On motion by the National Labor Relations Board to modify the ad interim report of the Special Master appointed June 14, 1940, to take proof of the issues on the petition of the National Labor Relations Board to hold Remington Rand, Incorporated, in contempt for failure to comply with the decree of Circuit Court of Appeals rendered in N.L.R.B. v. Remington Rand, Inc., 94 F.2d 862, certiorari denied, 34 U.S. 576, 58 S. Ct. 1046, 82 L. Ed. 1540.
Before AUGUSTUS N. HAND, CLARK, and FRANK, Circuit Judges.
This is the latest proceeding in a controversy which dates back to 1935. Upon petition of the National Labor Relations Board, the court issued an order on June 4, 1940, directed to Remington Rand, Inc., and its officers and agents to show cause why it should not be held in contempt for failure to comply with a decree of this court entered on March 10, 1938. N.L.R.B. v. Remington Rand, Inc., 2 Cir., 94 F.2d 862, certiorari denied, 304 U.S. 576, 58 S. Ct. 1046, 82 L. Ed. 1540. Thereafter, by an order of the court dated June 14, 1940, a Special Master was appointed "to take proof on the issues * * * and to report to the court thereon with finding of fact, conclusions of law, and recommendations as to disposition of the issues." This case now comes before us upon the ad interim report of the Master, which deals only with the dispute as to the Elmira and Middletown plants. No proof has as yet been taken before the Master as to the issues at respondent's other plants.
The facts of this controversy have been fully set forth in our previous opinion. 94 F.2d 862. The court there issued a decree, dated March 10, 1937, modifying and amending the order of the Board, and directing that it be enforced. This is the decree with which the Board charges a failure of compliance. On March 31, 1938, the Board moved to hold Remington Rand in contempt for failure to comply with the court's decree, and we denied that motion on June 1, 1938 without prejudice to its renewal if the decree had not been complied with on July 15, 1938. 97 F.2d 195. We remarked at that time the "unexampled persistence" with which the company had sought to fend off enforcement of the Board's order, and said that although "we are not convinced that it (Remington Rand) is as yet disposed to conform, we will not impose any penalty for the moment."
The following "Remedy" was provided for in our decree:*fn1 "The respondent will be ordered to reinstate all those production and maintenance employees involved who were employed on May 26, 1938, and who have not since received regular and substantially equivalent employment elsewhere. As the first step in carrying out this general other, such production and maintenance employees shall be reinstated to their former classifications, on the basis of seniority by classifications, where positions in such classifications are now open or have been filled by individuals employed since May 26, 1936, who were not employed on that date, the respondent dismissing such individuals if that is necessary to accomplish the reinstatement so ordered. In this fashion, as far as possible, employees will be reinstated in the plants in their own towns and will not be required to move elsewhere. But after such reinstatement, there will still be a large group of employees, composed almost exclusively of Norwood, Syracuse and Middletown employees, who will have to move to other cities in order to obtain reinstatement. Consequently, all such production and maintenance employees not reinstated in the plant in their own towns shall be grouped together, regardless of the plant in which they were previously employed, on a single preferential list on the basis of seniority by classifications, to be offered the positions at the Elmira plant, and any positions still available at any of the other plants after those who struck at such plants have been reinstated. At Elmira, as well as elsewhere, individuals employed since May 26, 1936, who were not employed on that date must be dismissed if such action is necessary to effectuate such reinstatement. Thereafter, this list shall be drawn upon whenever further employees are needed at any of the plants involved, including the Elmira plant, preference being given to employees on the list then residing in the locality in which employment is available."
It should be noted at the outset that Rule 53(e)(2) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, provides that " * * * the court shall accept the master's findings of fact unless clearly erroneous." While that Rule literally applies solely to the District Courts, we think it should be applied here by analogy, especially as it conforms with the general practice existing before the promulgation of that Rule.*fn2 We have applied Rule 41, by analogy, to practice in this court. In re Barnett, 2 Cir., 124 F.2d 1005, 1013.
The Board has not suggested any impropriety in our reference of the issues to the Master. Indeed in another case,*fn3 in May 1941 (subsequent to our order of reference in the instant case), the Board filed a memorandum in this Court objecting to a proposal by an employer-respondent that questions as to compliance with an enforcing decree of this Court should be referred to the Board rather than to a Master; in that memorandum the Board said: "In such a proceeding the Board and the employer are in an adversary relation. If the Board proceeded to make findings of compliance, there is nothing in the statute which would entitle such findings to greater weight than the statements of any other litigant. The Board has no power to determine what constitutes compliance with the decree of this Court." And we know of nothing in the decisions of the Supreme Court which, in general, suggests that the Board's views on that subject should be disregarded.*fn4
Twenty-seven polishers in respondent's Elmira plant were discharged in June, 1939, following a strike there. The Board claims that the respondent discharged and locked out union employees who had ceased work in a labor dispute. The facts are as follows: Prior to May, 1939, the company had laid off employees in disregard of seniority. The union protested and the matter was adjusted. In May, 1939, the company consulted Bassett, who was chairman of the shop committee, about a list of men to be laid off. Two of these, Mathews and Howell, were union men. The company, at Bassett's request, substituted the names of Maloney and Scheisepen, nonunion men, because the latter were less able workers. Mathews and Howell had only two days' less seniority than Maloney and Scheisepen. The agreement was carried out. On May 5, however, Maloney and Scheisepen were reinstated at their request, and Mathews and Howell were laid off. Bassett protested the violation of the agreement, and all four men were kept on.There was enough work for all, and all worked full time. Bassett continued to object, however, that, with Maloney and Scheisepen back at work, respondent was not keeping its May 4 agreement. He feared that, in time of slack, Mathews and Howell would be the first to be laid off.
On June 5, negotiations having broken down, the union men stood at their machines and refused to work until the company cured the violation of the agreement. The men were then asked to leave the plant peacefully, which they did. They were all discharged by letter the same day.
The Master found that the strike was not a lawful one, that no labor dispute was involved and that the discharge of the strikers was no violation of the decree. He further found that the dispute which existed was "determined" when the company heard grievances and made up its mind.
The Master's findings were clearly erroneous.Section 2(9) of the National Labor Relations Act, 29 U.S.C.A. § 152(9), defines a "labor dispute" as inclusive of "any controversy concerning terms, tenure or conditions of employment * * * ." An "employee" is defined in § 2(3) of the Act, 29 U.S.C.A. § 152(3), as "any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice * * * ." Section 8(3), 29 U.S.C.A. § 158(3), provides that "it shall be an unfair labor practice for an employer * * * by discrimination in regard to hire or tenure of employment or any term or condition of employment * * * to encorage or discourage membership in any labor organization * * * ."
The above language of the statute does not lend itself readily to misinterpretation. If the Elmira strike was a "controversy concerning terms, tenure or conditions of employment," which it certainly was, then indubitably, it was a "labor dispute" within the meaning of the statute.
We cannot agree with the Master that there was no labor dispute here, merely because the dispute was "determined" when the company heard grievances and made up its mind. So to hold would go a long way towards emasculating the Act, and would render it difficult, if not impossible, ever to discover any state of industrial discord which could accurately be termed a labor dispute.
The real issue here is whether or not the respondent's act of firing the 27 strikers was contumacious and contemptuous of the court's decree. The Board claimed that the discharges violated Section 1(a) and 1(c) of the decree of the court. Section 1(a) of the decree required respondent to cease and desist "from in any manner interfering with, restraining or coercing its employees in the exercise of their right to selforganization, to form, join or assist labor organizations, to bargain collectively throrgh representatives of their own choosing and to engage in concerted activities for the purposes of collective bargaining and other mutual aid or protection * * * " Section 1(c) required that the respondent cease and desist "from discouraging membership in any of the labor organizations affiliated with the Remington R and Joint Protective Board of the District Council Office Equipment Workers, or any other labor organization of its employees, by discharging and refusing to reinstate employees, or otherwise discriminating in regard to hire of tenure of employment or any form or ondition of employment, or by threats of such discriminations * * * ."
We think the discharges were discriminatory. The fact that prior concerted refusals to work on the part of employees who had worked during the strike, marked in one instance by violence, were in no way penalized by respondent, gives rise to an inference of bad faith and discriminatory motive for the discharges.*fn5
The respondent's defense rests mainly on the contention that a plant rule had been violated. The letter of discharge read: "By your refusal to work today, a violation of plant rules, you have terminated employment, effective today." The haste with which strkers were discharged is further ground for an inference of discrimination. The immediate discharge gave no locus penitentiae and attempted to sever the employment relationship.
It is clear from the definition of an "employee" in § 2(3) of the National Labor Relations Act that a strike does not terminate the employer-employee relationship, where the individual has ceased work in connection with a current labor dispute or because of an unfair labor practice. Nor does the fact of a strike of itself relieve the employer of his duty under the Act to bargain collectively with his employees.*fn6
In the Mackay Radio case,*fn7 the Supreme Court held that an employer whose employees have struck and who had committed no unfair labor practice is not obliged to discontinue his business but may hire others in the place of the strikers. The employer's obligation to reinstate in such case extends only to such of the striking employees as have not been replaced during the strike. Where, however, the employer has been guilty of an unfair labor practice, he is under a duty to reinstate all striking employees, even though this may occasion the discharge of those employees hired to take the place of strikers during the strike.
Thus, in the instant case, the polishers having gone on strike in a current labor dispute, retained their status as employees for the purposes of the Act and its protective provisions. As such they had a right to apply for and to be reinstated. If respondent was guilty of an unfair labor practice, this right was unconditional. If it was guilty of no unfair labor practice, the right existed, nevertheless, subject however to the condition that only such strikers could seek and get reinstatement as had not already been replaced during the strike.*fn8
Respondent, by its immediate discharge of the strikers and attempted abnegation of the employment relationship, was guilty of an unfair labor practice. It sought to discharge strikers who, under $2(3) of the Act were still its employees and who were thus entitled to apply for reinstatement or at the very least entitled to reinstatement where their jobs remained unfilled.
Respondent, though it sought to do so, could not deny the right to reinstatement to the striking polishers. Even if there had been no unfair labor practice, respondent could not rely upon its alleged right, if any, to discharge the strikers, because in the instant case, the strikers were discharged without being - or before being - replaced.
The summary and immediate dismissal by respondent of the strikers, while also in contravention of the National Labor Relations Act, was a direct violation of § 1(a) of our decree in that it interfered with, and restrained, the striking employees from bargaining collectively and from "engaging in concerted activities for the purposes of * * * mutual aid or protection. * * * " It also violated § 1(c) of our decree in that it tended to discourage union mumbership. The inference of discriminatory treatment is unmistakable when a comparison is made between the discharge of the 27 strikers and respondent's attitude towards concerted refusals to work on the part of non-union employees in its other plants.
We find that respondent violated our decree*fn9 and we now order that the 27 polishers be reinstated, and paid their loss in Wages. The matter is referred to the Master for the taking of evidence, and to determine the net amount of back pay.
The evidence in this part of the case falls into two categories: first, evidence of a statistical character as to employees generally; second, evidence relative to specific instances of alleged contempt directed against individual employees. The statistical charts contain evidence of a general nature, and also include evidence as to individual cases which are not included in the second category. We shall deal first with the general statistical evidence.
1. The Board's master chart is a statement of the "days, hours and weekly earnings of all employees" at the Middletown plant from the week ending July 23 to October 15, 1938. The chart divides the workers into three classifications: the old employees (those who returned to work before June 1, 1938), the new employees, and the strikers (who returned to work after June 1). The purport of the chart is plain and unmistakable. The strikers, as a whole, received less work and less pay than the other two categories of employees.
The Master erred in giving no weight to the Board's statistical data. While that data was not prepared in its most effective form, yet it was based on evidence in the record and tended to show discrimination in that the strikers who returned to work after June 1, 1938 did receive less work and less pay than the other employees for the three months' period.
The respondent contended that this chart was generally inaccurate, but in view of the fact that the Board checked its facts with respondent and gave careful attention to the correction of details, this contention appears to be without substance. The respondent further objected to the brevity of the time span (only three months, ending October 15, 1938) and to the differentiation in classification of the strikers, who had returned to work after June 1, 1938, and those who had joined the "back-to-work" movement. Although they impressed the Master, neither of these objections seems to us to derogate from the validity of the chart. It was quite rational to treat the two groups of strikers separately, and the disparity in the actual earnings of the two tends to illustrate that the company was less concerned about those whom it was forced to reinstate than those who fell in line with its "back-to-work" scheme. As to the brief span of time which the chart covers, that is the vital period upon which the Board relies mainly for its charge of contempt. It was important to get an ...