On Petition to Enforce an Order of the National Labor Relations Board.
Before SPARKS, MAJOR, and TREANOR, Circuit Judges.
This case is before us upon petition of the National Labor Relations Board, (hereinafter called the "Board") for enforcement of an order issued by it against respondent pursuant to Section 10(c) of the National Labor Relations Act, hereinafter called the "Act", 29 U.S.C.A. § 151 et seq. Respondent is an Indiana Corporation, having its principal place of business at Vincennes, Indiana, where the alleged unfair labor practices occurred.
The charges were preferred by the International Association of Bridge and Structural Iron Workers, Local 585 (hereinafter referred to as the "Union"), by Virgil Wright, secretary and treasurer of that organization. Complaint was issued November 9, 1938, an answer filed thereto denying unfair labor practices as alleged, and a hearing was held from December 1 to 7, 1938, before a trial examiner. The respondent, Union, and the Board were represented by counsel and participated in the hearing. On February 3, 1939, the trial examiner filed an intermediate report in which he found that respondent had engaged, and was engaging, in unfair labor practices within the meaning of Section 8(1) and (3), and Section 2(6) and (7) of the Act, and recommended that respondent cease and desist from its unfair labor practices and take certain affirmative action to remedy them. Respondent filed exceptions to the intermediate report, but made no appearance at the oral argument had before the Board September 26, 1939. On November 17, 1939, the Board rendered its decision setting forth its findings of fact, conclusions of lwa, and order.
The Board's finding that the respondent was engaged in interstate commerce is not in dispute. It also found that respondent, on April 6 and 7, 1938, discriminated with regard to the hire and tenure of six named employees, and later discharged two named employees because of their union activities, all in violation of Section 8(3) of the Act. The Board also found that the respondent violated 8(1) of the Act by inducing its employees to subscribe to a stock purchase agreement containing a stock provision barring requests for wage increases. It also found, by reason of the foregoing and other acts, that respondent interfered with, restrained and coerced its employees in the exercise of the rights guaranteed by Section 7, thus violating Section 8(1) of the Act. The Board's order was the usual one predicated upon such findings and will be referred to subsequently.
Respondent, in opposing the petition for enforcement, makes four contentions: (1) The Board was without jurisdiction, (2) the findings of the Board are not supported by substantial evidence, (3) there is no public policy against profit sharing or stock purchasing plans for employees, and (4) the Board is without authority to require respondent to "cease and desist from" certain unfair labor practices, of which it denies it has been guilty.
The jurisdictional attack is based upon the fact that the charge made to the Board, upon which its complaint issued, was by the International Association of Bridge and Structural Iron Workers, Local 585, when it was disclosed at the hearing that this Union was no longer in existence, but that the proper and correct name of the Union was International Association of Bridge, Structural and Ornamental Iron Workers, Local No. 585. Thus, it will be observed that the word "Ornamental" was omitted from the Union's name as it was signed to the charge. It is argued by the respondent that under the Act, Section 10(b), and the rules and regulations issued by the Board in conformity with the Act, the charge is jurisdictional and that inasmuch as the charge was signed by a nonentity, the Board was without jurisdiction to issue its complaint, and that the entire proceeding must fail. So far as we are advised, or are aware, the question as to just what is necessary in this respect, in order to give the Board jurisdiction, had not been judicially determined. Respondent, in support of its contention, cites National Labor Relations Board v. Hopwood R. Company, 2 Cir., 98 F.2d 97, and National Licorice Company v. National Labor Relations Board, 309 U.S. 350, 60 S. Ct. 569, 84 L. Ed. 799. The Hopwood case, it is true, held that the complaint and the subsequent hearing must be in accord with the charge. In the Licorice Company case, it was merely held that the hearing must be fonfined to unfair labor practices related to those alleged in the charge. Neither of these cases is of any material benefit to respondent. Here, there is no contention but that the hearing was had upon the charges as made. The defect in the name attached to the charge appeared on the first day of the hearing, but no question was raised in this respect until the conclusion of the hearing. That respondent had knowledge of the Union which had preferred the charge is evident from the fact that the Union, by its officials and attorney, was present and participated in the hearing. There is no claim that respondent was in any way misled by the erroneous name employed by the Union in preferring the charge. Whatever might be said under different circumstances, we are of the opinion that respondent is in no position to raise the jurisdictional issue, and that its contention in this respect must be denied.
In view of our limited authority as announced in numerous decisions of the Supreme Court, it appears to be a useless proceeding to review in detail the testimony for the purpose of ascertaining if the findings of the Board are supported by substantial stantial evidence. In the instant case, on the findings essential to the Board's order, we have read the arguments pro and con, as well as the testimony relative thereto, and are of the opinion, with certain exceptions hereinafter noted, that they are substantially supported.
As is common in such cases, the Board emphasizes respondent's alleged hostility toward a labor organization. We think it must be conceded in this, or any other case, that acts and statements by an employer hostile to a union, may properly be determined as discriminatory, but which would not be so considered coming from an employer with a friendly attitude.
In the instant case, talk concerning a labor Union commenced about January 1, 1938. One witness for the Board testified that respondent's superintendent Uland, when informed of such agitation, said: "That he didn't think that the boys would ever organize the shop because the plant would close down and they would shut the doors before they would recognize the Union." Notwithstanding that this statement was denied by the superintendent, the Board found, as a fact, it was made. Thus, we are bound by a finding which requires that the case be considered in the light that respondent was hostile to the proposed Union, and did not intend to recognize it.
About the first of March, 1938, respondent's general manager instructed its auditor to draft an employee stock purchase plan. This plan, as pointed out by respondent, had been considered for a number of years. One witness testified that one of respondent's supervisory employees said: "They were going to issue some stock for the boys and the reason for that is, that they are going to try to keep the boys from wanting to join the Union."
On April 4, a meeting was held at Union headquarters located on Main Street in Vincennes for the purpose of organization. Ten employees who attended, signed applications for Union membership. Two days later, one Crawford, who had been laid off on March 19, was rehired by Uland. Crawford testified, in effect, tht he was told by Uland: "We laid you off because we figured that we had some other men here that were more valuable than you, but we found out they were not loyal to the company. We figure now that you would be more loyal than they are, so now you will be on steady." On the following day, Crawford and six other employees were laid off. Again Uland denied Crawford's testimony, but the Board found that the statement was made by Uland, as testified by Crawford. On April 9 and 11, certain employees met at the Union headquarters where thirteen or fourteen additional employees enrolled as members of the Union. Uland, on the occasion of each of these meetings, admittedly was on the street at or near the Union headquarters. It is contended - in fact, the Board found - that the purpose of Uland's presence was to spy on the meetings with a view of determining which of its employees were participating in the meetings with a view of determining respondent's theory that Uland's presence was merely a coincidence and that he was on the street the same as many other persons. While the testimony in support of the Board's finding in this respect is far from satisfactory, yet, in view of Uland's hostile attitude, which we must assume, we are not prepared to say that the reasonable inferences arising from his presence near the Union meetings, under the circumstances related, were other than for the purpose ascribed to him by the Board.
On April 7, all of respondent's 26 employees, other than those who had been laid off, met, at respondent's request, in the basement of the plant to hear Stevens' introduction of the stock purchase plan.It was explained to the men, and they were told a second meeting would be called the following week, at which time the stock would be offered. In the meantime, according to Stevens he learned of the union activity and hesitated concerning the stock plan for fear it would violate the Act. Shortly thereafter, 22 of the employees presented respondent with a petition requesting that it proceed with the stock plan. Another meeting of employees was held on April 20, when subscription lists were opened to the employees, and within seven days thereafter, 26 of the employees had signed the stock purchase plan. Subsequently, the Union membership by the time of the hearing had decreased to ten. The stock purchase plan provided for the issuance of ten shares of stock of a par value of $100 to each subscriber, who gave his note to respondent for n$1,000. The note was to be paid by the application of stock dividends and any bounses which respondent might declare. A ...