Before MAJOR and KERNER, Circuit Judges, and BALTZEL, District Judge.
This case is here upon petition of Wyman-Gordon Company (Ingalls Shepard Division) (hereinafter referred to as petitioner), to review and set aside, and upon the National Labor Relations Board's answer and request for enforcement of an order of the Board issued against petitioner on June 20, 1945, pursuant to Sec. 10(c) of the National Labor Relations Act (29 U.S.C.A. § 151, et seq. ). The order is based upon findings that petitioner, in violation of Sec. 8(2) of the Act, dominated and supported the Employees' Council (hereinafter referred to as the Council); discriminatorily discharged and refused to reinstate three employees, namely, F. M. Baker, William (Bud) Coale and Peter Crince, in violation of Sec. 8(3) of the Act; and by these and other actions interfered with, restrained and coerced its employees in the exercise of their statutory rights, in violation of Sec. 8(1) of the Act. The order requires petitioner to cease and desist from the unfair labor practices found, to withdraw recognition from and completely disestablish the Employees' Council as the representative of its employees, to offer reinstatement with back pay to the employees found to have been discriminated against, and to post appropriate notices.
While petitioner presents numerous questions designated as contested issues, we think they are in the main embraced in the major issue as to whether the Board's order is supported by substantial evidence.
The Board's consolidated complaint, issued May 13, 1944, was predicated upon charges filed by two organized unions, the United Steelworkers of America (hereinafter referred to as the Steelworkers) and the International Die Sinkers' Conference (hereinafter referred to as the Die Sinkers). The former charge was filed with the Board June 23, 1943, and the latter, August 14, 1943. Petitioner's answer denied any and all unfair labor practices and affirmatively alleged that the discharges of Baker, Coale and Crince were for interference with production by solicitation of union membership during working hours, by telling men to slow down their production, and for otherwise interfering with vital war production. The answer further alleged that petitioner was engaged in the production of intricate crankshaft forgings for military aircraft and was under a duty to maintain full production and to obtain full use of its facilities out of available manpower and ti discipline or discharge employees interfering with that duty.
A lengthy hearing was had before a Trial Examiner, participated in by all the interested parties except the Council. The Examiner in his intermediate report found that the Council was a labor organization within the meaning of the Act and that petitioner had dominated and interfered with its formation and administration and had contributed financial and other support to it, in violation of Sec. 8(2) of the Act. All other issues were found against the Board and in favor of petitioner, with a recommendation that the charges giving rise to such issues be dismissed. The Board unanimously accepted the report of the Examiner that petitioner was guilty of an unfair labor practice in its domination, interference and support of the Council. A majority of the Board, however, refused to accept the recommendation of the Examiner which had exonerated petitioner of all other unfair labor practices and found to the contrary. One member of the Board dissented from the findings of the majority, in other words, expressed the conviction that the recommendations of the Examiner should be accepted in their entirety.
We have reached the conclusion that the Board's finding with reference to the Council must be sustained, and we are of the view that no good purpose could be served in a lengthy discussion of the facts relative thereto. Before briefly discussing such facts, however, we think it is pertinent to observe, especially in view of the Board's contention in connection with the alleged discriminatory discharges, that petitioner's relation to the Council furnishes no proof of hostility toward outside unions. There is no proof that any outside union entered petitioner's plant or undertook to organize its employees until about a year before the issuance of the Board's complaint. The record discloses without any contradiction that petitioner at all times prior to the events involved in this hearing maintained a friendly, cooperative attitude toward its employees and that it paid the highest wages of any company engaged in a similar industry. We have heard much from the Board in other cases of the importance to be attached to an employer's background when it disclosed a hostile and unfavorable attitude toward unions. If an employer's conduct in one case is to be evaluated in the light of a background hostile to its employees and especially to unions, we see no reason why an employer's attitude in another case, such as the instant one, should not also be considered in the light of a favorable background.
Briefly, the Council was organized in 1934, prior to the effective date of the Act, and has functioned in substantially the same manner during the intervening period. As stated by the Examiner, it was initiated by "an employee in the welding department, who assembled a group of other employees from the various departments and proposed to them the organization of a representative body which could deal with management on matters of wages, hours, working condition, safety, health, plant sanitation and other matters of mutual interest to the employees. At the request of this group, Harold F. Wood, Respondent's (petitioner's) general manager, assisted them in completing the organization by reducing the proposed constitution and by-laws which had been roughed out by the organizers, to appropriate language."
The employees of the various departments elected annually by secret ballot a councilman as the presentative of the employees in that department, and one of the eligibility requirements was that a councilman must have been in petitioner's employ for at least one year prior to election. The Council collected no dues from its members and all of its expenses, such as the cost of printing and distributing copies of its constitution and by-laws, ballots for the conduct of its annual elections, and other incidental expenses, were borne by petitioner. The Council was permitted the use of a basement room in petitioner's office building for its meetings. Such meetings were held at 3:30 p.m. on the third Friday of each month. The first hour of such meetings was devoted to a discussion between the councilmen as to the matters which they desired to take up with management. At 4:30 p.m., representatives of management entered the meeting and discussed with the councilmen such matters as the latter desired to present. Petitioner reimbursed the councilmen at their regular rate of pay for the time spent at such meetings. Such pay included both the time when the councilmen were in conference among themselves and the time spent in the conference with management. Also, it included time spent by councilmen in attending such meetings outside of their regular working hours.
Petitioner contends that there is no evidence in support of the Board's finding that it either dominated or interfered with the administration of the Council. We think there is merit in this contention. Certainly there is no direct proof of such domination or interference. In fact, there is voluminous testimony by witnesses for both sides that the employees, including the councilmen, were entirely free of all subservience to petitioner. We also note that we do not agree with much of the Board's argument as well as some of its findings designed to show domination and interference. It seems to us, however, that it would be rather useless to dissect the controversy concerning domination and interference in view of the fact that there is evidence in support of the Board's finding that petitioner contributed financial and other support to the Council. It may be, as petitioner contends, that such support was so infinitesimal as to be of little significance. We are of the view, however, under numerous authorities which need not be cited or discussed, that the support furnished was sufficient to justify the Board's finding in that respect. It follows that the Board was authorized to characterize such support as an unfair labor practice and to order the disestablishment of the Council.
At this point we note that the Board during the hearing denied petitioner's petition to reopen the record and receive further evidence concerning the financial support accorded the Council and especially the amount which was paid to councilmen during the period their meetings were on company time as distinguished from that period when the meetings were on their own time. Such petition has been renewed in this Court. We have examined the proffered testimony, and even if it was accepted we are of the view that it would not change the result. Petitioner's request in this respect is denied.
Also at this point we note that petitioner has filed in this Court a petition in which it is alleged that the Council since the Board's order has voluntarily disbanded and that the Independent Union of Ingalls Shepard Division of Wyman-Gordon Company has been certified by the Board as the exclusive bargaining representative of all production and maintenance employees of petitioner except those in supervisory, office and clerical positions. Petitioner alleges that by reason of this situation the Board's order requiring disestablishment of the Council has become moot and prays that the order be set aside for such reason. The Board by answer to such petition does not dispute that the situation has changed as alleged but contends that such change does not affect the validity of its order. A number of cases are cited in support of such contention, including National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., 303 U.S. 261, 271, wherein the court stated:
"* * * an order of the character made by the Board, lawful when made, does not become moot because it is obeyed or because changing circumstances indicate that the need for it may be less than when made."
We think the Board's contention in this respect must be sustained, notwithstanding that it is difficult to discern under the circumstances of the instant case any good purpose which can be served by the order.
Baker was discharged June 19, 1943, and Coale and Crince August 9, 1943. The Board found and concluded that such discharges were discriminatory, in violation of Sec. 8(3) of the Act. The sole question before this Court is whether the Board's findings and conclusions as to these discharges are substantially supported. As already pointed out, the Board, one member dissenting, decided this issue ...