NATIONAL LABOR RELATIONS BOARD v. CINCINNATI CHEMICAL WORKS, Inc., 144 F.2d 597

MARTIN, Circuit Judge.

Though the National Labor Relations Board found insufficient evidence to support the charge that the respondent, Cincinnati Chemical Works, Inc., dominated or assisted an independent labor Association organized by its employees, reversed the findings of Trial Examiners that Scherm, an active Association partisan, was a supervisory employee for whose conduct respondent was responsible, and held also that stationary engineers were not supervisory employees, the Board, nevertheless, upheld the Examiners’ findings that respondent had engaged in unfair labor practices and entered its customary cease and desist order against discouragement of membcrshin in a C.

I. O. union. This ultimate finding was, in our judgment, against the overwhelming weight of the evidence. A single witness, Bennett, who repudiated his own signed statement and otherwise acted a self-contradictory role, testified that he had overheard Barwig, a foreman at one of respondent’s plants, say that men wearing Union buttons “wasn’t going to get such a good break; that the ones that didn’t have no buttons would get all the gravy;” so he “took off” his Union button.

Jenkins testified that Crane, an assistant chemist at another of respondent’s plants, told him that if he joined the Union, Crane could make it hard on him. But the witness admitted that while a member of the Union, he was paid a Christmas bonus and received from respondent the same treatment “as the other fellows” did. Marshall, also an employee, testified that Chemist Crane expressed surprise that he was “mixed up with” the C. I. O. Union and asked him if he had a grudge against anybody.

Marshall conceded, however, that all employees were “treated the same way” and that “each one had his own work to do, no matter what union be belonged to.” Marshall stated further that in changing his membership from the Association to the Union, he had in mind the greater advantage enjoyed by the C. I. O. Union under- the law.

Asked by the Trial Examiner what law he had in mind, the witness replied, “Well, the Wagner Act, as far as that is concerned.” Our search of the record reveals no other pertinent evidence tending to support the charge that respondent sought to influence its employees’ choice of affiliation. Evidence supporting a contrary inference is voluminous.

As evincing its good faith, respondent called a meeting of all its numerous foremen and supervisory employees and through its two top executives instructed them to keep “hands off” between the Union and the Association, not to discuss or mention any issues between them or “to try to persuade or sway anybody” in either direction. It was made plain that the employees were “to have their own free will entirely.” Notices were posted by the company in its plants that there would be no discrimination against any employee because of his, union or non-union affiliation.

More than a dozen employees, namely Haubner, Eads, Burkley, Barge, Steele, Wethington, Ruess, Devore, O’Keefe, Oglesby, Jenkins, Marshall, Holmes and Norman, testified to the effect that they had been treated fairly by the respondent and had not been discriminated against because of their C. I. O. Union membership. A Christmas bonus and a periodic salary raise came to Union and non-Union men alike.

Our reading of the record in entirety has convinced us that the respondent-sailed a fair and neutral course in the controversy in its plants between union and non-union labor, and we cannot concur in the Labor Board’s illogical deductions. But the Circuit Courts of Appeals of the United States have been repeatedly admonished by the Supreme Court that they are not privileged under the Wagner Act to substitute their own reasoning upon evidentiary fact issues for that of the Labor Board. So, in duty bound, we reluctantly decree enforcement of the cease and desist order entered by the Labor Board.

But enforcement of the Board’s order for reinstatement of Julius Price with back pay is a different matter. We do not conceive that in enacting a law in time of peace for the furtherance of peaceful industrial relations, Congress, intended to foreclose the courts of the United States in reviewing Labor Board decisions from functioning .even independently enough to protect the nation from the danger of subversive activity in munition plants in time of war.

When the passage of the Wagner Act, 29 U.S.C.A. § 151 et seq., was debated, its proponents placed much stress upon the check upon the power of the Labor Board assured by court review.

We cannot believe that Congress contemplated to set up the Labor Board so high above the federal courts that a United States Circuit Court of Appeals in time of war would be compelled to direct the reinstatement in a chemical plant of a discharged employee who, despite a contrary finding by the Board, is believed by this court upon the evidence of record to have stated on the day following Pearl Harbor that he hoped the Japs would sink some more United States ships.

Roosevelt Smith and Sam Phelps, two of his co-workers of the same color, swore'firmly that Price made that remark to them; and another, William Oglesby, testified that he heard Phelps ask Price why he would live in a country, the only country that he knew anything about, and be against it, and that Price replied that he had tried to join the Marines and had been barred by reason of his color.

No hostile motivation against Price upon the part of these three witnesses was shown and the acceptance by the Board of Price’s denial of his subversive remark as against the positive testimony of these disinterested witnesses seems unjustifiable. Careful consideration of the entire evidence in the case has left no reasonable doubt in our minds that Price’s discharge was not remotely related to his Union activity, but was occasioned, as stated by respondent’s executive manager, E. B. Brunskill, by the fact that the company wanted nobody in its employ felt to be in any way disloyal to this country.

In the circumstances of the case, this court denies the petition of the National Labor Relations Board for enforcement of its order directing the reinstatement of Julius Price with back pay.