On Petition for the Enforcement of an Order of the National Labor Relations Board.
Before SPARKS, MAJOR, and TREANOR, Circuit Judges.
The National Labor Relations Board has filed its petition in this court for the enforcement of its order against respondent pursuant to Section 10(c) of the National Labor Relations Act. 29 U.S.C.A. Sec. 151 et seq. Respondent is an Illinois corporation, operating plants at Chicago and Elgin, Illinois, and Toronto, Canada.The labor practices complained of are alleged to have occurred at Elgin, and remotely at Chicago.
The charge before the Board was filed in the name of the International Association of Machinists, affiliated with the A.F. of L., on April 22, 1939. On the same day the Board issued its complaint against respondent, charging it (1) with having discharged Harrison S. Van Delinder, one of its employees, because he joined and assisted the Union; (2) with having employed labor spies in its Chicago plant continuously since July 5, 1935; and (3) that by these and other acts (not naming them) respondent had engaged and was engaging in unfair labor practices within the meaning of Section 8(1) and (3) of the Act.
Respondent filed its answer admitting the jurisdictional allegations, but denying that it had engaged in unfair labor practices. A hearing was held at Elgin, Illinois, on May 8 and 9, 1939, before a trial examiner designated by the Board. On June i3, 1939, he filed an intermediate report in which he found that respondent had not engaged in the alleged unfair labor practices and recommended that the complaint be dismissed.*fn1
The Union filed exceptions to the intermediate report and on November 27, 1939, the Board rendered its findings of facts upon which it concluded that the respondent had engaged in unfair labor practices within the meaning of Section 8(1) and (3) of the Act, and ordered respondent to cease and desist from the unfair labor practices in which it had engaged, and, affirmatively, to offer reinstatement with back pay to Van Delinder, less his net earnings, except from the date of the Examiner's report to the date of the Board's decision, deducting also moneys received by him during said periods for work performed upon work-relief projects. These were ordered paid over by respondent to the fiscal agencies which had supplied the funds for such work-relief. Alleged appropriate notices were ordered posted.
the principal question presented is whether there is substantial evidence to support the Board's allegation and finding of discrimination in the discharge of Van Delinder.
The respondent has been in existence and doing business in Chicago, Illinois, since May 15, 1915. During this time it has engaged in the design, manufacture, sale and distribution of cutting tools and screws. A part of its business was in interstate commerce. About one per cent of its total manufacture was for the government of the United States.
The Elgin plant was not put into operation until the early part of January, 1938. It started with one or two machines and four men, and it was about July, 1938, before a full line of machines was installed, when it went into full operating capacity with about twenty employees. Van Delinder's employment began about June 1, 1938, as shipping clerk. He worked in this department until his discharge on December 23, 1938.
Respondent contends that Van Delinder was discharged because of his presistent violation of a company rule requiring all employees to wear goggles. This rule had been in force for considerable time at the Chicago plant, where a strict compliance therewith had resulted in a radical reduction in the number of eye injuries.When the Elgin plant was opened, the same rule was introduced by superintendent Hanneman as a part of its safety program. Rule books were given each employee, including Van Delinder, and he read all the rules. A notice was posted in the plant listing penalties for violations.The penalty for failing to wear goggles was a lay off from two days to two weeks. The penalty for habitual violation of safety rules was a discharge. van Delinder persistently violated te goggle rule.His foreman, Harper, called his attention to it, and warned him that Havlik, the general foreman, had told him (Harper) that they would have to let Van Delinder go, it he insisted on not wearing goggles. Havlik saw him many times at work without goggles, and called his attention to it, and spoke to him ot the necessity of it.At such times Van Delinder would put them on, but only temporarily, and finally Havlik reported him to Superintendent Hanneman, who, on several occasions had found Van Delinder working without goggles, and had warned him to put them on. About November 1, 1938, shortly before Hanneman was transferred to the Chicago plant, he found it necessary to call Van Delinder and a co-worker, Franz, "into the office and give them what I considered a final warning about the use of goggles. * * * I told them that I was getting fed up on talking to them about goggles, and I though that Van Delinder was setting a very poor example for the other man, who was a relatively new man, and I knew that it that continued it would spread through the plant, and the time was coming when we had to make some kind of a decision on whether we were going to have 100 per cent goggle installation or whether we were going to slough off and be carless about it.
"* * * at that time, * * * we were working with a limited force there. We didn't have a big supply of extra men * * *; and laying off two men in the shipping department would probably have reduced our force by about 40 per cent, and would have cramped us very much in getting shipments out, so at that time it wouldn't be practical to lay two men off, although I did suggest that they get two weeks layoff, and modified it by saying that they could take it on Sundays."
Hanneman was succeeded by Mr. Berthelson as superintendent of the Elgin plant on November 15, 1938. A week before Van Delinder's discharge he was found at work without goggles. Thereupon Berthelson talked to him and reminded him of the several occasions when both Hanneman and Havlik had warned him to wear his goggles, and then Berthelson repeated the warning. On December 22, Havik again found Van Delinder working without goggles and reported that fact to Berthelson, who then decided to discharge him. Having no authority to issue checks, he reported his conclusion to the Chicago office, from whence a check was sent to Berthelson for Van Delinder covering his full time up to and including December 23.It was delivered to Van Delinder at the close of the day on December 23, and he was discharged. The Examiner found that Van Delinder admitted numerous infractions of the goggle rule, including all of those concerning which he was warned by Hanneman, Havlik and Berthelson. He said in his report, "There is some evidence to show that other employees at times violated the rule. the evidence indicates that violations by others were not habitual. Van Delinder, on the other hand, was a chronic offender." On May 8, 1939, Van Delinder gave as his reason for not wearing goggles, that he had chronic ear trouble, and they hurt his ears. This was at the hearing before the Examiner.
The Board in its decision holds that Van Delinder undoubtedly violated the rule requiring that goggles be worn, but it says - "We do not believe that the respondent invoked the drastic penalty of discharge against him for that reason." This conclusion is based upon the following undisputed facts: The seventh paragraph of complaint charged that respondent by its officers and agents, while engaged in the operations at the Chicago plant, from July 5, 1935, down to and including the issuance of this complaint, employed labor spies or secret operatives for the purposes of spying upon the labor union and collective activities of its employees and reporting back to officers and agents of the company. The answer denies the truth of this statement since January 4, 1937. Not having denied the charge by answer as to the previous period, it may be considered as admitted under the rules of the Board, so far as ...