Petition for Enforcement of an Order of the National Labor Relations Board.
Before SPARKS and MINTON, Circuit Judges, and LINDLEY, District Judge.
The National Labor Relations Board, hereinafter referred to as the Board, seeks enforcement of its order of October 9, 1941. The Board found the respondent had violated Sections 8(1), (2), (3), and (4) of the National Labor Relations Act, 29 U.S.C.A.Sec. 158(1), (2), (3), (4). The only question presented by this record is whether there is substantial evidence to support the Board's findings.
In 1934 when the respondent's employees sought to organize under the National Industrial Recovery Act, the respondent with vigor stamped out the attempts. Several of its employees were discharged at that time because of their union activities.
No organizational activities took place after that among the respondent's employees until June, 1939. In that month, an organization meeting was held at the farm of Raymond Kircher, an employee of the respondent, and an American Federation of Labor organizer was present. A second meeting was held at Kircher's farm a few days later. A campaign of solicitation for membership got under way at the respondent's plant. The company officials knew about the meetings at Kircher's farm. Justman, an Assistant Superintendent, learned about them from his brother, who had attended.
The Union, a local affiliated with the American federation of Labor, sought recognition as the bargaining agent of the respondent's employees. The respondent refused to recognize the Union, and an election was ordered by the Board on petition of the Union. The Union lost the election.
That night Robert Pick, the Vice President of the respondent, and some of the employees met at a bowling alley, had some drinks, and celebrated the defeat of the Union.
A few days after the Board had ordered an election held, the respondent's President, Carl Pick, said to an employee, "I don't want that damned union. I would sooner have my own union, I would sooner have my own money in my own pocket."
At about the same time, Assistant Superintendent Justman was very active in his efforts against the Union. He warned an employee about getting "tangled up in this mess," and referring to the abortive attempt to organize in 1934, said, "You know what happened the other time. The thing was ironed out and a lot of fellows lost their jobs and were left holding the bag. The same thing might happen this time." A week before the election, Justman told another employee, "It is only the scrummy stuff of the underworld type that listens to another man from another city, so it is a good thing for the working people to learn how to think for themselves, and they woudln't fall prey to such stuff." Justman also reminded this employee, who had been laid off for union activity in 1934, that he "should be careful how he voted, otherwise he would be on the outside looking in again." He said that if the employees wanted a union, they should pick their leaders and start an independent union. Just before the election, Jkustman wrote on a slip of paper for an employee the words "Yes" and "No," and asked the employee which was easier to write, and then stated, "If you say 'Yes' and Pick says 'No,' where are you going to be? You will be out, won't you? * * * If you are independent, your dollar is in your own pocket * * * . Why * * * give it to some outsider * * * ."
On the day before the election, the Union President, talking to fellow employees, said rumors were out that if the Union won, the respondent would place in effect some undesirable practices with reference to transfers during slack periods. To this Justman said, "You will find it will work out that way, after the union gets in," and stated further the employees "couldn't hope to get any place with the union," that the respondent was already paying "top wages" and that if the Union "gets in, that is just two dollars out of your pocket. That is just money gone. There is some things you can get something out of and some things that you can't." Just prior to the election, Justman advised another employee, who later became active for the Independent Union of Pick Workers, that said employee "should be 100% with the Independent Union and (he) would be all right."
These facts, when coupled with the further fact that the respondent was guilty of discriminatory acts in the hire and tenure of its employees, as we subsequently find, constitute interference, intimidation and coercion within the meaning of Section 8(1) of the Act.
The President of the respondent company may have the right to make the statement he made, under his constitutional right of free speech, but he cannot deny that the statement was coercive, intimidating and interfering in its effect. The right of free speech is not absolute. It is a relative right. No one can prohibit the right of the President, Mr. Pick, to speak his views; but if he speaks them, he takes the consequence of his having spoken, just as one does if he speaks slanderously of another. As Justice Holmes once said, the right of free speech does not give one the right to yell "fire" in a crowded theater. We may allow free speech, and yet protect others from injury thereby. Free speech does not mean license to speak without restraint. The statement of President Pick and the many acts and statements of Assistant Superintendent Justman were clear evidence of intimidation, interference and coercion. National Labor Relations Board v. Link-Belt Co., 311 U.S. 584, 61 S. Ct. 358, 85 L. Ed. 368; National Labor Relations Board v. Automotive Maintenance Machinery Co., 315 U.S. 282, 62 S. Ct. 608, 86 L. Ed. 848; Rapid Roller Company v. National Labor Relations Board, 7 Cir., 126 F.2d 452; National Labor Relations Board v. Sunbeam Electric Company, 7 Cir., 133 F.2d 856.
The respondent claims it was improper to consider the record of the Labor Board under the National Industrial Recovery Act, because that was the proceeding of an unconstitutional tribunal. The record in this case was not introduced as a record to speak the binding effect of that record as such. Only the facts surrounding the making of that record were considered. This was proper evidence to be considered as ...