*1 NATIONAL HAZEL-ATLAS v. GLASS CO. LABOR RELATIONS BOARD.
No. Appeals, Circuit Fourth
Circuit Court
Rehearing Denied *2 Congress Organization. of Industrial Un-
lawful instatement discrimination and re- employees among included the charges. Company, Hazel-Atlas Glass a West Vir- ginia corporation, operates glass owns and mining properties, plant, metal and glass manufacturing plants states, in various including glass container and tablewear decorating manufacturing Clarksburg, plant at Virginia. By larg- West far the est the raw material used and largest part products far the of the finished plant manufactured at this move in inter- employed In state commerce. 1937it about 1,800workmen. prior During the decade efforts were the American made Flint Glass America, Workers’ Union of North an affili- L., ate of the “Flints”, A. F. called herein organize plant; strong opposition was met from the the efforts met success. In Feb- with little March, 1937, ruary and the Federation of Workers, Flat Glass an affiliate the C. I. “Flats”, O. herein began called the activi- organize ties employees, some and there- invited the Bottle Glass Blowers Association of the United States Canada, L., an affiliate of the A. F. of organize come plant soon possible. The result plant was that completely organized, Flints, soon during had renewed their efforts period, were superior conceded to have Guiher, Clarksburg, M. W. Va. jurisdictional James claims and therefore were Steptoe Johnson, (Oscar Andre and & represent J. chosen employees. Va., brief), Clarksburg, on all of W. April superintend- plant petitioner. ent confirmed writing the verbal under- Appel, Attorney, Leonard National Labor standing recognized that the Flints were Board, Washington, Relations D. C. representative the sole bargaining of all Watts, Counsel, (Robert B. Gen. Ernest A. plant, at Flint Gross, Counsel, Associate Gen. P. Gerhard recognition that this officialsconcluded car- VanArkle, Counsel, Gen. Asst. David Find- ried with it the closed shop and the check- Farmer, Attys., ling, Margaret M. Na- off dues. The check-off actu- of union Board, tional Labor Relations all of Wash- ally put May or into effect on about ington, C., the brief), respondent. D. on July principle on PARKER, SOPER, DOBIE, Before shop recognized after notice closed Judges. Circuit received the Flints that their mem- bers would men tion. work unless all work- SOPER, Judge. Circuit compelled join organiza- of violation of the National Act, Labor Relations seq., brought against meantime, 14, U.S.C.A. 151 et In the § June recognition requested ground Flats grow unusual case out employer’s they represented en- a majority that ployees, em- couragement organization of a labor affili- were informed the man- ated with American plant Federation agement of Labor shop had a closed Flints; unionize agreement to forestall and thereafter the efforts that end of an affiliate of the present the Flats were inactive did not
Ill m to men meetings three attended representation until any claim all, agree- shop which selections closed Because of the respect to these I. O. retained. With Atkinson, of the C. ment, president discharged meetings the Board found: Local, worker and another *3 dis- 22, worker was 1937, third July and a Day in New Year’s “Shortly after Janu- 9, Thereafter August charged on ary 1938, meeting of the Nelson a called mem- weekly meetings and the solicitation department and production foremen in the abandoned; only and by the Flats were bers force they to cut the them would have told men a meetings dozen a of less few boys 45 men for each of down to private homes. occasionally held at were of the gave a list shifts. He each foreman shifts, respective on the basis men on their recogni- 20, following 1937, May On be they the men to which were to select Flints, representatives par- tion of retained. said laid and those to He off be in Clarks- bargaining conference ties held a efficiency length to and of service were previously en- burg, and ratified contract if making be considered the selections: the Flints and the Nation- into'between tered employees had the same efficien- apparently of Pressed of Manufacturers Association al cy, length gov- of service to then their govern work- to Blown Glassware and ern, length if the same had plant. Clarksburg This ers at the efficiency service, then was to be Island what known as Star contains copies determining factor. Nelson retained provides for detailed Agreement, which of the lists used the foremen on each of disputes settling without method shifts, except the four that on his there lists question subse- strike or walkout. Some director, personnel noted at agreed it quently arose as to whether was request, seniority hiring Nelson’s date and marital rules should at this conference that employee. each status of departments. The Board found govern parties agree use seniori- that the did not of the re- “Some more obvious decisions only selecting employees ty basis employees garding laid off or be retained purposes, promotions, lay-offs, or other meeting, at this were made selec- recog- seniority be merely that should completed. could not tions Nelson testi- an element to be considered nized as very fied: ‘It was difficult and it is hard other factors. lay men off. very Each foreman was re- So a then luctant.’ second and a third grow in this case out of meeting were held in the fore- employment work- termination certain might make men their determinations on the during 1937 1938and one workman men cases. pronounced borderline All foremen testified that A decline in business in 1939. job get it a hard down to final 45 Clarksburg became evident at 1937, Foreman September men. William Blackwell said: the middle of around place pretty ‘We came to where it year, laid of that 36 men were October list, cut get- hard to down the and we Department, familiarly Hot were off in the Metal is, ting boys, all about the same kind of as the “hot end”. None the com- known equal.’ same Presumably employees were off plainant laid at that time approximately equal ability these cases of junior although were of the some respondent allowed de- seniority were off and men who laid their union employees performed. termine selection previously to be activities off.” tained and laid January 19 and 225 men On were production There were records from end”, constituting in the “hot off about laid efficiency of the men individual entire force per de- cent determined, could be and the decision had to lay-off The reason for the partment. upon the judgment opinion based during the latter 1937 and supervisors foremen with whom the 1938,production early part of sub- decreased Complainants worked. Rogers, men Willi- stantially. hundred, Two who were laid Radcliffe, Reed, am Gaines Whytsell 1938, 19, belonged January what is off on among “boys” were the 200 who were laid “boys” group, given name known January off on perform comparatively unskilled adults Only labor. 181 of the were manual January On out 20 “Extra Nelson, department head, operators”1 retained. con- were off, laid including com- supervisors with the foremen and McClung, ferred plainants Guy Phares and Rad- expression operators” operators paid “extra ais skilled such, and were not paid misnomer. approximately Such but were cliff, day, “up- of 23 Again and on the same 9 out activities. in a let- June keep” or machinists subject skilled floor ter on the same plant super- to the off, intendent, including complainant Rogers complained laid Casto. of discrimi- be- selections were in conferences friendship nation on account of and rela- department tween the tionship, the head of the up failure to live supervisors personally agreement foremen or familiar seniority May work, enjoined with their and the test No mention was made writing in this ability, with efficiency the foremen was union discrimination. regard length due of service. employees, October acting lay-offs, After the entries Agreement, under the Star Island ten filed writ- upon the department made personnel the head of the protests against *4 the indicating the men sheets of Annual Conference of Union and the Joint lay-off date of the and the the the National Association. A committee of made were not These entries were retained. 5, complainants including Rogers, W. Rad- time, not from but were notes taken at the cliffe, Reed, appointed Radcliff G. and completed months after two or until three protests. prepare the protestants in- The the occurrence. “boys” group the men in the and the cluded group 1938, operators” in the “extra 25, men men January number of the On complainants protests are in this The representatives case. appeared the laid off before discrimination, no mention made but were based of union in order and of the Union the upon alleged complaint failure in accordance with lodge to procedure company seniority rights. consider Island prescribed in the Star including Agreement. appeared, Those who charge first Board The before the Labor Gaines, complainants Rogers did not and 25, It Rogers April was filed on 1938. complain discriminated to before was subscribed and sworn activities, against because of union in formal field examiner and was couched protests per- grounds on such as were based the sections language giving reference to favoritism, to observe seniori- sonal failure alleged Labor Relations Act of the National ty, February Rogers &c. On com- contained to have been violated. It plained writing of the to the President others, employ- amongst charges, company many cases foremen in men, complainants including the ment of 14 by bringing in rela- made tionship selections unfair Radcliffe, Whytsell Rogers, Gaines, and W. choosing friendship the men and unlawfully terminated because of had been their half of the had refused to of be retained. membership on be- sincere active 15, 1938, 84 of Flints, March On or about 1938 were rehired January reemploy them in violation men laid off production department in “boys” in the agreement seniority to abide rules. rehired noteworthy complainant All of the men the “hot end”. It is when off, complaints preferred unassisted, selected those who laid written taken on. new men It is union activi- and no mention of discrimination of selec- of the contention was made. ties the foremen from tions were complaint by the Board The formal issued qualified for the work at hand. men best or against employer was on about filed 30, 1938,Rogers and other February 17, em- In addition to unlawful 1938, January waited ployees .in in the selec- laid off interference with Carnahan, prominent bargaining representative, official of the com- a com- of their tion lodge Wheeling, charged pany complaint employment Rogers in order the termination of 1938, 19, regard January to the retirements rein- on plaint in 22, statements, 1938, complaint January was made that on but no of G. Radcliff union reinstate had been occasioned all times thereafter to refusal at “boys” wages required. from which class foremen was classification same helpers lay- shortly after were selected to act as was discontinued them, foremen, run errands off in The Board concluded that operators” required of some of the details of the “extra more skill them relieve opera- “boys”; of “extra but evidence of sub- The class their work. superiority lacking, pay- stantial while into existence new ma- came tors” “boys” operators wages chinery like indicates which the ment of equal operators” and “extra were of val- introduced and addi- familiar was company. supervision ue to the on tional
U3 case, in and the membership remaining issues of their them because Flints. forthwith. proceed should hearing on behalf militant activities employ- charged that the it was In addition 11, 1940, under At the election on June Thomas employment of er terminated Board, supervision Flints re- employment April Berry on There- ceived the Flats votes. 830 and Gaines, on and Radcliff Whytsell, Reed Jan- the re- hearing proceeded after as to 1938, employment uary 19, and the maining charges. Phares, McClung Casto Board rendered decision all times thereafter 193S, refusal at Board, August Therein the employees because to reinstate these the em- dissenting, member ordered one behalf membership in activities on ployer and desist from: to cease the Flats. membership in the Discouraging “(a) operator but Berry experienced Workers Union Flint Glass American “boys” to do on given work Locals 54 and America and North of business. on account of lack 565, 566, 567, 568, Branches thereof and branch of chairman of the thereof, and the Federation and 580 employment as a Berry’s protested Hazel-Atlas Local Flat Glass Workers therefore “boy” employment thereof, organization or other *5 subsequently he and was terminated off, discharging, by employees, laying of its so oc- opportunity to do instated an any employees refusing or to reinstate of its con- question to be hereinafter curred. The in, membership or in because of he refused sidered as to him whether organiza- any labor connection with such union activities reinstatement on account of tion, by discriminating any in man- or other by the of the Flats as found on behalf of em- regard in or tenure ner to their hire because, Board, by the com- contended or as ployment of their any or or condition term employment was pany, after his failed he employment; report from terminated to to his foreman any interfering “(b) other manner In rule to the time time accordance with employees with, restraining, coercing or its plant. of the right self-organiza- to in the exercise of the hearing During the course of the another form, organiza- tion, join, to or assist charge complaint by the was added to the repre- tions, bargain collectively through to paragraph insertion the alleging of a dis- choosing, and to en- sentatives of own 12,1939, criminatory discharge on December purpose for gage in the concerted activities Carder, foreman, Harry under cir- E. bargaining other mutual aid or collective to be hereinafter cumstances set out. protection, guaranteed 7 of or as Section Act.” complaint by the hearings The on the issued began April the Board and end- on employer also ordered to offer May 31, April stip- ed 1940. On “boys” Rogers, reinstatement to the Rad-W. by employer, ulation was Flints filed the diffe, Reed, Whytsell, Gaines and and to the Flats, approval of the and with operators” McClung, and “extra Phares G. Board, an election should conducted be Radcliff, upkeep 'Casto, to man and on supervision under of the Board Carder; Berry also to to foreman the em- ascertain whether any to make them whole for loss-of each of June represented by the ployees desired be pay might by he have suffered reason of the Flats, meantime, Flints that in the or the against him. discrimination company the contract between dissenting member stated that no. suspended. Flints should was further It purpose by ordering was served good organization agreed ob- that if either labor respondent cease desist from discour majority, company rec- tained a would membership in the aging Flints which had ognize bargaining rep- it as an exclusive shop contract, or from order a valid closed employees; of the also that resentative discrimination, employer ing the to cease stipulation complete should be a Flats, when the re final settlement of all of violation discrimination; quired it such and that was. alleged of the Labor Act to have been com- pretend reinstate members futile of company mitted by either the or the Flints the face of the contract. the Flats in them, respect to the contract between provided stipulation should not actions en objecting membership used a basis for couraging testi- Flints and dis mony couraging competent otherwise membership and material in the Flats consti- (2) Berry joined 8(1) tuted of Section the Flats on violations Act; little open have and became partisan these violations and active stipulation the significance reason of solicitation members during now the con- Board, approved by the test between persisted rival unions that throughout election the April. a result of the the month of under which as He testified wqrk reported between that he validity bargaining contract several occa- established. sions after lay-off, the Flints was his company and not allowed portion 1(a) go plant into Nevertheless that Section as the watchman had out; employ- keep orders the Board’s order which directs him his and that after discouraging pulled, card was desist er to was told cease he superintendent may some membership production in the Flats have and also manager bringing home to value in action was taken because remains— job still that their freedom choice understood that he secured a organizer by the as not restricted C. least insofar it is I. O. As a mat- hand, other ter fact shop agreement. closed had not paid served as a organizer find- there is no foundation in the Board’s the union. There also for that evidence that in ings conclusions of law two of fact or instances a member of the C. I. part 1(a) of which di- O. the order Section cautioned his fore- desist from man rects the to cease and activities behalf of I. the C. might lead, membership O. Berry’s, Flints. The discouraging like to a loss of his position. such mis- guilty never been When has it is considered conduct, effort, we occurred during period for its whole have of active seen, directly controversy contrary. unions, For these between appears 1(a) reasons of Section circumstances related constituted omitted, modified, sufficient basis must be and as so the Board’s action in Ber- ry’s case. Section 1 order will be affirmed. *6 But when we come to that consider think, also, that there was suf We part of Section of the Board’s order which portion support to of ficient evidence employer directs the to offer reinstatement Section 2 of which di the Board’s order operators” to the five and four “extra rects the to reinstatement to offer compensate any pay them for loss of Berry Thomas him whole for make suffered, they may have we great have dif pay by by loss of suffered him reason of ficulty in finding a sufficient basis of fact position. Berry of a the loss was not support to ruling. drawn, the The issue group member of the laid off in 1938. He seen, we have is whether these men lost plant April 12, the last worked positions their because of union activities years’ experience He had had several as a or because by deemed em the operator”, “boy”, “extra floor machinist ployer to be of less value to the business than operator. During days the last few of his the workmen selected retention when employment “boy” was working he as a but decline in business a reduction necessitated protest upon off on laid of the force. proof The burden ofwas “Boys” the Chairman of the Branch of the upon complainants, course and the case Berry Local Union the A. F. of L. that these as to men appears must fall if it operator. primarily an It then became was no there substantial evidence of unlaw Berry’s duty plant under the rule of discrimination, ful findings and that the report daily to his foreman for work if he Board upon rests reinstatement; desired ployer otherwise the em nothing speculation more solid or con free, lapse would feel after the of a jecture. month, pull his card from rack of em ployees employment at an consider There was direct no evidence that Carder, foreman, Berry’s end. complainants discharged for union Berry testified that did not conform to the All the activities. direct evidence was to part May rule. In the latter pay contrary; the Board reached its Berry’s master noticed not name had by rejecting conclusions direct evidence payroll pay been on two consecutive certain drawing as false inferences days, inquiry upon Carder stated that from the evidence that remained. It is the Berry quit. understood sufficiency had Ac latter evidence that must cordingly pulled his card was May considered, it is now be obvious that the rejection employer’s mere denials say place of affirmative safe was not perjury not take does discussed, we doing. the outset made in wrong At mention it was evidence of 'Carder, striking, unu- testimony Harry E. wit- with certain are confronted all of entire facts, ness whom the Board rests undisputed common its sual complainants. very show case as to Carder at- cases, far these go nine meetings capacity motive tended the of fore- unlawful complete absence ; good attributes man and he was then on terms with Board inference which the management, discharge did as his employer. place nearly take until December realized that it must be First of all years three later. original attitude employer’s hostile made in When the reinstatements were abandoned. toward labor unions March, 1938, department the head a reluctant employer was It is true that convert, again instructed the foremen to make the A. eager invitation its efficiency seni- selections on the basis of due plant was organize the F. of L. to ority. O.; the trans of the C. I. abhorrence complete and no place formation was nevertheless lay-offs discussion took under The finally fully and Septem- more previously business could January, plant has since been October, than its laid unionized 36 men had been ber and spring pronounced decline in of a off them were senior business. Some of unionization was the only Not latter complainants, but none of the nine intrusion of all fear of the complete, but although the union positions lost their lay-offs in C. O. had vanished I. activities, cause held the Board to reinstatements and the discharge, subsequent had taken of their Every workman was then place. 1938 took place have of 1937. It would spring F. L. A necessity member of the A. easy an matter for the shop recognizing the closed get have this chance to rid them. seized signed. C. I. O. had check-off had been field; only handful retired from the complaint in its Board private meeting in occasional discharged be- Rogers and G. Radcliff unknown, so as the evidence far houses membership cause of in and militant I. in fact employer. C. O. shows, to the Rogers activities on behalf of the Flints. recognition *7 presented further claim cooperated vigorously employ- with his had 1940, 6, after the seven weeks until establishing er in this of A. F. affiliate the complaint Board of filing of the formal the plant; of L. in the and G. Radcliff was employer’s on be- the activities stigmatizing 88, Local No. which President the Flints unlawful; and in A. F. of L. as half of the operators”. why the included “extra Just 11, subsequently on election held the June management, gone the which had itself auspices 1940, of the Board the under the L., great lengths A. on of the behalf F. hopelessly outvoted. C. I. O. was by have been offended the should activities men is that the these two not clear. Had there retirements and It is admitted suspect by been reason to that in 1938 their reinstatements were caused dis- curbing vigorous aimed were too changes in business conditions. It is also 1938, union, efforts on of the January, in when behalf the Board admitted that the lay-offs suggests, the resentment of the place took the union would first of these un- inevitably supposed and it to have been aroused would lawful discrimination have immediately. begun, department the into action gone Nothing the head of af- have been occurred; contrary, together foremen sort on the called his and in- of this fected Flints, governed by president who died them to be considera- national structed hearing, efficiency seniority selecting shortly in wrote to the before tions 13, retained Board on Pittsburg 45 men to be out of each of the office June meetings, by 1938, Three men had been four shifts. attended that no dismissed foremen, 20 January were held because at which union much discussion of the that reduction of the force there was relative activities and men; keeping agree- of the and the selections of the with the conference merits may difficulty off were made with added that the most men to be laid It be active ment. membership Flints, If Branch and reluctance. or officers activity “boys”, had taken into of the were consideration at included all Leon- John Harry Summers, meetings, ard, some these evidence its influ- Cecil Johnson transpired; necessarily have laid off. The seven they ence would but never remain- e., W. opportunity i. groups, get 1938to rid them. complainants in these ing McClung, Whytsell, Reed, Gaines, rejects testimony Board Radcliffe, of numerous Flats; Casto, none work foremen familiar of these Phares and through organiza- supervision men prominent figure in the immediate them was a fact that effect is the that their were not as satis- great significance services tion. Of factory suspected off that re- as those of the men who were nine men laid none of the hostility company’s ; accepts influenced tained qualification without either union had seen, selections, testimony Carder, op- have as we had for much who less persons portunity divers complaints by them filed observation than the immedi- 1938, 9, 25, 1938, February ate foremen, to on that most of effect 1938, 29, and October 9 quite as efficient as men of less June what- no mention 1938,respectively, seniority made kept jobs. who charged fa- subject only this soever of ample There room for dif- course seniority to observe voritism or failure opinion or favoritism ference or mistake rights. circumstances, or other irrelevant in- to this support find- quiry, endeavors to affecting The Board judgment of foremen 9 men ings of the by pointing to activities who jected But the selections. Board the unions conflict during between possibilities these con- as to efforts on part first testimony foremen demned concerted and management dissuade men part of attempt perjured to conceal example, assisting O. For I. from there C. unlawful discrimination of their on Reed, Radcliffe, evidence that W. employer. sweeping One reason McClung, Gaines, Whytsell, Phares and finding conclusion was the of the Board outspoken on behalf Casto were active given that certain of the foremen false Flats; fight engaged in a Phares testimony respects in other denied promise to employee broke who with an had endeavored influence between, Flats; join solicited that Gaines men in during the course of con- join organization, men to flict between the rival unions. But as marked with the shirt was men, Reed’s each testimony of the 9 like of inef- recognition of jocular I. ficiency initials “C. O.” was given other foremen who did advocacy. evidence his There was also participate in these denials and who were by his McClung was warned foreman way in no example, Rog- discredited. For I. O. several occasions C. ers’ relative inefficiency was vouched job, loss of part would lead to the his witnesses, his such by 2, Reed’s Gaines’ if the C. I. O. 3, would McClung’s and that the close by &c. it; that Phares organizing succeeded given by Another Board foreman that had better warned careful or he rejecting testimony of all these men was fired; that Casto re- would Carder, expressed a more favora- warnings foreman similar from his ceived *8 opinion efficiency ble as to the of the com- production manager that the and was told plainants, was disinterested witness. a caught every that one with a had directed was, however, support There to evidence discharged, would be and that C. I. O. card finding impartiality part. on Carder’s reinstatement, requested his fore- when he contrary, complainant On the self, charging he was a him- warnings; him man reminded of these deprived that he had been by his foreman that the C. Reed warned was position participated his because he in a going jobs; “boys” were to lose I. O. employees December, strike of certain Whytsell’s foreman declared that and he manifestly it was his interest for the I. O. testi- too much C. was show that his had been guilty of vigorous activity mony also on the indicated other infractions of the National Labor Re- Rogers, part adherent of the first an But be lations Act. the if it even conceded that Flats, later on behalf Flints and preference of the Board for Carder’s constantly Radcliff was that G. involved opinion efficiency men’s must be ac- officials, company’s with the difficulties on one occasion and cepted province as within the triers cooperated in a short strike fact, it does not follow that the Board’s ul- without notice to which was called the com- justified; timate conclusions were for there pany. lacking proof was still affirmative that the positions by complainants this evidence the conclusion is From loss of was objectionable the 9 men drawn that were due to their' rather than company part and that it therefore on the seized the favoritism of the foremen based L.Ed. com- U.S. relationship, S.Ct. friendship or In charged. repeatedly themselves plainants do opinion in our short, the circumstances employee included Sec- remaining un- evidence substantial Harry not constitute E. tion 2 of the Board’s nine com- against the discrimination lawful an out of complaint grows Carder whose March, Un- plainants occurrence on December operators interfer- unlawful doubtedly had been there “illegal” strike because went on exercise of workmen in ence they clean machines as were directed to part early in the organization right to self contrary part was of their duties. The strike evidence, illegality, the and to Agree- provision to a Star Island made, just has to which reference any disagreement ment between controversy be- But the entirely pertinent. settled management men should be and the lay-offs over when tween the unions not, sub- factory, at the if it should early were reinstatements representing joint mitted to a committee company year. The following part workers, company and mean- and the it its desire completely realized while, had then go on. Since the the work should men from select these had no the rest for harsh and agreement, strike was a violation In unjust treatment. operators quickly to work ordered back gave emergency that view of the union; business the national officers em- number of rise to reduction They December returned foremen ployees, to the the instructions back on the allowed to come condition efficien- on the score make their selections keep reason- their machines would any men- cy seniority, the absence ably clean. meetings of of union activities tion company But to reinstate refused foremen, suspicion on the or of occurred, very Carder. a When strike prac- of unfair labor of the men themselves important production order was in tices, furnishes think that the evidence we superintendent asked other Carder two nothing than more substantial basis help operate foremen to out and the ma- despite company, suspicion merest job. chines so as to finish the The two oth- be- satisfactory ending the conflict agreed er foremen but Carder refused. He unions, giving vent in 1938to tween the petitioner having labor said that as the complainants a resentment trouble, there. he could He also not work nursing year.2 it had been a promised he said that when was years taken on before that he would not have evidence is more than a a “Substantial operate held a machine. The Board scintilla, and must more create do company’s him was refusal reinstate suspicion of the existence of the fact to sympathy by Carder’s for and occasioned assistance rendered the strikers ‘It evi established. means such relevant through his accept might dence as a reasonable adequate mind own refusal to work. support Consoli conclusion/ foreman,, dated Edison v. National Rela Co. Labor As he was a Carder was Board, supra, union; 197,page 229], tions U.S. but he was none not member [305 [206], 126], L.Ed. protection S.Ct. to the [83 less entitled act enough justify, if employment must be trial if the termination of jury, to a refusal to practice designed direct verdict when occasioned unfair sought from it conclusion to be drawn to interfere with the in the exer *9 jury.” is of for the La rights guaranteed one fact National cise them the Co., bor Relations Board v. Columbian 306 statute, right terms of the such as 2 The Board’s of treatment Oasto’s ease of his union account The activities. peculiarity points a has own. Oasto out Board that Oasto was senior was one of the floor 9 machinists out a to a number of the who such total laid off that he hired contends was a January 19, workman, was This action was ad- skilled he entitled to the mittedly proper junior preference. since he answer was obvious is that group except group equal all the inmen one 7 other men in his had who skill greater seniority. was not rehired on March and guishable Oasto 1938. On was distin- only great- that date hack. one the 9 them if was from at all his taken union; remaining Of er service to the but were senior the statute to Casto. Nevertheless the Board forbids discrimination held this account ei- that was refused for or a ther worker. reinstatement on pur that, engage ment It activities Carder. is said Car- in concerted since La pose National der’s bargaining. of collective refusal to work because of the ex- was Kennedy strike, & v. Skinner bor Relations Board istence fur- that refusal cannot 671; 667, 668, Co., Cir., Stationery discharge, 113F.2d nish the basis a lawful even Smelting v. Eagle-Picher Co. Mining & though company may have felt that Board, Cir., 119 National Relations Labor guilty disloyal Carder was conduct employ instance F.2d this refusing In may discharged to work and have to take the legal compulsion er was under no says: petition him for that reason. The violated the strikers since had back appears “The court to have announced when their agreement; governing that, Act, may view employer under the an overlooked, and was decided breach was discharge or refuse an em- reinstate them, to even entitled to reinstate ployee engages who partici- in a strike or treatment, exclusion of and the handed pates in pur- other concerted activities by the stat them for reasons condemned poses if, bargaining, collective in the em- prac have an unfair ute would been view, ployer’s employee’s activity in this v. Board tice. National Labor Relations regard duty constitutes a breach of Co., Mackay Telegraph 304 U.S. Radio & loyalty owing to the under the 82 L.Ed. S.Ct. employment, circumstances his and if purpose employer’s motivates the con- same safeguarded by Carder was duct.” substantial rule. Was there beneficent It was not our intention to illegal an make to show that tending evidence think, however, such a holding. We in refus- purpose actuated his certain language in the last paragraph circum- under the ing reinstatement him opinion discussing discharge em- not. The Car think stances We described? account, may, der is too discourage men broad and on that ployer had no need to subject misinterpretation, had That in such strike. engaging its therefore by the itself in the basis which the already done union dis condemning charge strike peremptory justified Carder was should be operators If to work. the com- restated. The ordering the men back strike of the six strikes, discourage pany’s purpose illegal was to and would have constituted suf easily justification more have been accom- discharge. ficient could Na reemployment plished by refusing to the Mfg. tional Labor Relations Board v. Sands rather Co., had broken who 306 U.S. 59 S.Ct. 83 L. merely by excluding the justified man had discharge Ed. 682. Carder’s undispu- hands off assumed attitude. ground, certainly on this if the dis good was a reason for table fact is there operators charge illegal who have struck discriminating and the between Carder strik- ly, justified, discharge is of one who organiza- ers that relation union refuses work because the is on is strike bargaining. tion or collective dis- Carder’s operators justified. also were subse help employer in loyalty refusing quently allowed to return to work after a willing emergency in contrast with the conference between company equal his brother foremen of assistance of officials; nothing in the there standing, anwas all sufficient for his agreement that resulted reinstatement discharge. To cast established fact operators required the rein conjecture hazard aside and to Carder, company statement of actuated an unlawful mo- obligation under no him. reinstate Na tive, merely indulge speculation in a Mfg. Labor Relations Board v. Sands tional legal furnishes no basis for the Board’s Co., supra. company It is true that order. lawfully anything do connec could A will be issued directing decree tion the reinstatement of strikers the en- right forcement of the Board’s order discourage collective bar after modi- opinion. Act, to conform with this gaining guaranteed by fication National *10 Mackay Relations Board v. Radio Labor 333, 346, Co., 58 S.Ct. 304 U.S. L.Ed. Rehearing. Petition for 1381; pending case, but in the there was PER CURIAM. clearly no unlawful discrimination after a petition rehearing complains for A of the lawful strike on account respect por- Mackay court with In the there was case. action unlawful, relating case strike was pending of the order to the
tion reinstate- were members men who were taken back union, employee refused while the It can- a union man. instatement was not employer is forbidden be that an discharge aids an unlawful a foreman who obey lawful orders by refusing to strike strike master because progress. rehearing for denied. Petition CO. MACHINE
WHITE KARL KIEFER v.
No. Eighth Appeals, Circuit
Circuit Court of
April 10, 1942. Tobin, Louis, Mo., St. Edward W.
appellant. Louis, (Wil- Husch, Peter H. of St. Mo. Salkey Jones, bur all of St. B. & Jones Louis, Mo., appellee. brief), JOHNSEN, Cir- Before THOMAS and REEVES, Judge. Judges, cuit District REEVES, Judge. District question in this case is decision whether the seller in a conditional sales contract, Missouri, under the laws of has subject lien mat- enforceable The trial court so decided ter. bankruptcy appealed. trustee has controversy. no facts in There are Inc., Distillery, adjudi- Franklin Old bankrupt upon peti- voluntary cated a tion, filed Prior to November towit, that, it entered in- October ap- contract with to a conditional sales Company, pellee, Karl Kiefer Machine equipment to be used certain operation of its business. contract machinery $2,175.00. price for such was increased one hundred dollars This charges, aggre- for certain alteration $2,275. being Payments were gate amount price purchase beginning at made on delivery continuing there- the time of after until a balance of remained $962.50 equipment was delivered De- unpaid. The day on the same cember was filed for rec- conditional sales requirements compliance ord in