National Labor Relations Board v. National Casket Co.

992 677, below, injunction ment mere granted such cover- and it is unfortunate payments. procedure may back as as future limitations of have done so. well below, eliminating 56(a) cáse the United States Amendment .ruling of Rule 321, Co., D.C., F.Supp. Whiting remedy Milk 21 of restriction on valuable provide payments summary into judgment appears modified to writer to the court, market adminis- hereof highly rather than to be desirable in the interest then preventing protraction trator. That done in view of the of of litigation.2 contemplated Supreme appeal Court. to the clear, however, why plain- is not constitutionality Now has been deter- tiff suggest did of this diffi- avoidance mined and also Milk Administra- since the culty, steps not take the court did equaliza- tor retains sufficient funds in his appar- that end. For for answer the time pool repayment, tion should that to make ently expired the order be- the time at required, here is ever be a like modification made, low was could have court necessary. less proceeded on basis of a default once at discloses, The herein speedily of decision filed a formal course unless the defendant believe, summary I language in the new what its saying general defect answer rule, 56, judgment Rules of specifically. Rule Federal affidavits said following Procedure, 28 Civil U.S.C.A. I would affirm. ju rules many section Under the 723c. summary may judgment risdictions a defendant, plaintiff entered for either appropriate showing, soon as the as brought action is court or the defend appears. English ant Rules under the Ju 14, 15; Act, 3, 6, 14A, dicature O. r. O. 34; Conn.Pr.Bk.1934, 53, p. Ill.Rev.Stat. § Mass.Gen.Laws1932, 1939, 110, 181; c. § BOARD RELATIONS NATIONAL LABOR 231, 59B; 1938, 524, R.I.Gen.Laws c. c. § § CO., Inc. CASKET v. NATIONAL 1; but not Y. Rule of Civil Practice N. 8.No. 113; 1937, 129, 1 2:27-124 to N.J.Rev.Stat. 2:27-129, and Su 2:27-124 Appeals, N.J.S.A. Circuit. Second Circuit Court of 80, 2; preme Rule tit. Court N.J.S.A. 11, Dec. 1939. 1935, The Mich. Stat.Ann. 27.989. first published Rules so draft the Federal Draft, 1936, Preliminary May, provided. novelty pro 43(a). But the of the Rule many lawyers suggestions led cedure to scope, adopted, limiting its so that as may though a defendant move for such a time, plaintiff judgment or claim at may answering after an ant move (a)

pleading (b) filed. Subdivisions _ circumstances no Rule 56. Under the judg- barred a final reason of substance procedure power Supreme of the statute itself that re Court by quired by applies seems conceded section 2 amend the new rules all, one act provided disagreement for, namely, uniting has arisen as there hut some equity proceed rules, the law and and that to. whether the Court changes amendment, pursuant simple promulgation other he made are to enabling statute, simpler methods of section and of section 1 of delaying grants authority rule-making must follow cumbersome (trans 1309- that statute the Court. 45 Harv.L.Rev. course of section Attorney 10; 27; Pittsb.Leg.J. 8, and re Tenn.L. General mittal beginning 584, 585; Congress port Federal Prac Rev. 3 Moore’s him at the 3448-3452; regular change session, tice but see A. B. A. Pro with the re aof 179; ceedings I, p. Institutes, maining Vol. until the close non-effective after 675; II, p. ; session). 19, 1934, H.R. 227 24 A.B.A.J. Vol. Rep. ofAct June c. sueh Sess.(1938) Cong., 75th 3d No. Stat. U.S.C.A. §§ Hearings 723b, before Committee believed that the his It is 723c. §§ Judiciary Cong., legislation supports 3d tory on H.R. 75th the con of the Sess.(1938) language struction indicated HAND, Judge, dissenting.

L. Circuit Counsel, Fahy, B. Charles Robert Gen. Watts, Counsel, Gen. Associate and Sam- Mallet-Prevost, uel Edes and Marcel all of Washington, (Gerhard Arkel, C. P. Van D. C., peti- Washington, counsel), D. tioner. Greene, City York & of New Greene Greene, Murphy, Daniel S. (Richard T. Law, New all of York Malcolm C. respondent. City, counsel), L, respects, SWAN, was insufficient in certain HAND, AU- obtained Before remanding an order tak- HAND, Judges. cause for the Circuit N. GUSTUS ing question of further evidence “on employ- availability positions SWAN, Judge. Circuit respondent’s Oneida, York, ment in New petition on a This is before us plant during subsequent period Relations Labor National per- respondent’s refusal to reinstate order made enforcement complaint sons -issued named by its order of as amended June April 10, Board; purpose.” and for There- no other respondent New is a day hearing after a one engaged in corporation manufactur- York 1938; April he another trial examiner funeral accessories. wooden caskets reported Board in and on product proportion A substantial its. 10, April supple- issued its 1939 the Board commerce; con- moves interstate it is in findings fact, mental conclusions law of of cededly jurisdiction subject of the to the and of for modification its recommendation manufacturing plant and Board. a It has order, request former that order with a the Oneida, principal its Y. office at N. as be enforced this court. No modified order the directs substance the amended bring effort was for on the case made to pay with back of one em- reinstatement recess, argument and in before the summer 15, ployee discharged July on was who due course it reached and heard in was 1935, days National Labor after the ten complaint October When involves a effect, 29 went into U.S.C.A. Relations Act against granting the of affirmative relief of seq., and the “reinstatement” 151 et employer, particularly an it is desirable employees discharged were six who former prosecuted that the case conclusion prior to the effective date months several reasonably expedition with as much as is Act, payment them the the and of of practicable) unnecessary delay any re- for earned, wages they their would have less employer, hardship in sults obvious elsewhere, working if earnings” “net from longer delay larger since the the the the respondent employed the them on the pay wages he must for sum work never as thereafter, respective dates, shortly or performed, requires if order the reinstate- reemployment they applied when after for employees pay. ment of with back But It Act effective. also orders .the became appears the fact that there to have been Company the and desist from dis- to cease unnecessary delay part on of the the Board membership couraging in Casket Makers urged by in case at bar has not been the any Union in inter- 19559 or manner respondent factor the by a to be considered as employees fering in the exercise of with its passing the court the Board’s right self-organization. their order, petition for enforcement of its passing to a Before consideration any delay we shall is im- assume that such validity of it of the the order seems desir material. explain astonishingly long able to the time elapsed respect the filing of the With to the six has between men who practices charges discharged unfair labor of and the several before were months the presentation effective, Charges of the in court. Act became this case raises an in discharged men question teresting statutory behalf filed and novel were October 1935 Casket held, Makers Union construction. the Board itself has As complaint Board filed its discharges 19559. The themselves not the sub are appointed ject complaint; November a trial failure to re hearings during examiner who held the men after the Act came into month. December charged On force that an unfair as labor Nevertheless, practice. case transferred to ordered the and con the Board took evi Thereafter tinued surrounding before it. counsel for dence as to the circumstances respondent permitted discharges light they was file might a brief for any report without respondent’s and on throw on refusals to re June who had employ. appears May examiner trial taken the a

testimony, its findings made of charter obtained from the American Labor, and issued its fact law order. In Au Casket Federation Makers petition gust a of Union All enforcement formed. seven court, discharged employees was filed in this this order mentioned in argument complaint reached case was were of the movement leaders Board, apparently realizing proof They attempted organize its this union. U.S.C.A. § was available U.S.C.A. § ment tivities, water ployment, and were filled employees long effect but plant on the employ, because ciency ings is when record tions 59 S.Ct. ings. Consolidated Edison Labor plicit finding that Board, 2 no substantial decision are formerly tivities; of fact is employment because of their evidence to membership had not keep gave cause ployment we think 10(e) able to hire and tenure criminated notice of the braced 60 to barely sufficient to retain the ployees in time of time fective. On their fered that February Of the 1934 the (at The any bargain collectively. legal folio an reemploying reasons, secret did substantially testimony of other of their four in December they one Relations provisions time Co. we must challenged, unfair labor workmen who had six 206, 83 L.Ed. held were available at and may question presented is whether Cir., shortly court’s who membership of the 1288) relies limited to cases 160(c). against respectively applied the formation hearings November 158(3), given findings men support them. Under section evidence organization of the but the Board applied dates, evidence to be taken as a discharge workmen. While the suffi- 98 F.2d thereafter National before the to show Oneida Board, discharged in November are that accept power they were refused per dwindled after the discharged of the them. equivalent to those behalf its there is The and section of request their or two, Board’s practice cent, men were respondent and employees the effect employment, which to reverse shortly thereafter, 305 U.S. former declares— them. Therefore plant, but at sustain employment. In the other and activity was the Labor Act evidence was 1934 and support section The and prior respondent Act Co. v. of the where Act came made certainly sufficiently 760. On this Ballston-Still- union charter. ceased to it; prior to supplemental about when the Oneida became union em- respondent respondent reason for autumn these find- denied union ac- for reem- union was an no 10(c), that refuse Relations a National the find- 8(3), 265 em- there is findings employ- finding one in regard justifi- formal which workmen seven, reem- work some at no posi- they into dis- ex- ac- re- of- 29 a retroactive effect ef- be tomary ployee even became effective. 91 F.2d ployees Relations individual “whose work employer into force when cause comes the Act went into National Labor Relations case in Nor had their work tained unfair labor discharge ployees individual whose work has ceased as a without policies consequence equivalent employment. Concededly their current ing with the “reinstatement of were cluding effect. definition of retain therein, order set of the discussion that we representative ed ganization employer discourage or condition of Cir., Section “(3) “It shall be an considering the in section 159(a) condition of U.S.C.A. § any tenure of employer— to hold that years chapter ^[******] discharged “* * * of certain their former status operative any 94 F.2d 138. After for organization By were reinstatement canons of of this of They labor labor if Jeffery-DeWitt back 134, 112 who It must was shall from 10(c) : its before would discrimination such labor membership of, practice, employment out “employee” in definition of Provided, employment not had dispute * * * pay, were dispute 152(3), chapter,” still respondent. making or in connection such affirmative states that the Board shall purposes and regular v. Carlisle be types employment unfair labor on strike See cases an unfair labor A.L.R. long interpretation as will effectuate the of this be treated discharged ceased emphasized contrary may * * * employees and who has not ob also, or because of which includes organization definition of conduct of give ceased i. effect, shall That Insulator and has ceased” by of the the men who e., declare that an or National agreement “employee” title, Board, when Act went regard Nor did Lumber section encourage virtue of the Act. are six substantially to the cus consequence preclude membership practice where as was the nothing employees” as an Act months at the to action, require with, definition “current” labor or- ** not practice. includes the Act statute; term or with be provid- Co. v. to hire of Labor comes is the 2(3), deal Cir., with they Co., em- out into em em any any any not be be * his in- or an as .” interfere with the statutory In “The act does not required by language. right bar, exercise of of the em- discharged when men normal the case employees ployer or dis- employment August to select its applied ap- employer may not, merely charge un- them. The status Indeed, right, der intimidate or plicants Board’s cover of for work. respect ad- to their argument such and coerce its with them treats and, representation, proposition self-organization Act broad that the vances the hand, employ on en- the other Board is not discriminatory forbids refusal pretext applicant authority titled of his union affilia- to make its an tions, because right discharge justifies awarding to him the interference with the earned, compensation when right if the exercised for other he would have employer coer- preferred a reasons than such not intimidation non-union cion.” man. purpose compel of the Act is not to 8(3) Section is said make such employer an to hire members of one union practice. do refusal an labor unfair We another, rather than or union men rather By inverting not so read the order it. than men. We do not under- non-union meaning certain clauses the becomes clear stand, therefore, employer may not, that an er. is declared unfair labor pain committing under an unfair labor practice encourage discourage mem “to or practice, select an A. F. of L. member in bership organization dis preference member, to C. I. O. or a non- regard crimination in to hire or tenure of preference either, man in if all employment term condition of applicants position. three are for the same employment,” except pro as stated reading It should be noted that the Board’s viso. the connection in which it used 8(3) hiring would lead to meaning wages; “hire” well be a noun union rather than non-union men in all thought but lest be ascribe exces employer instances. Where the hired a grammatical nicety legislative sive to the man rather union than a non-union man draftsman, equiva we will take “hire” as equal the merit because former was a “hiring.” lent to we read the it As section union, member a there would dis- be employer may require means that not an an in which crimination hire en- tended to applicant work, as for a condition to ac courage membership in organiza- a labor employment, cepting join him for or to tion, practice an unfair labor in the Board’s union, resign from a in con nor insert the eyes. The Board then would have to act employment any tract of other discrimina rights to enforce non-union the the men tory encourages term that or discourages against. not to be so discriminated Be- membership in organization, a labor ex applicants tween for work who are not em- only that, cepting if the facts stated in the ployees they apply employ- at the time for proviso exist, employer may require the ment, employer we think the is free to membership in the organization previously choose one who has not en- legally represent which has been chosen to gaged preference in union activities in employees. interpreted his So the section has, versa, although one who and vice he harmony policy is in with the fundamental may impose by not the contract of em- safeguard rights the Act which is to the ployment any respect limitation in to union employees self-organization and collec during anti-union activities term of bargaining. tive National Labor Relations employment. The Board has held to the Corp., Metallurgical v. Fansteel 306 contrary case at bar in in the and Waum- 240, 257, 490, 627, 59 123 U.S. S.Ct. 83 L.Ed. 1939, Inc., 4, Mills, 15 N.L.R.B. No. bec upon A.L.R. 599. The section confers rights upon in 53 Harv.L.Rev. commented 141. employees, upon applicants employ not for agree with its We cannot construction of ment. As Mr. Roberts remarked in Justice court, 8(3). far section No so as we are Associated Press v. Rela National Labor informed, previously pass upon had to has Board, 103, 132, tions 301 57 S.Ct. U.S. it. 650, 655, 953, does 81 L.Ed. “The act not justification Nor do we find compel in petitioner employ any one.” awarding applicant 10(c) section And the in Chief said National Justice employer preferred rejected because the Laugh Labor Board v. & Relations Jones applicant, wages 1, 45, hire a non-union Corp., lin Steel 301 57 S.Ct. U.S. rejected applicant would have earned 893, 108 1352: 81 L.Ed. A.L.R. 998 employed. had he been Such affirmative that he had never been warned. testified certainly testimony relief is of We can in the rec- not the “reinstatement find no such employeesnor it, nothing assuming testify, however, af- ord. did does He proper go was firmative relief in a said about his at the time he tardiness beyond off, employees, by was laid the reinstatement of and this was confirmed policies” notify testimony. “effectuate of the Act. foreman’s The failure to goes beyond policies, naturally far such and in effect Lechner that this was the reason promotes policy would in the raises result some as to whether it was doubt employment Knaus, only really discharge. labor. union Such cause of his policy plant not manager, should read into the statute testified that he told be Indeed, very explicit expression. shortly without Lechner foreman him after the laid cause, policy, if such off were the it difficult to see that his was the tardiness accepted how possible it be- Lechner denies to enforce it. The Board would applicants testimony preference equal belonging tween merit workman’s manager’s. unions, employment to different Lechner had been active forming soliciting mem- necessarily encourage one would member- and in officer, ship'in discourage his member- bers it. was also an He ship respond- rejected ap- in the the union to which the union officer still plicant discharge. belonged. ent’s time of his As the Chief ex- at Justice plained case, 240, employee When an admits that he has been the Fansteel U.S. 490, 627, employer’s complying derelict page 83 L.Ed. with the S.Ct. rule, ought lightly infer affirmative author- not A.L.R. action that such cause of ized section is action to make effec- was not the dereliction rights discharge. his Labor Rela- tive the redress of conferred See National Act, Thompson Products, Inc., say, tions Board is to Cir., Nevertheless, rights can- self-organization and of we collec- F.2d say unsup- finding bargaining. tive Mr. that the Board’s Stone stated Justice ported by point definitely more con- substantial evidence. even his opinion curring page 263, U.S. at foregoing For the reasons the Board’s page S.Ct. at 83 L.Ed. 123 A.L.R. order must be amended modified strik- 599: ing paragraph 2(a) from thereof names authority “By 10(c) given except Rudolph Lechner, Board is of all strik- men employment only to reinstate those preceding out the word “each” ” ‘employees.’ , employee” paragraph 2(b) are “such

who words entirely paragraphs 2(c) and deleting and also, See, Corp. Black Diamond S. S. (d). this An order of court entered be Board, Cir., National Labor Relations enforcing the Board’s order as thus modi- certiorari denied 304 U.S. F.2d ordering fied. In so we are to be under- not 82 L.Ed. 1542. our 58 S.Ct. approving provision stood valid as as awarding damages opinion to the order paragraph 2(b) which directs the deduction men who had ceased to be six Lechner, from the amount otherwise due must long before Act went into effect during of “monies him received said reversed. performed Federal, period for work There remains to be considered State, county, municipal or other relief Rudolph Lechner who was dis payment projects” of “the amount charged on after the Act was appropriate agency so deducted to the fiscal clearly power within the It is in effect. Federal, State, county, municipal with to order his reinstatement Board government governments which discharge pay, if his because back supplied work the funds said relief The Board so union activities. found provision projects.” validity of The only question whether is the evidence argued express been we no has not support finding. its At is sufficient opinion point. Cf. 53 Harv.L.Rev. (cid:127) assigned by hearings reason the re 141. discharge was habitual spondent his During 1934 and 1935 he was tardiness. HAND, Judge, (dissenting). Circuit cent, L. per of his work more than late presented case we are not I view this on cross examina As days. He admitted question it whether is “unfair him had cautioned a with foreman tion that refuse, practice” their because of being labor late. Yet many times about great activities, employ who have finding those that Lechner made a policy; employees; point I re- able and I cannot never been that doubt what.Con- say 10(c), gress done, we whether would have need had situation serve. Nor § presented Thus, 160(c), spirit confines “reinstate- been to it. U.S.C.A. text § however, must, “employees”. unite; ment” at the same re- time statute We prac- say prospective operation. labor mains whether it an “unfair its I think merely order, join “em- we though tice” to refuse to affirm I should activities, ployees” my part of their union because brothers’ of it caveat company pay entitles them and whether such refusal which directs either; money I not doubt agencies reinstatement. do to those of relief which membership surely supported “discourage during unemploy- it tends to men organization” to know that a ment prevent agitation record will one Hence, getting job. from back one’s if old “employees”, six men these were when the company them, rejected that, so, right. they It is true if were such place which because of events took passed, before the law was but that seems plain At it irrelevant. least me “employees” make to hold them HAWN v. AMERICAN S. S. CO. does operate retrospectively. The com- the act No. 161. notice, pany charged when it re- with Appeals, Circuit Court of Second Circuit. jected any applications of those who union, forming been active it Dec. they if “em- was unlawful to so were its do ployees”. every its Like one else took might chances of how define that courts Therefore, word. the case down comes merely it, should define and to how we language it seems both in and in me purpose 2(3), 152(3), cov- U.S.C.A. § § who work before law ers those ceased nothing became I see effective. can justify language to a more limited con- “any struction. relevant words are: whose work has ceased as a con- individual of, with, any sequence or in connection “ dispute”, 2(3); current labor and a ‘la- * * dispute’ any controversy bor includes * * * representation concerning the * * * persons negotiating terms * * * employment”, 2(9). These six men had fact ceased work con- as a sequence controversy concerning of a representation persons negotiating Possibly they employment. terms of consequence work also in ceased of an practice”, “unfair is more debatable, and, arguendo, I will assume If, much for opposite. So the text. hand, purpose look to the we 10§. follows, same result (c), I can why no reason think of those who have jobs any law, there was lost protection given denied should be lose them afterwards. those who Their equally the law rejection after takes effect them; against the line be- discriminates purely them and the others ad- tween basis in and without state- ventitious

Case Details

Case Name: National Labor Relations Board v. National Casket Co.

Court Name: Court of Appeals for the Second Circuit

Date Published: Dec 11, 1939

Citation: 107 F.2d 992

Docket Number: 8

Court Abbreviation: 2d Cir.