NLRB v. Birmingham Publishing Company

• Citation: 262 F.2d 2
• Decision Date: 03 February 1959
• Docket Number: No. 17167.,17167.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BIRMINGHAM PUBLISHING COMPANY, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

262 F.2d 2 (1958)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BIRMINGHAM PUBLISHING COMPANY, Respondent.

No. 17167.

United States Court of Appeals Fifth Circuit.

December 11, 1958.

Rehearing Denied January 20, 1959.

As Amended February 3, 1959.

COPYRIGHT MATERIAL OMITTED

Rosanna A. Blake, Atty., N.L.R.B., Washington, D. C., Thomas J. McDermott, Asso. Gen. Counsel, N.L.R.B., Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Washington, D. C. (Jerome D. Fenton, Gen. Counsel, Elizabeth W. Weston, Atty., National Labor Relations Board, Washington, D. C., on the brief), for petitioner.

John H. Doesburg, Jr., Chicago, Ill. (J. Norman Goddess, Chicago, Ill., of counsel), for respondent.

John S. McLellan, Kingsport, Tenn., Amicus Curiae.

Before RIVES, BROWN, and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

This case is before the Court on petition of the National Labor Relations Board for enforcement of its order against the respondent, the Birmingham Publishing Company.¹ The Board found that: (1) the respondent violated Section 8(a) (1) of the Labor-Management Relations Act by promoting a movement to decertify the Birmingham local union of the International Printing Pressmen and Assistants' Union of North America, AFL-CIO as the bargaining representative of the Company's pressroom employees; (2) the respondent violated Section 8(a) (3) and (1) by discharging employee Howard Edwards because of his union membership and union activity; and, (3) because of these unfair labor practices, the employees went on strike and occupy the status of "unfair labor practice strikers" entitled to reinstatement.²

The Board's order directs the Company to cease and desist from the unfair labor practices found, and to reinstate employee Howard Edwards with back pay. The order directs that upon proper application the Company shall offer reinstatement to any of the strikers not already reinstated, the accrual period for back pay to begin on the fifth day after an individual's application and to terminate on the date of the offer of reinstatement.

We grant enforcement of the Board's order in part.

I.

The Board's story and the Company's story of this case are distinguished by the completeness with which they disagree on all points, major and minor. Under the substantiality test, as stated in Universal Camera Corp. v. N. L. R. B., 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, the choice between two conflicting lines of testimony and two inconsistent inferences is primarily for the Board. We may displace the Board's choice, but only where "no substantial evidence on the record considered as a whole to supports the inference drawn by board". N. L. R. B. v. Coats & Clark, Inc., 5 Cir., 1956, 231 F.2d 567, 568.

The Company's plant is located in Birmingham, Alabama. It produces printed matter by the lithographic process and by the traditional letterpress method. In the spring of 1956 there were nine employees and two foremen in the pressroom, one of three major departments in the plant. Five of these employees, under the supervision of foreman Harold Cleburne, performed the lithographic work or offset press work and allied operations. The others in the pressroom operated the letter presses. They were under the supervision of John Key, later replaced by George Daum. The Union in this case had been recognized as the pressroom bargaining representative for many years. All the employees were members or applicants for membership.

At its monthly meeting in March 1956, the Union acted on the membership applications of four offset employees recently hired by the Company: Johnson and Strasewicz, journeymen, and Wilson and Crutcher, apprentices. Crutcher was blackballed, for some reason not disclosed in the record. The Union's denial of membership to Crutcher was the originating cause of this proceeding. It created a hard choice. Under the Union contract,³ Crutcher would have to quit his job or the employees would have to affiliate with some other union.

Before working for the Company, Crutcher had been interested in joining the Amalgamated Lithographers of America.⁴ He suggested to the other offset employees that they transfer their affiliation to that union. Cleburne, one of the foremen, told the others that he would find out what could be done. He went to James Wyatt, Vice-President of the Company. From then on the Company was hopelessly involved in a situation that was not of its making — however willingly or unwillingly it became entangled in the pro-Union and anti-Union activities of its employees.

Wyatt informed Henley, the President, just what was going on. They talked with their attorney. Wyatt went back to Cleburne, and told him how to go about decertifying the Union. He instructed Cleburne just how to phrase a statement repudiating the Union, and advised him "to keep on bull-dogging until he got his petition in". Cleburne took down Henley's suggestion in longhand. A few days later, Wyatt and Henley met with Cleburne and the offset employees because the men wanted assurance that when the petition for decertification was filed they would not lose their jobs. Henley offered reassurances on this point, stating however that the Company's position was "one of genuine neutrality".

The first petition was signed by Cleburne, Crutcher, Strasewicz, and Johnson, and sent to the Board. A Board agent interviewed Cleburne and, upon ascertaining that Cleburne was a foreman explained that the petition was out of order, since supervisors are ineligible to file petitions in behalf of employees under Section 9(c)(1)(A) of the Act. Cleburne agreed to abide by the agent's instruction that he would not have anything to do with the petition for decertification.

After Cleburne's petition was rejected, Johnson took over. Although Cleburne agreed to have nothing more to do with the petition, on at least one occasion, by his own admission, he attended a meeting with Wyatt and Johnson concerning the petition. Johnson filed the second petition. The only change was in dropping Cleburne's name. This petition was also rejected, because it called for an election in an inappropriate segment of the established bargaining unit — only the offset employees in the pressroom, excluding the letter-press operators in the same department.

Johnson prepared and filed a third decertification petition. This time the document submitted to the Board was signed by Johnson and six other pressroom employees. Those who signed at Johnson's solicitation were Wilson, James Edwards, Bethune (who worked under Cleburne), and Cecile Dover, a deaf mute who worked under George Daum.

In drafting and circulating the new petition and in inducing the employees to sign it, Johnson used company time and facilities, and obtained at least indirect support from company officials. Cleburne knew Johnson was circulating the petition on company time; he aided in typing the petition. Johnson told Wilson, Bethune, Dover, and James Edwards that once the Union was removed, the Company planned to give the employees improved economic benefits such as paid holidays, vacations, sick leave, and a pension plan. Dover was escorted by Johnson into Wyatt's office. Johnson told him that he would be advanced to a journeyman's position if the Union were decertified. Cleburne also came to Dover and said he would have a job as long as he wanted it if he would throw away his Union card.

James Edwards, a younger brother of Howard Edwards, signed the petition under pressure. Young Edwards was eligible for a raise. Instead, he was summoned to President Henley's office and given two weeks to find another job. The reason for dismissal, Henley stated, was that the Company did not want two members of the same family working in the shop at the same time. Shortly after that, Johnson told young Edwards that his support was needed in the decertification of the Union. Johnson assured him that his job would be secure if he signed the petition and that he would get his overdue pay. Edwards signed. Soon after that, Henley told him that he would not be dismissed after all. Edwards received his pay increase.

Bethune became "confused"; he signed the petition — but wanted to know what was going on. Johnson and Cleburne took him to Wyatt's office. During the course of the discussion, Wyatt said "a good pressman could make his own deal with the employer and do better than by being in the union".

Johnson filed the new petition on June 4. About the end of June, Howard Edwards, the Union's chapel chairman, persuaded Wilson to pay his Union dues. Johnson told Wilson that if Edwards "talked union" any more, he would "get him fired". On July 2, or 3, Johnson escorted Wilson into Henley's office. A discussion between Henley, Wyatt and Cleburne was going on. Wilson testified that they said Edwards was slated for discharge for talking Union. Henley censured Wilson for paying his union dues. Edwards was fired two or three days later.

Howard Edwards remained loyal to the Union. He did not sign the petition. He did not agree with Henley that the Union held good men back. Throughout the preparation and filing of the petitions Edwards openly and actively supported the Union. He continued to serve on the Union's negotiating committee, collected Union dues, and protested violations of Union rules regarding such matters as the manning of presses.

Key had warned Edwards to remain at his presses. Daum, the foreman, a member of the Union for forty-one years, testified that Edwards was discharged for leaving his machine after being repeatedly warned not to leave his presses unattended. Notwithstanding the warnings, Edwards left his presses to "talk union" with the others. Daum told Dover to "watch" Edwards. He told Wilson to let him know the next time Edwards talked to him about the Union. Johnson told Bethune to watch Edwards' activity and report it. At first, the reason Daum gave for firing Edwards was for "spoiling a job". The formal...