Opinion
May 26, 1941.
June 30, 1941.
Labor law — Unfair labor practices — Evidence — Substantiality — Pennsylvania Labor Relations Board — Order — Findings of fact — Setting aside — Acts of June 1, 1937, P. L. 1168, and June 9, 1939, P. L. 293.
1. In a proceeding by the Pennsylvania Labor Relations Board under the Act of June 1, 1937, P. L. 1168, as amended by the Act of June 9, 1939, P. L. 293, against an employer who is charged with unfair labor practices, the Board has the burden of proving by substantial and credible evidence that the employer was guilty of such practices, and in the absence of such evidence the findings of the Board must be set aside and its order vacated. [461-2, 463-4]
2. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, and it must be enough to justify, if the trial were by a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. [461-2]
3. Suspicion cannot be substituted for evidence in a hearing before the Pennsylvania Labor Relations Board. [463-4]
Argued May 26, 1941.
Before SCHAFFER, C. J., MAXEY, DREW, LINN, STERN, PATTERSON and PARKER, JJ.
Appeal, No. 33, March T., 1941, from decree of C. P. Allegheny Co., Jan. T., 1940, No. 3392, in the matter of the petition of the Union Trust Company of Pittsburgh, for a review of decision and order of Pennsylvania Labor Relations Board. Decree affirmed.
The facts are stated in the opinion per curiam of the court below, before GARDNER, RICHARDSON and KENNEDY, JJ., in part, as follows:
"This matter comes before the Court on a petition of the Union Trust Company for review of the decision and final order of the Pennsylvania Labor Relations Board in a proceeding under the Act of June 1, 1937, P. L. 1168 as amended by the Act of June 9, 1939, P. L. 293 ( 43 PS Sec. 211.1 et seq.). In its decision and order the Board has found the petitioner guilty of unfair labor practices within the meaning of Section 6, subsections (a), (b), and (c) of the Act:
"(1) in dismissing one of the janitors [Nichols] employed in the Union Trust Building for the purpose of discouraging membership in a labor organization; and
"(2) in dominating, interfering with or contributing support to a so-called company fostered union known as the Building Maintenance Union of Pittsburgh.
"The charge was filed with the Board on June 30, 1938, by Building Service Employees International Union, Local No. 29, (A. F. of L.). A complaint issued July 1, 1938, and hearings were held before a Trial Examiner designated for the purpose. The testimony taken before the Trial Examiner was transcribed and filed with the Board, but the Board made its own findings and entered a Decision and Order, which, after hearing on the exceptions filed by the petitioner, was made final and absolute. This action gives rise to the petition for review.
"The Board, by its Order of November 4, 1938 directed petitioner to offer the dismissed employee full reinstatement to his former position and to pay him back wages equal to the amount which he would have earned during the period from the date of his discharge, less the amount actually earned by him during such period, and also to withdraw all recognition from the Building Maintenance Union of Pittsburgh as the representative of its employees for the purpose of collective bargaining; as well as to cease from interfering with, restraining or coercing its maintenance employees in the exercise of their right to self-organization and concerted collective bargaining.
"Findings of the Labor Relations Board on which an order is based, must be supported by substantial and legally credible evidence ( 43 PS sec. 211.9 (b)). If they are so supported, the findings are binding and conclusive upon review.
"The petitioner has interposed exceptions to certain of the findings of the Labor Relations Board, asserting that there is no evidence to support them. Certain other findings of fact appear to be accepted as correct. From these findings which are not specifically attacked, the following history appears:
"The Union Trust Company of Pittsburgh is a corporation operating a banking business in Pittsburgh. In connection with that business, it owns, operates and maintains an office building, known as the 'Union Trust Building,' which is managed and supervised by one Whipkey. Whipkey hires and discharges maintenance employees and determines and adopts labor policies pursued. Early in 1937, there was dissatisfaction among the maintenance and service employees of the Union Trust Building concerning wages and working conditions and, as a result, on March 17, 1937, seventeen employees signed a petition requesting a general increase in wages. This petition was presented to Geisler, the general superintendent of the Union Trust Building.
"In March or April, 1937, typewritten applications for membership in a proposed organization styled the 'Operative Club of Pittsburgh, Pa.' were prepared by one Ruffner, a carpenter employee of the Union Trust Company, and these were circulated among the building employees. The designation 'club' was used in order that Union Trust Company would not suspect the real purpose of the organization, which was formed for the purpose of dealing with labor conditions. Nichols, a janitor, signed one of these applications. On May 1, 1937, a meeting was held by the employees for the purpose of forming a labor organization and officers were elected. Ruffner was elected President. The designation of 'Operative Club of Pittsburgh, Pa.' was dropped and the name 'Building Maintenance Union of Pittsburgh, Pa.' was adopted. Other meetings of the Building Maintenance Union followed, and on May 8, 1937, pursuant to the action of the meeting, an application for a charter was formally made to the Committee for Industrial Organization.
"In the latter part of July, 1937, Building Service Employees International Union, Local No. 29, of Pittsburgh, an affiliate of the American Federation of Labor, was active in organizing and obtaining members among maintenance employees working in office buildings in the Pittsburgh district. Union literature for such purpose was distributed among employees of the Union Trust Building. Nichols became a member of this local in September, 1937.
"Ruffner, on July 19, 1937, as President, sent a letter to the Committee for Industrial Organization stating that by a vote of 226 to 59, the Building Maintenance Union had resolved to sever all connections with C. I. O. and requested the withdrawal of the application for a charter.
"On July 22, 1937, a committee of members of the Building Maintenance Union commenced negotiations with Whipkey for a collective bargaining agreement. On July 27, 1937, printed applications for membership in the Building Maintenance Union were circulated among the employees. Ruffner signed such an application.
"On July 31, 1937, Ruffner explained the results of the conference of the Committee with Whipkey to a meeting of the Building Maintenance Union and asked for and received a vote of confidence. Ruffner then prepared a 'Constitution and Rules for the Building Maintenance Union,' which constitution and rules were adopted at a meeting held on September 18, 1937. At this meeting, Ruffner explained to the members the withdrawal of the organization from the C. I. O.
"A 'Closed shop' collective bargaining agreement effective as of August 1, 1937 (but not signed until November 8, 1937), was entered into between Building Maintenance Union and Whipkey, as manager of the Union Trust, Frick and Frick Annex Buildings. This agreement contained the statement that a majority of the members of the Building Maintenance Union had authorized the execution thereof at a meeting held on October 9, 1937.
"On November 3, 1937, Nichols was discharged as a janitor employee of the Union Trust Building, the reason assigned being a violation of building rules. Subsequently, Building Service Employees Union, Local No. 29 (A. F. of L.) filed a charge with the Labor Relations Board alleging that Nichols was a member of that organization and had been discharged because of his membership and activities in the A. F. of L. local. It was also charged that Building Maintenance Union was a company-fostered and company-dominated Union.
"It is necessary to analyze the testimony in order to determine whether the Board's findings of fact to which objections are made, are supported by substantial and legally credible evidence. Because of the twofold complexion of the charges and the order, the evidence in support of the charges of unfair labor practices in discrimination against Nichols and in fostering and dominating the Building Maintenance Union must be considered separately. We will first consider the domination of the Building Maintenance Union, using for convenience the designation 'BMU' for that organization in the discussion.
"Section 6 (1) (b) of the Act ( 43 PS Sec. 211.6) makes it an unfair labor practice for an employer to 'dominate or interfere with the formation or administration of any labor organization, or contribute financial or other material support to it.' By its order, the Board has directed the Union Trust Company to withdraw all recognition from BMU as the representative of its employees for the purpose of collective bargaining. We must, therefore, determine whether the evidence depended upon to support the order is substantial and legally competent, keeping in mind the definition of 'substantial evidence' as set forth in N. L. R. B. v. Columbian, etc., Co., 306 U.S. 292, 299, 300, that 'Substantial evidence is more than a scintilla, and must do more than create a suspicion of the existence of the fact to be established. "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion," . . . and it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. . . .'
"The petitioner contends that certain of the findings are not warranted by the evidence because the petitioner cannot be legally held liable for the acts of certain employees whom the Board describes as having a 'supervisory capacity,' under the doctrine 'respondeat superior,' and that there is no other evidence under which the findings, conclusions and order can depend.
"We have carefully analyzed the record in order to find an 'adequate basis' for the Board's order other than the findings concerning employees having a 'supervisory capacity'. We find none. In its Brief, the Labor Relations Board again and again stresses the importance of one finding or another because 'it discloses the supervisory capacity of Nelson Morgan', or of Charles Herbert Stuart, or of George Hazlett, or 'knowledge on the part of the supervisors . . . of union activities among the employees', or 'the method supervisory employees used in intimidating and coercing employees to become members of the Building Maintenance Union'. Another finding is deemed material because it 'shows the interest supervisory employees took in the formation' of BMU. Despite its professed rejection of the evidence as without the principle 'respondeat superior', it is apparent that the Board has leaned heavily upon it in order to arrive at its conclusions and order.
"We are of opinion that the record fails to disclose any substantial or legally credible evidence which supports the findings and conclusions of the Board that the BMU was dominated or controlled by the petitioner. The findings and conclusions pertaining thereto should, therefore, be vacated, and the order directing petitioner to withdraw all recognition from the BMU should be set aside.
"The Board based its conclusion that Nichols was discharged for union activities upon these facts:
"(1) That Nichols was a member of an A. F. of L. union;
"(2) That he was charged with circulating applications for membership in this union. (The Board found that he had distributed twenty-five blanks among women employees of the building. Nichols himself denied this. Counsel for the Board concedes in his Brief that the evidence does not establish that finding);
"(3) That Munn, assistant to the manager, told Nichols that he, Nichols, would not be employed much longer if he continued to make or cause labor trouble;
"(4) That Nichols was transferred from day to night duty in September, 1937, with the consent and permission of Munn;
"(5) That Nichols was discharged on November 3, 1937.
"The Board could find that Nichols' 'union activity' consisted only in his membership in the A. F. of L. local. Because of that affiliation, the petitioner is found to have discriminated against him. The discrimination consists of Munn's threat that Nichols would not be employed there much longer if he continued to make labor trouble. Shortly afterward, Nichols was assigned to night duty. Here the Board sees the first step in the punishment of Nichols. Nichols apparently did not like night duty, because he reported the transfer to his union. Beyond that, there is nothing to indicate that the new position was any less desirable than the old one. There is nothing which indicates favoritism or punishment. From the inference of discrimination in that transfer it is easy for the Board to build up another, — from Nichols' discharge. Nichols was a member of the A. F. of L. He was threatened. He was transferred from one shift to another. He was discharged. There is not a scintilla of evidence that the discharge was due to any labor activities any more than there is to support a finding that the transfer was due to that reason. Suspicion may have its place, but certainly it cannot be substituted for evidence. The burden of proving that unfair labor practices were carried on by the petitioner was upon the complainant, — the Board. It has the burden of proving the charges by substantial and credible evidence. There is no evidence here which permits of the inferences upon which the Board must depend for its conclusions. Consequently, the findings and conclusions which are depended upon to support the charge of discrimination against Nichols must be vacated and set aside, and the Board's order reversed."
Pennsylvania Labor Relations Board appealed from decree of the court below.
Error assigned was the action of the court below in setting aside the order of the Board.
J. Charles Short, Solicitor, with him M. Louise Rutherford, Deputy Attorney General, and Claude T. Reno, Attorney General, for appellant.
James H. Beal, Jr., with him Reed, Smith, Shaw McClay, for appellee.
The decree of the court below, setting aside the order of the Pennsylvania Labor Relations Board, is affirmed on the foregoing excerpts from the opinion of the court below, at the cost of appellant.