Petition to Review and Set Aside an Order of the National Labor Relations Board.
Before EVANS, MAJOR, and KERNER, Circuit Judges.
This is a petition for review of a decision of the N.L.R.B., issued January 9, 1941. The Board requests enforcement of its order.
Petitioner, an Illinois corporation, with its principal office in Chicago, directly or through wholly owned subsidiaries, operates plants for the manufacture and sale of wearing apparel (mens' shorts, unionsuits, pajamas, pants, shirts, robes, lumber jackets and mackinaws; womans' dresses, robes, play suits, slips and flannelette garments) in many states. Eight of these plants - those involved in the instant proceeding - are located in Bedford, Michigan City, Columbus, Seymour, Mitchell and Kokomo, Indiana; Tyrone, Pennsylvania and Huntington, West Virginia. The Board's jurisdiction is conceded.
Between July 1937, and March 1938, a number of charges and amended charges were filed against the petitioner by the Amalgamated Clothing workers of America (called "Amalgamated" herein), the United Garment Workers of America (called the "United" herein) and the International Ladies Garment Workers Union (called "International" herein). The various charges concerned the numerous plants of petitioner, singly, rather than collectively. Hearings were commenced by the Board in a number of cities where plants were located, and on April 5, 1938, the Board issued its consolidated complaint and subsequently conducted hearings thereon in a number of cities where plants were located, and also in Chicago, Illinois, where such hearings were concluded July 13, 1938. Subsequent to the Board's decision, a plant located at Washington, Indiana, was by order of the Board, severed, and pursuant to stipulation, a consent decree, in settlement, was entered by this court on July 9, 1941.
The Board made findings with reference to each of the plants involved in the instant proceeding. While the same unfair labor practices were not found as to each, in the total petitioner was found guilty of violating Sections 157 and 158(1), (2), (3) and (5), 29 U.S.C.A. Petitioner was also exonerated on a number of charges contained in the consolidated complaint.
The record is voluminous and we are presented with the difficult problem of doing justice to the parties in an opinion of reasonable length. Petitioner presents and argues 33 contested issues, many of which are dependent upon the contention that the findings of the Board are without substantial support. In view of our limited authority in this respect, we shall discuss such issues only as we are convinced from a study of the record and briefs, are meritorious. Petitioner also raises certain questions of law, including provisions of the Board's enforcement order, which require decision. In their briefs, both parties have argued their respective contentions separately as to each of the plants involved. We shall do likewise, and consider them in the order of the Board's presentment.
At this plant the Board found that petitioner had engaged in unfair practices in violation of Section 8(1), (2) and (5) of the Act. As to (1) and (2), the finding of the Board is, not only substantially, but conclusively, supported. We shall, therefore, make brief reference only to the testimony in support thereof. Organizers for the Amalgamated began the solicitation of members in April 1937. Plant Superintendent Hubbard summoned Brown, Personnel Director for all of petitioner's plants, who arrived in Michigan City shortly thereafter. He arranged for interviews with small groups of employees and bitterly denounced the C.I.O. and labeled its organizers as "a bunch of crooks and hoodlums," and "reds, radicals and Bolsheviks." It was suggested to the employees that the plant would close if they joined the C.I.O., that they should form a union of their own, and that no other form of organization was acceptable to petitioner. One employee was offered a vacation with all expenses paid if she would start an inside union. An employee from petitioner's Kokomo plant, by the name of Musselman, was introduced to the employees as a representative of the A.F. of L. whose chief business was to disparage the C.I.O. Petitioner's Vice-President Bard made a speech to the employees in which they were told that petitioner would not sign a contract with the Amalgamated unless its competitors did likewise. While the speech in itself can not be seriously condemned, it, taken in connection with the surrounding circumstances, not only discloses petitioner's attitude toward the Amalgamated, but forcibly conveyed to the employees the idea that petitioner would not recognize it under any circumstances. One Crowner, who started out as an organizer for the Amalgamated, was secretly employed by petitioner as an industrial relations counsellor, at a salary of $350 per month. His business was to disparage outside unions and to lay the groundwork for an independent organization. He made reports to petitioner concerning the activities of Amalgamated's organizers, and the names of the employees who joined and attended its meetings. On June 25, 1937, after notifying newspaper reporters and photographers, Crowmer burned 432 cards which he claimed were membership cards in the Amalgamated. This occurred on a lot across the street from petitioner's plant with the knowledge, and we think, approval of petitioner's officials. Petitioner contends it is not liable for the acts of Crowmer. We think the Board properly found to the contrary.
The evidence in support of the Board's finding that petitioner dominated and interfered with the formation of the Michigan City Independent Union, standing alone, is not of a convincing nature, but taken in connection with petitioner's attitude toward outside unions, we think, is sufficient. The evidence that petitioner offered special inducements to some of its employees to quit the C.I.O. and work for an inside union in connection with the secret arrangement it made with Crowmer, a former C.I.O. organizer, to do likewise, together with other circumstances not necessary to relate, justified the finding of interference. It is argued here, however, as it is with a similar situatioin at some of the other plants, that there is no evidence of domination. To us this point is immaterial, as proof of domination is not necessary to constitute a violation of 8(2). Interference alone is sufficient.
We shall now consider the Board's finding that petitioner refused to bargain with the Amalgamated in violation of Section 8(5). In order to sustain this charge, it was necessary to establish (1) that Amalgamted had a majority of the employees of an appropriate unit, and (2) that it made a demand or request of petitioner for recognition. Petitioner contends that there is no substantial evidence in support of the Board's affirmative findings relative thereto. While the evidence in support of the first proposition is of a rather dubious character, we are of the opinion that it is sufficient to sustain the Board's conclusion. An organizer for the Amalgamated testified that he procured the signatures to membership cards of about 350 employees, which was a large majority. True, his testimony appears to have been contradicted by other Board witnesses, but it was within the Board's province to appraise the conflicting evidence.
The Board found that " * * * on July 10, 1937, and at all times thereafter, the respondent refused to bargain with the Amalgamated as the exclusive representative of its employees in the appropriate unit with respect to wages, hours of employment and other conditions of work. * * * " In our judgment, there is no competent evidence to support the proposition that petitioner was requested, on July 10, 1937, or any subsequent time, to bargain with the Amalgamated. " * * * The employer can not, under the statute, be charged with refusal of that which is not proffered." National Labor Relations Board v. Columbian Enameling & Stamping Co., 306 U.S. 292, 298, 59 S. Ct. 501, 504, 83 L. Ed. 660. In other words, the statute imposes upon the union the affirmative duty of requesting recognition before the employer can be found guilty of refusing. We assume that the statement in the Board's brief in respect to this situation is as favorable to it as the circumstances will permit. According to such statement, a committee of the union, on July 3, 1937,*fn1 requested Rheinhart Fedder, the Mayor of Michigan city, to arrange a conference between the Amalgamated and A. T. Bard, petitioner's Vice-President. We quote from the Board's brief:
" * * * One of the purposes of this conference was to obtain assurances from Bard that there would be no discrimination against members of the Amalgamated when work resumed; however, the members of the Amalgamated committee which conferred with Fedder testified that they also requested him to inform Bard that the Amalgamated desired to be recognized by petitioner as the majority representative of the employees and that Fedder promised to communicate this request to Bard. On July 10, 1937, Fedder informed the Amalgamated committee that Bard had refused to confer with it for any purpose, assigning as Bard's reason the fact that petitioner had already decided to reopen the plant pursuant to a conference with the Banner Independent.* * * "
Fedder, a Board witness, denied that he had so informed the Committee or that he had ever conferred with Bard concerning recognition. The Board gave credence, so it says, to the testimony of the committee in preference to that of Fedder. It is argued that Fedder was the constituted agent of the committee and that petitioner, through Fedder, refused the union's request to bargain. Obviously, this testimony fails to prove anything so far as the petitioner is concerned. At most, a question of veracity was raised between the committee and its agent Fedder. Reconciliation of such a conflict is of no assistance to the Board's position. Without denial on the part of Fedder, it could not be held that a request of him on the part of the committee, not communicated to petitioner, was binding upon the latter. Certainly there is no room for argument that an affirmative act required of a principal is established by mere proof that its performance was delegated to an agent. It must be further shown that the agent executed his principal's instructions. Here the agent denied not only execution, but also the delegation of authority. In its decision the Board refers to certain telephone conversations and a letter addressed to petitioner, which are not mentioned in the Board's brief for the obvious reason that they afford no support for the finding in question.
The complaint charged that the closing of petitioner's plant at Michigan City on June 18, 1937, was a lock-out, and that discrimination was practiced in the rehiring of approximately 150 employees alleged to have been locked out. The Board dismissed the lock-out, as well as the discrimination charge, as to all except six employees. It found that when the plant was reopened July 12, petitioner took back approximately the same proportion of Amalgamated members as had worked prior to the closing. The discrimination found against six of the employees in violation of Section 8(3) of the Act was based largely on the fact that they had been active in the affairs of the Union, and when work was resumed, non-union persons with no experience were employed. We are of the opinion, under the circumstances of the instant case, that the unexplained hiring of inexperienced non-union employees in preference to union employees active in the affairs of the union, is sufficient to create a reasonable inference of ...