Stewart Die Casting Corp. v. National Labor R. Board

• Decision Date: 18 October 1940
• Docket Number: No. 7132.,7132.
• Citation: 114 F.2d 849
• Parties: STEWART DIE CASTING CORPORATION v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Seventh Circuit

114 F.2d 849 (1940)

STEWART DIE CASTING CORPORATION v. NATIONAL LABOR RELATIONS BOARD.

No. 7132.

Circuit Court of Appeals, Seventh Circuit.

July 3, 1940.

Rehearing Denied October 18, 1940.

Silas H. Strawn, Frank H. Towner, and Thomas S. Tyler, all of Chicago, Ill. (Winston, Strawn & Shaw, of Chicago, Ill., of counsel), for petitioner.

Thomas L. Owens, of Chicago, Ill., for United Automobile Workers of America, Local 298, intervening petitioner.

Chas. Fahy, General Counsel, N. L. R. B., Robt. B. Watts, Assoc. Gen. Counsel, N. L. R. B., Laurence A. Knapp, Gen. Counsel, Ernest A. Gross, Bertram Edises, and Owsley Vose, all of Washington, D. C., for respondent.

Before EVANS and MAJOR, Circuit Judges, and LINDLEY, District Judge.

MAJOR, Circuit Judge.

This is a petition to review and set aside an order of the National Labor Relations Board issued pursuant to Section 10(c) of the National Labor Relations Act, 29 U. S.C.A. § 151 et seq. In answer to the petition, the Board has requested enforcement of its order. Two separate proceedings were instituted against the petitioner, the first referred to as Case No. C-577, and the second as Case No. C-869. The two proceedings were subsequently consolidated and disposed of by the Board in the same decision and order.

Case No. C-577 was predicated upon charges filed by United Automobile Workers of America, Local 298 (afterwards referred to as the "Union") and complaint issued thereon January 4, 1938. Briefly, petitioner was charged with unfair labor practices by refusing to bargain collectively with the Union, which caused its employees to participate in a strike; that it refused to reinstate certain of its striking employees because of their union activity; that certain employees were discharged because of such activity, and that it made derogatory statements concerning the Union and urged and warned its employees against joining or retaining membership therein. After a denial of the motion to dismiss the complaint, petitioner answered, denying all charges. A hearing was had before a trial examiner from January 20 to and including February 9, 1938. An intermediate report was filed by the Examiner to which petitioner filed exceptions on May 4, 1938.

Proceedings in Case No. C-869 were the result of a complaint filed with the Board on June 16, 1938, by certain individual employees. It was charged that from February 1, 1938, petitioner reduced the days of employment per week of Bernice Andrews, discharging her on February 21, 1938, and on May 10, 1938, discharged John Adrian, on May 5, 1938, discharged Charles Anusewicz, and on May 20, 1938, discharged Con Buller, for the reason that they and each of them had joined and assisted the Union and had given testimony in the previous proceedings unfavorable to petitioner, and that as a result, petitioner was guilty of certain designated unfair labor practices. Petitioner, by answer, denied such charges.

A hearing was had in this proceeding from June 21 through and including June 24, 1938, before a trial examiner and subsequent to the time the two proceedings had been consolidated. Exceptions were filed to the intermediate report of the Trial Examiner. Oral argument was had before the Board in Washington, D. C., participated in by counsel for the petitioner, the Union and the Board. The Board's decision and order, now under review, was entered as amended on August 23, 1939.

The Board decided that petitioner, in violation of Section 8(5) of the Act, on March 23, April 9 and 17, June 21 and 24, 1937, and thereafter, refused to recognize and bargain collectively with the Union, although that organization represented a majority of its employees in an appropriate unit; that from March 16 to June 24, 1937, petitioner violated Section 8(1) of the Act by warning its employees against collective bargaining through the Union, and made derogatory statements concerning the Union, thereby interfering with, restraining and coercing its employees in violation of Section 7 of the Act; that petitioner violated Section 8(3) of the Act by denying reinstatement on or about June 24, 1937, to 165 named employees because of their membership in, and activity on behalf of, the Union; that petitioner further violated Section 8(3) of the Act subsequent to reinstating 52 of the 165 employees referred to above, and laid 41 of them off because of their Union activities. It was further decided that petitioner laid off Bernice Andrews on February 21, 1938, Charles Anusewicz on May 5, 1938, and John Adrian on May 10, 1938, because of their membership and activity in the Union, thereby further violating Section 8(3) of the Act, and by such acts interfered with, restrained and coerced such employees in the exercise of rights guaranteed by Section 7, thus violating Section 8(1) of the Act.

In addition to the usual cease and desist order, petitioner was required to take the following affirmative action: (a) offer reinstatement to all employees unlawfully discriminated against (excluding those already reinstated) and make them whole for any loss of pay suffered by reason of petitioner's discrimination; (b) upon application, offer to all employees who were on strike on May 23, 1937, and thereafter, immediate and full reinstatement with back pay from the date of any refusal of their application for reinstatement; (c) restore without prejudice to the employees who were on strike on March 23, 1937, their seniority rights; (d) upon request, bargain collectively with the Union and if an understanding is reached, embody said understanding in a signed agreement, and (e) deduct from the back pay due each employee under all provisions of the order a sum equal to that received by such employee for work done upon Federal, State, county, municipal or other work-relief projects during the period for which back pay is due under the order, and pay such amount deducted to the appropriate fiscal agency of the Federal, State, county or municipal government financing such projects.

Petitioner states a large number of contested issues. Among these are (1) whether the Union was a proper collective bargaining agent on March 22, 1937, and thereafter, of the company's employees; (2) whether the company, on March 23, 1937, and thereafter, refused to bargain collectively with the Union; (3) whether certain employees, because of their strike activities, lost their status as employees and thereby, the benefits of the Act; and (4) whether the petitioner was guilty of coercion and discrimination against its employees because of their connection with, and activity in behalf of, the Union. It is apparent that the Board's order with respect to these issues involves largely questions of fact.

Other issues are presented involving questions of law. They are (1) the requirement of the Board that petitioner reimburse Federal, State, county and municipal agencies for any sums paid to petitioner's employees during the period for which back pay is ordered paid such employees, and (2) the requirement that petitioner enter into a written agreement with the Union concerning matters agreed upon as a result of collective bargaining.

The issues of fact having been determined by the Board adversely to petitioner's contention are, of course, binding upon us if supported by substantial evidence. It seems the time has passed when a court can hope to serve any useful purpose by an extensive review of the evidence and certainly there is no occasion to do so beyond the point of ascertaining if the record furnishes such support. In the beginning, we think it is proper to state that we have carefully examined the voluminous record and are convinced that the findings have substantial support. We shall, therefore, only discuss briefly the more pertinent evidence material to such findings.

In the beginning it seems material to refer to the situation prior to March 23, 1937, the date found when petitioner first refused to recognize and bargain with the Union. The record discloses, as the Board found, that there was dissatisfaction among the employees prior to March 16, 1937. Numerous employees complained to petitioner's officials regarding wages and conditions of employment, but it appears such complaints were made in individual capacities rather than by any group or organization representing the employees. At any rate, on the early morning of March 16, 1937, a sit-down strike was staged, participated in by from 75 to 100 employees. The strikers remained inside the plant until 3 o'clock the following morning when they relinquished possession of the plant at the request of the Chicago Police. On the morning of March 17, the day shift, when they came to work, were advised by the officials of petitioner that the plant was closed, and it remained closed until March 25 when petitioner resumed operations. After the employees were informed on March 17 of the closing of the plant, a general strike ensued which lasted until June 24, 1937.

It is not contended by the Board, as we understand, that the Union which was in the process of organization, represented a majority of the employees at the commencement of the strike, but that immediately thereafter, membership in the Union rapidly increased, and that by March 22, 1937, it had a majority. It appears that the Union had no connection with the strike at its inception, including the sit-down strike.

The Board found that the company refused to bargain with the Union on March 23, April 9, April 17, June 21 and June 24, 1937, and, that the strike was continued from and after March 23 by such refusal to bargain. The Board does not find any unfair labor practice prior to March 23. It is petitioner's contention that it did not on the dates mentioned, refuse to bargain; that as a matter of fact it did bargain on such dates and, therefore, is not guilty of unfair labor practices in that respect. Having eliminated such unfair labor practices, so its argument proceeds, neither...