Before EVANS, MAJOR, and MINTON, Circuit Judges.
The petitioner, hereinafter referred to as the Board, found the respondent, hereinafter referred to as the company, guilty of a violation of Section 8(3) of the National Labor Relations Act, 29 U.S.C.A. § 158(3), because it had discriminatorily discharged one Roper, and ordered that the company cease and desist from such an unfair labor practice, reinstate Roper with back pay, and post appropriate notices. The Board asks the enforcement of its order.
The questions presented are whether there is substantial evidence is the record to support the Board's findings; and, secondly, whether, if the Board's findings are sufficient, the company thereby discriminated against Roper in violation of Section 8(3) of the Act.
The Board found that the company had discriminatorily discharged Roper because he would not join the union of the Brotherhood of Railway Carmen of America, an affiliate of the American Federation of Labor, which was the lawfully designated bargaining unit for certain of its employees. The company had no closed shop or union shop agreement with the union. In short, the Board held that in the absence of such an agreement covering an employee such as Roper, he could not be compelled to join the union.
The company contended that it had discharged Roper because he had not obeyed the rule of the company which forbade leaving his place of work before the whistle blew. There can be no question of the right of the company to discharge one of its employees for the violation of such a rule. National Labor Relations Board v. Sheboygan Chair Co., 7 Cir., 125 F.2d 436.
The Board had to determine whether Roper was discharged because he would not join the union, or because he had violated the company's rule. The Board attributed the company's action to the former and not the latter.
We consider first whether there was substantial evidence to support the Board's findings. In this posture of the case, we shall consider only the evidence that sustains the Board's findings.The following facts, it seems to us, constitute substantial evidence in support of the Board's findings.
Roper worked as a chainer with a lead chainer in the moving of material into position for pieceworkers to use in the construction and assembly of railroad cars which the company was building for the United States. He was paid by the hour on the basis of an eight-hour day. He did not belong to the union, although often solicited to join and told by a union member that if he did not join, the union men would not work with him.
On the morning of June 27, 1944, the other chainers in Roper's department refused to work with him. The assistant foreman, Brawley, had to transfer him to another department, after which the men resumed work. The work stoppage lasted about an hour. Brawley told Roper the men did not seem to want to work with him because he would not join the union. Roper stated that he understood he did not have to join the union. Brawley replied that he did not, but the union men did not want to work with him.
The company had posted notices on its bulletin boards instructing its employees that they should not leave their place of work before the quitting whistle blew. It had also instructed its foremen to inform the hourly workers that any man who left his place of work before the whistle blew would be discharged therefor. A short time prior to the work stoppage, several union members demanded of Brawley that he fire Roper, and threatened to quit if he did not. The foreman said that he "would have to get something on him" before he could fire him.
On July 11 the foreman checked up on Roper and found him in the washroom cleaning up and changing his clothes about a half-hour before the quitting whistle blew. Roper's lead chainer and other workers were in the washroom cleaning up at the same time. The foreman just looked in and saw Roper and never looked further. On the following morning only Roper was told to report to the office for his time and was told he was discharged for violating the rule of the company which forbade leaving his place of work before the quitting whistle blew. The union men had known that the foreman was going to the washroom to check up on Roper, and after Roper was fired the foreman told the union men, "I told you I would get rid of him, didn't I?"
On this evidence, the Board found that the real reason for Roper's discharge was because of his refusal to join the union, and to appease the union members. We think this conclusion is supported by the substantial evidence above set forth.
The company also contends that even if it did discharge Roper because he would not join the union, with which it had no closed or union shop agreement, such action was not a violation of Section 8(3) of ...