BRATTON, Circuit Judge.
Moore-Lowry Flour Mills Company, a corporation, hereinafter called the company, operates at Coffeyville, Kansas, a flour mill for the processing of grain into flour and other products, and it also operates ten grain elevators at various places in that state; Flour Mill and Cereal Workers Union No. 20601, affiliated with the American Federation of Labor, hereinafter called the union, is a labor organization admitting to membership employees of the company; and Moore-Lowry Flour Mills Employees Association, hereinafter called the association, is an unaffiliated labor organization admitting to membership employees of the company.
In a conventional proceeding, had under section 10 of the Act of July 5, 1935, 49 Stat. 449, 29 U.S.C.A. § 160, to which the association became a party by intervention, the National Labor Relations Board, hereinafter called the Board, ordered the company to cease and desist from in any manner dominating or interfering with the administration of the association, or with the formation or administration of any other labor organization of its employees, and from contributing support to the association or to any other labor organization of its employees ; from recognizing the association as the representative of any of its employees for collective bargaining purposes; from giving effect to a contract entered into with the association, or to any extension, renewal, modification, or supplement thereof, or to any superseding contract which may be in force; from discouraging membership in the union or in any other labor organization of its employees by discriminating in regard to hire or tenure of employment or any term or condition of employment, of its employees; and from in any manner interfering with, restraining, or coercing its employees in the exercise of their 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 purposes of collective bargaining or other mutual aid or protection, as guaranteed in section 7 of the act. 29 U.S.C.A. § 157. And the order required the company to withdraw all recognition from the association; to offer to Orville Lander immediate and full reinstatement of his former or a substantially equivalent position without prejudice to his seniority and other rights and privileges; to make Lander whole for any loss of pay he may have suffered by reason of the company’s discrimination in regard to his hire and tenure of employment; upon application, to offer to Harlan Ray and Owen Kline immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights or privileges; to make Ray and Kline whole for any loss they may have suffered by reason of any refusal of their application for reinstatement, by payment to each of them of a sum of money equal to that which he normally would have earned during the period from a date five days after the date of the refusal to the date of reinstatement; and to post appropriate notices.
By separate petitions for review the Board seeks enforcement of the order and the company prays that it be set aside. Pursuant to a stipulation of the parties, the two causes were consolidated, submitted on a single record, and briefed and argued together.
The company employs in its mill at Coffeyville approximately thirty-eight workers and thirteen persons in clerical and supervisory capacities. During the fiscal year beginning June 1, 1937, it purchased about eight hundred carloads of grain, of which approximately one-fourth was purchased outside of Kansas. The mill produces about twenty to twenty-five thousand barrels of flour per month, more than one-half of which is sold and transported to points in other states. The nature and extent of the operations of the company bear such close and intimate relation to interstate commerce as to bring the company within the scope of the act and subject it to the jurisdiction of the Board. National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352; Santa Cruz Fruit Packing Co. v. National Labor Relations Board, 303 U.S. 453, 58 S.Ct. 656, 82 L.Ed. 954; National Labor Relations Board v. Fainblatt, 306 U.S. 601, 59 S.Ct. 668, 83 L.Ed. 1014; Southern Colorado Power Co. v. National Labor Relations [422]*422Board, 10 Cir., 111 F.2d 539; Continental Oil Co. v. National Labor Relations Board, 10 Cir., 113 F.2d 473; Cudahy Packing Co. v. National Labor Relations Board, 10 Cir., 118 F.2d 295.
In addition to numerous subsidiary findings which need not be detailed, the Board found that by interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in section 7 of the act, the company was engaged in unfair labor practices, within the meaning of section 8 (1), 29 U.S.C.A. § 158(1); and that by dominating and interfering with the formation and administration of the association and contributing to its support, the company was also engaged in unfair labor practices, within the scope of section 8 (2). These primary findings are challenged on the ground that they are not supported by substantial evidence and are in conflict with the evidence. The act commits to the Board the function of drawing inferences from established facts and circumstances of appraising conflicting evidence, of determining the credibility of witnesses and the weight to be given to their testimony, and of resolving issues of fact. And it is settled beyond room for argument that courts are not at liberty to overturn findings of the Board if they are supported by substantial evidence. National Labor Relations Board v. Waterman Steamship Corp., 309 U.S. 206, 60 S.Ct. 493, 84 L.Ed. 704; National Labor Relations Board v. Link-Belt Co., 311 U.S. 584, 61 S.Ct. 358, 85 L.Ed. 368; Continental Oil Co. v. National Labor Relations Board, supra; Magnolia Petroleum Co. v. National Labor Relations Board, 10 Cir., 115 F.2d 1007; Cudahy Packing Co. v. National Labor Relations Board, supra. With this controlling rule in mind, we turn to the record.
Evidence was introduced which tended to establish these facts: In April, 1937, the union was organized by employees of the company as well as those of Nutrena Mills Company, located just across the street. Orville Lander and Harlan Ray were charter members of the union; Wilson Ray, son of Harlan Ray, became its president; and Lander became its secretary. Prior to that time, Ray and Lander had been on friendly terms with Lee Hood, superintendent of the mill, but thereafter Hood’s attitude changed. He referred to them as “Reds,” “Bolsheviks,” and “troublemakers,” and stated on one occasion that he intended to assign them to work together in order that they could not organize. He asked Ray if he was a member of the union and upon receiving an affirmative answer stated that a company union was best.
Free access — add to your briefcase to read the full text and ask questions with AI
BRATTON, Circuit Judge.
Moore-Lowry Flour Mills Company, a corporation, hereinafter called the company, operates at Coffeyville, Kansas, a flour mill for the processing of grain into flour and other products, and it also operates ten grain elevators at various places in that state; Flour Mill and Cereal Workers Union No. 20601, affiliated with the American Federation of Labor, hereinafter called the union, is a labor organization admitting to membership employees of the company; and Moore-Lowry Flour Mills Employees Association, hereinafter called the association, is an unaffiliated labor organization admitting to membership employees of the company.
In a conventional proceeding, had under section 10 of the Act of July 5, 1935, 49 Stat. 449, 29 U.S.C.A. § 160, to which the association became a party by intervention, the National Labor Relations Board, hereinafter called the Board, ordered the company to cease and desist from in any manner dominating or interfering with the administration of the association, or with the formation or administration of any other labor organization of its employees, and from contributing support to the association or to any other labor organization of its employees ; from recognizing the association as the representative of any of its employees for collective bargaining purposes; from giving effect to a contract entered into with the association, or to any extension, renewal, modification, or supplement thereof, or to any superseding contract which may be in force; from discouraging membership in the union or in any other labor organization of its employees by discriminating in regard to hire or tenure of employment or any term or condition of employment, of its employees; and from in any manner interfering with, restraining, or coercing its employees in the exercise of their 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 purposes of collective bargaining or other mutual aid or protection, as guaranteed in section 7 of the act. 29 U.S.C.A. § 157. And the order required the company to withdraw all recognition from the association; to offer to Orville Lander immediate and full reinstatement of his former or a substantially equivalent position without prejudice to his seniority and other rights and privileges; to make Lander whole for any loss of pay he may have suffered by reason of the company’s discrimination in regard to his hire and tenure of employment; upon application, to offer to Harlan Ray and Owen Kline immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights or privileges; to make Ray and Kline whole for any loss they may have suffered by reason of any refusal of their application for reinstatement, by payment to each of them of a sum of money equal to that which he normally would have earned during the period from a date five days after the date of the refusal to the date of reinstatement; and to post appropriate notices.
By separate petitions for review the Board seeks enforcement of the order and the company prays that it be set aside. Pursuant to a stipulation of the parties, the two causes were consolidated, submitted on a single record, and briefed and argued together.
The company employs in its mill at Coffeyville approximately thirty-eight workers and thirteen persons in clerical and supervisory capacities. During the fiscal year beginning June 1, 1937, it purchased about eight hundred carloads of grain, of which approximately one-fourth was purchased outside of Kansas. The mill produces about twenty to twenty-five thousand barrels of flour per month, more than one-half of which is sold and transported to points in other states. The nature and extent of the operations of the company bear such close and intimate relation to interstate commerce as to bring the company within the scope of the act and subject it to the jurisdiction of the Board. National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352; Santa Cruz Fruit Packing Co. v. National Labor Relations Board, 303 U.S. 453, 58 S.Ct. 656, 82 L.Ed. 954; National Labor Relations Board v. Fainblatt, 306 U.S. 601, 59 S.Ct. 668, 83 L.Ed. 1014; Southern Colorado Power Co. v. National Labor Relations [422]*422Board, 10 Cir., 111 F.2d 539; Continental Oil Co. v. National Labor Relations Board, 10 Cir., 113 F.2d 473; Cudahy Packing Co. v. National Labor Relations Board, 10 Cir., 118 F.2d 295.
In addition to numerous subsidiary findings which need not be detailed, the Board found that by interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in section 7 of the act, the company was engaged in unfair labor practices, within the meaning of section 8 (1), 29 U.S.C.A. § 158(1); and that by dominating and interfering with the formation and administration of the association and contributing to its support, the company was also engaged in unfair labor practices, within the scope of section 8 (2). These primary findings are challenged on the ground that they are not supported by substantial evidence and are in conflict with the evidence. The act commits to the Board the function of drawing inferences from established facts and circumstances of appraising conflicting evidence, of determining the credibility of witnesses and the weight to be given to their testimony, and of resolving issues of fact. And it is settled beyond room for argument that courts are not at liberty to overturn findings of the Board if they are supported by substantial evidence. National Labor Relations Board v. Waterman Steamship Corp., 309 U.S. 206, 60 S.Ct. 493, 84 L.Ed. 704; National Labor Relations Board v. Link-Belt Co., 311 U.S. 584, 61 S.Ct. 358, 85 L.Ed. 368; Continental Oil Co. v. National Labor Relations Board, supra; Magnolia Petroleum Co. v. National Labor Relations Board, 10 Cir., 115 F.2d 1007; Cudahy Packing Co. v. National Labor Relations Board, supra. With this controlling rule in mind, we turn to the record.
Evidence was introduced which tended to establish these facts: In April, 1937, the union was organized by employees of the company as well as those of Nutrena Mills Company, located just across the street. Orville Lander and Harlan Ray were charter members of the union; Wilson Ray, son of Harlan Ray, became its president; and Lander became its secretary. Prior to that time, Ray and Lander had been on friendly terms with Lee Hood, superintendent of the mill, but thereafter Hood’s attitude changed. He referred to them as “Reds,” “Bolsheviks,” and “troublemakers,” and stated on one occasion that he intended to assign them to work together in order that they could not organize. He asked Ray if he was a member of the union and upon receiving an affirmative answer stated that a company union was best. Ray expressed the view that a company union would violate the act, and Hood thereupon belittled the act and stated that he was going to fire one man that day and one every thirty days until he got rid of all of them, and on another occasion he told Ray that he had been a good man for a long time but was just a troublemaker since he joined the union. Hood made slurring remarks about Lander, and told him on one occasion that he did not have any sense. On another occasion he pointed out Lander to Watson Ellis as a union man who held a job in the union. When Lander stated that he was secretary of the union, Hood inquired what he thought the union was going to do, and stated that he belonged to a union once and “got a good gypping”; Ellis said that he had a similar experience, that he once joined a union, that he had saved up some money, and that the union got all of it; and Hood and Ellis said that a company union was best, that they should have a company union so that no dues would have to be paid out. After some intervening discussion, Hood admonished Lander not to think that because he was a member of the union he could not be fired because Hood was going to fire union men when they thought that. Charlie Cox, warehouse foreman, announced to a number of employees that he did not mind seeing them all get together but that they did not want outside representatives there.
In June, the organization of an unaffiliated union was initiated. After two informal meetings had been held on the lawn— company property — in front of Hood’s office, a notice signed by W. H.. Hurt, an employee, was posted on the bulletin board of the company announcing that a meeting would be held on the lawn that evening. The meeting was opened with the statement that its purpose was to organize a little company union of the employees. Hurt, Reidy and Ellis were elected president, secretary and treasurer, respectively. Reidy and Ellis were second millers. The next day Hood demoted Lander from the position of oiler to that of sweeper at reduced wages. Maiden, an organizer for the American Federation of Labor, took up the matter with Hood. After some discussion, Hood agreed to reinstate Lander to his former position. But, despite the agreement, [423]*423on the following morning Lander was summoned to the office of Hood and found Hood, Cox, Hurt and Reidy there. Hood informed Lander that he had left to the committee the question whether he should be restored. Lander protested. One member of the committee told him that they were trying to organize a little company union in which all employees could work together and be satisfied, that they would put him back on the job and for him to go back and behave. Cox said that if Lander had been working for him he would have fired him two weeks previous. After some discussion, Lander resumed his former position. Another meeting of the company union was held on company property at which a proposed contract with the company was discussed but no formal organization was perfected. The union lodged charges with the Board in which it was charged that the company was engaging in unfair labor practices in connection with the formation and maintenance of the company union. A representative of the Board and representatives of the company conferred. After discussion, in which the propriety of certain employees being members of the organization was challenged, it was agreed that the company should refuse to recognize the organization. Another meeting was held the same day, with Maiden, Hurt, and perhaps one or two other members of the newly formed organization present, at which the persons last mentioned were advised that the organization did not comply with the terms of the act and therefore the company would not recognize it. Within a day or two thereafter, representatives of the company met with representatives of the Board in Kansas City, and a notice was prepared and signed by the company stating that it recognized the rights of the employees to self-organization and to bargain collectively through representatives of their own choosing; that under the act the company was prohibited from interfering with, restraining, or coercing employees in such rights, and from dominating or interfering with the formation or administration of any labor organization, or from contributing financial support to it; that the company intended to comply with the act; that charges had been filed against such organization and because of such charges it was deemed inadvisable for the company to recognize the organization as a bargaining agency; that a representative of the Board had given assurance that an appropriate election would be held for the purpose of the employees selecting an agency as their bargaining representative. The notice was seasonably posted on the bulletin board of the company. Almost immediately after Hurt and others were advised that the organization could not be recognized and before the posting of the written notice, Hurt, Reidy and Ellis obtained the services of an attorney in the formation of another organization. The attorney prepared bylaws of the association. Hurt signed and posted a notice on the bulletin board that a meeting would be held for the purpose of considering its organization. The meeting was held on July 13th in the garage of the company, either adjoining or immediately adjacent to the office of Hood. Hurt opened the meeting with the statement that the old organization had been knocked out, that it was necessary to elect new officers, and that bylaws for a new organization and a proposed contract with the company had been prepared. The bylaws were read and adopted. A notary was called from the office and the bylaws were acknowledged before him. Hurt was elected president, but Reidy and Ellis were replaced by others. However, they became members and signed the bylaws. The proposed contract was considered and it was decided to submit it to the company. The meeting was held during working hours and lasted for about two hours. Some if not all of the employees punched the clock, but the testimony is in conflict as to whether a deduction was made in wages for the time thus spent. Hood told Lander to attend the meeting. Lander stated that he would not be welcomed. Hood disagreed and told him to attend, and said that they would treat him right. He also directed a group of employees to go to the meeting and said that he could operate the mill by himself. Cox told an employee in his department that there would not be any work that morning until the -meeting ended. About three days after the meeting, Hood referred to Landér and Ray as “Reds,” asked them what they thought of their union organization then, and stated that they had better get out of it and get into the association. About ten days after the meeting, officials of the company and representatives of the association conferred one evening and agreed upon a proposed contract. . The following morning, during working hours, the association held a second meeting in the garage and voted to accept the terms. The mill was shut down during the meeting. Hood told Ray that he [424]*424liad better attend the meeting. Ray replied that it was for members of the association and that he was not a member. Hood then directed Ray to sit on the dock until the meeting ended. Hood also told Lander that he might as well sit on the dock with Ray until the boys got back. And the two sat there together until the meeting closed. After the association had been fully organized, Hood adopted the policy of submitting the names of applicants for employment to the committee of the association for its approval, although the contract failed to contain a provision requiring that he do so.
At the time of the posting of the notice that the company would not recognize the first organization, and at the time the association was in process of organization in the manner outlined, an article from the American Miller, a trade magazine, was posted on the bulletin board of the company. It was entitled “Don’t be a Sucker.” It said among other things:
“There’s a big difference between gentlemanly organization and mad-dog terrorism. We have no room here to dissect the current reign of labor-agitation but room must be made for a word of warning to all employees to let the beast alone. Hands off! Poison! * * * Now here’s the point: Don’t be a dupe for any wily organizer. * * * Finally if you suffer from arrested mental development — if you believe the tripe which labor agitators stuff into simple ears — at least keep your mouth shut. Reckless gabbing will ruin your future. * * * Not long ago an employer quietly pointed to one of his workmen, We have been grooming that man for a superintendency,’ he whispered. ‘But, to our surprise, he’s begun preaching unrest to our people. He’s getting nowhere because our men are thoroughly contented. The poor fool will never know it, but he’s missed the advancement and financial benefits we had planned for him — simply because he was putty in the hands of the labor wolves.’ * * * This, needs no amplification' — don’t be a goof!”
A clipping from another issue of the publication was also posted. It was entitled “The Code of the Trustworthy Mill Worker,” and contained this language:
“If conditions do not suit you, talk it over with your superiors. But — be an American. Not a rat, operating in the shadows. Avoid company with rabble-rousers. Remember always that radical agitators are seeking to feather their nests— not yours. There’s no future for you as a cog in mad-dog labor movements. Thinking millers agree with the Southerner who recently wrote: ‘We’re still backward enough down here to believe in property and civil rights. And no hunkies with dynamite can change our minds’.”
Considered as a whole the evidence and the inferences fairly to be drawn from it warranted the Board in making the findings in question. In other words, it cannot be said that the findings are not supported by substantial evidence. True, there was countervailing evidence of substance but it merely presented issues of fact for the determination of the Board, not this court.
Reidy and Ellis, second millers of the company, were the secretary and treasurer, respectively, of the first organization. As second millers they were in charge of the mill at night during the absence of the superintendent, and gave orders to other employees. They were not foremen or supervisors to whom executive functions had been committed. They did not have the power to hire and fire. But they were “lead men” to whom a measure of authority over employees during the absence of the superintendent had been entrusted, and they occupied positions which could be utilized strategically in respect to translating to their subordinates the desires and policies of the company. Their membership and official positions in the earlier organization prejudiced the right of the employees to freedom of self-organization, within the scope of the act. National Labor Relations Board v. Continental Oil Company, 10 Cir., 121 F.2d 120.
Company sponsorship and influence of an earlier organization does not affect a later one provided there is a clear and complete cleavage between the two. But the slate must be wiped clean by the complete abandonment of the old and a bona fide, separate and distinct beginning of the new. Swift & Co. v. National Labor Relations Board, 10 Cir., 106 F.2d 87; Continental Oil Company v. National Labor Relations Board, supra; Magnolia Petroleum Co. v. National Labor Relations Board, supra; National Labor Relations Board v. Continental Oil Company, supra. The Board found in this case that the sponsorship and influence of the company in the organization of the earlier organization was carried forward and continued to dominate the association. The evidence and the inferences [425]*425which the Board was warranted in drawing from it support the finding. It therefore must stand on review.
But let it be assumed for the moment that there was a clear and complete cleavage between the first organization and the association. Two meetings of the association were held on company property immediately adjacent to the office of the superintendent, one during working hours; the superintendent directed Lander to attend the first, and stated that he would he treated right; he also directed a group of employees to go to the meeting and stated that he could run the mill himself; Cox told an employee in his department that there would not be any work until the meeting ended; a notary was called from the office into the meeting to take acknowledgments to the bylaws; and about three days later Hood referred to Lander and Ray as “Reds,” inquired what they thought of the union and stated that they had better get out of it and into the association. The mill was shut down during the second meeting; Hood told Ray that he had better attend the meeting; he then directed Ray and Lander to sit on the dock until the meeting ended; a contract with the association was speedily entered into; without any obligation to do so, Hood adopted the policy of submitting the names of applicants for employment to the committee of the association for approval or rejection; and he submitted to the committee the question whether Lander should be restored to the position of oiler from which he had been demoted. Such acts, conduct and statements, and others not necessary to detail, considered separate and apart from the evidence relating to the first organization, interfered with the right of the employees to self-organization, and support the finding that the company engaged in unfair labor practices.
The Board found that in August, 1937, the company discharged Lander and refused thereafter to reinstate him because of his membership in and activities on behalf of the union, and in that manner restrained and coerced its employees in the exercise of the rights guaranteed to them by section 7 of the act. Many subsidiary findings were made concerning the discharge and refusal to reinstate. The primary findings are challenged on the ground that they are without substantial evidence. Evidence was adduced which tended to prove these facts: Lander had worked for the company since 1934. He was first employed as a millwright helper but was later promoted to the job of oiler. He and Claude Cox, son of the warehouse foreman, had some heated words in the mill. Cox walked away but soon returned with a butcher knife in his hand. A fight ensued. Hood separated the combatants. He had not seen the beginning of the encounter and did not know how it originated. Still, without making any effort to ascertain who started it or who was at fault, he immediately stated to Lander that he and Ray had reached the point where they thought they were running the place. Hood reported the incident to Kliwer, a traveling superintendent who happened to be there that day, and Kliwer discharged both combatants. Almost immediately Cox was given a job in the mill of the company at Wichita; and soon thereafter, at the request of the association, he was reinstated to his former position at Coffeyville. Lander made efforts to be reinstated, and Maiden interceded for him. He declined to appear before the executive committee of the association for the purpose of a hearing on the matter of his reinstatement. Certain officers and the attorney for the company met with Lander and representatives of the union to consider the matter. Lander made a statement and requested that Cox be called but the officers conferred with him later in the absence of Lander and representatives of the union. At the suggestion of Maiden, Lander declined to answer certain questions which the attorney for the company propounded to him. The evidence is in conflict as to whether the questions related to the encounter or the union. The attorney advised Lander by letter that his request for reinstatement was refused. The latter stated that in addition to his version of the physical encounter which was the immediate cause of his discharge, “consideration was also given to other matters affecting your conduct as an employee and acts of insubordination occurring during the course of your employment, as well as facts concerning the character of your work which you have performed.” The letter further stated that the conclusion was rested entirely upon the fitness of Lander as an employee, and that all facts concerning the controversy in respect to labor organizations had been excluded. About ten days after the discharge, and prior to the hearing and the writing of the letter by the attorney, Kliwer gave Lander a general letter of recommendation in which it was [426]*426stated that he had been “recently dismissed due to causes which in no way reflect as to his ability.” And it recommended “him to anyone needing his services in the capacity of Oiler or Spouter.” And, Kliwer told Lander that he would like to reinstate him but could not do so because the association committee would not allow it. The finding that the original discharge was occasioned by Lander’s labor affiliation and activities may be open to question. But the finding that the refusal to reinstate Lander was motivated by his membership in the union and his activities in its behalf is supported by substantial evidence.
Discrimination in the employment or reinstatement of a former employee, due to his affiliation with a labor organization or activities in its behalf within permissive bounds, constitutes an unfair labor practice. Cf. Phelps Dodge Corporation v. National Labor Relations Board, 61 S.Ct. 845, 85 L.Ed. 1271, 133 A.L.R. 1217, decided April 28, last.
The provision in the order of the Board directing the company, upon application, to offer employment with back pay to Harlan Ray and Owen Kline and to make them whole, rests upon findings that the union called a strike at the mill because of the discharge of Lander and the refusal to reinstate him, that Ray and Kline, the only employees besides Lander who were members of the union, went on strike, and that the strike was still in effect at the time of the hearing. Section 10(c) of the act expressly empowers the. Board to require an offending employer to take such affirmative action, including reinstatement of employees with or without back pay, as will effectuate the policies of the act. And the action of the Board in ordering an employer to offer employment with back pay to its employees on strike has been sustained. Jeffrey-De Witt Insulator Co. v. National Labor Relations Board, 4 Cir., 91 F.2d 134, 112 A.L.R. 948, certiorari denied, 302 U.S. 731, 58 S.Ct. 55, 82 L.Ed. 565; National Labor Relations Board v. Remington Rand, Inc., 2 Cir., 94 F.2d 862, certiorari denied, 304 U.S. 576, 58 S.Ct. 1046, 82 L.Ed. 1540; National Labor Relations Board v. Boss Manufactufing Co., 7 Cir., 107 F.2d 574, National Labor Relations Board v. Sunshine Mining Co., 9 Cir., 110 F.2d 780, certiorari denied, 61 S.Ct. 447, 85 L.Ed.-.
But the company contends that these two striking employees are not entitled to reinstatement with back pay because of certain acts of trespass at the mill. Striking employees who commit unwarranted acts of trespass or violence against the property of the employer are not entitled to reinstatement, with or without back pay. National Labor Relations Board v. Fansteel Corporation, 306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627, 123 A.L.R. 599; Republic Steel Corporation v. National Labor Relations Board, 3 Cir., 107 F.2d 472, modified on another point, 311 U.S. 7, 61 S.Ct. 77, 85 L.Ed. 6. Here, the mill was shut down for approximately thirty minutes beginning at about the time the strike was called, and the record indicates that it was due to an interruption of power. However, each of the two employees unqualifiedly denied that he had anything to do with it or knew the cause, and no other evidence was introduced relating to the matter. In short, the contention of the company is met with an absence of proof to sustain it.
The order provides in paragraphs 2(c) and (e) that in making Lander, Ray and Kline whole, the company shall deduct from the respective amounts due them the sums received during the period in question for work performed upon Federal, State, county, municipal, or other work-relief projects. Those provisions are beyond the authority of the Board. Republic Steel Corporation v. National Labor Relations Board, 311 U.S. 7, 61 S.Ct. 77, 85 L.Ed. 6.
The order of the Board will be modified by eliminating the provisions contained in paragraphs 2(c) and (e) respecting the deduction of the amounts received from governmental agencies; and, as modified, it will be enforced.