On Petition for the Enforcement of an Order of the National Labor Relations Board.
Before SPARKS, MAJOR, and KERNER, Circuit Judges.
This is a petition by the national Labor Relations Board (hereinafter called the "Board") to enforce its order issued August 22, 1940, against respondent pursuant to Section 10(c) of the National Labor Relations Act (hereinafter called the "Act"), 49 Stat. 449, 29 U.S.C.A. § 151 Et seq.
Respondent is and was engaged in the production of plywood, veneer, lumber and allied products. Jurisdiction is not in dispute. The complaint issued upon a charge filed by Local 1521, United Brotherhood of Carpenters and Joiners of America, affiliated with the American Federation of Labor (hereinafter called the "Union"). It was alleged that the Union on June 13, 1939, and at all times thereafter, was the duly designated collective bargaining representative of the employees within an appropriate unit of respondent's plant located at Algoma, Wisconsin; that respondent refused to bargain collectively with the Union on June 13, 1939; that on June 15 it conducted in its plant a strike vote which ignored the Union, thereby attempting to avoid its obligation to bargain collectively; that on June 28, it questioned the Union's majority and refused to cooperate in determining who was the bargaining agent for its employees; that on August 17, 1939, it refused to recognize the Union despite the fact that the Union presented proof of its representative status, and that on June 15, and thereafter, by forming, granting recognition to, and entering into a closed-shop contract with, Algoma Plywood Workers Association (hereinafter called the "Association") as a part of a campaign to destroy the Union's status, sought to evade its obligation to bargain collectively. Such acts, so it was charged, constituted unfair labor practices in violation of Section 8(5) of the Act. By dominating and interfering with the formation and administration of, and in contributing support to the Association, respondent, so it was charged, engaged in unfair labor practices within the meaning of Section 8(2) of the Act. By reason of such unfair labor practices, respondent was also charged with a violation of Section 8(1) of the Act. The Board found against the respondent on all charges and entered the usual cease and desist order and prescribed the affirmative action which the Board found would effectuate the policies of the act.
The contested issues are whether respondent was deprived of due process, whether the findings of the Board are substantially supported, and its conclusions of law in accordance with the act.
Respondent, prior and during the hearing before the Trial Examiner, requested a continuance upon the ground that two of its principal witnesses and officers, namely M. W. Perry, the President, and W. E. Perry, the Vice-President and General Manager, were away from the jurisdiction and could not be produced as witnesses. It was claimed that their presence was necessary, not only because of their testimony on matters relevant to the charge, but that counsel could not properly prepare the case and conduct the hearing in their absence. The witnesses were in Florida and the main reason assigned for their failure to return was that in conformity with their custom, they left Wisconsin because of the rigors of its climate. In other words, they were absent on account of their health. No other reason was assigned as to why they did not return for the hearing.No medical testimony was offered in support of the theory that their health would be impaired by attendance upon the hearing. The Trial Examiner offered to permit the taking of their depositions or their answering interrogatories, which offer was not accepted. While a study of the record is rather convincing that respondent was handicapped by the absence of these two witnesses, yet we are of the view that the action of the Trial Examiner in denying a continuance did not amount to a deprivation of due process. We think the Trial Examiner, as a court, has a rather wide discretion in a situation such as presented which should not be interfered with by a reviewing court except upon a clear showing of abuse. We are of the opinion that no such showing appears.
The Board, in accordance with the stipulation of the parties, found that respondent's production and maintenance employees, excluding supervisory and office employees, constituted an appropriate unit. The Board further found that on June 13, 1939, and at all times thereafter, the Union was the duly designated bargaining representative of a majority of the employees in that unit. This brings us to the first sharply disputed question in controversly.
Before entering into a discussion of the Board's findigns and conclusions, we think it is appropriate to make some general observations.We are led to do so from the fact that many authorities are cited by both sides purporting to support their respective contentions upon the numerous questions in controversy. We recognize the binding force of the construction placed upon the act by the Supreme Court, but at the same time we also must recognize that the facts, conditions and circumstances are different in every case, and that what has been held must be considered in connection with the facts and circumstances of the particular case. Thus, any extensive quotation from, and citation of, authorities is of little value.
We have heard much in cases of this character - in fact we have been taught to believe - that respondent's background, the circumstances and conditions surrounding the performance of an act, or the making of a statement, are to be given great weight in the conclusion which may be reasonably drawn from such act or statement. In this connection it is pertinent to point out that in the instant case respondent has a background not unfavorable to the Union and there is an absence of circumstances usually found in such cases upon which the Board, and courts as well, have depended for their ultimate conclusions. For instance, there is no claim and no evidence of industrial espoinage, no hostility toward an outside Union, no discharge, demotion, threat or other discrimination against any employee because of Union activity; no statement of any supervisory employee indicating a preference of Union, no statement or act on the part of any supervisory employee*fn1 indicating directly or indirectly any preference on the part of respondent as between Unions, or as between Union and non-Union employees, and no evidence of financial support to the Association.*fn2
The first question is whether the Union had a majority in the appropriate unit on and subsequent to June 13, 1939. The Board found, in conformity with the stipulation, that there were 220 names upon respondent's payroll, and also that 13 of such persons were formen, leaving 207 employees as comprising the appropriate unit, of which 104 would constitute a majority. the Board introduced in evidence a list in the handwriting of one Qualman, Financial Secretary to the Union, who prepared it from the Union's ledger. It contained 145 names who were admittedly employed by respondent. It was also stipulated taht among this number were 9 foremen and a number who were six months or more delinquent in their dues, which, according to the Board, reduced the Union membership to 131, for whom the Union was entitled to bargain. The Board apparently accepted the Union rule that a six months' delinquency in dues automatically resulted in suspension and applied it as to 5 members, but did not apply it as to all in this category. Qualman testified that a member six months delinquent in the payment of his dues was "out of the Union," also, that the date of his suspension was noted on the Union ledger. During his examination he was requested to make a list from such ledger of all members suspended, with the date thereof. This was done and admitted in evidence as respondent's Exhibit 5. It appears therefrom that 25 additional members were suspended prior to June 13, 1939. This would leave a membership of 106. It is not apparent why the Board overlooked these 25 members suspended prior to June 13 as shown by the Union ledger. But even so, the Union had two more than the required majority. The circumstances also aid the Board's conclusion in this respect. Respondent had previously recognized the Union as a bargaining agent and had a contract with it which expired July 9, 1938. Between that time and June 13, 1939, in numerous conferences, it did not question the Union's majority, nor did it so question on June 13, except that respondent's superintendent, during that conference, remarked that respondent "might even question your right to represent the majority." It is now contended that this statement questioned the majority and that the burden was upon the Union to make such proof. We are of the opinion, however, that this contention is not tenable. the statement made, under the circumstances, did not amount to a challenge of the Union's majority and it was therefore under no obligation to so prove. We therefore sustain the finding that the Union had a majority on June 13, 1939. That majority, however, consisted of 106 members rather than 131, as found.
On the other hand, we do not think the Board's conclusion that respondent refused to bargain at the June 13 conference was justified. Considering the occurrences of that occasion alone, it might be sustained, but when considered as we think it must be, in connection with that which had happened before, it is clearly erroneous. The Board states: " * * * Since the expiration of the union contract in July, 1938, the respondent and the Union were engaged, over a period of 11 months, in a series of conferences in an attempt to reach a collective bargaining agreement. * * * "
During that period, as pointed out by the Board, numerous proposals and counter proposals were made. The main stumbling block appears to have been the matter of the closed shop. Respondent proposed one kind of closed shop which the Union was either unable or unwilling to consummate, and the Union proposed another character of closed shop to which respondent would not agree. The Board states in its brief: " * * * When the Union's proposals reached the conference table for collective bargaining on June 13, 1939, it at ...