On petition to review and set aside an order of the National Labor Relations Board.
Before EVANS and TREANOR, Circuit Judges, and LINDLEY, District Judge.
Petitioner seeks to review and the respondent to enforce an order of the National Labor Relations Board of February 5, 1940, directing petitioner to cease and desist from certain acts and to take certain affirmative action. The cause had to do with the relationship between petitioner and two labor unions, namely: Valley Mould and Iron Corporation and Steel Workers' Organizing Committee for Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge No. 1029, affiliated with the Congress of Industrial Organizations and hereinafter referred to as "Amalgamated" and the other, Valley Mould Independent Employees' Union, South Chicgo Works, hereinafter referred to as "Independent." Each union participated in the hearing before the Board and the Independent has been permitted to intervene here.
In its findings and decision the Board found in substance that by derogatory and disparaging remarks and criticisms of Amalgamated and its affiliated organization, by questioning and importuning employees as to their labor affiliations and activities, by warning employees against affiliation with Amalgamated, by abusive and threatening statements to the President of Amalgamated, and by depriving him of his regular day off and by other acts and conduct, petitioner interfered with, restrained, and coerced employees in the exercise of their rights under the National Labor Relations Act. It found also that on various dates in 1938 up to and including August 19, 1938 and since that day, petitioner had refused to bargain collectively with Amalgamated, which previously had been certified by the Board as the proper collective bargaining representative of petitioner's employees, and had thereby violated section 8(1) and section 8(5) of the act which define refusal to bargain collectively with the authorized representatives of employees as an unfair labor practice; and that petitioner dominated and interfered with the formation and administration of and contributed to the support of Independent in violation of section 8(1) and (2) of the act, 29 U.S.C.A. §§ 157, 158, 159.
The order, in addition to directing petitioner to cease and desist from the unfair practice found to exist, directed it affirmatively, upon request, to bargain collectively with Amalgamated as the exclusive representatives of the employees; to withdraw recognition from and disestablish all relations with Independent as such representative; to restore to the president of Amalgamated his former privilege of taking his regular day off on Sunday and to post appropriate notices of compliance with the order.
So far as we are concerned with questions of fact, the only inquiry open to us is whether the Board's findings were supported by substantial evidence. Both petitioner and intervener contend that the record does not disclose the requisite quantum of evidence to support the findings and the Board insists that they are supported by substantial evidence.
In its decision the Board approved the findings and conclusions of its examiner, concluding as aforesaid that petitioner restrained and coerced its employees in the exercise of their rights under the act. The findings, recited at length, fill twelve printed pages. The substance thereof follows: Amalgamated obtained its charter on September 15, 1936. In the spring of 1937, Cook, its president, reported to Fitzgerald, the chairman of the old Employees' Representation Plan that a series of conferences concerning Employees' Representation Plan had been held in the steel industry; that a meeting was scheduled to take place in Gary. Shortly thereafter petitioner's superintendent, Shank, approached Cook and questioned him concerning the meeting, saying he would see if Mr. Swab, petitioner's vice-president, knew anything about it. On the same day, Swab called Cook in, discussed the meeting and advised Cook against attending, stating that if it was a "representative plan" he, Swab, would certainly know something about it and that he would call the steel company and ascertain the facts. Cook testified, and the Board found upon his testimony, that Swab then informed Cook that he thought this was "some of John L. Lewis' stuff"; that Cook had no business attending, that he was getting along all right, that "the silver-tongued orators will deceive the best of us" and advised Cook not to attend.
Cook was called into the office by Shank on several occasions and questioned about Amalgamated; Shank asked him how he was getting along with his membership cards and said to him, "We did not think you would do that," that Roberts, a foreman, always had high regard for Cook and considered him loyal. Thereupon Cook inquired what relation his activities had to his loyalty and he was told to see Swab. A few days later, at Shank's suggestion, Cook called at Swab's office and was questioned as to how much his union dues were. Swab commented to Cook "that it did not make sense to him why a man should have to pay for the right to work." Swab said that he had always refused to join a union because he thought he could get along without it; that the company was small and there was no necessity of its workers doing what those in other mills did, as their wages and working conditions were governed by those of the United States Steel Corporation. In April and May of 1937, Shank repeatedly told Cook that somebody had been threatened because he would not join Amalgamated and stated that he was holding Cook accountable for this action.
Amalgamated wrote to the company in March and April, requesting a conference for the purpose of collective bargaining.On April 16, 1937, Swab called a meeting of Employees' Representation Plan. He spoke of the rumors that Amalgamated was organizing, asked the men if they knew anything about it, and finally siad to Cook "Do you know anything about this?" Cook replied that he was president and that the members included 75 or 80 per cent of the employees in the plant. Swab stated "that it did not make sense to him why men should want to pay dues for the right to work" and he inquired as to why "we should have outsiders coming in telling us what to do." Cook then volunteered that the men would not be satisfied with the Representation Plan and Swab said, "If this business is not stopped, somebody is going to be asked to take a vacation." As he was looking to Cook, the latter remarked, "I presume that's me." Swab said nothing further.
Petitioner finally granted Amalgamated a conference on or about March 18, 1937. Three meetings were held without accomplishment of tangible results and Amalgamated, on May 30, 1937, called a strike, claiming that it could not obtain an agreement from petitioner. This strike lasted until July, 1937. During its existence Amalgamated met with petitioner, each of them trying to settle the controversy. Petitioner through its officers and agents urged employees to ignore Amalgamated. Some of the members were threatened by foremen with loss of employment if they did not comply. Superintendent Shank advised the men to return to work, saying that many of the members of Amalgamated would be rejected as employees for physical reasons after examination by petitioner's physician. On June 6, 1937, Swab received a committee of Independent, who reported that the latter then represented a majority of the employees, all of whom were willing to return to work on the conditions existing before the strike. All these acts, the Board found, were part of a course of action designed to deprive its employees of the right to self-organization, and calculated to and did intimidate them in their organization work.
The strike terminated July 9, 1937. A few days later Cook, president of Amalgamated, found that his free day had been changed from Sunday to Tuesday. Cook, having seniority, had been allowed Sundays off for four years prior to the strike. He inquired of Foreman McCracken as to the reason, and the latter answered "Well, it was because you fellows run me off the picket line during the strike. That is why I did it and it is going to stand like that." McCracken said, "It doesn't come from me and it doesn't come from Shank, it comes from the higher office." Cook protested to Shank and a few days later, Foreman Pickering advised him in reference to the argument, that the matter would have to stand as it was "because you fellows are so strong in number."
Krafcisin, another employee, was asked by Foreman Butler if the C.I.O. did not hurt him. Krafcisin replied that he intended to remain in the union. The foreman then sent him home but that night went to Krafcisin's house and told him to return to work. Foreman Wolff approached another employee and told him that the C.I.O. was dead, and asked him who "poisoned his mind." Swab said, "Those fellows from the outside walked in and organized here * * * we could have our home here as one family." In March, 1938, Foreman McCracken said to Brebrich, a welder, "The C.I.O. is causing a lot of the 'slowing down of our manufacturing mills.'" He continued, in reference to another plant in Chicago Heights, "When they signed the C.I.O. contract the plant shut down." Gaden, the safety supervisor, said that the C.I.O. "has got a lot to do with slowing down things." He said to Krafcisin, "Well, look, in here, in this place, the C.I.O. and another inside union here." Krafcisin said, "Well I believe men should organize, I believe in organization." And Gaden said, "Why don't they organize like they used to years ago, inside, join the one inside union here in the plant as it used to be."
In July, 1938, McCracken said to Cook, "You have been messing in my business. If you want to stay you have got to keep your mouth out of my business; many's the time I saved your job in the past 18 months; many a fuss I had with Swab about you." When Cook protested that he had done nothing to cause any fuss, McCracken said, "You know what you have done and you know what I am referring to." Cook replied that the only thing that he could imagine that Swab could have against him was that he had organized a union, and McCracken replied, "That is exactly it, and it will take a long time for that to get out from under my skin. We know everything that is going on in these union meetings. No ...