usual proceedings under Section 10 of the Act. The Board's decision and order are reported at 122 N.L.R.B. No. 101. This court has jurisdiction of the proceeding, the alleged unfair labor practices having occurred at Milwaukee, Wisconsin, where respondent, a commercial printer and lithographer, produces a substantial amount of goods for interstate commerce.

The Board found that respondent violated Section 8(a)(3) and (1) of the Act by discharging Donald J. Hentz for union activity, and further violated Section 8(a)(1) by ordering Hentz not to distribute union authorization cards.

Proceedings were held before a Trial Examiner who issued his Intermediate Report and a Recommended Order. Respondent's exceptions to the report were denied by the Board which, without opinion or discussion, approved it. The Board's order followed, enforcement of which is sought here.

At the hearing before the Trial Examiner, respondent contended that the discharge of Hentz was lawful for two reasons: (1) that Hentz on March 5, 1958, attempted to slow down production in the lithographing department by criticizing employees for turning out too much work, and (2) that Hentz violated respondent's rule or policy against solicitation by distributing union authorization cards on company time, thereby disrupting the employees. The Examiner, sustained by the Board, found against respondent on both contentions, characterizing each as a pretext to justify Hentz' discharge. Respondent advances the same contentions here and argues that the findings of the Board relative thereto are not supported by substantial evidence.

In the view which we take of the case, a brief statement of the facts will suffice. Respondent had no collective bargaining contract with a labor organization representing employees in any of its six departments. In its lithographing department, however, many of the employees maintained membership in Local 7, Amalgamated Lithographers of America. Respondent, from the time it first started this department in 1951, conformed to union rules and standards covering working conditions with respect to such employees. In December 1957, respondent informed these employees that it would not comply with the union standard that called for granting a paid holiday the day before Christmas for the reason that this would adversely affect the morale of other employees in the plant. On February 28, 1958, the employees in the lithographing department were informed that respondent could no longer conform to the union policy of a 35-hour work week and that the department was going on a 40-hour work week. Following these incidents, the employees of this department discussed among themselves the possibility of obtaining respondent's recognition of the union as their bargaining representative. The record is silent as to whether respondent had any information or knowledge relative to such discussions.

Hentz was hired as a pressman in the lithographing department in the spring of 1952, under an agreement by which he was to work under a union standard of 35 hours. Because of this special agreement with him, the employees of the lithographing department were informed that the change from a 35 to a 40-hour week would not apply to Hentz. Hentz appears to have been a leader among the employees in his department. He obtained some union authorization cards and, on the morning of March 5, 1958, showed one to respondent's general manager Kaye, requesting permission to distribute them among the lithographing employees. Kaye promised to think about it and let him know. About three hours later, Kaye...