Western Cartridge Co. v. National Labor Relations Board, 8324.

• Decision Date: 27 January 1944
• Docket Number: No. 8324.,8324.
• Citation: 139 F.2d 855
• Parties: WESTERN CARTRIDGE CO. v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Seventh Circuit

139 F.2d 855 (1943)

WESTERN CARTRIDGE CO. v. NATIONAL LABOR RELATIONS BOARD.

No. 8324.

Circuit Court of Appeals, Seventh Circuit.

December 16, 1943.

Rehearing Denied January 27, 1944.

Henry Davis and R. H. McRoberts, both of St. Louis, Mo., for petitioner.

Robert B. Watts and Ernest A. Gross, N.L.R.B., both of Washington, D. C., and Lester Asher, N.L.R.B., of Chicago, Ill., for respondent.

Before KERNER and MINTON, Circuit Judges, and LINDLEY, District Judge.

MINTON, Circuit Judge.

On March 24, 1943, the National Labor Relations Board in a case brought before it by Local 12418, District 50, of the United Mine Workers of America, hereinafter called the Union, found the Western Cartridge Company, hereinafter called the Company, guilty of unfair labor practices in violation of Sections 8(1) and 8(3) of the National Labor Relations Act, 29 U.S.C.A. § 158(1), (3), hereinafter called the Act. The Board entered the usual order. The Company seeks to review this order, and the Board has applied for its enforcement. The sole question before us is whether or not there is substantial evidence to support the Board's findings.

We consider first the Board's finding that the Company violated Section 8(1) of the Act. Various labor organizations had in the past attempted to organize the Company's employees. The Congress of Industrial Organizations began such a campaign in 1937, and the American Federation of Labor in 1940. Late in 1941 and early in 1942, the Union, which was then affiliated with the CIO, started to organize the Company's employees. When the employees appeared in the plant wearing their union buttons, they were ridiculed and chided by their foremen for doing so. Walter Crawford, the foreman of the Cupping Department, where the employees herein concerned worked, on several occasions made derogatory and ridiculing remarks to the men about wearing their union buttons. To employee Page, Crawford said, "Page, as long as you have been here, I would not have thought you would have joined the Union."

Page replied, "Well, I thought maybe I would better myself."

Crawford responded, "If the Company would lay you off, you would raise hell."

Page replied, "If they did lay me off for joining the Union, yes."

Crawford said, "They can do it."

Page replied, "No, they can't."

To which Crawford responded, "You will see."

Another employee testified that when he entered the plant wearing his union button, Foreman Crawford grabbed hold of it and said, "What are you doing with this button on?" and "What are you getting for wearing it?" to which the employee responded that, "Well, if you want it I will give it to you," and started to do so. The foreman and his assistant withdrew laughing. The employee testified he thought they were trying to make a fool of him at the time.

Later Foreman Crawford in a conversation with employee Bailey referred to the activities of Herron and Seeger, who were leaders among the Union men. Crawford remarked in substance that Herron and Seeger were causing the trouble in there and that after the war the Company would remember who had been the strong men for the Union.

These incidents standing alone may be considered weak support for a finding of violation of Section 8(1) of the Act. However, the Company has a long, consistent record of persistent opposition to the organization of its employees. This Court quite recently sustained and enforced an order of the National Labor Relations Board in which it found the Company guilty of several unfair labor practices. National Labor Relations Board v. Western Cartridge Co., 7 Cir., 134 F.2d 240. In view of the Company's known hostility to the organization of its employees and its established record of unfair labor practices, we think that the conduct of the foreman, Crawford, in this instance was quite persuasive evidence that the Company's attitude toward the organization of its employees had not changed. Under all of the circumstances of this case, we think that there was substantial evidence to support the Board's finding that the Company had violated Section 8(1) of the Act.

As to the violation of Section 8(3): The employees on the day shift in the Cupping Department of the Company's plant, not as members of the Union or under any claim of bargaining rights, had been negotiating with the Company about certain grievances as to working conditions and an increase of wages. They concluded that the Company was engaging in dilatory tactics and determined to cease work unless the Company set a definite time for a meeting at which these grievances might be taken up. The Company did not comply with this request, and the day shift quit work the afternoon of July 3, 1942. Shortly thereafter, the Company's officers and armed guards met with the employees of the day shift who had ceased work and were still about the plant. The Company superintendent told the employees that they could go back to work if they wished. None offered to return. One of the employees spoke up and stated that the employees were willing to go back to work at once if the Company would give them a definite date for hearing their grievances. To this, the superintendent responded that the request would not be considered until the men went back to work and asked them if they desired to return to work. When none responded, the superintendent ordered that they be given suspension slips. This was done. These slips notified the employees to appear before the Discipline Board on Monday, July 6, at nine a. m. After the men had received these notices, their indentification badges were taken from them, and they were escorted from the plant by the armed guard.

When the second shift came to work and discovered what had happened, they also refused to go to work unless the Company would set a definite date for the hearing of the employees' grievances and would give the first shift employees their hearing before the Discipline Board the next day, which was Saturday, instead of waiting until Monday. These demands the Company superintendent rejected and sent word to the second shift employees to report for work immediately. The employees, including some of those of the third shift who had arrived at the plant, did not heed the warning at that time. Later that same day, one of the employees told the Company superintendent that the men had determined not to report to work until the dispute had been settled. Whereupon the superintendent declared that the employees had gone on strike and their action warranted removal of their names from the payroll. He instructed the employee to notify his fellow employees that anyone on the second and third shifts who did not report for work that day would be suspended and would not be allowed to return to work until he had received the permission of the Discipline Board. Some of the men returned to work, but most of the employees of the second and third shifts decided not to report for work until the controversy had been settled. On July 4, notices were prepared suspending the employees of the second and third shifts who had not reported for work the day before, and the charge assigned therefor was failure to appear for work without reason. The suspended employees were also directed to appear before the Discipline Board Monday, July 6, at ten a.m.

On July 6, the employees appeared at the Company's gates and requested that all of the employees of all shifts be permitted to appear before the Discipline Board at the same time. This the Company refused. Thereupon, the employees left the plant. On July 7, the Discipline Board of the Company discharged the eighteen men of the first shift who had gone on strike, and the vacancies resulting from their discharge were permanently filled by new employees between July 8 and July 15. The Discipline Board, however, accorded different treatment to the other shifts, keeping their jobs open for them until they were willing to return.

On July 8, employee Seeger, as representative of his fellow striking employees, reported to the Personnel Director of the Company, and on behalf of himself and his fellow employees advised the Personnel Director that they would like to return to work. Their offer was rejected. Seeger was informed that the employees of the first shift were discharged and that the men on the other shifts would be put back to work whenever they were willing to accept reinstatement through the Discipline Board. This information Seeger conveyed to the striking employees. From time to time thereafter, shifts other than the first shift reported to work and, following their appearance before the Discipline Board, were reinstated. None of the employees of the first shift was reemployed.

Thus it will be seen that out of a labor dispute grew an economic strike. The strike was not caused by any unfair labor practice of the Company. Since the strike grew out of a labor dispute, the employees maintained their status as employees of the Company. 29 U.S.C.A. § 152(3); National Labor Relations Board v. Mackay Radio & Telegraph Co., 304 U. S. 333, 344, 347, 58 S.Ct. 904, 82 L.Ed. 1381; Wilson & Co. v. National Labor Relations Board, 7 Cir., 124 F.2d 845, 847, 848; Firth Carpet Co. v. National Labor Relations Board, 2 Cir., 129 F.2d 633, 635, 636. Without violating Sec. 8(3) of the Act, the Company had a right to discharge these employees or to refuse to take them back into its employ, as long as it did not discriminate against them in such a manner as to encourage or discourage membership in any labor organization. Failure to reemploy striking employees because they engaged in a strike may be an interference with their right to engage in "concerted activities" as provided in Section 7 of the Act and would therefore constitute an unfair labor practice under Section 8(1) of the Act. Does such a violation of Section 8(1) in and of itself warrant a finding of a violation of Section 8(3)? We think not. Employees may under Section 7 of ...