On Petition for the Enforcement of an Order of the National Labor Relations Board.
Before MAJOR, KERNER, and MINTON, Circuit Judges.
This is a petition of the N.L.R.B. for enforcement of its cease and desist order directed to respondents, issued July 31, 1941, pursuant to Section 10(c) of the National Labor Relations Act, 2. U.S.C.A. § 151 et seq. The complaint was issued upon charges preferred by International Printing Pressmen and Assistants, Union, Box and Carton Local No. 415, affilated with the American Federation of Labor. The usual proceedings were had which culminated in the order and decision here sought to be enforced.
Respondents are engaged in the manufacture and sale of corrugated shipping containers at their plant in Chicago, Illinois. No question is raised as to the Board's jurisdiction. The sole charge, sustained by the board, was that respondents interfered with, restained and coerced their employees in the exercise of the reghts guaranteed in Section 7 of the Act, thereby violating Sec. 8(1) of the Act.
Respondents contend that the Board's findings of fact are not supported by substantial evidence and that its order is invalid and improper. Except as to some relatively minor matters, there is little, if any, conflict as to the facts. The Board's decision is therefore precdicated largely upon inferences and conclusions, some of which are legal rather than factual, which it draws from, and places upon, certain acts of the respondents. The contriversy revolves largely around (1) a speech made by respondents' attorney, Jacobson, on August 5, 1939, to the employees who were assembled in the plant for such purpose, (2) the distribution by respondents and the execution of individual employment contracts with their employees for the year 1939, renewed for the year 1940 and againn renewed for the year 1941, (3) an interview by respondents' attorney with all of respondents' employees on March 15, 1940, while there was pending before the board a representation proceeding, and (4) a letter mailed by respondents to all of their employees on May 3, 1939.
In the beginning we note the stress which respondents place upon their background for fair dealing with their employees, union and non-union alike.It is pointed out that the employees were at no time restrined from a free discussion of their union activities and that no employee was discriminated against, laid off or discharged because of union activity or membership. Undoubtedly, such a situation is commendable and entitled to consideration in cases of some character, just as it is given consideration when the employer's background is shown to be hostile to the union. In a situation such as here presented, however, the background is of minor importance for the reason that the matters in controversy are dependent largely upon a construction of speeches, interviews and written documents.
In April, 1939, the Union, through its organizer, Hetzer, initiated a membership campaign among respondents' employees. On August 4, Hetzer met with one Shaeffer, whom the Board found was an attorney for respondents, for the purpose of securing respondents' recognition of the Union as the exclusive bargaining agent for the employees. Hetzer produced signed membership application cards which Shaeffer, fer, upon inspection, admitted substantiated the Union's claim to a majority status. Hetzer also submitted a proposed contract which shaeffer stated he would place before respondents along with the question of Union recognition. Hetzer was invited to return on August 7 for respondents' decision. Hetzer complied with this suggestion and, on August 7, was told by Shaeffer "Everything was off * * * he wouldn't have anything further to do with us."
Respondents urge that no importance can be attached to the conversation between Hetzer and Shaeffer for the reason that the latter was without authouity to represent respondents in this particulat matter. As we understang, he had been an attorney for respondents and we find nothing in the record disclosing a termination of such relation. It is true that the law firm of which Jacobson was a member, was employed prior to August 4, in connection with respondents' labor relations. It is also pointed out that Shaeffer merely counted the alleged membership cards in the possession of Hetzer and that the names of the signers thereof were not checked for the purpose of ascertaining their authenticity. A serious question would be presemnted in this respect had the Board found upon this incident a refusal on the part or respondents to recognize the Union as a bargaining agent. No such charge was contained in the complaint, however, and, of course, the Board does not rely upon the incedent for such purpose.
We think, however, it may be plainly inferred that respondents, through the Shaeffer incident, had notice that the Union was claiming a majority, and that such incident is material in connection with the activies of the following day (August 5).
On this latter date, the employees were assembled in the plant for the purpose of hearing an address by respondents' attorney, Jacobson, No verbatim report of this speech was introduced in evidence, but a number of witnesses testified from memory as to what was said. Such testimony is not in conflict, except as to minor mat ters. The labor Act was read explained and we think it must be said that the employees, in a general way, were given a rather accurate statement as to their rights under the Act.It also contained a forcible argument against Unions. In support of such argument, statistics were cited reflecting the number of lost work hours attributable to strikes called by the Union. At this meeting ballots were distributed to the assembled workers, but just whaty was voted upon is a matter of dispute.
Respondents contend that the only question submitted had to do with the selection of "monitors." but in addition, the Board found there was further submitted the question as to whether the employees were willing to work the year around for the same pay, without striking. Clealrly, we think, there is no substantial evidence to sustain this finding. Of all the witnesses who testified, only the witness Kulps pretended to suggest anything concerning strikes. A reading of his testimony discloses that he didn't know what he was talking about.He made no positive statement which would support the board's finding, and admitted: "I don't know Just what it was because it was so long ago, I don't remember." There is also a dispute as to the purpose in selecting "monitors." Respondents contend that they were solely for the purpose of arranging vacation schedules, but, in addition, the Board forund that the purpose was to "create grievance machinery in place of that proposed by the Union." While there is some doubt concerning the validity of this finding, we think it is substantgially supported. The Board also attaches importance to statements made in the speech to the effect that wages were to be increased and vacations given with pay.
On August 7, or August 8, respondents' superintendent caused foremen and other employees to distribute identical blank individual contracts to all employees, which were accepted by 107 of the 152 persons then employed. This contract was, by its terms, effective until December 31, 1939, with the privilege of renewal upon terms satisfactory to the employee. The purpose of the contract is stated thus: "To promote steady employment at the highest and fairest wages, to maintain harmony and to prevent strikes and labor troubles for the worker or management, it is agreed:" Then follows provisions with reference to steady employment, wages, with provisions for increases thereof under certain designated circumstances, bonuses and vacations, hours and overtime, and preference and seniority.Also included is a clause entitled "Adjustments" which furnishes the chief controversy insofar as the contract is concerned. It provides: "The Company will endeaver to adjust with the Employee all complaints and disputes by negotiation, if possible. If it cannot be so adjusted, the Employee hereby selects ... as his representative and arbitrator, and the Company selects its superintendent as its representative, and they shall promptly hear and adjust all such complaints, or failing to do so shall elect a third disinterested arbitrator, which three shall promptly hear, adjust and argbitrate every such complaint or dispute. The decision of a majority of such Board to be final on both Employee and Employer."
The Board found that "the circumstances under which the contracts were submitted were in themselves coercive." The only testimony to which our attention is called, in support of this finding, is that of one witness that he signed a contract only after he had been requested on two or three occasions to do so by his foreman. Another withess testified that one of respondents' attorneys, in the fall of ...