On Petition for Enforcement of an Order of the National Labor Relations Board.
Before EVANS, Circuit Judge, and LINDLEY and BRIGGLE, District Judges.
Petitioner seeks to enforce its order entered against respondents. Complaint issued on April 15, 1936, it being averred therein that respondents had engaged and were engaging in unfair labor practices within the meaning of Section 8(1), (2), and (5) of the National Labor Relations Act, 29 U.S.C.A. § 158(1, 2, 5). Respondents' motion to dismiss was denied. The examiner heard evidence during April, May and June, 1936, and on July 25 oif that year, filed his report, finding that respondents had engaged in unfair labor practices as averred and recommending that they be directed to desist and to perform certain affirmative remedial acts. The Board denied a motion to reopen the record and receive further evidence, heard oral argument, and on June 28, 1938, rendered its decision.
The Board found that respondents had dominated and interfered with the organization and administration of and supported an independent union, known in the record as the Utensil Makers, in violation of Section 8(1) and (2) of the act; that they had thereby interfered with, restrained, and coerced their employees in the exercise of rights guaranteed by Section 7 of the act, 29 U.S.C.A. § 157, in violation of Section 8(1); that they had discriminatorily failed to reinstate or discharged, between October 1, 1935, and April 9, 1936, some twelve employees, because of their membership in the so-called "LaGrange" and "Lemont" Locals, affiliated with the American Federation of Labor, thereby violating Section 8(1), (3) and (4); that respondents had, on the first two days of the hearing before the examiner, closed down the Lemont plant in order to demonstrate to their employees their objection to the proceeding instigated by the locals affiliated with the A.F. of L., and thereby further interfered with, restrained, and coerced their employees in the exercise of their rights guaranteed by Section 7 of the act in violation of Section 8(1).
The order directed respondents to desist from the unfair practices found to exist and to take affirmative action as follows: (1) withdraw all recognition from Utensil as representative of their employees for the purpose of collective bargaining and "disestablish" it as such representative; (2) reinstate with back pay twelve employees found to have been discriminated against, except one (who declined reappointment), and (3) make whole all Lemont employees who were employed on April 29, 1936, for loss of wages suffered by them by reason of the closing of the Lemont plant for two days on April 30 and May 1, 1936.
The issues involved in this review originally were whether (1) the act is applicable to respondents, (2) the findings of fact are supported by substantial evidence, (3) the order is valid, and (4), the Board improperly denied motion to reopen the record and receive further evidence.
In raising the fist of these issues, respondents relied upon N.L.R.B. v. Jones & Laughlin Corp., 3 Cir., 83 F.2d 998. In view of the reversal of that decision, N.L.R.B. v. Jones & Laughlin Corp., 301 U.S. 1, 57 S. Ct. 615, 81 L. Ed. 893, 108 A.L.R. 1352, under the facts of this record, respondents' contention in this respect must be denied. The facts disclose that respondents are intimately associated in a joint enterprise, as affiliated corporations, under the same management, engaged in an industrial operation which involves a direct and continuous flow of commerce across state lines to the market. N.L.R.B. v. Sunshine Mining Co., 9 Cir., 110 F.2d 780; Electric Bond & Share Co. v. Securities & Exchange Commission, 303 U.S. 419, 58 S. Ct. 678, 82 L. Ed. 936, 115 A.L.R. 105.
Is there substantial evidence to support the Board's finding that respondents have engaged in unfair labor practices? In this respect the facts relied upon by the examiner and the Board, supported by the record, are, in part, substantially as we now relate them. At the time of passage of the act, a strike was in progress at each of the two plants of respondents, one at LaGrange and the other at the smaller neighboring town of Lemont. The employees were then organized in two local unions affiliated with the A.F. of L. with substantially unanimous membership at each plant. After negotiating with respondents' officials, being unable, as they say, to agree upon a satisfactory contract of employment, they had on June 13, 1935, entered upon the strike, which persisted after the enactment of the law until July 29, 1935. During its existence both plants were closed. Negotiations between the unions and respondents resulted in a proposed written contract dated July 27, 1935, to the terms of which both parties assented but which was never signed. It remained, for all effective purposes, a valid parol contract. In pursuance of this agreement, the strike was terminated upon certification by a federal conciliator and the Board's regional director that respondents and the unions had signified that the oral contract should constitute the basis of relationship until August 1, 1936.
Following reopening of the plants, the employees and respondents found themselves involved in considerable confusion and some disagreement and, eventually, as a result, the independent union known as Utensil Makers came into existence. The Board found that respondents planned and encouraged replacement of the locals with the Utensil. In doing so it relied in part, at least, upon statements by Vice-President Matter of respondents, made several times during the pendency of the strike, that respondents were endeavoring to organize the employees at LaGrange into a union independent of the A.F. of L.; that if the employees at Lemont did not go into it, they "would be left out." The Board gave credence to testimony that the superintendent of the Lemont plant announced that respondents would never go along with the A.F. of L. In August, 1935, respondents' president, Hastings, posted a notice, addressed to the LaGrange employees, stating that the company had lost a "good deal" of business because of the strike and that some time would be required to rebuild it to provide jobs for many of the workers employed prior to the strike. The employees were disturbed by this notice and by statements of Superintendent Wright of the LaGrange plant that the agreement of July 27 was "no good"; that the men could not return to work so long as they remained members of the A.F. of L., and that respondents would enter into an agreement with the employees as "good if not better than the contract of July 27, if they would withdraw from the A.F. of L." Following these statements, one Snyder and Superintendent Wright's son, Earl Wright, Jr., the latter of whom lived in the same house with his father, began the circulation of a petition withdrawing from the A.F. of L., repudiating the July 27 agreement and providing for the formation of an independent union. Young Wright held no supervisory position with respondents and his only relationship with respondents relied upon by the Board grew out of the fact of close association of father and son in one home, coupled with the statement, attributed by a witness to the son, to the effect that there were in his father's house proper petitions and that he would procure some of them for circulation. Upon these circumstances, the Board believed it proper to consider young Wright's actions.
On August 26, the employees who had signed the petition circulated by young Wright and Snyder held a meeting at which it was announced that the agreement of July 27 was of no value and that the employees "could get nowhere with the A.F. of L." It was suggested that the men resign in a body, join the new organization and request the company to recognize it. On August 27, a committee of Utensil Makers called upon respondents' vice-president, Matter, and presented to him the petition. Mr. Matter received it and replied that that was "fine; now we can do some business." He said further that he would help the new organization obtain a charter and that respondents would sign an agreement similar to the statement of policy made by the Aluminum Company of America. The committee informed Mr. Matter that the men feared they might be punished if they resigned from the A.F. of L. and organized a company union, and he suggested that they consult the Board's regional director. He declined to address the Utensil Makers until they had resigned from the locals and completed their organization, saying that he would "be put in jail because he would be violating the Wagner Act," and assured them that they must act independently.
That night a joint membership meeting of the locals of both LaGrange and Lemont was held. The question was raised and discussed as to whether the men should remain loyal to the A.F. of L., resulting finally in a vote of confidence, in which all joined including those present who had become representatives of Utensil Makers.
The next day Vice-President Matter wrote the new union that the company would recognize it as the bargaining agent and negotiate with it a new agreement, and, on the evening of the same day, Utensil Makers again met. They had invited each of the LaGrange and Lemont locals to attend. Withdrawal from the A.F. of L. was again considered and apparently everyone was in favor of a motion to reaffirm allegiance to the A.F. of L., to advise Mr. Matter of this determination and to request him to return the petition Utensil Makers had lodged with him. On the next day, when the committee called upon Matter and requested the petition, he said that the July 27 agreement was of no effect and that it would be "foolish" for him to return their petition. Conference was then had with the regional director, after which the committee of Utensil Makers continued with organization of that union.
Respondents permitted representatives of Utensils to consume employment time and to use its property freely for organization purposes. Through September, October and November, Utensil Makers secured many signatures of LaGrange employees solicited during working hours in the presence of supervisory employees. The various documents were left on tables in the plant and the employees freely requested to sign. Certain officials sought to compel employees at LaGrange to join Utensil Makers by discharging or failing to reinstate employees who proved recalcitrant, by permitting Utensil Makers in the presence of ...