National Labor Relations Board v. Ferguson

• Citation: 257 F.2d 88
• Decision Date: 30 June 1958
• Docket Number: No. 16973.,16973.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. L. C. FERGUSON and E. F. Von Seggern d/b/a Shovel Supply Company, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

257 F.2d 88 (1958)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. L. C. FERGUSON and E. F. Von Seggern d/b/a Shovel Supply Company, Respondent.

No. 16973.

United States Court of Appeals Fifth Circuit.

June 30, 1958.

Thomas J. McDermott, Associate Gen. Counsel, N.L.R.B., Washington, D. C., for petitioner.

George E. Seay, Ralph W. Malone, Malone, Lipscomb & Seay, Dallas, Tex., for respondent.

Before TUTTLE, BROWN and WISDOM, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

This is a Petition by the Board for enforcement of an Order, 118 N.L.R.B. No. 30, finding the Employer, Shovel Supply Company, guilty of 8(a) (1), 29 U.S.C.A. § 158(a) (1), violations and requiring the reinstatement of four out of seven persons, three of whom were subsequently rehired, found to have been unlawfully discharged under 8(a) (3) on April 26, 1956, for union activity.

The Employer is a partnership whose moving figure is L. C. Ferguson. His two sons, Lynn and Don, have supervisory roles. The general superintendent is Kuhn. The Company manufactures heavy steel road machinery, including, of importance here, heavy road rollers, described in terms of weight by tons, light and in ballast, as 2-3, 3-5, 5-8, 8-12 and 25 tons. The Company had nine departments of which three built the rollers, and a fourth was the machine shop. The machine shop related to all of the departments as it fabricated or assembled transmissions, gears, and the like for these machines. Each of the departments has a leadman who is substantially a straw boss and is responsible for supervision of the work but does much of the manual labor along with the other workers. We need not determine whether they were, as the Board found, supervisors. For in our approach we consider that which the Examiner credited them as saying, not as statements on behalf of management binding upon it, but only as that which management is supposed to have stated and which they, as would an ordinary witness, overheard.

At the outset we may dispose of the 8(a) (1) finding without much discussion. The Employer certainly does not concede defeat on this score, but with a realistic candor that reflects their competence and full understanding of the function of Board and Reviewing Court, counsel recognizes that there may well be substantial evidence to justify the Board's finding on this disputed matter. Especially would this be so since this is largely a determination of what was said or done with the law attaching many implications from the mere words used in contrast, say, to the 8(a) (3) situation where motive of discharge is such a subtle and elusive thing.

The complaint on 8(a) (1) is not confined to pre-April 26, 1956. It encompasses time both before and shortly after. The antiunion bias carrying, if believed, unmistakable overtones of a purpose to discriminate and retaliate because of union membership, was established by statements attributed to Kuhn and Don Ferguson who certainly spoke for management. Likewise, as an illustration, partner Ferguson told dischargee Neal when he sought and obtained reemployment after stating that he did not belong to the union, that it was not his intention to permit a union, and "before he would have a union in there he would close it down." If the statements attributed by the witnesses to these three representatives of management, as well as others discussed in connection with 8(a) (3), were in fact made, they established without doubt that both in form and purpose their effect was to discourage and frustrate the statutory right of the employees freely to organize and bargain collectively. National Labor Relations Board v. McGahey, 5 Cir., 233 F.2d 406, 409, 410.

The question was not what such statements meant or implied. Their form and context was such that the law found an unlawful purpose in them. What was in issue was whether these words had been spoken. On that the case was the everyday common variety lawsuit in which one affirmed and one denied. A factual dispute was presented: who was telling the truth — the alleged declarer who denied he spoke the words, or the witness who swore he heard them said? For that function the Board has the statutory, sole responsibility. Fact-finding is neither our permissible right nor duty. Our function in assaying that sort of controversy is merely to determine whether there was substantial evidence on the record considered as a whole. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. There was certainly that here.

Ordinarily the 8(a) (3) problem requires a detailed consideration of the merits as to each of the dischargees or related groups of them. We think, however, that in this case, if the general approach briefly indicated as to 8(a) (1) and that which we have many times¹ set forth for 8(a) (3) is kept in mind, the matter may be much simplified. In the usual case detailed facts must be discussed and analyzed to determine the purpose and motive of the employer in making the discharge. This is in partial recognition that seldom can such intent be established directly and that almost always must it be inferred from the total sum of the evidence.

But here, as with the case of the 8(a) (1) violations, if words attributed to those authorized to speak for management are credited as having been said, their form and content and context eliminate all doubt on motive.

A very brief summary will relate this approach to this record. On April 16, 1956, dischargee Ferguson, unhappy as were others with recent wage increases which they had hoped would be greater, contacted the union organizer for the Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, AFL-CIO. A meeting was arranged for that evening at the nearby Four Brothers Cafe and attended by four of the complainants later discharged. While these men were talking at a table, Don Ferguson entered, spoke to the men, had coffee and left. None thought that Don Ferguson knew what they were doing, but as they were anxious to keep their union plans secret, they adjourned to a nearby parking lot where, during the next ten days or so, several further meetings were held. There was active, but discreetly concealed, solicitation which resulted in an unknown number of additional employees signing union cards. But it was not kept secret. For dischargee Gonzales testified that on April 23, his leadman told him that "one of the men that we trusted the most knew what was going on and was taking partner Ferguson all the information about the union, that * * * Ferguson knew the time of the meetings and who signed the cards." The leadman added that Ferguson had said that he had a list of 12 men who had signed the cards which included Gonzales. The leadman even told Gonzales he had better start hunting for another job because he would get "run off" the next day. About noon April 26, dischargee Neal asked his leadman why he was eating his lunch by himself to which the leadman replied, "he was studying about that union deal." The leadman predicted that someone would be fired.

At that very time, at 12:30 noon, April 26, the union filed with the Board's Regional Office at nearby Fort Worth a petition for certification.²

That evening at regular quitting time, the seven dischargees, each of whom it turned out had signed union cards, found a final paycheck and a notice³ in place of his punch-out timecard.

Standing thus, and apart from these statements made by leadmen whose authority to speak for management was at best dubious, there might well have been little to establish that the Employer knew of the union campaign or who the members or active participants were. It may be that, in the face of the Employer's strong showing, it would not have been sufficient to create an inference equally reasonable of unlawful motivation. National Labor Relations Board v. Fox Manufacturing Co., supra. Without a doubt the Employer made a persuasive showing that with the increasing shortage of steel of the types required for these road rollers, the shortage of other parts, principally those made of steel, production of units was so far off that management, after watching the situation for several months, concluded that eight persons should be discharged immediately and, in selecting those the most unsatisfactory employees from the four departments most affected by the steel shortage were chosen.

But the record did not stop there. Two of the dischargees, Maxwell and Neal, within the next few days had personal conversations with management which, if credited as occurring, spelled out the unlawful cause of these discharges. On April 27...