National Labor Relations Board v. Giannasca

119 F.2d 756, 8 L.R.R.M. (BNA) 511, 135 A.L.R. 560, 1941 U.S. App. LEXIS 3828

• Court: Court of Appeals for the Second Circuit
• Decided: May 5, 1941
• Status: Published

Opinions

L. HAND, Circuit Judge.

This case comes up upon the report of a special master heretofore appointed to determine whether the respondent had violated a consent order of the usual form, entered on May 9, 1940. The Board alleges that the respondent violated the decree in three matters. First, he did not reinstate his striking employees immediately, as directed; and when he did, he discriminated against them by cutting their wages. Second, he did not bargain with the union in good faith. Third, he failed to post the required notices promptly; and by retaining strikebi eakers deprived the returning strikers of the full relief granted them. 'Che master held extensive hearings, resulting in about 500 pages of testimony, and filed a report finding that the respondent had not violated the order at all.

It seems to us that the striking employees were taken back soon enough. Thirty-three returned to work on May 16th and demanded immediate reinstatement. (One had gone back on May 14ih.) The respondent employed five on the 16th, five on the 17th, two on the 18th, eleven on the 20th, three on the 21st, three on the 22nd, and one on the 23rd. Thus he had taken hack 23 within five days and the other seven at the end of seven working days. The other three drifted off in some way not disclosed. The respondent could scarcely be expected to find places for all of these men instanter in a shop which had less than 55 in ail; he had to adjust a going business to what was nearly a complete change of personnel. The word, “immediately,” in the order must he interpreted reasonably. On the other hand a careful analysis of the evidence relating to wages forces upon us the conclusion that the respondent did discriminate against the returning strikers. These he concededly cut and gave as an explanation that his business had fallen off a great deal during, and because of, the strike, so that on May ICth he could no longer afford the same wage scale that had been in force on February 20ih, when the strike began. For this reason he was forced not only to take off an increase of 10%, granted before February, 1940, but in addition to impose a cut of 10%. This testimony the master accepted, and so should we, were it not for certain instances which seem to us to contradict the respondent’s explanation. He employed five strikebreakers between the 23rd of February and the 13th of March, none of whom he cut at any time. One of these, employed on February 24th, and another, on March 6th, he paid 60 cents an hour; and to two others, employed on the 28th he paid 35 cents. The fifth, Chiarella, got 50 cents, but as there was testimony that he was a particularly good worker, we will disregard him. The wages of those employed in February could not yet have been influenced by any actual falling off in the business; and any prospective falling off would depend upon how long the strike might last, which no one could tell. Another instance was the woodworkers. One of these, Morello, was employed on May 6th at 40 cents an hour and raised on May 17th to 50 cents; and while it is of course possible that he had proved to be an exceptionally good workman, the record does not definitely show that he was. The same is true of Nick DeSimone, who was employed on April 15th and raised on May 17th. Roberto, hired on May 13th at 65 cents, was put on piece work on the 17th, which did indeed result in his earning less, but with that exception and the somewhat obscure circumstances surrounding Cala-martino no strikebreaker or employee who did not strike was cut at all, and five or six were raised while every striker was cut except those upon the minimum wage; and indeed Maria Voce was cut to 65 cents from 75, and John Batory from 65 cents to 60; in spite of the fact that Voce was a department head, and Batory was an outstanding workman. The only other 60 cent men were Carrado and Angelo, strikebreakers employed on February 24th and March 6th, who also do not appear to have been especially valuable. Chester Stec, a striker, was cut from 50 cents to 42 cents, though Nick DeSimone, employed on April 15th at 50 cents, was raised on May 17th to 52 cents. They were doing the same work, although it is true that the respondent swore that he thought De-Simone “not quite as good as” JBatoiy “but pretty near to” him. It is of course impossible to be positive but in the face of this evidence we cannot accept the respondent’s explanation.

The second question is whether his refusal to bargain with the union was in good faith. There was a good deal of apparent negotiation back and forth, wholly inconclusive, in which the respondent retreated from a number of positions. Each side clearly distrusted the other; the respondent had originally refused to deal with the union at all, and remained unwilling to do so except as he had to. After the order passed, it may well have been that he was merely keeping up a pretense of negotiation and never meant to come to an agreement. Certainly the evidence permitted that conclusion, and if the master had found the opposite, we should have affirmed him. The issue of bad faith is always difficult to decide; it is seldom possible to be sure of another’s state of mind, and the findings of the tribunal of first instance should be especially cogent. We cannot find such a clear preponderance in the case at bar as to overrule the master upon this point.

The third question is the violation of three commands of the decree: (1) delay of two weeks in posting the required notices, which does not appear to us to justify any penalty; (2) delay in reinstatement (which we have already considered) ; (3) retention of strikebreakers after the strikers were taken back. The respondent’s factory population was substantially the same on February 20th and May 23rd, fifty-two as against fifty-three. For this reason the respondent argues that there was no discrimination in keeping on all the strikebreakers. However, it appears that on May 23rd there were sixteen men who got a week of less than forty-two hours while on February 20th, there had been only three; of these sixteen eleven were strikers. The respondent explained that he kept the strikebreakers because he feared a renewal of the strike and wished to have a reserve. However, the order had provided that “all persons hired after February 19, 1940, shall be dismissed, if necessary, to provide employment for those to be offered reinstatement upon application. If thereupon by reason of a reduction in the force of employees needed, there is not sufficient employment immediately available for the remaining persons who went on strike on February 19, 1940 * * * all available positions shall be distributed among such remaining employees.” Verbally this provision was satisfied if all strikers who applied were taken back; but under the circumstances that was not full compliance. The purpose of this provision was to insure the returning strikers that the strike should not prejudice their position; that is, that they should have as good jobs as though there had been no strike. It is true that when they came back there were no more in the factory to divide the work, than when they left. Of course they had to take their chances of what work there would be; but we think that the order did not subject them to other chances than those which would have arisen from the respondent’s judgment uninfluenced by the fear of a second strike. If he chose to maintain a reserve, he was of course free to do so, but not to the prejudice of the returning strikers; the order secured them the benefit of his judgment based upon the number of men who could efficiently do the work in hand, and that he did not give them.

For the foregoing reasons the report will be modified by holding the respondent in contempt for discriminating against the strikers in wages and for retaining the strikebreakers. We impose a fine of $250, together with the fee of the master, which we fix at $750, and the other expenses of the reference.

Enter an order in accordance with the foregoing.