1. The National Labor Relations Act is applicable to an employer
whose business consists of dyeing and finishing goods moved to and
from its plant by their owners through the channels of interstate
commerce. P.
310 U. S.
324.
2. The Act is applicable even though the employer's business is
small in comparison with the industry to which it belongs. P.
326..
3. It is not material to the question of the Board's
jurisdiction that the customers of the processor, if the interstate
movement of the goods to and from the plant were stopped by a
strike, might secure the same services from other processors in the
same State. P.
310 U. S.
326.
4. Since the purpose of the Act is to protect and foster
interstate commerce, the Board can exert jurisdiction before
industrial strife occurs in the plant. P.
310 U. S.
326.
5. Evidence before the National Labor Relations Board sustained
its findings:
(1) That two of the respondent company's employees were
discharged for union activities. Pp.
310 U. S. 326,
310 U. S.
330.
Page 310 U. S. 319
(2) That the company dominated and supported one labor
organization and refused to bargain collectively through another
after a majority of the employees had selected it as their
bargaining unit. Pp.
310 U. S. 333
et seq.
6. Where a shift of majority membership from one union to
another was brought about by the unfair labor practices of the
employer, the Board was justified in finding that the first union
continued to be the exclusive representative of all the employees
for the purposes of collective bargaining. P.
310 U. S.
339.
7. In vacating the Board's order for reinstatement of two
employees, upon the ground that they had incited or threatened
unlawful conduct after their discharge, the court below acted
without jurisdiction. P.
310 U. S.
340.
8. Where the National Labor Relations Board, acting within the
compass of its power on a charge of unfair labor practice, has held
a proper hearing, has made findings based on substantial evidence,
and has ordered an appropriate remedy, the Circuit Court of Appeals
is bound, on application, to enforce the order. P.
310 U. S.
342.
106 F.2d 119 reversed.
Certiorari, 308 U.S. 549, to review a decree on a petition for
enforcement of an order of the National Labor Relations Board. 4
N.L.R.B. 604; 8
id. 979.
MR. JUSTICE BLACK delivered the opinion of the Court.
The Circuit Court of Appeals declined to decree effective
enforcement of an order of the National Labor Relations Board upon
the ground that the Board's order, in material respects, rested
upon findings that were not supported by substantial evidence.
Page 310 U. S. 320
In its petition for certiorari, the Board took sharp issue with
the Court of Appeals, asserting that some findings upset by the
court were supported not merely by substantial, but by
"uncontradicted" and "undisputed evidence." The petition also
pointed out that the court's opinion was "ambiguous and
inconclusive" and "left unclear the court's holding as to whether
the Board had jurisdiction." Our inspection of the court's opinion
and decree disclosed that the court deemed the Board to be wholly
lacking in jurisdiction. Nevertheless, the Board was ordered to
proceed in accordance with the opinion, which concluded with the
indecisive statement that, "if the case should not be dismissed for
lack of jurisdiction," a large part, but apparently not all, of the
Board's order should be vacated. The court's decree did not direct
enforcement even of those parts of the Board's order not expressly
vacated. The Board's petition further pointed out that its motion
for rehearing, in order to clarify the question of its jurisdiction
and to establish the status of "those portions of the Board's order
which the court neither vacated nor enforced," was denied without
explanation. Because the Labor Board's petition in challenging the
action of the Court of Appeals thus raised questions of grave
public importance affecting the administration of the National
Labor Relations Act and judicial review as provided in the Act, we
granted certiorari. [
Footnote
1]
This proceeding was initiated upon charges filed by the Textile
Workers Organizing Committee of the CIO. Thereupon, the Labor Board
served a complaint and notice of hearing on the Bradford Dyeing
Association (U.S.A.), respondent here.
In the complaint, it was alleged that respondent, in order to
discourage membership in the CIO, had discharged and refused to
reinstate its employees, Edward
Page 310 U. S. 321
Nelson and Percy Schofield, because of their affiliation and
activities in the Textile Workers Organizing Committee of the CIO
(TWOC); respondent had dominated and supported the Bradford Dyeing
Association Employees' Federation, a labor organization, and had
refused to bargain collectively with its employees through the TWOC
after a majority had selected it as their bargaining
representative.
The Board's jurisdiction was unsuccessfully challenged on the
ground that respondent's business involved no activities in or
affecting interstate commerce within the meaning of the Act. And,
answering, respondent alleged that Schofield was discharged because
he smoked during working hours;
"that . . . Nelson was not discharged, that he was insubordinate
and defiant, that he did not work and refused to work during the
times when he was supposed to be working, that he was on the
premises during hours when he was not supposed to be on the
premises of respondent, and was taking up the time of other
employees who were supposed to be working during such time, that .
. . Nelson went upon a vacation and has not returned to work after
such vacation, nor made any statement of his readiness to return to
work or made any request that he be put to work again;"
that respondent had not dominated or coerced the Federation, and
that any labor disputes at its plant were attributable to the
conduct of the TWOC.
The Federation was allowed to intervene in the extensive hearing
held by the Board.
After this hearing, the Board found that "a labor dispute" in
respondent's plant would widely affect "the flow of commodities in
interstate commerce," with consequent jurisdiction in the Board,
and that the charges of the complaint had been substantiated.
The Board accordingly ordered respondent to cease and desist
from (1) interfering, or coercing its employees
Page 310 U. S. 322
in the exercise of their rights to self-organization; (2)
dominating and interfering with the Federation or any other labor
organization; (3) discouraging membership in the TWOC; (4) refusing
to bargain collectively with the TWOC, and (5) ordered respondent
affirmatively to offer reemployment to Schofield and Nelson and to
make them whole, to withdraw all recognition from and completely
disestablish the Federation, to bargain collectively with its
employees through TWOC, and to post the usual notices throughout
its plant stating that the company would cease its unlawful and
unfair labor practices and would treat its agreement with the
Federation as of no effect.
In its final decree, the Circuit Court of Appeals directed
that,
"until a new election has taken place by order of the Board, and
the employees have expressed their preference as to what group or
body shall represent them in any labor dispute between them and the
respondent, the order of the Board except as to paragraphs 1, 2,
and 3 of the cease and desist portion of the order, and the entire
paragraph 5 ordering affirmative action, shall be vacated; the
Board then to proceed in accordance with the opinion passed down
this day."
As phrased, the decree is not clear, but apparently the court
vacated subdivisions (4) and (5) of the Board's order. The court's
opinion did make clear that, under its decree, the company was left
free to bargain collectively with the Federation and to decline to
bargain with the TWOC. Discharges of Schofield and Nelson were
approved, and the company was released from publishing notices
which, if warranted, were "essential if the employees were to feel
free to exercise their rights without incurring the company's
disfavor." [
Footnote 2]
Although those portions of the Board's order prohibiting the
company's interfering with
Page 310 U. S. 323
its employees' union affiliations were not expressly set aside
or modified, neither were they ordered enforced. [
Footnote 3] Thus, the court's decree gave the
Board's order no effect at all.
It did not explicitly so decree, but the Court of Appeals
evidently was of the view that evidence was lacking upon which the
Board could have found that respondent's business was in or
affected interstate commerce. The court expressly found a lack of
evidence to support the Board's conclusion that Schofield and
Nelson were discharged for union activities, and stated its belief
that Schofield was discharged for smoking in the plant and Nelson
for insubordination, and that
"the finding by the Board that the TWOC had a majority of the
employees of the respondent signed up even to become members of a
union under that name is without substantial evidence on which to
rest."
Without specifically passing upon the Board's finding that
respondent had unlawfully dominated the Federation, the opinion of
the court stated,
". . .
assuming that the president or officers of the
respondent influenced its employees to join the Federation,
so-called, it does not appear by clear and substantial
evidence that a majority of the employees ever joined, or indicated
an intent to join, the TWOC. . . ."
(Italics supplied.) Since the court
Page 310 U. S. 324
did not vacate that part of the Board's order directing the
company to discontinue domination of the Federation, we might infer
that the court accepted the Board's finding that the Federation had
been so dominated. But this inference is opposed by the court's
action in vacating the order of disestablishment. The uncertainty
in which the court has left the questions of jurisdiction and
company domination of the Federation makes necessary a review of
the evidence on both, along with other evidence which we think
amply demonstrates the justification for the Board's order in every
respect.
First. As to Jurisdiction.
A major portion of the opinion of the court below is devoted to
its expression of doubts about the Board's jurisdiction --
i.e., "there is no substantial evidence to warrant a
finding that the transportation of these materials by the
respondent was ever in interstate commerce;"
"there is also lacking substantial evidence that 40 percent of
the supplies consisting of chemicals and dyes, which were
contracted for in Rhode Island and delivered by the sellers to the
respondent's plant in Bradford, were transported by the respondent
in interstate commerce, or that they were used by the respondent
except at Bradford, though the Board assumed without evidence that
they were shipped by the respondent in interstate commerce, but its
assumption lacks substantial evidence on which to rest, that would
compel this court to accept it as a fact; . . . The respondent,
according to uncontroverted testimony, neither sells, transports
nor arranges for transportation of the goods into or out of Rhode
Island in interstate commerce, which is done in each instance by
the customer, . . . ;"
and
"The Board apparently assumed that the respondent transported
goods to its plant and from it, which the uncontroverted evidence
disclosed were not the facts."
Referring to waste products which respondent sells in interstate
commerce, the court noted that they did
Page 310 U. S. 325
not "exceed 1 percent of the total goods processed," and said
that they were but
"a mere incident (of the business), and to which the maxim
de minimis might well be applied, even by the National
Labor Relations Board."
And the conclusions of the opinion were only stated subject to
the condition "[i]f the case should not be dismissed for lack of
jurisdiction."
There was evidence before the Board which showed:
The Bradford Dyeing Association (U.S.A.), as stated by its
president, is "engaged in the dyeing and finishing of cotton,
rayon, and acetate piece goods." These piece goods reach the plant
at Bradford, Town of Westerly, Rhode Island, as unfinished "gray
Goods." Customers of Bradford, known as "converters," ship the gray
goods to the plant, retaining title, and direct shipment of the
goods when processed. Bradford owns no goods or means of
transportation, and its customers pay the cost of transportation to
and from the plant. A New York office is maintained, however,
"where . . . solicitors [who contact converters] make their
headquarters," and advertisements are run in New York papers and
trade journals. A majority of Bradford's (converters) are located
in States other than Rhode Island, in Baltimore, Boston,
Philadelphia, Trenton, and principally in New York City. There are
"very few customers" in Rhode Island. In 1936, 57,000,000 yards of
goods were processed, and, for the first six months of 1937,
29,000,000. About ninety percent of all goods processed, the
processing taking "an average of between two and three weeks," are
shipped out of Rhode Island. "More than half" of the goods
processed come from beyond the borders of Rhode Island.
Incidental to its business of processing, respondent accumulates
and acquires title to "remnants," which are ends of cloth processed
and goods damaged in processing. In 1936, 588,000 yards of remnants
were sold by respondent, ninety percent of which was shipped in
interstate commerce. These remnants represented roughly "just less
than one percent" of the yards processed in that year. For the same
year, respondent purchased $355,856.00 worth of colors and
dyestuffs, weighing over 235,111 pounds, of which forty percent
came from outside of
Page 310 U. S. 326
Rhode Island. The company, during 1935, averaged 688 employees,
with wages of $604,614.68, and its gross income from processing was
$2,026,156.00. In 1937, the employees on the payroll were nearly
800.
That this evidence was abundantly sufficient to justify exercise
of jurisdiction by the Board is not now open to controversy. It is
settled that the Act is applicable to a processor, who constitutes
even a relatively small percentage of his industry's capacity,
[
Footnote 4] where the
materials processed are moved to and from the processor by their
owners through the channels of interstate commerce, [
Footnote 5] and it is not material, as the
court below thought, that respondent's customers might be able to
secure the same services from other Rhode Island processors if a
labor dispute should stop the interstate flow of materials to and
from respondent's plant. Since the purpose of the Act is to protect
and foster interstate commerce, the Board's jurisdiction can
attach, as here, before actual industrial strife materializes to
obstruct that commerce. [
Footnote
6]
Second. Discharge of Nelson.
In its answer to the Board's complaint, the company contended
that Nelson was not discharged April 3, 1937, but was merely "laid
off," and, on April 2, "went upon a vacation" and did not return or
indicate a willingness to go back to work. However, the company
insists, as it has throughout, that Nelson was not a diligent
worker, and was insubordinate; that he trespassed upon company
property after work hours Thursday, April 1st; that "one or two
mornings that week he started work a little late
Page 310 U. S. 327
and quit a little early;" that he did not start work Saturday,
April 3, until 7:30, a half hour late.
Some of the evidence supporting the Board's finding that Nelson
was actually discharged for union activities on April 3, was:
Prior to Saturday, April 3, 1937, when Nelson was "laid off," he
had worked for the company two years as a carpenter. He had become
actively interested in organizing the employees in a CIO union the
preceding Monday, March 29, 1937. On that day, he had obtained
three hundred and fifty TWOC cards from a fellow employee
(Schofield), who, he heard, "had some applications for joining the
union, the CIO." His distribution of the cards met with quick
response, and many signed, so that, on Friday, the company official
"who does all the hiring," approached him and said, "You're a
ringleader of the CIO, but you are not going to be fired for it."
Nelson refused to tell this official the names of his collaborators
in forming the union, and also told him he would not reveal their
names to Mr. Summersby, the company's president and general
manager. Later that day, Nelson observed Schofield talking with
Summersby and was introduced to the latter as "helping . . .
[Schofield] to organize and get these pledge cards signed in the
mill." He was, that same day, Friday, refused admission to a
meeting in Summersby's office between some employees and Summersby,
but that afternoon, after work, he was called to Summersby's
office. There, Summersby asked "why didn't we form a local union of
our own," and "thought it was a much better plan to form a local
union." And Summersby asked that the question of a local union be
put up to a CIO committee meeting to be held that night.
All day Friday and Saturday morning, his foreman "didn't speak
one word to" Nelson. Saturday morning, April 3, this foreman asked
him "when [he] . . . intended to start work," but added that he
"didn't hold anything against" him. When Saturday's work was over,
Nelson was sent for by Summersby, who was affable at first, but who
became hostile when Nelson indicated he would not go along with a
local union. Summersby
Page 310 U. S. 328
then asked Nelson if he had been stealing on an occasion when he
had returned to the plant after hours to get some TWOC cards, and
asked him if he had begun work promptly that day (Saturday, April
3). Nelson was told by Summersby "to take two weeks off and cool
off." Nelson insisted he was ready to go back to work Monday
morning. His testimony narrated this conversation in part as
follows
"A. . . . I said, 'As far as being excited about it, you are
more excited than I am, and you are worried about it and I ain't.'
He says, 'Sure, I am excited about it, but you are the cause of all
it.' I said, 'I can't help that.' He said, 'You take the two weeks
off and then come back and see Mr. Pierce.' I said, 'Meaning what,
that I go back and see Mr. Pierce? I am not sure of a job when I
come back? Or is this just a matter of beating about the bush to
fire me?' He says, 'I won't give you nothing definite.' I says, 'I
want something definite. I want to know whether or not you are
firing me. If you are not telling me whether I go to work when I
come back or not, I want to know whether you are firing me.' He
says, 'I won't give you nothing definite.' I says, 'I can't go out
without money. If you are going to fire me, I can't live without
money.' He says, 'Silvia, get his money.' Mr. Silvia went out and
got me my money and came in and I thanked Mr. Silvia for my money
and went out. When I was halfway across the outer office, I heard
laughing, and I saw Silvia swing his arm down, and Mr. Silvia and
Mr. Summersby were laughing for all they were worth, as though they
had pulled a big joke."
"Q. Did you ever go back after that for your job?"
"A. No. I didn't. Mr. Summersby told me if I stepped foot on the
premises within two weeks, he was going to have me arrested."
Nelson never went back, because a TWOC official who conferred
with Summersby said Summersby would not take him back. This TWOC
official and a Conciliator of the United States Department of Labor
said Summersby wouldn't take Nelson back because "there would be a
question of his authority." In fact, a fellow employee told Nelson
that Summersby had said something
Page 310 U. S. 329
about firing Nelson and Schofield and "that he would find some
way of getting around it." On the morning of the day Nelson was
fired, he had spent a "couple of minutes" telling other employees
about a CIO meeting of the previous night.
From the testimony of the TWOC official in question, a TWOC
Director for Rhode Island, Summersby would not rehire "especially
Mr. Nelson." And Summersby himself stated that he told the Federal
Conciliator, "I couldn't take back either of them, because it would
break down the discipline of our plant."
Nelson's foreman testified as a witness for respondent:
On Friday, April 2,
"I could see that he [Nelson] was talking around more or less,
and so I had him come in the shop to work on the trucks. I thought
that would be the place where I could watch him better."
He saw Nelson talking to the men early on April 3, before work
and until 7:30, although work begins at 7. He reported to his
superior that Nelson was "talking to different ones," and went with
Nelson to Summersby, who asked Nelson "if he decided, on some
question that they were talking about the afternoon before. . . .
[Nelson] said,
No,'" and Summersby said, "Well, then, if you
can't give me a satisfactory answer on that, I have thought it over
and I have decided to lay you off for two weeks and let you think
it over." This foreman "knew . . . [Nelson] was interested in the
CIO, but . . . didn't know anything he said" to the men Saturday
morning. On other occasions, he had seen Nelson start late or quit
early without ever reporting the fact, and had seen Nelson talk
around like that "quite often." but "this is the only time . . .
[the foreman] ever got mad at him." This time, he was aware that
Nelson had been connected with the CIO for the past week "and . . .
supposed he was still at it." The foreman admitted that Nelson was
"a very good workman," that he may have worked between 7 and 7:10
on this particular Saturday morning, and that, on Saturday, April
3, Nelson, after having been spoken to, "said he hadn't any
feelings, but what he would go on and do his work all right. And he
did after that."
Page 310 U. S.
330
According to the Chief Engineer, who ranked above Nelson's
foreman, Nelson previously "did a whole lot of talking." In his
three years with the company, he had seen others talking, but never
laid any one else off for talking. In his view "when men are
talking with one another, there is very little work done," but the
foreman did not report the men to whom Nelson was talking on April
3, although they also were "surely" wasting time. The plant rules
do not forbid talking.
Summersby, the president and general manager --
On April 2, "inquired as to who [Nelson] . . . was and what he
did and if he had been active in the CIO as an organizer." Nelson,
he stated, "automatically forfeited his job" by not coming back at
the end of his two-weeks layoff, which was without pay. And if he
should apply for work, his forced vacation "would be on his record,
and would always be a black mark against him."
Third. Discharge of Schofield.
The court below saw no evidence supporting the Board's finding
that this employee was discharged for union activities, and
accepted the company's contention that he was discharged for
smoking in the plant contrary to rules. Respondent admits that
Schofield was discharged.
Schofield, a machine operator, or "jigger," testified --
On Saturday, March 27, 1937, he attended a CIO meeting, obtained
eight application cards for the CIO, and talked to some of his
fellow employees about the CIO. All eight cards were signed that
night. By Sunday, March 28, he had asked for and obtained seven
hundred cards which he used during the following week, giving
Nelson about one-half on Monday, March 29. By Wednesday, the cards
gave out. On Friday, April 2, he and Summersby discussed certain
difficulties with the piece work of "jiggers." Summersby, talking
there in the plant, brought up the CIO and said "he couldn't see
anything in an organization outside . . . [with] . . .
Page 310 U. S. 331
big shots . . . running big automobiles and hotel expenses."
Summersby then suggested "a union of our own in the shop."
Schofield attended a meeting in Summersby's office as a member of a
committee of "jiggers," and the subject of the CIO arose again.
Summersby said he wouldn't recognize an outside union. When Nelson
attempted to enter this meeting, Summersby turned him away and
referred to him as a "troublemaker." Sunday, April 4, there was a
CIO meeting at which Schofield and Nelson were both on the
platform. Schofield went to work on Monday, the 5th, continuing to
distribute CIO cards. On Tuesday, the 6th at 2:25 (Nelson had been
"laid off" on the 3rd), a "charge hand" notified Schofield that
Summersby wanted to see him "in his office right away." He left his
work and went directly to the locker room to wash and change from
work clothes. While there, he and two other employees were smoking.
An official of the company -- a boss dyer -- whom he had never seen
"in the locker room, not while the men were changing their clothes"
-- caught Schofield smoking and said, "So that's it, you damn
fool." Schofield then went to Summersby's office, as he had been
directed, but did not find him there. Summersby's first words, on
entering the office about twenty minutes later, charged Schofield
with smoking, but Summersby refused to tell Schofield why he had
originally been sent for -- before he was caught smoking. Schofield
was told to "take a couple of weeks off." He had been laid off once
before for smoking.
On the Friday before the Tuesday on which this employee would,
he thought, have been taken back to work, a Federal Conciliator and
CIO officials conferred with Summersby about Nelson and him. The
CIO official told Schofield that Summersby refused to rehire
either, and as a result he never went back. Although he "wanted to
go back the first week," he took the word of the Federal
Conciliator and the CIO official that he would not be rehired. The
two other employees who were smoking when he was caught were not
disciplined, although the accosting official could see them.
Despite "No Smoking" signs, it was the practice of the men to smoke
on the sly. Other men have been laid off two
Page 310 U. S. 332
weeks for smoking, but Nelson was caught and "others" have been
seen by foremen and no layoffs resulted. Schofield didn't "know of
anyone's being discharged" for smoking. He was made TWOC local
financial secretary.
In the words of the CIO official, "Mr. Summersby saw red the
minute I mentioned Schofield's and Nelson's names."
As told by the boss dyer who found Schofield smoking --
This official had sent an employee to notify Schofield of
Summersby's desire to see him; he himself went to the locker room
to deliver the message. He asked one of the other employees in the
locker room to remember the scene, because he "knew Percy
Schofield's character." It was his duty to detect smokers, and he
usually laid off, himself, any man found smoking. He had time to
lay off Schofield while walking with him part of the way to
Summersby's office, but he did not do so. "It was a peculiar case,
and I wanted to think before I did anything." This was the only
case in which he had ever reported a smoker to a higher up. He had
laid Schofield off for two weeks twice before, for smoking. In six
or seven years, he had caught seven or eight smokers, of whom,
excepting Schofield, only one was discharged. He didn't go to the
wash room "very often." "A very short time before," he had heard
that Schofield was "somewhat active in the CIO"
One of the fellow employees present in the locker room where
Schofield was found smoking stated that he also had been smoking,
but was not doing so when the boss dyer came in, and that the third
man was smoking at that time, but wasn't observed. He got the
impression, then, that the boss dyer said something to the effect
that he at last "had" Schofield after having been after him for
some time. He "had never seen . . . [the boss dyer] go to the
locker room" before.
Page 310 U. S. 333
Summersby testified that he had been told by Schofield that he
was "interested in organizing the CIO" and that he discharged
Schofield for smoking.
Fourth. Domination of the Federation.
As already noted, the Court of Appeals' opinion did not
especially pass upon this contention. Since, however, the Court did
not enforce the Board's order to cease dominating and to
disestablish the Federation, as we think it should have,
appropriate evidence on this issue will be pointed out.
A machinist, employed eleven years by respondent, testified
--
He attended a meeting in Summersby's office on April 6, the day
of Schofield's discharge. Summersby "said that he wouldn't
recognize the CIO and that it would be much better for us to join
our own union than to be bothered by this CIO," which would require
the men to go out on sympathy strikes. This employee saw Federation
cards and literature "on the table" in the company's office. These
were "handed around," and one or two were picked up by the
employees present; when Summersby and the vice-president of the
company left the room, the employees "seemed to pick them up more
frequently." Temporary officers of the Federation were chosen
there, in Summersby's office. A day or so later, the Federation met
in the company's shipping room with one hundred and fifty to two
hundred men present; Summersby addressed the meeting and said he
would not recognize the CIO, and that it was better to have our own
union. The machinist distributed in the plant the Federation cards
which he had "picked . . . up" in "Summersby's office;" the
Federation cards "were there."
From testimony of other employees, it appeared that --
At the meeting on the 6th (the day Schofield was discharged) in
Summersby's office, Federation cards and circulars were seen, and
an employee distributed these
Page 310 U. S. 334
cards; Summersby said "he would like to have this local union"
and "wouldn't recognize the CIO." Three "jiggers" had seen
Summersby on April 5 about wages and conditions of employment; he
"thought it would be better if we had our own union" instead of
paying outside fellows. "Someone" suggested that cards be passed
out for a local union. Word was passed out by fellow workers that
the company would pay for time spent at the meeting in the shipping
room at which Summersby "said he wouldn't recognize CIO or A.F. of
L., no outside union," that it would "be better if we had a local
union," instead of paying others to ride around in big cars, and
that "he would not tolerate CIO," Workers were seen passing out
Federation cards in the plant during working hours. Pay was given
for the half-hour spent in the shipping room meeting, and this time
was included by instruction of the "boss of the frames." Federation
cards were passed out "openly" by men on the day of the shipping
room meeting. Bosses were seen with cards. One employee was given
his Federation card by the boss of his department. Another was
asked by his foreman whether he had joined the Federation.
An employee testified --
Summersby sent for him on April 6 (the day of Schofield's
discharge). The paymaster came to his house for him and said he was
glad that this man wasn't "deep . . . in the CIO," and took him to
the office. There, Summersby told him he was sorry that men in his
line of work (in the gray room) had been left out of the meeting
that morning in Summersby's office. This employee had told the men
in the gray room that they shouldn't sign cards from a meeting at
which they had not been represented. Summersby told him the CIO
would take money out of the plant, and that a
"committee had gotten together . . . to form this local union,
because he informed them that he wouldn't recognize the CIO, and
they started to organize a union that he would recognize. He said
he would recognize the local."
He and Summersby then went into the meeting in an adjoining
office ("one is Mr. Pawson's [respondent's vice-president] and the
other is Mr. Summersby's").
Page 310 U. S. 335
A leader at this meeting in company offices and attended by
Summersby
"said a few of them got together and decided they didn't want a
CIO, that they thought they would be better off if they had a local
union, that they had a talk with Mr. Summersby, and Mr. Summersby
wouldn't recognize the CIO, and, rather than have trouble he was
going to see if we couldn't have a local union."
Summersby "explained advantages of the local union and spoke of
the BDA."
Another employee supplied evidence that, a week or two after
Nelson was fired, the timekeeper took him to see Summersby, who
asked about a CIO card which had been on the back of this
employee's car, and that Summersby then "said he wouldn't recognize
it," and could close the plant down.
The financial Secretary of the Federation stated --
He was first given a temporary appointment at the meeting in
Summersby's office, April 6, when Summersby said "he didn't like
the idea of bargaining outside." The men present in the afternoon
meeting in Summersby's office "asked for the privilege of using the
office to find out how we had made out on our cards." The meeting
in the shipping room was a day or so later. After the morning
meeting in Summersby's office on the 6th, this temporary Federation
official started passing out Federation cards for which Summersby
had given permission. Federation circulars were posted on plant
bulletin boards. Federation application cards were passed out by
"all of us that were in the office at that first meeting." Officers
of the Federation were subsequently elected (April 11). "All us men
who were in the office the first day, I think we acted as a
committee." Between April 6 and 11, Summersby permitted the
temporary committee to meet in an old company office in the plant.
The paymaster gave them a list of the men in the plant by which to
determine the necessary fifty-one percent. On April 9, prior to the
election of the Federation's officers on the 11th, this temporary
committee presented a letter to Summersby stating that they
represented fifty-one percent of the men. That same day, Summersby
granted
Page 310 U. S. 336
recognition to the Federation. This employee felt no need for
organization, except for "better feeling," which he thought "was
necessary because the CIO was going to do the same thing." He
helped form the Federation "partly" to stop the CIO, and because
the CIO had already started. A company car was used by him on one
occasion for purposes of the Federation. Meetings of the executive
committee of the Federation were held in a club room "on property
owned by the BDA." This witness engaged as attorney for the
Federation one who he knew "had represented . . . [the company] on
some cases;" he himself lives in a house owned by the company. Some
Federation dues were collected on the company's premises; members
were not suspended for dues delinquency, and may also be members of
any labor union or society. The Federation started about a week
after the CIO drive; it had no income of its own prior to the last
week in April. Eventually it affiliated with an outside union still
designated "as the BDA Employees' Federation" "to bring a little
more prestige and to prove to the ones that were skeptical that we
were not a company union."
The first vice-president of the Federation testified --
He negotiated recognition of the Federation, April 9, (three and
six days respectively after discharge of Schofield and Nelson) as
its acting president. On that day, he called a meeting of the
organizing committee in "the little office in the gray room,"
showed them that they had fifty-one percent signed cards, and then
went to Summersby's office. In Summersby's office, the witness and
company officials counted the signed cards and checked them against
a list of employees which Summersby asked the paymaster to get. The
cards were not checked to see if each signer was eligible; the
management took the temporary committee's word for it. And the
cards were left with Summersby. The witness didn't know that the
Federation planned to do anything that "was any different" from
what the employees previously could have done by grievance
committees. He had heard rumors that a boss had Federation cards or
spoke to employees about them, and believed one man quit work as
the result of posting CIO handbills.
Page 310 U. S. 337
He spoke at the shipping room meeting and asked Summersby to
speak there. Summersby did speak. Along the lines of his
conversation at the two previous meetings in his office, Summersby
told this gathering of employees that he preferred a local, and
"was not in favor of bargaining with the CIO."
TWOC's State Director for Rhode Island stated --
On April 7, he saw Summersby and told him TWOC had "about
seventy-five percent" of the men signed. Summersby refused to say
then that he would recognize TWOC. April 16, the Director, a
Federal Conciliator and a TWOC organizer saw Summersby again and
were told by Summersby that "he had a union," and wouldn't
recognize the CIO, as he was "afraid of an outside union." It was
agreed that he would hear from Summersby's attorney after the first
(April 7) meeting, but he never heard. A form contract was
submitted to Summersby on the 16th, but, by that date, "he had
definitely decided that he would refuse to bargain with the
CIO."
According to the company's vice-president --
He was present part of the time at one of the meetings in
Summersby's office on April 6, where cards and literature were
present and a union was discussed. Summersby was heard to express
the opinion "that he would prefer to deal with a union of his own
employees, rather than to deal with outside influences."
One of the men present when Schofield was found smoking
testified that a salaried employee who reports "things which are
done wrong" came around and asked everybody if he had joined the
local union; at the meeting in the shipping room, Summersby said he
would not recognize the CIO, but would recognize a local; the
witness was paid for the fifteen minutes spent at that meeting; the
men were told by the timekeeper that they would be so paid. An
official of the Federation said, "The impression was that Mr.
Summersby probably wouldn't recognize" the CIO; this official was
"one
Page 310 U. S. 338
of the first" organizers of the Federation, and conveyed to
people the impression that Summersby wouldn't recognize the
CIO.
As related by Summersby, president and general manager of
respondent --
A wage increase was announced March 31. After he met in his
office on April 6 (the day of Nelson's discharge) with the
committee of "jiggers," later the same day he was asked for a place
in which the Federation's temporary committee could meet. He
answered the request by saying, "You can have my office and make
yourselves comfortable." That afternoon, as he was ready to leave,
the temporary committee met in his office and he was "advised that
they were organizing a local union. . . . I told them that I would
grant them the same privileges I would grant any other union. . .
." Two days after recognizing the Federation, he placed and paid
for an ad in a local paper, entitled "The Strike that Failed"
because in part, as he said, "The BDA Employees' Federation had
formed, and had taken the organization into their own hands, and
had shown that they were still real citizens." Respondent is owned
by an English concern, and a statement by him appeared in the local
paper, on April 25, disclosing the possibility of the company's
moving the plant out of the United States if there were to be
"labor uncertainties."
He recognized the Federation April 9, and on April 13, told the
Federal Conciliator that an election could not be held, since the
Federation had already been recognized. And on the 16th, Summersby
told Salerno that his proposed TWOC contract would be taken up with
Summersby's lawyer.
Fifth. Designation of TWOC as bargaining agent.
The court below found no substantial evidence to support the
Board's finding that a majority of respondent's employees joined
the TWOC, or that "the TWOC . . . ever came into actual existence
with authority to negotiate a contract with the respondent." Much
of the testimony already referred to bore upon the genesis of TWOC
at respondent's plant.
Page 310 U. S. 339
Schofield said:
By April 4, he had "four hundred and sixty-five or four hundred
and sixty-seven" signed application cards "marked down." The cards
were sent to Boston. A few men paid dues, but collection was
stopped. ". . . [W]e had a majority of cards signed." Dues are not
collected until management grants recognition. No local CIO (TWOC)
entity had been formed for the plant; "we had the fifty-one
percent, but this company union stuff and discharge and everything
came along, and we have just had to wait for this hearing. . .
."
Nelson stated that he told the timekeeper, on April 2, "It's all
over but the shouting. . . . We have well over sixty percent signed
up already." And, from the testimony of an officer of the
Federation, it appeared that the CIO drive resulted in a number of
signatures, and that both organizations could possibly claim
fifty-one percent of the employees signed up.
As explained by the TWOC State Director --
A charter or local is unnecessary for membership in TWOC; no
charter to a local is granted until after recognition. Members of
the Federation are members in good standing of TWOC, even if they
have not paid dues or initiation fees. The TWOC cards were brought
to him during the first week in April. Summersby, April 9, refused
to agree to have the Federal Conciliator, or a third party, count
the TWOC cards. Employees are eligible to membership in TWOC,
without formation of a plant local.
The TWOC Director's Secretary stated that the TWOC cards were
brought in before April 12. It was agreed at the hearing that,
after respondent checked against the original signed cards, TWOC
had a list of four hundred and eighty-two names taken from those
cards. And it was stipulated that these cards were signed "on or
before April 10, 1937."
Shift in membership.
Respondent has contended before the Board, as here, that, if the
TWOC did actually represent a majority
Page 310 U. S. 340
of its employees on April 4 (as the Board found), a shift in
membership had given the Federation a majority when the company on
April 9 recognized it as exclusive bargaining representative.
However, the Board found that
"the record is clear that, had it not been for the unfair labor
practices of the respondent in organizing and fostering the
Federation and in persuading, intimidating and coercing its
employees to join the Federation and leave the TWOC, the
respondent's employees would have remained members of the
TWOC."
In view of the substantial support in the evidence for the
Board's findings that the company intimidated and coerced its
employees and dominated the Federation, the Board properly
concluded that
"The unfair labor practices of the respondent cannot operate to
change the bargaining representative previously selected by the
untrammeled will of the majority. [
Footnote 7]"
And, accordingly, the Board was justified in its finding
"that, on April 4, 1937, and at all times thereafter, the TWOC,
pursuant to Section 9(a) of the Act, was the exclusive
representative of all the employees in the appropriate unit for
purposes of collective bargaining. . . ."
Sixth. The "Sit Down."
As one of the apparently alternative grounds of its decision,
the Circuit Court of Appeals declared the Board without authority
to order reinstatement of Nelson and Schofield because of so-called
unlawful conduct and the alleged incitement of a "sit down" strike
within the meaning of the
Fansteel case. [
Footnote 8] The opinion stated that
"Nelson even threatened truck drivers delivering materials to
the plant with violence, and to destroy spur tracks over which
materials were delivered to the plant. . . . The
Page 310 U. S. 341
affirmative action that is authorized is to make these remedies
effective in the redress of the employees' rights, to assure them
self-organization and freedom in representation, not to license
them to commit tortious acts or to protect them from the
appropriate consequences of unlawful conduct. We are of the opinion
that to provide for the reinstatement or reemployment of employees
guilty of the acts, which it is not denied were committed in this
instance, would not only effectuate any policy of the Act, but
would directly tend to make abortive its plan for peaceable
procedure."
We find no such issue raised by respondent's pleadings before
the Board. Respondent made request for special findings by the
Board, but included none that Nelson and Schofield had been guilty
of any unlawful conduct. Nelson categorically denied having made
threats of violence. The court was apparently referring to the
testimony of a truck driver which appears in the record. An
objection of the Board's representative to the introduction of this
particular testimony was overruled by the trial examiner when
respondent's attorney made the following statement:
"If your Honor please, may I point out that, while Mr. Nelson
was on the witness stand in cross-examination, I asked him if he
did not say certain things at this time and place, that this
witness has been referring to, which the witness Nelson denies. The
testimony of this witness that Nelson did say those things is in
contradiction of Mr. Nelson's testimony, and is clearly admissible
as tending to impeach the veracity of Mr. Nelson's testimony. Aside
from that, I also submit it as bearing on the type of conduct and
the attitude of the representatives and organizers of this TWOC
getting membership and conducting the affairs of this
organization."
This truck driver's helper testified that, on the morning of
April 8, after Schofield and Nelson had been laid off, he saw
Nelson, Schofield, and a third "little fellow from the
Page 310 U. S. 342
CIO" "outside the mill yard." He noticed Nelson "going up and
down motioning. . . . Going like this [illustrating by waiving
arms, squatting and standing.]" As this truck driver recollected,
Schofield was not "doing anything." "If anybody was looking out the
east door, they could" see Nelson or Schofield moving their hands
that morning; Nelson "made a motion to sit down, that is all," out
"on the main road going to the plant." He "couldn't say that" any
workers would have seen Nelson; he "couldn't say that, whether they
could see out or not. I don't know." An employee, not Nelson or
Schofield, who "went through the department shouting "Sit-down
strike," was taken for an automobile ride by the company's
vice-president, talked to, given lunch and sent home to bed without
loss of pay, and was still working for the company at the time of
the hearing. When asked, "You remember you said, "Well, we can blow
up the railroad?," Nelson answered, "No, absolutely not."
In vacating the Board's order of reinstatement on the ground
that undenied evidence showed that Nelson and Schofield had, after
their unlawful discharge, incited or threatened unlawful conduct,
the court acted without any justification.
Congress has placed the power to administer the National Labor
Relations Act in the Labor Board, subject to the supervisory powers
of the Courts of Appeals as the Act sets out. If the Board has
acted within the compass of the power given it by Congress, has, on
a charge of unfair labor practice, held a "hearing," which the
statute requires, comporting with the standards of fairness
inherent in procedural due process, has made findings based upon
substantial evidence, and has ordered an appropriate remedy, a like
obedience to the statutory law on the part of the Court of Appeals
requires the court to grant enforcement of the Board's order. Until
granted such enforcement, the Board is powerless to act upon the
parties
Page 310 U. S. 343
before it. And the proper working of the scheme fashioned by
Congress to determine industrial controversies fairly and peaceably
demands that the courts quite as much as the administrative body
act as Congress has required.
Mindful of the separate responsibilities Congress has imposed
upon the Board and the courts, we have carefully scrutinized this
entire record. Within the range of our examination has appeared not
merely the testimony, but also the procedure followed from the
filing of the charge before the Board to final decree of the Court
of Appeals. The Board and its representatives solicitously guarded
respondent's and intervenor's right to a full and fair hearing,
manifested liberality in ruling upon evidence proposed by both
sides, and conducted the proceedings in a manner calculated to
bring about a just result. And, as we have pointed out, substantial
evidence supported the result which the Board did reach. [
Footnote 9] Notwithstanding, the court
below declined to order enforcement of the Board's order, and the
implications of its opinion are that the Board, without a proper
regard for either the limitations on its power or the evidence,
made findings, all of which had no substantial support.
But, in reaching this conclusion, the Court of Appeals itself
failed to give proper regard to the evidence which was before the
Board, which appeared in the record before the court, and which we
have set out in this opinion. In refusing to enforce the Board's
order, the court exceeded the power given it. The cause is reversed
and remanded with directions to enforce the Board's order without
conditions or qualifications.
Reversed.
MR. JUSTICE McREYNOLDS took no part in the consideration or
decision of this case.
[
Footnote 1]
308 U.S. 549;
cf. Labor Board v. Waterman Steamship
Co., 309 U. S. 206.
[
Footnote 2]
Labor Board v. The Falk Corp., 308 U.
S. 453,
308 U. S.
462.
[
Footnote 3]
Section 10(e) of the National Labor Relations Act gives the
Board power to petition any Circuit Court of Appeals of the United
States for the enforcement of its order, grants these courts
exclusive jurisdiction, and provides that,
"Upon [the Board's filing a transcript of the entire record in
the proceeding], the court shall cause notice thereof to be served
upon such person, and thereupon shall have jurisdiction of the
proceeding and of the question determined therein, and shall have
power to . . . make and enter upon the pleadings, testimony, and
proceedings set forth in such transcript a decree enforcing,
modifying, and enforcing as so modified, or setting aside in whole
or in part the order of the Board."
49 Stat. 449, 454.
[
Footnote 4]
The record indicates that respondent does roughly one percent of
the national total of business in its industry.
[
Footnote 5]
Labor Board v. Fainblatt, 306 U.
S. 601.
[
Footnote 6]
Edison Co. v. Labor Board, 305 U.
S. 197,
305 U. S. 222;
cf. Labor Board v. Jones & Laughlin Corp.,
301 U. S. 1,
301 U. S. 43. A
strike at respondent's plant in 1929 apparently did result in a
stoppage of the flow of the interstate movement of materials to and
of processed goods from respondent's plant.
[
Footnote 7]
Cf. Texas & N.O. R. Co. v. Railway Clerks,
281 U. S. 548,
281 U. S. 557,
281 U. S. 571,
affirming 33 F.2d 13,
affirming 24 F.2d
426; 25
id. 873; 25
id. 876, 877-878.
[
Footnote 8]
Labor Board v. Fansteel Corp., 306 U.
S. 240.
[
Footnote 9]
Accepting the underlying findings of the Board, as we do, it was
within the province of the Board to draw the inferences that the
guarantees of Section 7 of the Act required disestablishment of the
Federation (
Falk case,
308 U. S. 461,
and cases cited), and that posting of appropriate notices was
necessary.
Id., p.
308 U. S.
462.