Rapid Roller Co. v. National Labor Relations Board., 7738.

• Citation: 126 F.2d 452
• Decision Date: 09 April 1942
• Docket Number: No. 7738.,7738.
• Parties: RAPID ROLLER CO. v. NATIONAL LABOR RELATIONS BOARD.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

126 F.2d 452 (1942)

RAPID ROLLER CO. v. NATIONAL LABOR RELATIONS BOARD.

No. 7738.

Circuit Court of Appeals, Seventh Circuit.

February 2, 1942.

Rehearing Denied April 9, 1942.

COPYRIGHT MATERIAL OMITTED

Karl Edwin Seyfarth and Doval Benjamin Williams, and Charles LeRoy Brown, all of Chicago, Ill., for petitioner.

Robert B. Watts, of Washington, D. C., I. S. Dorfman, of Chicago, Ill., and David Findling, of Washington, D. C., Ernest A. Gross, Frank Donner, and William Strong, all of Washington, D. C., for respondent.

Before EVANS, KERNER, and MINTON, Circuit Judges.

MINTON, Circuit Judge.

The Rapid Roller Co. (hereinafter referred to as the company) was in 1937 and is now engaged in the city of Chicago in the manufacture and servicing of printers' rollers and in the manufacture of rubber blankets used in lithographing and offset printing. There is no dispute as to the interstate character of the company's business. The National Labor Relations Board (hereinafter referred to as the Board) on July 19, 1941, entered an order, after full and extensive hearings, findings and conclusions of law, in which the Board found the company guilty of unfair labor practices, first, by interfering with, restraining and coercing its employees in their rights to organize, in violation of Sec. 8(1) of the National Labor Relations Act, 29 U.S. C.A. § 158(1); second, by refusing on March 2, 1939 and thereafter to bargain collectively with Local 120, United Rubber Workers of America, affiliated with the Congress of Industrial Organizations (hereinafter referred to as the union); third, discrimination in the hire and tenure of striking employees and others in violation of Sec. 8(3) of the Act.

The order required the company to cease and desist from interfering with, restraining or coercing its employees in their right to organize, from discrimination in the hire and tenure of striking employees and others, and from its refusal to bargain collectively with the employees through the union. The company was also ordered to offer the striking employees immediately full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or to their other rights or privileges, and to reimburse the striking employees for any loss of pay they may have suffered by reason of the company's unlawful acts, by payment to each of them of a sum of money equal to that which he would normally have earned as wages during the period from the date of the application for reinstatement on May 9, 1939, to the date of the company's offer of reinstatement or placement on the preferential list, as provided in the Board's order, less his net earnings during such period.

To set aside this order, the company filed its petition in this court, and the Board answered and asked for an order enforcing its order.

The main question in this case, around which all others revolve, is whether or not there is substantial evidence to support the Board's order. It is axiomatic that upon such a question we do not retry the case or weigh the evidence or pass upon the credibility of the witnesses. In discharging our duty in these circumstances, we look only to the evidence that is favorable to the Board.

As stated before, the unfair labor practices of which the Board found the company guilty were: interference under Sec. 8(1); failure to bargain collectively with the union under Sec. 8(5); and discrimination under Sec. 8(3). We shall discuss these matters in this order.

Prior to the Spring of 1937, there had been no organization of the production and maintenance employees of the company. The latter part of March, 1937, a movement got under way to organize the production and maintenance employees, but the organization did not include supervisory, laboratory or office employees. Rapid progress was being made when the plant manager, Mr. Schwartz, discovered the movement. Mr. Rapport, the president of the company, was in California. Schwartz notified Rapport of the movement, and the latter came back immediately. Upon his arrival at the plant on March 29, 1937, shortly before noon and after a conference with Schwartz, he ordered a meeting of the employees around the noon hour, to be held on the fourth floor of the factory building. Rapport addressed the assembled employees, telling them that he had heard they were having trouble in regard to unionism, and stated that if they joined the union, he would move the company's plant to Rockford or Belvidere where he had a "guarantee of no labor trouble," and told the employees that the union never got them any place, that all they did was pay high dues in order for the officials to ride around in big cars and smoke cigars. He asked who the ringleaders were, and, when no one responded to his inquiry, by a strange coincidence he called up before the employees for questioning four of the employees who were the most active in the organization of the union. Shortly after this meeting, Rapport was heard to say: "I will get even with these fellows who don't play ball with me. It may take me one year or it may take me five, but I will get even." Then immediately following the meeting, Rapport went through the plant and told the employees of the production and maintenance departments, where the activities for joining the union were taking place, that such employees would receive a raise of two dollars per week. The other employees in the factory who were not engaged in organization activities did not receive this promise of a raise. Rapport went to some of the leaders in the organization and asked them to stay out of the union, and offered them long-term contracts at increased wages if they would do so.

On April 2, 1937, manager Schwartz informed Rapport that he believed the employees were going to attend a meeting of the Rubber Workers' Union that night. That afternoon during working hours the employees were assembled again and Rapport addressed them, counseling them against having anything to do with outsiders and urging them not to pay their dues to fellows to ride around in big cars and smoke cigars, but to keep their money and work out something among themselves, and he suggested a little inside organization and offered to contribute one thousand dollars to such organization and the proceeds of the candy vending machines, which produced a considerable revenue.

As the employees were leaving that afternoon, Rapport stood at the gate and urged them to go home and not to attend the union meeting. Outside the building an organizer of the union was distributing leaflets to the employees as they left the plant, and Rapport stood to block the doorway and told several of the employees to use a rear exit, theretofore forbidden to the employees. He referred to the organizers as racketeers and stated that before he would let the union get into the plant, he would close it down and move somewhere else.

Schwartz, the manager, who had the right to hire and fire men, inquired of the employees why it was necessary to have an outside union and suggested a company union. Manager Schwartz also requested one of the employees to join the union and act as a stool pigeon for the company.

Subsequently to the meeting of April 2, 1937, the union sought to negotiate a contract with the company. During the negotiations, Rapport stated that he would not recognize the union under any circumstances if it were not for the fact that he had a lot of orders waiting to be shipped out. He stated the union had him by the neck and if he ever had the opportunity, he would get even with the union. Rapport called the leaders rats, disloyal rats, and stated that the time would come when he would get rid of the whole committee representing different departments of the plant.

On April 23, 1937, the company entered into a collective bargaining contract with the union as the sole collective bargaining agency for the employees in the production and maintenance departments. It will be observed that the acts of the company's officials above related had transpired prior to the date upon which the company entered into a collective bargaining agreement with the union, to wit, April 23, 1937. It is therefore contended by the company that these acts were not sufficient to show a violation of Sec. 8(1), because the company had subsequently entered into a collective bargaining agreement with the union.

Whatever force there may have been in this contention was lost by reason of the fact that the officials of the company, after they entered into the collective bargaining agreement, did not cease their opposition to the union but continued to manifest that same character of hostility that had so clearly characterized their attitude prior to entering into the collective bargaining contract. Their attitude towards the union had not changed in the slightest, and they felt that their act in entering into the contract with the union was under duress and they entered upon its performance with all the mental reservations of hostility to the union that they possessed before entering into the contract. It was the same pattern of hostility and opposition to the union after the contract as it was before, as made manifest by the following facts after the collective bargaining contract with the company was in force and bargaining became necessary.

In the numerous conferences with Rapport and Schwartz, they both renewed their threats that if the union persisted in its attitude they would remove the factory from the city and the men would be without work and the means whereby to earn bread for their families. In one instance when a shop committeeman, Moore, attempted to present what he conceived to be a grievance of the union, Rapport became incensed, berated, cursed and bemeaned employee Moore and threatened him with a crank handle, telling him he had no right to tell him (Rapport) how he was to run the factory, that he had no right to be a shop steward, that ...