Before LINDLEY, SWAIM and SCHNACKENBERG, Circuit Judges.
LINDLEY, C.J.: In No. 11121 National Labor Relations Board petitions for enforcement of its order restraining respondents, Wagner Iron Works and Structural & Ornamental Iron Workers Shopmen's Local 471, AFL, from further commission of certain allegedly unfair labor practices proscribed by the National Labor Relations Act, as amended, 29 U.S.C.A. §§ 151 et seq., and requiring of each certain affirmative action (104 NLRB 445). In No. 11141, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO, seeks to set aside that part of the same order dismissing the portion of the complaint which charged that the Wagner Company had wrongfully discharged certain named employees. Petitioner in No. 11141 was the charging party in all proceedings before the Board which are here for review. Two groups not parties to this cause were eventually active in the matters involved, namely, the Temporary Committee, which came into being at the Wagner plant as an interim agent of its employees, and its successor, the Employees' Independent Union. We shall refer to the parties as the Board, the Company, AFL, CIO, the Temporary Committee and the Independent, respectively.
For some 14 years AFL had represented the Company's employees as bargaining agent, under an agreement defining their relationship and their several obligations as employer and employees. The last contract, dated July 1, 1950, to continue for one year, was automatically renewable, unless terminated by 60 days' notice. On April 15, 1951, AFL notified the Company that it desired to terminate the agreement as of June 30, and to negotiate a new one.
Earlier in the year, certain employees had become dissatisfied with their representation by AFL. They complained that they had never seen the agreement and that union committeemen had been denied opportunity to examine its text and were, therefore, seriously handicapped in the adjustment of grievances. In May a dispute developed as to the interpretation adopted by the Company and AFL of the contractual provision governing holiday pay. AFL Committeeman Don McMahon approached and conferred with officials of the rival CIO regarding it. Later other employees, fearing that AFL intended to sign a new agreement with the Company without first submitting it to them, discussed their situation with CIO representatives and requested that union to organize the plant. The prime movers in this venture, employees Steffes and Gould, AFL steward and committeeman, respectively, became active in the CIO membership drive, which began in the latter part of May. To this end, with the consent of their immediate supervisor, these men absented themselves from work on May 24 and 25, to solicit employees to join CIO. On Saturday, May 26, they reported for work, but, after spending an hour and twenty minutes at the plant, sought and obtained leave to take the remainder of the day off. When they reported for work on May 28, they were discharged.
On the same day, CIO notified the employer that it represented "an overwhelming majority" of the employees and, on May 31, it filed a petition for certification. On June 6, the Company and AFL consented that an election be held on June 18, and the Company posted a statement of neutrality. A tug of war then ensued between CIO and AFL in their struggle to win the election. Despite its protestation of neutrality, the Company, practically from the outset, sided openly with AFL, championing the cause of that union and attempting to defeat CIO. Thus, Company Vice-President Werner testified that he attempted "to enlist AFL help so they could beat the CIO." Meanwhile, on June 4, Don McMahon and his brother Roy were discharged, and a realignment of the Company's 55 men night shift was effectuated whereby 22 night employees were discharged and 18 transferred to the day shift. Both actions were approved by AFL.
On June 14 CIO filed its amended charge before the Board that the company had acted discriminatorily in discharging Gould, Steffes, the McMahons and the 22 night shift employees. It also filed a waiver of its right to object to the result of the election, because of the pendency of the charges.
AFL organizer Modell testified at the hearing that having become convinced that AFL was in danger of losing the election he asked Vice-President Werner in June to try to
"have it held up for a bit". "I said * * * it was my opinion that * * * where an election was agreed to * * * any unfair labor charges would be dropped. He says to me, 'That was my opinion too.' * * * 'What can I do about it?' I says, 'Well, I don't know, but I suggest you do something about it.'"
Modell said further that he "was anxious * * * to stop the election", but didn't recall whether he suggested that the employer withdraw its consent. Werner testified that he talked to an AFL official, probably Modell, between the 6th and 15th of June, concerning the possibility of AFL winning the election but could not recall what was said. At any rate, on June 15, the Company withdrew its consent to the election. Werner testified that he called the Board's regional office and explained that the Company had consented to the election on the mistaken premise that the unfair practice charges had been withdrawn rather than waived merely for the purposes of the election.
Shortly thereafter, on June 20, the CIO adherents voted to strike and formed a picket line at the plant. AFL promptly notified the strikers that their action was unauthorized and directed them to return to work. On June 22, the Company notified many of the strikers that their employment was terminated, asserting that their action amounted to a breach of the no-strike clause of the contract.
On June 26 the Board conducted a representation hearing. That evening the CIO supporters voted to terminate the strike. The walkout ended the next day and the strikers offered to return to work. Some were reinstated; some were not. Three of those reinstated subsequently quit when the Company insisted they fill out new applications and start new, with loss of seniority rights.
No further contract negotiations occurred. The Company continued to deal with AFL as bargaining agent under the terms of the 1950 agreement until January 1952, when the Temporary Committee was established as interim bargaining agent. In February or early March 1952, at a meeting called by the Temporary Committee, the employees voted to organize a new union, as a result of which Independent came into being.From then on, until as late as May 13, 1952, the Company dealt with Independent concerning grievances and working conditions.
On July 13, 1951, CIO filed further specifications of charges, including a claim of statutory violations on the part of the company by interfering with the employees' right to choose their own bargaining agent, and another against AFL charging interference with employees in their choice of a bargaining agent. Pursuant to an order consolidating the charges, a complaint was filed an March 11, 1952, averring in substance that: the company had engaged in unfair labor practices in violation of Sections 8(a)(1), (2), and (3) of the Act, 29 U.S.C.A. §§ 158(a)(1), (2), (3), by: (a) a continuous course of conduct by which it assisted and dominated AFL, and, subsequently, the Temporary Committee; (b) discriminatorily discharging Gould, Steffes, the McMahons, Smejkel and the 22 night shift employees; (c) discriminatorily discharging 66 employees who had participated in the strike and constructively discharging four named employees; and (d) engaging in other specified acts of interference with and coercion of its employees in their right to select a bargaining agent. On April 29, 1952, the trial examiner permitted an amendment adding the Independent as a respondent and averring that the Company had unlawfully assisted and dominated it. The complaint further charged that AFL had engaged in unfair labor practices in violation of §§ 8(b)(1)(A) and (2), 29 U.S.C.A. §§ 158(b)(1)(A), (2), by: (a) attempting to cause the Company to discharge discriminatorily Don and Roy McMahon, and (b) pursuing a course of conduct tending to interfere with and coerce employees in their choice of bargaining agent.
On November 6, 1952, the examiner filed his report suggesting an order sustaining the complaint except as to the charge that the company had wrongfully discharged the ten men mentioned in CIO's petition in Cause No. 11141. On April 28, 1953, the Board entered its decision adopting the examiner's findings and entering an order accordingly. As to the ten employees involved in Cause No. 11141, the Board concluded that the Company discharged one of them, Smejkel, solely because of misconduct, and that there was no evidence in the record that the remaining nine, discharged at the time of the strike, were discharged for CIO participation or that they ever sought or were refused reinstatement.
The Company was ordered to reinstate, with back pay, Gould, Steffes, the McMahons, the twenty-two night shift employees, fifty-seven unfair labor practice strikers and three men which the Board found to have been constructively discharged after their reinstatement following the strike. AFL was ordered, inter alia, to notify the Company that it had no objection to the reinstatement of the McMahons and to make the McMahons whole.
Validity of the Order Against AFL
Although counsel for AFL filed an appearance, no answer or brief was offered and no representative appeared on its behalf on oral argument before us. A question as to the effect of this status having been raised by the Court at the hearing, subsequent to oral argument, on December 9, a letter from counsel was lodged with the clerk, without objection, advancing the postulate that the position of AFL is the same as that of the Company and that it adopts the brief and argument of the latter.Two theories are advanced for this position, namely, that the rights and duties of the Company and AFL under the collective bargaining agreement of July 1, 1950 are correlative, or, in the alternative, that the liability ex delicto of AFL depends upon the culpability of the Company, and that, a judgment relative to the Company should control disposition as to AFL. These theories, unfortunately, are not applicable. The unfair labor practices charged against the respective respondents do not grow out of interpretation or application of the contract. The only possible question before us relative to the agreement is whether the acts charged may be justified as legitimate action by respondents in the protection of their respective contract rights. Since the acts of the employer and those of AFL were those of separate entities effectuated by the agency of their respective officers and representatives, there can be no correlation or inter-dependence in the separate acts of the two respondents.
The tort aspect of AFL's position is equally untenable. The consolidated complaint charged that various activities of the Company and its supervisory personnel were unfair practices. Two separate courses of activity were specified against AFL, namely, coercion of employees by its chief steward and its contribution to the employer's discharge of the McMahons. The Board sustained both charges. The first is in no sense derivative, while the latter is only partly so. The Board found that an officer of the AFL attempted to cause and did cause the Company to discharge the McMahons discriminatorily. Even if we should set aside the finding that the discharge was in fact discriminatory, the finding that AFL caused the discriminatory discharge, being derivative, would fall, but the finding of an attempt would still remain, and it is, of itself, a violation of Section 8(b)(2).
A petition for enforcement of an order is a special statutory proceeding in which the Court alone may make the order coercively effective. NLRB v. Ford Motor Co., 119 F.2d 326 (CA-5). It is a combination of an appeal from the order and an original proceeding to enforce it.NLRB v. Kellburn Mfg. Co., Inc., 149 F.2d 686 (CA-2). In one sense, our function is that of a court reviewing the record to determine whether the findings are sustained by the evidence; there the burden is on the respondent to show want of substantial support. In another sense, our function is that of exercise of original jurisdiction, to determine whether and to what extent the order should be enforced or set aside. NLRB v. Kellburn Mfg. Co., Inc., supra. In the latter situation the Board appears as a litigant, who must sustain the burden of showing its right to enforcement, NLRB v. Ford Motor Co., supra; See Magnolia Petroleum Co. v. NLRB, 112 F.2d 545 (CA-5), i.e., that the order is supported by the findings and is in compliance with the statute. NLRB v. Kellburn Mfg. Co., Inc., supra.
AFL, having failed to answer the petition or otherwise defend is a party in default. This situation is the same as that in the Kellburn case, supra, in which the employer failed to defend an enforcement proceeding. We agree with the view therein expressed, that the defaulting respondent must be held to have confessed the allegations of the petition, insofar as they relate to the appeal phase of the proceedings, i.e., the substantial evidence question, and that our only function, therefore, is to examine the findings to see whether they support the order and whether the order complies with the statute, issues on which the Board bears the burden of proof. We conclude as a matter of law that the Board has sustained the burden on each issue and that the order is amply supported by the findings of coercion and of the attempt to cause the Company to discharge discriminately the McMahon brothers. Judgment for enforcement will be entered against the AFL.
Validity of the Order Against the Company
Ultimately, whether enforcement is to be decreed depends primarily on whether the findings are supported by substantial evidence "when viewed in the light that the record in its entirety furnishes." Universal Camera Corp. v. NLRB, 340 U.S. 474, 488. The controversy here involves the sufficiency of the evidence to support the findings of fact as to: (a) Acts of discrimination prior to the strike said to violate Section 8(a)(1) and (3); (b) Acts of support and domination of unions as violative of Section 8(a)(2); (c) Acts of interference and restraint of employees in their right to choose a collective bargaining agent as ...