On Petition to Review and on Request for Enforcement of an Order of the National Labor Relations Board.
Before SPARKS, MAJOR, and TREANOR, Circuit Judges.
This is a petition to review and set aside an order by the National Labor Relations Board (hereinafter called the "Board") against the New York Handkerchief Manufacturing Company, (hereinafter called the "petitioner") issued pursuant to Section 10 (c) of the National Labor Relations Act (49 Stat. 449, 29 U.S.C. § 151 et seq.). In its answer to the petition, the Board requested enforcement of its order.
The International Ladies Garment Workers Union, Local No. 76, (hereinafter called the "Union") having filed a petition with the Regional Director of the Board at Chicago, Illinois, alleging that a question affecting commerce had arisen concerning the representation of the petitioner's employees and requesting an investigation and certification of representatives pursuant to Section 9(c) of the Act, the Board, on December 21, 1937, authorized the investigation. As part of the investigation, a hearing was held on January 28, 1938, before a Trial Examiner, participated in by counsel for the Board, petitioner and the union.
On February 28, 1938, the Board issued its Decision and Direction of Election, finding, among other things, the unit appropriate for the purpose of collective bargaining, that the question concerning representation could best be decided by a secret ballot election, and directing that such election be held. An election was conducted on March 24, 1938, during the hours of 3:00 P.M. to 6:00 P.M. Thereafter, the Regional Director issued an intermediate report setting forth various acts of interference and coercion by petitioner in connection with the election; that approximately 225 employees were eligible to vote, of whom 56 voted; that 53 cast votes for the Union and recommended certification of the Union as the exclusive representative of all employees within the unit found appropriate. On June 1, 1938, the Board certified the Union as exclusive representative of the employees in such unit.
Predicated upon charges filed by the Union, the Board, on June 24, 1938, issued a complaint alleging that petitioner had refused to bargain collectively with the Union despite the latter's certification by the Board as the exclusive representative of all the employees in the unit found by the Board to be appropriate; that petitioner had discharged certain named employees and had decreased the amount of work of others because they had joined and assisted the Union; and, that by these and other acts, petitioner had engaged, and was engaging, in unfair labor practices in violation of Section 8(1), (3) and (5) of the Act. Petitioner filed an answer denying that the Union was the exclusive representative of the employees within the unitfound appropriate; admitted that it had refused to bargain with the Union; admitted that it had discharged and decreased the work of the various named employees, but denied the commission of unfair labor practices within the meaning of the Act. A hearing was had before a Trial Examiner from June 30 to July 8, 1938, participated in by counsel for all interested parties. On September 15, 1938, the Trial Examiner filed an intermediate report in which it was found that petitioner had engaged, and was engaging, in unfair labor practices as charged in the complaint. On October 26, 1939, the Board rendered its decision setting forth its finding of fact, conclusions of law, and order.
The Board found that petitioner had committed the unfair practices as charged, but had not discriminated against all of the employees named in the complaint.*fn1 Petitioner was ordered to cease and desist from its unfair labor practices; was directed to bargain collectively upon request with the Union; to offer reinstatement with back pay to seven named employees;*fn2 to make whole two persons named Edwards and Jackson for any loss of pay suffered by reason of the discrimination against them; to make whole an employee named Lee for any loss of pay suffered between the date of the termination of his employment and the date when he secured other employment; and to make whole an employee named Harres for any loss of pay between the time of her discharge and the date of the commencement of the hearing.
The contested issues, as stated by petitioner, may be summarized briefly as, (1) there is no substantial evidence to sustain the findings of the Board that the petitioner committed unfair labor practices, and (2) that the Board was without authority to call an election for the purpose of determining a representative of the appropriate unit. Involved in issue 2 is the further question as to whether the result of the election as had was such as to justify the Board's conclusion that the Union was the representative of the employees.
As to issue 1, a study of petitioner's brief in connection with the record is convincing that its argument is predicated largely upon testimony faborable to it, and a comparison of such testimony with that favorable to the findings of the Board. In other words, we are asked to weigh the conflicting testimony and make findings contrary to those made by the Board. This we are not permitted to do by the express terms of the Act and by the generally accepted interpretation thereof. Considering the testimony favorable to the Board, with such reasonable inferences as may be drawn therefrom, we are of the opinion that the testimony adequately supports the Board's conclusion that petitioner was guilty of unfair labor practices as described in Sections 8(1) and (3). The conclusion eith reference to section 8(5), subsequently considered, is dependent upon the authority of the Board to call an election, predicating upon the results thereof, its decision that the Union was the representative of the employees.
In view of what we have said, there is no occasion to enter into a detailed analysis of the testimony. Briefly, it discloses that the Union commenced to organize in the fall of 1937.Shortly thereafter, upon refusal of petitioner to recognize the Union, the latter filed a petition with the Board for certification. Upon learning of this fact, the Secretary of petitioner, who was in charge of plant operations, called a meeting of all employees to whom he spoke for thirty to forty minutes on the subject of unionization. While it is contended by petitioner that the purpose of this meeting was to ascertain what Union, if any, the employees desired, it is plain that the real purpose was to warn the employees against joining the Union, and the inference is inescapable that it was the intention to intimidate and threaten those who were members or might become members. On different occasions, the Secretary sought to ascertain who were members and to point out to them that the Union was undesirable, against their welfare, and that petitioner would accord them better treatment if they were non-union. There was evidence to the effect that the employees were warned that if they joined or assisted in the Union they would be discharged, and that petitioner sought to prevent the distribution of Union literature outside the plant. The non-union attitude of petitioner is glaringly disclosed by its effort to prevent its employees from participating in the Board election, its refusal to post notices of the election, and its threats and intimidation plainly intended to prevent its employees from participating therein. Without relating in detail this testimony, it is sufficient to state that a reading of the same leaves us without doubt that its conduct in this respect was reprehensible.
Of the 11 employees found to have been discriminatorily discharged, six were discharged on the day following the election, and two discharged five days later. All of these eight employees had participated in the election. Several of them were told by their forelady at the time of their discharges that the company did not have work for "voters." Petitioner contends that these discharges were the result of an unusual decline in production in the spring of 1938. Such a decline is not disputed, but it does not follow that the discharges were occasioned thereby. In fact, the record indicates that prior to the election, a decline in production was followed by a division of work rather than by a discharge of some of the employees. The instant discharges were a departure from the custom followed by petitioner theretofore. The fact that these discharged employees had been active in the Union, had participated in the election contrary to the wishes of petitioner and that at least some of them were told petitioner had no work for "voters," affords ample support for the Board's finding that they were discriminated against in violation of the Act. Two other employees namely White and Bramblett, found to have been discriminatorily discharged, had been employed by petitioner for many years, and both had been active in the affairs of the Union. It is contended by petitioner that they were discharged for inefficiency, and there is evidence which supports this contention. It is significant, however, to note that their inefficiency apparently was not discovered until they cast their lot with the Union. Taking into consideration petitioner's hostility toward the Union and the employees connected generally therewith, we cannot say that the Board's conclusion respecting these two employees is unreasonable or not supported by substantial evidence.
Another employee, James Lee, found to have been discriminatorily discharged, was also active in the affairs of the Union, and participated in the election. It is contended by petitioner that he was discharged because he refused to do certain work assigned him. The evidence in support of petitioner's contention is not convincing and is denied by Lee. Again we think the Board's conclusion should not be disturbed.
All of the 11 employees found to have been discriminatorily discharged were ordered made whole from the time of such discharges until an offer of reinstatement was made except James Lee and Ruth Harris, the former until the time when he began work for the Works Progress Administration, and the latter until the date of the hearing. The testimony shows that Lee, after his discharge, secured employment with the W.P.A. at a compensation greater than what he was receiving from petitioner. It is shown that Ruth Harris obtained employment in a restaurant and, at the time of the hearing ...