Petition to Review and Set Aside an Order of the National Labor Relations Board and Request for Enforcement.
Before EVANS, and MAJOR, Circuit Judges, and BRIGGLE, District Judge.
Upon charges preferred by International Union, United Automobile Workers of America (hereinafter called United), the National Labor Relations Board (hereinafter called the Board) issued its complaint on October 11, 1938, against the Diamond T. Motor Car Company (hereinafter called the Company), charging that the company had engaged in unfair labor practices affecting commerce within the meaning of Section 8 (1, 2, and 3) of the National Labor Relations Act, 49 Statute 449, 29 U.S.C.A. § 158 (1, 2, and 3). The decision below was favorable to respondent. The company filed its petition for review. The Board answered, requesting enforcement of its order. Jurisdiction is conceded. The complaint charges, inter alia, that the company had engaged in unfair labor practices, had dominated and interfered with the formation and administration of the Automotive Workers Industrial Union (hereinafter called Industrial) and that the company had discriminatorily discharged and refused to reinstate one C.R. Cahill. The trial examiner who heard the evidence found that the company had not dominated or interefered with Industrial or discriminatorily discharged Cahill, but found that the Company had engaged in unfair labor practices within the meaning of Section 8(1). Upon review, the Board sustained the examiner with reference to employee Cahill and with reference to his finding of unfair labor practices, but overruled the examiner as to domination and found that the Company had dominated or interfered with the formation or administration of Industrial.
Pursuant to these findings the Board ordered the Company to cease and desist from (a) in any manner dominating or interfering with Industrial or any other labor organization of its employees and from contributing financial or other support thereto; (b) giving effect to an agreement between the Company and Industrial; (c) interfering with its employees in the exercise of any rights guaranteed to them by Section 7 of the Act, 29 U.S.C.A. § 157.
The Board furhter ordered the Company to take the following affirmative action: (a) Withdraw all recognition of Industrial as the representative of any of its employees; (b) post notices of compliance; (c) notify the regional director of complaince.Petitioner asserts that the decision of the Board it not supported by substantial evidence, nor by the facts found by the Board and that the inferences of fact drawn by the Board from evidentiary facts are unreasonable. Respondent asserts that its findings and order are amply supported by the evidence. The decision turns upon the company's relation with Industrial.
The facts, viewed in the light most favorable to the Board: In March, 1937, the Steel Workers Organizing Committee, affiliate of C.I.O., initiated a campaign amount the Company's employees, looking to the ultimate organization of United. Shortly thereafter, C.A. Peirice who was Vice-president of the Company in charge of production, asked Frank Koci, a production employee if he had seem any C.I.O. cards passed around in the shop. Later, one Courval, a Superintendent, asked one Joseph Tishcovske, an employee, whether he knew anything about C.I.O. organizers having C.I.O. cards passed around the shop. Upon a negative reply by Tishcovske, Courval then said: "Joe, it's like this. Mr. Tilt the owner of this Company, will not stand for any Company union, outside union. * * * If Mr. Tilt finds out organization is going on here, I am going to lose my job; Mr. Peirce will lose his job, because Mr. Tilt will close this plant down * * * . He will have to move down to Georgia. That means all of the boys and you will be out of work." It does not appear that Tishcovske gave any heed to this or ever mentioned it until the hearing.
On March 24, 1937, a Chicago newspaper carried a news item to the effect that C.I.O. contemplated invading the company's plant with a campaign for unionization. Peirce soon thereafter summoned all of the employees to a meeting in the assembly room of the plant and addressed them at length. After stressing that an absence of strikes and the existence of friendly feelings had characterized the relations between the Company and the men in the past, he told the men that he did not want any strikes if he could help it. He told the employees that he had been reviewing the question of their pay and that they would receive a raise in pay the first of the following month and that the had under consideration the question of vacations. He then used the following language which the Board appears to have relied upon: "I hear there is a movement to organize our plant; I read it in the papers. * * * I have read the Wagner Act, and while I don't pose as any authority on it, I can say that you have a perfect right to organize in any way you see fit a union in our plant. * * * There are three forms of union that I know of. There is the Federation of Labor, there is the C.I.O. and there is an independent union form of organization and any of those are acceptatable to me. However, personally, since I am going to conduct the negotiations probably with the representatives of whatever union is formed, naturally I would like to talk and deal with a man or men who know our business in our plant, understand our peculiar working conditions and can talk intelligently about them." Later, on crossexamination by the Board's attorney and in reviewing the foregoing incidnet he used this language: "If you are going to organize, I would prefer to deal with men who are working in a plant and know our business and our style of operaiton of a plant rather than someone from outside who doesn't understand it."
Peirce testified that fear in his mind that a strike was imminent was the reason which prompted him to call the meeting. He said his sole object was to preserve continuity of work in the plant.The President of United testified that Peirce told the men at the meeting that it was up to them to decide what they wanted to do, that it was their choice and that the responsibility was on them.
Upon conclusion of Peirce's take and at the request of the employees he left their presence and they were free to discuss matters of organization among themselves. A witness Schultz testified that later Peirce returned and suggested that the employees might take a vote to determine whether their organization would be an outside organization or one of their own.It is to be noted that this testimony was sharply disputed and the Board in its findings of fact recited: "Later in the afternoon the assembled employees decided to resolve the question by secret ballot. Cahill (an employee who favorced C.I.O.) suggested that they vote either for the C.I.O. or for an inside union." The trial examiner stated in his report that the evidence was clear that after Peirce left, it became an open meetin g for all employees with no supervisory agent pressent. Apparently the Board did not accept Schultz' statement in this respect. The vote was later taken, and the ballots deposited at the time clock as the employees left the plant for the day. Upon request of the employees and with Peirce's permission the votes were counted in his office. The vote showed that a substantial majority favored the formation of what has been termed an "inside" organization.
Pursuant to the decision of the employees two men were chosen by the employees in each department for the purpose of forming such an organization. The day following the meeting referred to, some thirty representatives so chosen met during working hours in the shipping office of the plant and selected temporary officers. Thereafter, organizational meetings were held outside the plant almost nightly for several weeks. On April 18, 1937, the permanent organization of Industrial was effected, officers were elected and a constitution and by-laws adopted. Thereafter Industrial, through its representatives, entered upon negotiations with the Company concerning many phases of their relationship, but the principlal controversy btween the Company and Industrial appears to have been on the question of wages. An agreement was eventually reached and the officers of Industrial submitted it for ratification to the employees, at a meeting held at the plant on June 16, 1937. The Company had nothing to do with the calling of this meeting and Peirce did not know of it before it took place. The proposals were approved by the membership. Later, on December 9, 1937, a contract was entered into between the Company and Industrial, which remained in effect at the time of the Board' sorder.During some of the negotiations between Industrial and the Company, the Company permitted members of Industrial to meet on Company time and property, and for a brief time dues were collected from members in their departments and Industrial was permitted to erect bulletin boards in the plant.
Apparently the Company and its employees under the guidance of Industrial were proceeding harmoniously with little activity on the part of United until in April, 1938, when C.I.O. activity again developed. At that time Peirce in conversation with one Walter Stanisz, an employee, after inquireing about the labor situation, stated that he heard that there were C.I.O. cards floating around the shop and that some of the fellows were going to C.I.O. meetings. He said: "Why * * * don't you fellows seem to get along with Tom Law (Law was then President of Industrial) * * *? If you feel that you don't like Tom Law why don't you get him out of there and get another man in his place?" On the same day Superintendent Courval also remarked to Stanisz: "I don't see why you attend these outside meetings." Later Courval is said to have inquired of employees if any of the employees had been taking about outside unions and meetings and had asked if Stanisz was a good worker.
In September, 1938, at a meeting with representatives of United, Peirce said: "Why did the boys switch from one outfit to another * * * why don't you fellows get on the side of the fense and play ball with us," adding that he did not see anything wrong with Tom Law.
It is not possible to here detail all the facts which are to be gleaned from an 800 page record. We have undertaken only to state in an abbreviated from thos ...