National Labor Relations Board v. Aintree Corp.

KERNER, Circuit Judge. Respondent is engaged in the manufacture, sale and distribution of men’s underwear and pajamas at its plant in Fairfield, Illinois. Upon charges filed by the International Ladies’ Garment Workers’ Union, affiliated with the American Fedeiation of Labor, the National Labor Relations Board issued its complaint against the respondent alleging that it had engaged in unfair labor practices within the meaning of § 8(1), (2) , and (3) of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. In substance the amended complaint alleged (a) that the respondent, by its officers, agents, and employees, urged and warned its employees to refrain from aiding, becoming, or remaining members of the International Ladies’ Garment Workers’ Union, interrogated its employees concerning their union membership and activities, made statements to its employees implying that they would not be benefited by joining the Union, and threatened to move its plant should its employees join the Union; (b) that the respondent dominated and interfered with the formation and administration of a labor organization of its employees known as “The Better Union”; and (c) that the respondent discharged and has refused to re-employ one Mina Hale because of her activities on behalf of the International Union. The Board found that the respondent, by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed them by § 7 of the National Labor Relations Act, 29 U.S.C.A. § 157, had engaged in unfair labor practices, had dominated and interfered with the formation and administration of The Better Union, and had discriminatorily discharged an employee in violation of § 8(1), (2), and (3) of the Act, 29 U.S.C.A. § 158. Upon these findings the Board ordered respondent to cease and desist from the unfair labor practices, directed respondent to reinstate with back pay the employee against whom it had discriminated, and to refrain from recognizing The Better Union. No jurisdictional issue is involved. The question we are asked to determine is whether the findings are sustained by substantial evidence. The evidence discloses that prior to September, 1940, no labor organization existed at the plant. About September 15, 1940, an organizer for the American Federation of Labor undertook the organization of respondent’s employees. He succeeded in . enrolling a number of the employees, and on November 7, they elected officers. After publicity had been given to the election of the officers of the International, Jesse R. Baker, respondent’s production manager, [471] approached Arline Potts, one of respondent’s employees and secretary of the International, and handed her a copy of the bulletin naming the union officers and informed her that the president of the International was a rotten operator and would be discharged if she did not improve; that personally he was not for the union; that all they wanted was dues; that they would not stand behind her, and as proof pointed to the case of a machinist who had been let down by a union while working at a garment factory at a nearby town. During the latter part of September, Baker approached Goldie Manlove, a production employee, while she was at work at her machine and inquired whether any of the union organizers had been around to see her. When informed that they had not, Baker told her they had had a union organizer “up before the Judge last night and they threatened to run him out of town”; that he didn’t see why the girls wanted a union, that all the union wanted was their dues each week, and that they would be no help to the girls whatever, adding, “all the union wanted was dues to buy big cars for big shots of the union to ride around in, and they were nothing but a bunch of racketeers.” On December 19, a group of respondent’s employees, including foreman Perry Musgrave and employee Clem Anthis, held a meeting to discuss ways and means of stopping the International. One of the witnesses testified, “we wanted to keep that one [International] out and we would rather have one of our own and keep our money here at home.” Another testified, “they would rather have this other union than the International Ladies Garment Workers Union.” December 26, Anthis arranged for the use of the City Hall for a meeting on December 27 and made an appointment with Attorney Brown. On the morning of December 27, after Anthis had secured permission from foreman Musgrave to leave the plant, he conferred with Brown, and it was decided that the formation of a rival organization was the most effective means of halting the International. About 100 of respondent’s employees, including foremen Musgrave and Humphrey and foreladies Shehorn and Schumacher, attended the meeting held at the City Hall. Anthis opened the meeting and introduced Brown, who explained that Anthis had asked him if there was anything they could do to stop the International. Brown suggested that a union of their own would serve the purpose. On January 3, 1941, The Better Union, claiming a majority of respondent’s employees, made a written demand that it be recognized as the collective bargaining representative. On December 27, before The Better Union was organized, Baker met several members of the International and said: “Listen, girls, I am not going to talk about the union tonight. I want you to know there is not a law in the land to keep this factory from moving out of town * * *. Look at the Flora plant that moved out of Flora on account of union activities and they never did move back * * * if we did have a union in this plant it could move, but it wouldn’t be through union activities.” On January 2, 1941, a local newspaper published an article describing The Better Union meetings. The article was headed “Combating Union at Campe [Aintree] Factory Here. More Than 100 Employees ‘Organize’ to Defeat Union Organization; Fear Factory Will Move.” The article explained the formation of T. B. U. as follows: “Knowing the history of the Aintree plant that they will not operate where unions are organized and observing obvious moves of the plant toward the closing of the factory here, the employees decided to meet and see what, if anything, could be done to stop the move of the unión organizers — thus protecting their jobs.” T. D. Leary, respondent’s general manager, sent copies of this article to Irving Flamberg,’ respondent’s president, in New York, who after a few days prepared a notice for posting on the plant’s bulletin board and sent copies thereof to the local newspapers, together with letters denying that respondent had made threats with regard to the future employment of Fair-field workers. Flamberg spoke to the entire supervisory staff and instructed them that he did not want them interfering and specifically that he did not want them to enter into any discussions in the plant concerning organization. Notwithstanding Flamberg’s instructions to the foremen and foreladies to refrain from interfering with the employees, the foremen and foreladies continued to attend meetings of The Better Union down to [472] and including meetings in 1941. Respondent’s view was, as Leary testified, that what the foremen and foreladies did outside of the plant was none of his business; that it was only in their department that Flam-berg’s instructions were applicable. Shortly after the meeting of December 19, Anthis, whose duties kept him in the cutting room most of the time, began to stay away from the cutting room. He frequently would leave the building altogether on occasions for as long as an hour, his visit to the office of Attorney Brown taking one hour and a half. During this period Anthis also visited Leary’s office with a frequency that had not been observed previously, and he was frequently seen sitting chatting with Leary. The point is made that respondent should not be held accountable for the activities of its supervisory employees. The Board found that Baker was acting on behalf of the respondent in opposing International. The general manager of the plant testified that Baker’s duties were to assist him in getting out the orders and regulating the plant; that Baker had authority to make recommendations as to who should be hired and discharged; and that these suggestions were followed by the general manager. The Board also found that foremen Musgrave and Humphrey and foreladies Shehorn and Schumacher were supervisory employees; that they gave their support to The Better Union; and that respondent was responsible for their actions. The Board found further that the presence of these employees at the organizational meeting of The Better Union — announced as a meeting to keep the International out — showed the employees that their immediate superiors, at least, approved the action taken at the meeting, and that their attendance at later meetings continued to throw the respondent’s support to The Better Union. We have already been told that foremen may be management representatives and their acts attributable to the employer, and that actual employer authority is not of controlling importance, Heinz Co. v. Labor Board, 311 U.S. 514, 520, 61 S.Ct. 320, 85 L.Ed. 309. Nor are ineligibility to union membership and the power to hire and discharge conditions precedent to employer responsibility for the acts of the supervisory employees, International Ass’n of Machinists v. Labor Board, 311 U.S. 72, 61 S.Ct. 83, 85 L.Ed. 50. There was testimony that the supervisory employees were in complete charge of their departments and directed the employees at work, and that Baker’s recommendations as to who should be hired and discharged were followed by the general manager. Under these facts, it is plain that respondent should be held accountable for the activities of these supervisory employees. The main question here is whether the Board was justified in its conclusions that the respondent’s conduct toward the International amounted to interference with its employees in the exercise of their rights under § 7 and whether the respondent dominated and interfered with the formation of The Better Union. Counsel for the respondent and The Better Union contend that the statements of Baker were no more than an expression of opinion in the course of friendly and casual conversation and may not be held coercive or to have interfered with or restrained the employees in their free choice. We are obliged to state again as we have so frequently said in this class of cases, that the Act vests in the Board, and not in the courts of review, the duty of appraising conflicting evidence, drawing inferences from established facts and circumstances, and resolving issues of fact. Our function is limited to determining whether there was substantial evidence to support the Board’s findings of fact. If there was, these findings cannot be disturbed on review. From this record, there can be no question but that the employees had just cause to believe that the respondent disapproved of an outside union, and while it is true that it was not necessary that the Board show that normally coercive conduct had its intended or desired effect, Labor Board v. Link-Belt Co., 311 U.S. 584, 61 S.Ct. 358, 85 L.Ed. 368, and Rapid Roller Co. v. National Labor. Relations Board, 7 Cir., 126 F.2d 452, 457, here it is clear that the words and deeds of the supervisory employees, for which we have already held respondent responsible, taken in their setting, were reasonably likely to have restrained the employees’ choice. Consequently, they are a proper basis for the conclusion that the respondent had interfered with its employees in the exercise of their rights and that it had dominated and interfered with the formation of The [473] Better Union. See Link-Belt case, supra, 311 U.S. 599, 61 S.Ct. 358, 85 L.Ed. 368. We have considered the testimony concerning the discharge of Mina Hale because of her activities on behalf of the International, and after such consideration, conclude that her discharge because of these activities on behalf of the International is supported by substantial evidence. Finally, respondent questions the legality of the order that it cease and desist from in any manner interfering with its employees in the exercise of their right to self-organization. We think, under the facts here appearing, the general injunctive order is proper. Labor Board v. Express Pub. Co., 312 U.S. 426, 61 S.Ct. 693, 85 L.Ed. 930; National Labor Relations Board v. Reynolds Wire Co., 7 Cir., 121 F.2d 627; and Rapid Roller Co., supra, 126 F.2d 461. The Board’s request for enforcement of its order is granted.