National Labor Relations Board v. Winona Textile Mills, Inc. (160 F.2d 201, 1947)

WOODROUGH, Circuit Judge.

This petition by the National Labor Relations Board is for enforcement of the Board’s order entered against respondent Winona Textile Mills, Inc., in proceedings under Section 10 of the National Labor Relations Act, 29 U.S.C.A. § 160. The Trial Examiner found that respondent had engaged in unfair labor practices at its mill in violation of Sec. 8 (1, 3, 5) of the Act, 29 U.S.C.A. § 158 (1, 3, 5). Specifically, he found that respondent interfered with, restrained and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act, 29 U.S.'C.A. § 157, in violation of Section 8(1), that respondent discriminatorily discontinued overtime work for eleven of its employees in violation of Section 8(3), and that respondent refused to bargain collectively with the International Ladies’ Garment Workers’ Union, American Federation of Labor, the exclusive representative of respondent’s production and maintenance employees, in violation of Section 8(5). The Board adopted the intermediate report of the Trial Examiner, overruled exceptions thereto, and entered the order which it seeks to enforce. The order requires respondent to cease and desist from its unfair labor practices, to make whole the employees discriminatorily denied overtime, to bargain collectively with the union, on request, and to post appropriate notices. The decision and order of the Board, including the fact findings, are reported in 68 N.L.R.B. 702.

The interstate character of respondent’s activities is admitted and the propriety of the Board’s order is challenged only on the ground that the Board’s findings are not sustained by substantial evidence. While there is some conflict in the testimony, the principal points of difference arise from the inferences drawn from the evidence and the ultimate conclusions reached. In our consideration of the case we are governed by the rule succinctly stated by the Supreme Court in Medo Photo Supply Corporation v. National Labor Relations Board, 321 U.S. 678, 681, 682, 64 S.Ct. 830, 832, 88 L.Ed. 1007, in these words:

“It has now long been settled that findings of the Board, as with those of other administrative agencies, are conclusive upon reviewing courts when supported by evidence, that the weighing of conflicting evidence is for the Board and not for the courts, that the inferences from the evidence are to be drawn by the Board and not by the 'courts, save only as questions of law are raised and that upon such questions of law, the experienced judgment of the Board is entitled to great weight. See Franks Bros. Co. v. [National] Labor Board, 321 U.S. 702, 64 S.Ct. 817, [88 L. Ed. 1020], National Labor Board v. Southern Bell Co., 319 U.S. 50, 60, 63 S.Ct. 905, 910, 87 L.Ed. 1250, and cases cited; National Labor Relations Board v. Nevada Copper Co., 316 U.S. 105, 106, 107, 62 S. Ct. 960, 961, 86 L.Ed. 1305, and cases cited; cf. Dobson v. Commissioner, 320 U.S. 489, 501, 64 S.Ct. 239, 246, [88 L.Ed. 248,] and cases cited.”

In view of the publication of the report of the findings and decision of the Board it is not necessary to state the case in full in this opinion but only sufficient to make clear the grounds of our decision.

The respondent is a corporation located in Winona, Minnesota, and is engaged in the manufacture, sale and distribution of woolen and marino yarns for the knitting and weaving trade. The mill is a relatively small one, having less than 40 production employees in the Fall of 1945. On August 5, 1945, the International Ladies’ Garment Workers’ Union, hereinafter referred to as the union, began to organize respondent’s mill employees through a paid organizer, Annie Lee H-ewett. On the following day, August 6, an employee, Wilton Berger, who had refused to join the union, informed respondent’s plant manager, J. E. Temple, who was in complete charge of respondent’s operations, of the attempt to organize the union. Berger testified that there was some discussion between him and Temple, and that Temple finally stated profanely that there would be “no * * * union come in,” regardless of what anyone said, and that if the union got in the plant he would close it up.

On August 14, 1945, an attorney for the union informed respondent by letter that the union represented a majority of the employees, that it desired to enter into collective bargaining negotiations and that respondent should advise the union attorney or organizer Hewett when respondent’s representatives would meet with those of the union. The respondent did not answer the letter, and on August 17 respondent posted in the plant an announcement addressed to its employees. The announcement informed the employees of attempts respondent had made to secure wage increases for the employees, explained the difficulties of obtaining increases because of the wartime wage stabilization program then in effect, and informed the employees of respondent’s conviction that the plant management and employees would be better off without “outside interference and control.” It also informed the employees that it was unnecessary for them to join a union in order to work at the mill, and that the question of joining a union was for each individual employee to decide. In addition, the announcement contained the following paragraphs:

“The Law does not require employees to organize; no more than it requires an employer to operate his plant. * * * It has been our policy-to pay overtime to our regular employees, rather than to put on an additional shift, which would have been justified by the amount of our orders, but would also have lowered the weekly earnings of many of our employees. As you know, our policy in regard to overtime has always been generous and favorable to the employee.”

On August 24, 1945, respondent received notice from the Division of Conciliation of the State of Minnesota that the union had filed a Petition for Investigation and Certification of Representation for Collective Bargaining and that a hearing would be held on August 29 to determine the issue.

For a long period of time prior to August 1945, respondent had operated its carding and spinning departments on an •overtime basis, thus affording additional compensation to the employees. The card-room served as a feeder for the spinning department and, as respondent had fewer carding machines than spinning mules, the cardroom employees were required to work longer hours than spinning room employees in order not to interrupt production. In the latter part of August respondent entirely discontinued overtime work in the spinning department and reduced overtime work in the carding department. The cardroom employees continued to work that amount of overtime necessary to maintain a 40-hour work week in the spinning department. The overtime work was discontinued notwithstanding the fact that respondent had sufficient orders and sufficient stock on hand 'to supply overtime work for several months. The employees were first informed of the discontinuance of overtime work on August 24, 1945, immediately following receipt of the notice of pendency of the union’s petition for certification as the collective bargaining representative of the employees.

On August 29, 1945 the Minnesota Division of Conciliation conducted a hearing which was attended by counsel for respondent and for the union. Subsequently the Division concluded that the unit appropriate for collective bargaining consisted of all of respondent’s production and maintenance workmen, exclusive of supervisory and clerical employees. On September 10, 1945, a secret election was conducted. The union was successful by a vote of 18 to 14 and was certified as the collective bargaining representative of the employees in the unit. On the day following the election employee Berger discussed the result with plant manager Temple, and the latter remarked, “The union has got 18 babies to take care of and I got 14. I will take care of my 14, let the union take care of their 18.”

A conference to negotiate a collective bargaining contract was held on October 6, 1945. At the conference the union spokesman, Meyer Perlstein, presented the demands of the union. These demands were five in number and included a minor request for sanitary improvements, demands for wage increases and paid vacations and a demand for a closed shop agreement. The issue concerning sanitary conditions ■was promptly disposed of, but respondent’s attorney objected vigorously to a closed shop agreement and insisted that the closed shop issue be disposed of favorably to respondent before he would discuss the other demands. Perlstein urged respondent’s attorney to discuss other issues first and leave the closed shop issue for later discussion. Neither side would yield and the conference ended in an impasse. During the course of the conference, which was attended by five employees as well as representatives of respondent and the union, respondent’s attorney stated that respondent would not tolerate labor trouble, that if the employees wanted a union there wasn’t anything to keep respondent from moving out and that a town in Ohio had offered to provide space for respondent’s plant. The Board rejected respondent’s explanation that the remarks were made in a facetious vein and held that there was a threat to move the plant if the employees unionized. .

On October 18, 1945, respondent wrote to its employees, stating its version of the October 6 conference, informed the employees of respondent’s rejection of the union requests and emphasized the inability of the union to reach agreement with other employers in that locality. On December 3, 1945, respondent’s attorney met employee Frances Kiekhoefer at a social gathering. Kiekhoefer testified that the attorney accused her of being a union ring leader and stated, among other things, that Temple could sell the plant equipment, or he could move to another town. Later in December 1945, without notice to the union, which was then the accredited bargaining representative of the employees, respondent posted in its plant the following notice:

“Wage Announcement

“Believing that the large majority of our employees are not in favor of labor trouble which would inevitably increase cost of production and result in unnecessary loss to everyone concerned and in an effort to cooperate with President Truman and the Federal Government’s expressed policy, the management will grant pay raises of 5 * * *

“(3) By discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor oi'ganization: * * *

“(5) To refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159 (a) of this title. July 5, 1935, c. 372, § 8, 49 Stat. 452.”

29 U.S.C.A. § 157. “Right of employees as to organization, collective bargaining, etc. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection. July 5, 1935, c. 372, § 7, 49 Stat. 452.”

See cases cited in the Brandeis opinion, 145 F.2d at page 564. ’ See also Thomas v. Collins, 323 U.S. 516, 537, 65 S.Ct. 315, 89 L.Ed. 430; May Department Stores v. National Labor Relations Board, 326 U.S. 376, 66 S.Ct. 203; National Labor Relations Board v. Kopinan-Woracek Shoe Manufacturing Company, supra; National Labor Relations Board v. American Pearl Button Company, 8 Cir., 149 F.2d 311; National Labor Relations Board v. Montgomery Ward Company, 8 Cir., 157 F.2d 486; National Labor Relations Board v. West Kentucky Coal Company, 6 Cir., 152 F.2d 198.