National Labor Rel. Bd. v. Greensboro Coca Cola B. Co., 6016.

• Citation: 180 F.2d 840
• Decision Date: 06 March 1950
• Docket Number: No. 6016.,6016.
• Parties: NATIONAL LABOR RELATIONS BOARD v. GREENSBORO COCA COLA BOTTLING CO.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

180 F.2d 840 (1950)

NATIONAL LABOR RELATIONS BOARD v. GREENSBORO COCA COLA BOTTLING CO.

No. 6016.

United States Court of Appeals Fourth Circuit.

Argued January 11, 1950.

Decided March 6, 1950.

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Duane Beeson and Bernard Dunau, Attorneys, National Labor Relations Board, Washington, D. C. (David P. Findling, Associate General Counsel, and A. Norman Somers, Assistant General Counsel, National Labor Relations Board, Washington, D. C., on brief) for petitioner.

Thomas D. Cooper, Burlington, N. C., and Frank A. Constangy, Atlanta, Ga. (L. P. McLendon and Thornton H. Brooks, Greensboro, N. C., on brief) for respondent.

Before PARKER, Chief Judge and SOPER and DOBIE, Circuit Judges.

PARKER, Chief Judge.

This is a petition to enforce an order of the National Labor Relations Board which directed the Greensboro Coca Cola Bottling Company to cease and desist from unfair labor practices, to reinstate with back pay certain employees who had been discharged and to recognize and bargain with a union as the representative of its employees. The principal contention of respondent is that the order is not supported by substantial evidence, although there is, also, a contention that the Board was without jurisdiction on account of alleged failure of the complaining union to comply with section 9(f) (g) and (h) of the Labor-Management Relations Act, 29 U.S.C.A. § 159(f-h), and a motion to remand for further cross examination of certain witnesses.

It is clear that the order is amply supported by the evidence. There is testimony to support the Board's finding that an employee of long service, one Hodge, was discharged because of union activities, that other employees who went on strike because of his discharge were themselves discharged, that the company refused to reinstate them when they asked for reemployment, and that it refused to bargain with the union which had been chosen by a majority of the employees in what has been found by the Board to be an appropriate bargaining unit. The Company denies that it discharged Hodge because of union activities and contends that the other employees voluntarily quit. It contends also that, being no longer employees, they were not entitled to be counted in the selection of a bargaining representative and that, without them, the union was not the choice of a majority.

There is evidence tending to show that, when in October 1947 the company proposed a change in its sales and delivery service, there was dissatisfaction among the employees and a movement, led by Hodge, to organize a union; that Parker, the company's local manager, heard of this activity and notified Carter, its president, who lived in a distant town; that, while Parker denies that he knew that Hodge was taking part in the organization of employees, he told Carter over the 'phone, when talking about the organizational activities, that things were getting hot and that one man in particular was acting as one of the old employees should not act and it looked like he might cause trouble unless fired; that Carter came at once to the plant in Greensboro and made a speech to the employees voicing the company's opposition to union organization; that immediately after his speech Hodge was discharged with no other reason assigned than that he was dissatisfied and it was thought that he would be better satisfied elsewhere; that when Hodge inquired of Parker whether he was not discharged because he was thought to be the leader in organizing the employees, the latter denied this but asked, if he were not the leader, who was; and that, when asked later by other employees why Hodge was discharged, Parker refused to give a reason but, when paying Hodge off, said, "We can't afford to have a union around here." Although the company introduced evidence to the effect that Hodge was discharged because he was uncooperative in making the change over to the new sales and delivery service and had evidenced an attitude of insubordination towards the new sales manager of the company, the Board was not obliged to accept this testimony in the face of the circumstances above mentioned, which certainly had a tendency to prove that the real reason was the desire to be rid of the man who was attempting to organize the employees. Particularly is this so in view of the fact that Hodge had been employed by the company over a period of seventeen years and that, in attempting to justify his discharge, the company gave evidence of a number of minor matters which were not thought of sufficient importance to warrant a discharge at the time they occurred.

As we said in Hartsell Mills Co. v. N. L. R. B., 4 Cir., 111 F.2d 291, 293: "It must be remembered, in this connection, that the question involved is a pure question of fact; that, in passing upon it, the Board may give consideration to circumstantial evidence as well as to that which is direct; that direct evidence of a purpose to violate the statute is rarely obtainable; and that where the finding of the Board is supported by circumstances from which the conclusion of discriminatory discharge may legitimately be drawn, it is binding upon the courts, as they are without power to find facts or to substitute their judgment for that of the Board."

See also N. L. R. B. v. Harris-Woodson Co., 4 Cir., 162 F.2d 97, 101; N. L. R. B. v. Piedmont Wagon & Mfg. Co., 4 Cir., 176 F.2d 695, 696; N. L. R. B. v. Dixie Shirt Co., 4 Cir., 176 F.2d 969, 973, 974. In the case last cited Judge Dobie, speaking for the Court, stated the rule tersely as follows: "It is not our duty or responsibility to weigh the evidence and pass upon conflict of opinion. It is sufficient to state our conclusion on the facts viewed against the whole background of the case that the finding of the Board is supported by substantial evidence."

With respect to the discharge of the other employees, the evidence is that on the Sunday following the discharge of Hodge, which occurred on a Saturday, a group of fellow employees met and drafted a letter which set forth that they had the same cause of "dissatisfaction" as Hodge and that they would not drive out their trucks unless he was restored to his job. They presented this to Parker next morning, whereupon Parker stated that unless they returned to work at once, he would regard this letter as a resignation. When they did not return to work, he told them that they had quit and ordered them off the premises. They then got in contact with the representative of the labor union which they were joining, who told them that they should not strike and asked Parker to put them back to work, but he refused to do so.

It is perfectly clear that, whatever view be taken of the action of these employees, it was certainly "concerted activity" for "mutual aid or protection" within the meaning of 29 U.S.C.A. § 157, and that to discharge them because of such activity was an unfair labor practice forbidden by the act. Joanna Cotton Mills v. N. L. R. B., 4 Cir., 176 F.2d 749, 752; N. L. R. B. v. Peter Cailler Kohler Swiss Chocolates, 2 Cir., 130 F.2d 503; N. L. R. B. v. Phoenix Mut. Life Ins. Co., 7 Cir., 167 F.2d 983; Carter Carburetor Corp. v. N. L. R. B., 8 Cir., 140 F.2d 714. Stripped of sophistry, the situation presented by the record is that Hodge's fellow employees, following his discharge, went on a strike to procure his reinstatement, that the company discharged them for doing so and that, when they abandoned the strike, it refused to reinstate them. Notwithstanding the company's contention that the employees resigned, there is ample support for the Board's finding that they were wrongfully discharged. N. L. R. B. v. Stowe Spinning Co., 4 Cir., 165 F.2d 609, 615; N. L. R. B. v. Baltimore Transit Co., 4 Cir., 140 F.2d 51, 56. And since the strike in which they were engaged was on account of the company's unfair labor practices and the discharge on account thereof was an unfair labor practice in itself, they were unquestionably entitled to reinstatement. Home Beneficial Life Ins. Co. v. N. L. R. B., 4 Cir., 159 F.2d 280, 285.

There can be no question as to the sufficiency of the evidence to support the Board's finding that the company refused to bargain. There is evidence that the union's business agent Jones asked the officials of the company to bargain with him as representative of the men, that at the time he held union cards signed by a majority of the employees in the unit and that the officials refused to bargain on the ground that those who had signed the cards were no longer employees of the company....