211 F.2d 309 | 9th Cir. | 1954
Lead Opinion
The National Labor Relations Board petitions for enforcement of its order, based upon findings that respondents C. W. Radcliffe and W. W. Mancke, co-partners doing business as Homedale Tractor & Equipment Company, engaged in unfair labor practices. Specifically, the Board’s findings are that respondents interfered with union organizational activities of its employees by the strategically timed announcement of a profit-sharing plan, interrogated an employee regarding his and other employees’ union sympathies, and threatened to close their establishment, if it were unionized, all in violation of Section 8(a) (1) of the National Labor Relations Act, 29 U.S.C.A. § 158 (a) (1); and discriminatorily discharged, for their union activities, five employees, in violation of Section 8(a) (1) and (3) of the Act, 29 U.S.C.A. § 158 (a) (1) and (3). The Board’s order directs respondents to cease and desist from engaging in such unfair practices, to offer re-employment to the three employees, not previously reinstated, and to make whole all five discharged employees for any loss of pay they may have suffered.
No jurisdictional issue is raised, as respondents concede and the record shows that they were engaged in commerce, within the meaning of the Act. The basic question presented is whether, considering the record as a whole, there is substantial evidence to support the Board’s findings.
In June, 1951, respondents were engaged in the farm machinery and equipment business, in Homedale, Idaho, a town of 1500 to 2000 population, about forty-five miles from Boise. They had in their employ five mechanics and a number of set-up and delivery men, engaged in repair and maintenance work — just how many, the record does not show. Wilbur M. Snyder, a mechanic, and eight other men who worked with him in respondents’ shop met at Snyder's residence, in Homedale, on the evening of June 4, to discuss unionization. Snyder, previously had obtained from the International Association of Machinists, hereinafter called the Union, blank authorization cards, and all of the men who attended the meeting signed the cards, authorizing the Union to represent them for collective bargaining purposes.
On June 13, there was another meeting at Snyder’s home, attended by the mea at the first meeting, except George Otto. Robert E. Watkins, a set-up and delivery man and Allen K. Walker, business agent, of the Union, at Boise, also were present.. Walker talked to the men about the operation and advantages of the Union, and unionization was further discussed., Watkins, at that time, signed an authorization card.
On the evening of June 20, respondents, called a meeting of their employees, at. their place of business. Such meetings,, previously, had been held at odd times,, on the average of once or twice a month..
Checks for the quarter ending March 31 were handed out to the eligible employees present at the meeting. The checks were in substantial amounts. Snyder received $47.00 or $49.00 for his one-half, quarterly payment. No other payment was ever made to the employees under the plan. Radcliffe testified that, upon the advice of an attorney, payments were “suspended,” for the reason that rulings of the Wage Stabilization Board indicated that they “were not within the law.” On December 24, 1950, respondents had told their employees that a profit-sharing plan was being considered, but apparently nothing was done about it, and no further information regarding it was given to the men until the meeting of June 20.
After he had explained the profit-sharing plan at the meeting, on June 20, Radcliffe admonished the employees for slackness in their work, discourtesies to customers, and whisperings among themselves, particularly “during the past two weeks.” He warned them that, if things did not improve, the guilty ones would be discharged. He said that they had a stack of applications about an inch thick and could replace any or all of the men at any time, if they did not “attend to business.” Respondent Mancke then addressed the meeting and, in a loud and angry manner,
Watkins had been employed on May 1, 1951, on a temporary, “trial basis” for three months. On June 20, he had steam-cleaned a mower, but had missed some spots on the under side. When Mancke inspected it, he told Watkins that it was not clean enough to be painted and would have to be done over. It was then only ten or fifteen minutes before quitting time, and Watkins said that he would “get it the first thing” the following day. Mancke left without further comment.
Snyder, Maybon, and Watkins reported for work at the usual time the next morning, but, because of their resentment at what had happened at the meeting the previous evening, decided to go to Boise to confer with the Union’s business agent, Walker. Snyder went to the office to tell Radcliffe that he would not be working that day, but Radcliffe was not in and, after waiting for him for fifteen or twenty minutes, Snyder left. He and Maybon then picked up their
The same forenoon, Maybon, together with the foreman Wilkin, was summoned to the office. Radeliffe asked Maybon why he “hadn’t been there” the previous day, and the latter said that it was on account of the meeting — he did not like to have people yell and scream at him. Rad-eliffe said, “How do we stand?” Maybon replied, “If it goes on like this, why, I will find something different.” Radeliffe asked Maybon to work the rest of the day and get his check that night. Rad-eliffe also said that he should have let Maybon go three months earlier, because Maybon and the Company “couldn’t see eye to eye.”
Also, on the morning of June 22, Watkins was called to the office. Radeliffe told him that, since he could not see “eye to eye” with the Company and couldn’t seem to get along “with them,” he should not work there any more. He was, thereupon, discharged. That afternoon, Rad-eliffe told Snyder he had “fired” Maybon and Watkins, but had decided to keep Snyder on, as his work had been satisfactory, and that Snyder could keep his job with the Company as long as he wished to do so.
On June 25, respondents received from the Union a letter informing them that the Union represented the majority of respondents’ employees. The next day, Mancke called the employees together, read the letter, and remarked that it was up to them to decide whether or not they wanted the Union.
On June 27,
On the same day, June 27, about five minutes before quitting time, Radeliffe called Snyder to the office, handed him a check, and told him that, after thinking it over, they had decided to let him “go too,” as he did not seem to be in sympathy with the Company. The next day, June 28, at about 5:45 P.M., Radeliffe called Jess Runger to the Company office and said to him: “Did you ever cut your arm off before?” To which Runger replied, “No, and I haven’t right now that
On July 7, each of the Rungers received a letter from respondents asking them to return to work on July 10. After the parties had signed an instrument, dated July 9, which stated that the Rungers were “still in favor of the Union to represent us” and that Radcliffe and Mancke would “rehire them” with “all back pay for lost time,” both of the Rungers resumed their employment, as requested.
In arriving at its conclusion, the Board was not obliged to consider the facts and incidents just related separately and in isolation. It had a right to consider them compositely and to draw inferences reasonably justified by their cumulative, probative effects.
The Union meetings, attended by nine of respondents’ employees, were held on June 4 and June 13, 1951. Among those who attended and signed union authorization cards, Ernest Runger had been in respondents’ employ since August, 1948; Jess Runger, since October, 1948; Maybon, since January, 1950; Snyder, since March, 1950, except for several months in the fall of 1950; and Watkins, since May 1, 1951. All were permanent employees, except Watkins, who was hired for a trial period of three months. So far as the record shows, none of them had been reprimanded or criticized by his employers. A pay raise had been given to Maybon on April 1, 1951, and to Jess Runger on June 1, 1951. In the short space of seven days, from June 22 to June 28, respondents discharged all five of the men above named.
In the proceedings before the Board, respondents gave various, incon-1 sistent reasons for discharging five of their workmen in a single week. In their-answer to the complaint, they alleged that the two Rungers were and, “except for a short period,” had been, at all times, in their employ; that Watkins, “having been hired on a temporary basis only,” ended his employment on June 22, 1951; and that Maybon and Snyder had voluntarily quit their employment, taking their tools “from the employer’s premises” and leaving without notice. At the meeting of June 20, Radcliffe and Mancke joined in the announcement that Watkins would be fired the next day foi his failure to steam-clean a mowing machine properly. In his testimony before
Jess and Ernest Runger were discharged on June 28, after respondents had actual notice of union activity in their shop. The two workmen were reemployed on July 10, it is true; but the respondents offered the re-employment on the advice of their attorney. It was good advice. The discharges of the Rungers could not reasonably be explained on any basis other than that of union activity. If they quit or were let out because of a disagreement over wages, as respondents now contend on this appeal, it hardly seems likely that the Rungers would have been reinstated in their jobs within two weeks, at the same wages and with an agreement that their employers reimburse them for their back pay.
, Although respondents informed their employees, on December 24, 1950, that they were considering the adoption of a profit-sharing plan, nothing further was done, and no additional information was given to the workmen regarding it until after the unionization meeting of June 13. Within a few days thereafter, the men were notified to attend a Company meeting on the night of June 20. They were told that nothing short of a death in the family should keep them away. At this meeting, a profit-sharing plan was announced, “retroactive to January 1, 1951,” and an elaborately detailed, mimeographed statement of the plan was distributed to the employees present. No explanation was offered by responds ents as to when the details of the plan had been worked out, or when they had been written up and mimeographed. According to the plan, a payment to the employees was to be made “immediately,” at the end of each quarter, but the payment for the quarter which ended March 31 was not made until June 20. No other payment, under the plan, was ever made to the employees.
On June 27, two days after respondents had been notified by the Union that it represented a majority of their workmen, Radcliffe called employee Stimmel to the office and talked with him about union activities in the shop. Radcliffe not only said that he knew about the Unionization meetings, but he related an incident which indicated that he had accurate, detailed information as to what had transpired at the first meeting. He said he thought that Snyder was the leader of the unionization movement and displayed his hostility to the Union by referring to Snyder as a “troublemaker” and to his union activities as “the trouble.” Radcliffe’s statement to Stimmel, in the course of their conversation, as to what action the former had taken or was about to take, that “four more guys” would be discharged, plainly implied that Watkins and Maybon had been fired on June 22 on account of their union activities and that more of the same kind of discharges would follow. When Radcliffe, thereafter, asked Stimmel what he and his fellow-workmen thought about the Union, the interrogation was, necessarily, coercive and an unwarranted interference by the employer with the workman’s right of free choice to make or to maintain union affiliation. It is worthy of note that Stimmel adopted a noncommittal, conciliatory attitude by assuring Radcliffe that he could work without, as well as with, a union and that he was not discharged.
The announcement of the profit-sharing plan on June 20 and the discharges of Watkins and Maybon on June 22 can not be regarded as unfair labor practices on the part of respondents, unless it be assumed that they then knew of the union activities of their employees. There is no direct evidence of knowledge in the record, but if the circumstances are such as to support a reasonable inference, the Board may find knowledge from circumstantial evidence.
As thus modified, the Board’s order will be enforced.
. Snyder testified that “he [Mancke] was yelling at us that night, and you could have heard him, I think, about three-fourths of a city block, and all of us sitting right there close to him.”
. Stimmel had considerable difficulty fixing the date of his conversation with Rad-eliffe. However, it appears that a short time after it occurred, he had made a written statement in which the date was mentioned. After he had been recalled as a witness and had examined the statement to refresh his memory, he testified that the date was June 27. The Board found that to be the date of the conversation, and we have followed the Board’s finding in our factual summary.
In this connection we regard as erroneous the Board’s acceptance of the Trial Examiner’s finding that respondents had: knowledge of the employees’ actions in creating a union merely from the fact “that the employees had held two organizational meetings in a small community.” The Board’s finding of such knowledge in Radeliffe is sufficiently based on Stimmel’s testimony.
. Thomas did, in fact, leave the June 4 meeting early to meet his wife at a picture show.
. Canyon Corp. v. N.L.R.B., 8 Cir., 128 F.2d 953, 955.
Respondents did not discharge a single non-union employee.
. N.L.R.B. v. Yale & Towne Mfg. Co., 2 Cir., 114 F.2d 376, 378; N.L.R.B. v. Condenser Corp., 3 Cir., 128 F.2d 67, 75; N.L.R.B. v. Northwestern Mutual Fire Ass’n, 9 Cir., 142 F.2d 866, 868-869; N.L.R.B. v. International Furniture Co., 5 Cir., 199 F.2d 648, 650.
. The following is a quotation from the findings of fact of the trial examiner:
Respondents testified that neither knew of the employees’ activities on behalf of the Union until June 25, the day they received the letter announcing that the Union represented a majority of the employees. This testimony is not credited. The demeanors of Radcliffe and Mancke, while they were on the witness stand, evidenced to the undersigned that they were withholding the true facts regarding the controversy.
. 29 U.S.C.A. § 160(e), and Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456.
. N.L.R.B. v. San Diego Gas & Electric Co., 9 Cir., 205 F.2d 471, 475.
. N.L.R.B. v. Howell Chevrolet Co., 9 Cir., 204 F.2d 79, 86; See also Mar Gong v. Brownell, 9 Cir., 209 F.2d 448.
. N.L.R.B. v. Link-Belt Co., 311 U.S. 584, 602, 61 S.Ct. 358, 85 L.Ed. 368; N.L.R.B. v. Abbott Worsted Mills, 1 Cir., 127 F.2d 438, 440.
. We are not impressed by the argument that, if they had known of the union activ
. N.L.R.B. v. A. S. Abell Co., 4 Cir., 97 F.2d 951; N.L.R.B. v. Laister-Kauffmann Aircraft Corp., 8 Cir., 144 F.2d 9; N.L.R.B. v. W. T. Grant Co., 9 Cir., 199 F.2d 711; N.L.R.B. v. San Diego Gas & Electric Co., 9 Cir., 205 F.2d 471; N.L.R.B. v. West Coast Casket Co., 9 Cir., 205 F.2d 902.
Concurrence Opinion
(concurring).
To my mind it is clear that there was basis in the record for a finding that employee Snyder was discharged for his union activity. This happened, as Judge Driver’s opinion shows, on the evening of June 27, after the employer Radcliffe’s talk with Stimmel, which was after the employers received the union’s letter informing them of their claim of representation.
But I have had great difficulty in finding any evidence whatever that on June 22 when Maybon and Watkins were discharged, the. employers knew that concerted activity to organize a union was. afoot. The Examiner drew an inference to this effect from the fact that this was a small community, evidently on the assumption that in a town of that size everyone knows everyone else’s business, an interesting but wholly novel and insupportable rule of evidence.
To my mind the events of June 20, taken together, disprove the Board’s charges. I cannot think the Board could seriously believe that in order to influence the men respecting their concerted activities the employers, on that very evening, both wooed the men with bonuses and abused and insulted them with accusations “in a loud and angry tone of voice”. And consider also the fact that -when Maybon and Watkins, on June 22, were discharged for having taken their tools and left without notice the day before, Snyder, who had done the same thing, was kept on when he told a tale about having gone home. Surely this would indicate that it was not then known that Snyder had been organizing a union.
Hence, on that much of the record, I would think the order for reinstatement of Maybon and Watkins could not be sustained. However, there is one further aspect of the testimony which leads me, although with considerable hesitation to conclude that there was one bit of evi-
. Under Title 29, § 160(b), the Board’s proceedings must measure up to “the rules of evidence applicable in the district courts”.
