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Donnelley v. National Labor Relations Board.


June 12, 1946


Author: Minton

Before MAJOR and MINTON, Circuit Judges, and BRIGGLE, District Judge.

MINTON, Circuit Judge.

The National Labor Relations Board, the respondent herein, found that the petitioner had violated Sections 8(1) and 8(3) of the National Labor Relations Act.*fn1 The respondent entered a cease and desist order against the petitioner for its violation of Section 8(1) and ordered petitioner to take certain affirmative action which the Board found would effectuate the policies of the Act concerning the violation of Section 8(3). Petitioner brought this proceeding to review this order of the respondent. The Board has asked that its order be enforced. The only question presented is whether or not there is substantial evidence to support the findings of the Board.

The petitioner is one of the largest establishments of its kind in the United States. It has been in existence for over forty years, and now has in its employ approximately 4,600 people working in three shifts. From 1903 to 1933, it maintained a consistent, persistent, vigorous opposition to labor unions. During this period, before an employee was hired, he was questioned as to his membership in or affiliation with any union. If found to be a member of a union, or affiliated with it, such person was not employed for that reason. If he were employed, and afterwards became a member of a union or active in the affairs of unions, he was discharged. The petitioner resorted freely to the use of what is commonly known as the "yellowdog" contract. The petitioner conducted what it was pleased to call a "non-union closed shop" and let it be known not only to its employees but to the trade generally that it maintained a non-union closed shop and that it was opposed to unionization. This policy continued until 1933 when the petitioner signed the Code and operated under the National Industrial Recovery Act. 48 Stat. 195. The petitioner let it be known to its employees that it had not changed its attitude toward unions and that it was only complying with the law.

Petitioner was opposed to the passage of the National Labor Relations Act and said so. After the Act was passed and declared constitutional by the Supreme Court in the case of National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S. Ct. 615, 81 L. Ed. 893, 108 A.L.R. 1352, the petitioner, through the medium of its shop paper which was sent to all of its employees into their homes, represented the Act to its employees as a rather innocuous bit of legislation and of scant utility to the employees.

With this long, consistent, persistent background of antagonism to unions, the petitioner continued on every occasion to argue and plead with its employees against unionization and to propagandize in favor of its so-called non-union closed shop policy. Such conduct was clearly interference with the rights of the employees to organize and choose their own agent for purposes of collective bargaining as provided in Section 7 of the Act.

The petitioner says that such conduct based upon argument and presentation of its views against unionization, if it is interference with the organization rights of the employees under Section 7, is justified under the right of free speech guaranteed by the First Amendment to the United States Constitution and National Labor Relations Board v. Virginia Electric & Power Co., 314 U.S. 469, 62 S. Ct. 344, 87 L. Ed. 348, and Thomas v. Collins, 323 U.S. 516, 65 S. Ct. 315, 89 L. Ed. 340.

Admitting without deciding that mere talk and argument by an employer, no matter how persistent, cannot be limited by the National Labor Relations Act, in the light of the First Amendment to the Constitution, we think the petitioner went far beyond mere talk and argument with its employees. It assembled its foremen and sent them out among its employees to preach opposition to unionization, and its superintendent and department managers did likewise. The employees were threatened that if the union came in to petitioner's shop, the employees would lose their annuities, recreation and gymnasium facilities around the place, and no bonus would be paid them.*fn2 The employees were further told by superintendent Busby that if petitioner's shop became unionized, petitioner could no longer guarantee three days' work a week and when the press was shut down, the employees would be laid off.*fn3 President Littell stated to the petitioner's employees that if petitioner's plant became unionized, the union would demand a closed shop, petitioner would not grant a closed shop, a strike would be called, and Superintendent Busby said that if the employees struck, they would be through at the petitioner's place forever.*fn4 Department manager Flexman told employee Harry Caldwell that because he had signed a union card, he would not in the future receive the responsibility he deserved and that the company appreciated and rewarded loyalty in their employees.*fn5 Department manager Flexman further said to Caldwell that foreman West, because he was known to be active in union affairs, would have to be relieved as foreman and put back on the bench as an ordinary employee.*fn6 Caldwell was further told by Flexman that he was marked as a union man and that he could redeem himself by resigning his position as chairman in the union.*fn7 Manager Flexman told foreman West that if he wanted to join the union, to go ahead and join, but to "get the hell out of" petitioner's shop, and he slammed the door and went out.*fn8 Superintendent Busby also told employee L. D. Maxwell that Mr. Donnelley, chairman of petitioner's board, had pledged or made a statement to the effect that he would spend 80% of his entire fortune to prevent unions from getting in to Donnelley's.

This record is shot through with similar statements made after 1937 by the superintendent, managers, and department foremen of the petitioner. The statements which we have just detailed are not mere statements of the petitioner's arguments as to its anti-union attitude; they were threats and attempts to intimidate the employees if they joined the union. The petitioner maintained a vigilant surveillance of its employees' union activities and let it be known to its employees that they were being watched. Such constant surveillance was calculated to and did intimidate the employees. The petitioner cannot, in the light of this record, cloak itself in the raiment of the First Amendment to the Federal Constitution in order to justify and excuse its threats and intimidation. Thomas v. Collins, supra, 323 U.S. 537, 65 S. Ct. 315, 89 L. Ed. 430; National Labor Relations Board v. American Laundry Machinery Co., 2 Cir., 152 F.2d 400; Reliance Manufacturing Company v. National Labor Relations Board, 7 Cir., 143 F.2d 761, 763; National Labor Relations Board v. Sunbeam Electric Manufacturing Company, 7 Cir., 133 F.2d 856, 860.

Petitioner cannot be heard to say that it is not responsible for the acts of its foremen which it sent out on missions of anti-unionism because these foremen had a right themselves to say what they said and do the things they did since they were employees themselves. When the petitioner sent them out on missions of anti-unionism, the petitioner became responsible for what they said and did. The foremen were then speaking for their employer as its representatives, and the petitioner was liable for what they said and did within the scope or apparent scope of their authority. International Association of Machinists v. National Labor Relations Board, 311 U.S. 72, 80, 61 S. Ct. 83, 85 L. Ed. 50; H. J. Heinz Company v. National Labor Relations Board, 311 U.S. 514, 61 S. Ct. 320, 85 L. Ed. 309; National Labor Relations Board v. Fitzpatrick & Weller, Inc., 2 Cir., 138 F.2d 697, 698. The rank and file of petitioner's employees had a right to assume that the foremen spoke for the petitioner, especially in the light of petitioner's long standing antagonism to unions, and the petitioner's attitude as conveyed to them by their foremen was bound to be impressive, and when threatening and intimidating, it was of a coercive character not protected by the freedom of speech guaranteed by the First Amendment to the Constitution.

"* * * When to this persuasion other things are added which bring about coercion, or give it that character, the limit of the right has been passed. * * *" Thomas v. Collins, supra, 323 U.S. at page 537, 65 S. Ct. at page 326, 89 L. Ed. 430.

We think there is substantial evidence in the record to support the findings of the Board that the petitioner violated Section 8(1) of the Act by interfering with and coercing its employees in their right to organize as guaranteed to them by Section 7(1) of the National Labor Relations Act. International Association of Machinists v. National Labor Relations Board, supra; National Labor Relations Board v. Sunbeam Electric Manufacturing Company, supra; National Labor Relations Board v. Schaefer-Hitchcock Company, 9 Cir., 131 F.2d 1004; National Labor Relations Board v. Reynolds Wire Co., 7 Cir., 121 F.2d 627; Valley Mould & Iron Corporation v. National Labor Relations Board, 7 Cir., 116 F.2d 760.

We now consider the finding that foreman West was discriminatorily demoted from foreman on the night shift to a rank and file position on the day shift in violation of Section 8(3) of the Act.

West had been employed by petitioner since 1934. He was a skilled, excellent workman who not only did his work intelligently, but he used his intelligence to devise an improved method of repairing press cylinders, for which he received the commendation of the president of the company and a check for $50. As foreman he understood his job and got the work out. During the time West was foreman, the production of his department increased by 50%. In the summer of 1942 West received a raise of fifteen cents an hour, with which he was not satisfied, and he asked to be sent back to the day shift and relieved as foreman. This petitioner declined to do and insisted that he remain on as foreman, which he accordingly did.

West signed up with the union and became active in this organization's efforts in petitioner's plant. Under the surveillance system operated by petitioner, it soon became fully informed as to West's connection with the union. After it had been publicly announced over the radio and in print that West was a member of the council of the union and there could be no doubt of his activities on behalf of the union, although he was a capable, efficient foreman, superintendent Busby and department manager Flexman said to West, "If the job gets too tough for you, just let us know, and we will relieve you." West had made no protest that the job was "too tough" for him, nor had any one of the officials of the company so indicated. This incident occurred about the first of the year, 1943.About the same time, department manager Flexman in talking to West and employees Schutt, Dorn and Caldwell, gave evidence of the purpose of the petition to demote West because of his union activities.*fn9

On April 1, 1945, an anonymous telephone call to manager Flexman reported that West had been seen smoking in the film storage room with employee Nazar. The smoking rule was observed very much in the breach thereof, and nothing was ever done to employee Nazar for his violation. The usual punishment meted out for such violation of the no-smoking rule was a week's suspension without pay. About a week after the West smoking incident, officials of the company began to accumulate proof that West had been seen smoking in the film room.On April 15, 1943, Chairman of the Board of Directors Donnelley, the Executive Vice-President Zimmerman, plant superintendent Busby and counsel for the petitioner all met in Zimmerman's office, and department manager Flexman reported to this imposing array of company officials and was instructed to demote West, which was accordingly done.

It was the National Labor Relations Board's duty to determine from these circumstances whether petitioner demoted West for violating the no-smoking rule, which petitioner had a perfect right to do, or whether he had been demoted because of his union activities as department manager Flexman had threatened, and the smoking incident was a pretext therefor. The Board found the latter. This was a reasonable inference to be drawn from the circumstances and it is supported by substantial evidence in the record. It was within the Board's province to draw such inferences. National Labor Relations Board v. Link-Belt Company, 311 U.S. 584, 61 S. Ct. 358, 85 L. Ed. 368.

The Board's finding that petitioner violated Section 8(3) of the Act must be and is sustained. National Labor Relations Board v. Polson Logging Company, 9 Cir., 136 F.2d 314; National Labor Relations Board v. William Davies Company, 7 Cir., 135 F.2d 179.

On the oral argument, counsel of petitioner contended that since it had a valid reason for demoting West, the Board could not infer from the other circumstances in the case that he was demoted because of his union activities, citing National Labor Relations Board v. William Davies Company, supra; National Labor Relations Board v. Automotive Maintenance Machinery Co., 7 Cir., 116 F.2d 350; Martel Mills Corp. v. National Labor Relations Board, 4 Cir., 114 F.2d 624; National Labor Relations Board v. Thompson Products Company, 6 Cir., 97 F.2d 13. None of these cases support the proposition advanced by the petitioner. These cases only hold that the inference cannot be lightly drawn or drawn without the foundation of substantial evidence. As we held, for instance, in National Labor Relations Board v. William Davies Company, supra, the inference could not be drawn by the Board for mere membership in the union alone, there being present other reasons for the action of the company.

We hold that the findings of the Board are sustained by substantial evidence, and the petition to set aside the order of the Board is denied and the request of the Board that the order be enforced is granted.

BRIGGLE, District Judge, dissents from the decision of the Court in this cause.

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