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National Labor Relations Board v. Gear

January 2, 1947


Author: Major

Before MAJOR and KERNER, Circuit Judges, and LINDLEY, District Judge.

MAJOR, C.J.: This is a petition by the National Labor Relations Board for the enforcement of its order issued against respondent on September 20, 1945, following the usual proceedings before the Board. The order is based on findings that respondent, a corporation with its principal place of business at Lafayette, Indiana, (1) interfered with, restrained and coerced its employees by refusing to permit them to be represented by the union,*fn1 the duly certified bargaining representative of respondent's employees with respect to grievances, and by making anti-union statements, in violation of Sec. 8(1) of the Act, and (2) discriminatorily discharged employee Mae Ford, in violation of Sec. 8(1) and (3) of the Act.

The contested issues are (1) whether there is substantial evidence to support the Board's findings of fact; (2) whether under the facts as found the respondent as matter of law violated Sec. 8(1) and (3) of the Act, as charged in the Board's complaint, and (3) whether the Board's order is proper and valid under the Act.

The events with which this proceeding is concerned took place during the latter part of 1943 and the first four months of 1944. During that period respondent was engaged mainly in manufacturing steering gears for military vehicles and landing boats. The union filed a petition with the Board on October 7, 1943, following which an election was held on December 20, 1943, and on January 10, 1944, the Board certified the union as representative for the unit of production and maintenance employees.

While the examiner heard considerable testimony as to certain incidents which occurred at and prior to the election, no unfavorable finding is predicated thereon, and inasmuch as the Board does not here rely upon any of this testimony we see no reason to relate or discuss it. It is pertinent to note, however, that other than the findings now urged by the Board in support of its order, to be hereinafter discussed, there is not a scintilla of evidence of any hostility on the part of respondent toward the union or its activities. In fact, the record affirmatively shows that respondent's relations with the union and its members was amicable and cooperative.

On the same date the union was certified as the bargaining agent for respondent's employees, that is, January 10, 1944, it held a meeting and elected its officers and a bargaining committee composed of seven members. This committee was also designated as the union's grievance committee. Mae Ford, the legality of whose discharge is in issue here, was elected recording secretary and a member of the bargaining and grievance committee.

Shortly thereafter, a series of conferences took place between representatives of respondent and the union, the first of which occurred February 18, 1944, for the purpose of agreeing to a contract between respondent and the union. These conferences continued during the months of February, March, April, May and June, and on the 16th day of June, 1944, culminated in a contract containing, among other things, a detailed procedure for the handling and consideration of grievances.

The events with which the Board's findings are concerned took place in the months of February, March and April, 1944, while such conferences were in progress, and may be roughly divided into three categories, (1) the Pipher grievance, (2) the alleged discriminatory remarks of foreman Larr, and (3) the alleged discriminatory discharge of Mae Ford.

The facts as to the Pipher grievance are stated in the Board's brief as follows:

"On February 10, Ford authorized Union Steward McKnight of the inspection department to present to Foreman Larr a grievance in behalf of certain employees in that department. When McKnight sought to take up the grievance with Larr, the latter questioned McKnight's authority to act in the matter. To McKnight's answer that he was one of the Union's stewards, Larr replied that he had no knowledge of McKnight's status and that he had received no instructions structions from respondent to take up any union grievance. Moreover, he continued, the grievance did not concern Ford herself and therefore it was none of her business. He advised McKnight against attempting to take up grievances until respondent and the Union had entered into a contract. Until that time, he stated, he would consider no grievance except those presented directly to him by the aggrieved employee."

The so-called grievance presented to Larr was written on a form designed for the purpose of presenting grievances or complaints and read as follows: "Nature of Complaint: Why rules do not apply to all workers? Why isn't Rep Pipher's time card on check rack? Why is his card punched before he arrives? Why is it necessary for so much overtime to do his work? Reported by Mae Ford."

The Pipher referred to in the statement was an assistant to Larr, the foreman, and was not an employee within the unit represented by the union. While the alleged grievance presented to Larr by McKnight purported to be reported by Mae Ford, the record is silent as to which employees, if any, were interested therein. In fact, shortly after the complaint was made, Larr called Mae Ford to his office and, according to her testimony before the examiner, asked, "He asked me who were the people that were in back of this grievance?" She, according to her testimony, respondent "that there were a number of people. I didn't care to mention names." Not only is the record silent as to who made or was interested in the alleged grievance other than the statement that it was "reported by Mae Ford," there is no evidence which furnishes any reason or explanation as to what was meant or why it was made.True, the Board states in a footnote in its brief that the grievance was the result of dissatisfaction among certain employees concerning the activities of Pipher (Larr's assistant) which "they felt compelled them to work overtime." Respondent states that there is not a particle of evidence in support of this assertion, which we think is correct.

Under the circumstances related, we doubt the existence of a grievance within the meaning of the Act. Assuming its existence, however, and further assuming that Mae Ford as an officer of the union had a right to report the grievance on behalf of employees whose identities she refused to disclose, the still more dubious question remains as to whether respondent can be held to have committed an unfair labor practice because one of its minor supervisory employees refused to consider it.

In connection with the matter under discussion, another incident, much stressed by the Board, must be taken into consideration. On February 14, 1944, respondent's president, Usner, sent a letter to respondent's foremen, apparently approving Larr's action, a copy of which was sent to Narvin M. Hurst, president of the local union. In this letter it was stated that the union had the sole bargaining rights for all of the maintenance and production employees of respondent and that there would shortly be a series of conferences between representatives of the company and the union, with the end in view of negotiating a contract which undoubtedly would contain provisions ...

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