On Petition for Enforcement of an Order of the National Labor Relations Board.
Before MARIS and JONES, Circuit Judges, and WALKER, District Judge.
The National Labor Relations Board found that Moltrup Steel Products Company, the respondent, had engaged in unfair labor practices of the character defined by subdivisions (1), (2), (3) and (5) of Section 8 of the National Labor Relations Act, 29 U.S.C.A. § 158(1), (2), (3) and (5). It ordered the respondent to cease and desist from these unfair labor practices, to withdraw all recognition from and disestablish two organizations of its employees known as the Independent Brotherhood of Moltrup Steel Workers, Moltrup Steel Products Company of Beaver Falls, Pennsylvania, and the Local Independent Brotherhood of Steel Workers of Moltrup Steel Products Company of Beaver Falls, Pennsylvania, which together we shall call the Brotherhood, upon request to bargain collectively with a labor organization known as the Steel Workers Organizing Committee, which we shall call the S.W.O.C., and if an understanding be reached concerning rates of pay, wages, hours or other conditions of employment to embody such understanding in a signed agreement, to discriminated make whole five employees discriminated against in respect to hire and tenure and to post and maintain notices By the present petition this court is asked to enforce the order of the Board.*fn1 Its enforcement is opposed by the respondent upon grounds which we shall proceed to consider.
I. It is first urged that the order of the Board, directing the reinstatement with back pay of persons named therein upon findings that the discharge of those persons and the refusal to rehire them were unfair labor practices in violation of Section 8(1) and (3) of the Act is contrary to law because the findings upon which it is based are not supported by substantial evidence and because part of the order is for other reasons contrary to law.
The respondent had operated of night shift continuously since the fall of 1935. The Board found that on August 6, 1936 the respondent temporarily discontinued the night shift and laid off approximately 45 employees, and that this shut down was intended to serve as a warning to its employees to refrain from S.W.O.C. activity and was used to discriminate against the S.W.O.C. leaders. As supporting this finding the Board found that the respondent's volume of orders in July, 1936 was not appreciably decreased nor was the inventory of stock on hand in that month so increased as to explain in August, continuance of the night shift in August, 1936 upon purely business grounds. In opposing these findings as unsupported the respondent points to evidence to the effect that it shut down the night shift because it was of the opinion that there would be a slump in orders and that it resumed operating the shift when this prognosis proved to be erroneous. Its objection to the Board's finding, however, is in reality to the inferences drawn by the Board from the facts disclosed by the evidence and to the weight given by the Board to testimony of witnesses whose knowledge and credibility the respondent attacks. The weight and credibility of testimony as well as the inferences to be drawn therefrom are for the Board to decide. Our sole duty is to determine whether the inferences thus drawn by the Board may reasonably be drawn from the evidence before it. National Labor Relations Board v. Link-Belt Co., 311 U.S. 584, 61 S. Ct. 358, 85 L. Ed. 368. We conclude that the Board's finding that the respondent's discontinuance of the night shift was intended as a warning against participation in the S.W.O.C. was fairly inferable from the evidence. We accordingly turn to the consideration of the cases of the five employees ordered reinstated by the Board.
Matthew Euriech. Euriech was employed by the respondent in November, 1935, as a bar drawing machine operator in the day shift. At that time he was an experienced workman. He was laid off August 6, 1936 having joined the S.W.O.C. on that day. He was reemployed the last week in August with the advice from the respondent's superintendent that "we don't want no labor trouble in here." On September 12, 1936 he was laid off a second time on the ground that there was insufficient sufficient work. In that month, however, the respondent hired 20 additional men among whom was at least one inexperienced man assigned to do work similar to that previously performed by Euriech. On September 21, 1936 operation of the night shift was resumed and the respondent employed or reinstated a total of 44 men by November 30, 1936 and by March 1938 approximately fifty additional employees. Seven of the first group and 18 of the later had no previous experience in the work for which they were engaged. Despite this extensive hiring of men and Euriech's previous satisfactory record as a worker he was not reinstated. In January or February 1937 he began work for the Works Progress Administration. On March 16th he found work with Elwood Steel Corporation, where he is at present employed.
The respondent, relying upon the rulings in Mooresville Cotton Mills v. National Labor Relations Board, 4, Cir., 94 F.2d 61 and National Labor Relations Board v. Botany Worsted Mills, 3 Cir., 106 F.2d 263, argues that the Board is without power to order the reinstatement of Euriech because he has obtained substantially equivalent employment since his discharge by the respondent and is, therefore, not an employee of the respondent within the meaning of Section 2(3) of the Act, 29 U.S.C.A. § 152(3). The Board avoided meeting this argument because it found as a fact that Euriech's employment was not substantially equivalent. It found that if Euriech had remained in the respondent's employ his wage scale would be higher than in his present job. The evidence justifies the Board's finding. We note, however, that the force of the cases relied upon by the respondent on this issue has been destroyed by the decision of the Supreme Court in Phelps Dodge Corp. v. National Labor Relations Board, 61 S. Ct. 845, 85 L. Ed. -, 133 A.L.R. 1217. In that case the Supreme Court held that the Board has the power to order the reinstatement of a discharged worker in order to effectuate the policies of the Act, even though he has obtained substantially equivalent employment.
William A. McGraw. On February 24, 1936 McGraw was employed by the respondent as a punch straightener and worked in the day shift. About the third week in July and the first week in August, 1936 he was warned by his brother-in-law, Geiser, a machine shop foreman in respondent's plant, not to join the S.W.O.C. or he would be fired. He joined the S.W.O.C. August 1, 1936 and talked to others about joining. He was laid off August 5, 1936 and was not rehired. The respondent claims that one reason McGraw wwas not rehired was that he was incompetent. This is belied by the fact that he was given a raise of 3 cents an hour during the time he was employed and that his foreman testified at the hearing in speaking of his work that "he got onto it pretty fair." The respondent also urges that it has not employed any one to take McGraw's place and relies upon the decision of this court in Union Drawn Steel Co. v. National Labor Relations Board, 109 F.2d 587. In that case we held that the Board had no power to direct reinstatement of an employee in the absence of a finding that there was work for him to do but that it could direct that the employee be placed upon a preferential list for future employment. In the present case, however, the Board found that up to the hearing in March, 1938 the respondent had employed over 90 men, at least 25 of whom had had no experience in the work for which they were engaged. Under such circumstances the suggestion that McGraw was not reinstated because there was no work for him to do is obviously without merit.
Samuel Cain.From 1916 to 1921 Cain worked in the respondent's plant off and on. He worked continuously from May, 1934 until August, 1936, sometimes in the day shift and at other times in the night shift. He operated a drawing room crane and worked in the die room. On July 12, 1936 Cain joined the S.W.O.C. He immediately started upon the work of signing up his co-workers as members and attended mass meetings of the S.W.O.C.On August 6, 1936 he was laid off as a result of the shut down of the night shift. The evidence shows that it was the respondent's customary practice to return the experienced men from the night shift to the day shift when it became necessary temporarily to discontinue the night shift. Cain was not so transferred although four others were. Nor was he reinstated when the respondent began rehiring men. Cain testified that two other man with less years of service than his have been employed to do his work. The respondent seeks to justify its failure to reinstate him on the ground that his work is being performed by men with longer service records than Cain and that in order to reinstate him it would be necessary to lay off these men. Union Drawn Steel Company v. National Labor Relations Board, supra.The Board made no finding on this point, but did, as we have already indicated, find that at least 90 men, 25 of them without previous experience, were taken on after August 6, 1936.
Lawrence M. Rump. Rump was employed by the respondent December, 1933 in the bar department of the drawing room as a bar drawer. He was transferred back and forth from day to night shift. He joined the S.W.O.C. July 12, 1936. On August 6, 1936 he was laid off with the rest of the night shift. Although several men from the night shift who had less years of service with the respondent less Rump were later reinstated and put in the day shift the respondent failed to reinstate him. As in the case of Euriech the respondent chiefly relies upon its contention that the Board has no power to order reinstatement of Rump because he has obtained substantially equivalent employment since his employment with respondent ceased. He became a paid organizer for the S.W.O.C. in the fall of 1936 and worked as such for almost a year. The Board made no finding on this point but did expressly state in its order that Rump's reinstatement would "effectuate the policies of the Act." Consequently under the decision of the Supreme Court in Phelps Dodge Corp. v. N.L.R.B., supra, the Board's order was valid.
Henry Keppen. Keppen was employed by the respondent in October, 1935 and operated a bar drawing machine in the night shift. He had worked for the respondent on several prior occasions. The plant superintendent expressed himself as satisfied with Keppen's work. On July 12, 1936 Keppen joined the S.W.O.C. Thereafter he entered into the work of signing up members for that organization. He made his membership drive outside the plant before and after working hours.
About July 29, 1936 a foreman, Rutter, told Keppen that the respondent would recognize only its own company union and that the C.I.O. was no good. Rutter also asked Keppen if he had any papers the C.I.O. was circulating and Keppen denied that he did. Keppen was laid off August 6, 1936. In July, 1937, when he asked for his job the superintendent told him he could have no job with the respondent because "You got mixed up with a bunch of radical miners." At that time he filed an application for reinstatement but had not been called by the respondent to return to work at the time of the hearing. Men originally employed after Keppen have since been reinstated and Keppen's own machine has been in operation. The respondent makes much of the fact that on prior occasions Keppen had quit his job and was, therefore, deemed unreliable. However, he worked continuously from October, 1935 to August, 1936 without any evidence of an intent to quit and the facts are that his discontinuance of work at that time was compulsory and not voluntary. In Keppen's case we think the evidence is clear that his layoff resulted from his union activities same that the refusal to rehire was for the same reason. There is no need to "make" work for him, since his machine is in operation and he has not obtained substantially equivalent employment
We conclude that the Board's findings of discrimination against Euriech, McGraw, Cain, Rump and Keppen are supported by the evidence and justify its order ...