On Petition for the Enforcement of an Order of the National Labor Relations Board.
Before EVANS, SPARKS, and MINTON, Circuit Judges.
Since 1927, respondent has been operating a factory in Alexandria, Indiana, where it makes kerosene lamp bowls, lamp chimneys, incandescent mantles, shades, vacuum bottles, electric lamps, etc., and has employed an increasing number of men and women to turn out its products, which are shipped to all parts of the United States. Thus engaged in interstate commerce, respondent and its employees admittedly came within the provisions of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. A dispute between it and its employees arose, which called for action by the National Labor Relations Board. Out of that dispute came a complaint by the Board against respondent, upon which a hearing was had in 1937. This hearing and the order which the Board entered, and respondent's action thereon, provoked this petition by the Board for the enforcement of its order.
The report, findings, and order, together, form a rather lengthy document, too voluminuous to be set forth in extenso. In substance, the Board found that respondent interfered with, restrained, and coerced its employees' joining or maintaining membership in United Automobile Workers of America. This finding was based on respondent's action (a) in questioning its employee concerning their union activity; (b) in seeking to establish an independent union in opposition to the Union; (c) in circularizing its employees with a letter attacking the Union.
It also found that respondent violated Section 8(3) and (1) of the Act by discriminatorily refusing to reinstate ten union members following a strike, thereby discouraging membership in the Union.
The Board entered an order directing respondent to cease and desist from these unfair labor practices, to reinstate the ten employees with back pay, and to post appropriate notices of the order in its plant.
Respondent attacks the findings as being without evidentiary support, and the Board's order as being without the support of evidence or valid findings, and beyond the scope of the Union's charge and the Bord's complaint.Upon the conclusion of the trial lasting about six weeks, the Examiner, in a preiliminary report, found generally against the respondent.
In some aspects of the case, it is not unlike others we have heard, where the employer's early antagonism to unions, embarrassed it in later controversies wherein it relied on an asserted strict neutrality.
Respondent, throughout its early history, was strongly anti-labor union. Its attitude was bitter. Readily and eagerly it accepted the opinion of a group of lawyers who, in 1936, declared the Labor Relations Act was unconstitutional. It ignored and refused to follow the provisions of this Act. At this trial it was embarrassed by this early anti-union attitude, and its early insistence upon a so-called "yellow dog" contract with its employees which, by the way, it long ago abandoned.
Although respondent, after it learned that the N.L.R. Act was constitutional, changed its attitude completely and adopted a new employer-employee relationship policy, nevertheless its action was properly studied and interpreted by the Examiner and by the Board in the light of its earlier hostile anti-union attitude.
Respondent, with much propriety, asks us to pass judgment, not upon its past history, action, or attitude, but upon the charges which the Board preferred, and which deal with its later action. Such action was in the year 1937 beginning with and following a sit down strike by its employees.
There is little need for discussing what took place before that time other than to observe that at one time the employer deliberately, intentionally, and constantly violated the rights of the employee, as those rights are difined by the subsequently enacted National Labor Relations Act. Our study, however, is directed to, and our discussion is directed to, what took place in the Fall of 1936 and in the year 1937, during which time there was an election, a strike, a settlement of the strike, followed by collective bargaining, an agreement between respondent and its employees, a second strike, wherein the employees engaged in a sit down strike, a refusal of the strikers ot obey an order of a court, and the discharge of strikers by respondent. Following this strenous life, peace came, - in the form of a law suit in the state court. That is to say, speaking relatively, there was peace. The employer offered to receive applications from its former employees, and to act on each, and, save for special reasons, to reinstate all to their former jobs.
The union made a collective application for a large group of employees (117) who were its members and some of whom did not individually ask for reinstatement. Most of the old employees were re-engaged. About one-third were no, although some of them sought and secured employment elsewhere and made no effort to find employment with respondent.
The sharply-disputed controversy is over the action of the employer in respect to those who were not reinstated.We might say the controlling issue on this appeal is the non-employment of ten former employees whose application for reinstatement was presented by the Union.
The respondent's reasons for non-reinstatement were several - its policy not to employ married women, not to employ relatives in the same department, incompetence, lack of available positions for returning employees - being the principal ones.
In view of the plain language of the statute, many times effectuated in court decisions*fn1 that we inquire into the facts only to ascertain the existence (or absence) of substantial evidence to support the findings, it is unnecessary for us to lengthily discuss the testimony or to point out the weaknesses or strength of certain established facts. Inasmuch as it was the Board's province to draw the legitimate inferences from the evidence which it accepts as true and to ascertain the fact where there is a dispute, we will avoid as much as possible a recital of facts over which there is dispute. We accept as a verity the findings of the Board, except those hereafter discussed, which are assailed because, allegedly, wholly lacking in evidentiary support. These findings are generally against respondent.
In view of its early record the Board was justified in scrutinizing respondent's action closely and skeptically to see whether its professions of a changed attitude toward its employees were genuine and sincere, or only a lip acceptance of the Act which had just won reconition of validity from the Supreme Court.
This brings us to sharp question of controversy, i.e., the refusal to reinstate the employees. Notwithstanding the handicaps of birth and the indiscretions of its youth, respondent has presented a persuasive argument in its favor which brings the case into the doubtful class, notwithstanding the strong presumptions which attend the Board's findings.
Respondent meets the argument that it was in its early history hostile to unionism by pointing to its record which showed that it abandoned the yellow dog contract as far back as 1929, long before the Norris-LaGuardia Act declared such contracts to be against public policy. It complied with the National Industrial Recovery Act, even after it had been declared unconstitutional. When the complaining union which filed the charge before the Board, demanded recognition in November, 1936, claiming a majority, the company stated it would acknowledge such union if an election by the Board disclosed the union represented a majority. The union refused such an election, and a strike was called, December 5, 1936. The union later consented to an election, which was held December 9, 1936. The union was thereupon named the bargaining agent, and the company promptly entered into a collective bargaining agreement in writing with said union. Thereafter meetings of the company and union officials were held weekly, and sometimes oftener, at which meetings many minor adjustments were made in working relations. Minutes were kept of the meetings, which - approved by both sides - are in the record.
A rival union immediately sought to establish itself among the employees. The company's only action was to prohibit any solicitaion during company time or on company premises. (An announcement to that effect, posted on the bulletin board, was immediately torn down by some union members.) One employee who was an organizer, but incapable of being a union member because not a production employee, was the subject of attack by the existing union which demanded his discharge. The company refused to discharge him without a hearing. Finally the existing union was persuaded to arbitrate the discharge of this organizer, and although the union member on the arbitration board joined in the vote against the discharge, the union still demanded that said employee be not permitted to return to work.
Two months later another dispute arose over the retention of an employee, Mrs. Culbertson, forelady in the mantle department. On Friday, February 26, 1937, the union demanded that she be discharged by March 2, 8:30 A.M. As an alternative, a strike would be called. Mrs. C. was charged with being "an old crab. They (the girls and the forelady) just can't get along. She makes the girls cry. She demands them to do little simple things that come under the head of school life, not factory life. All in all it is everything that she does. It is quite a major ...