Martin Sprocket & Gear Company v. NLRB

• Decision Date: 22 April 1964
• Docket Number: No. 19463.,19463.
• Citation: 329 F.2d 417
• Parties: MARTIN SPROCKET & GEAR COMPANY, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

329 F.2d 417 (1964)

MARTIN SPROCKET & GEAR COMPANY, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 19463.

United States Court of Appeals Fifth Circuit.

March 19, 1964.

Rehearing Denied April 22, 1964.

Winfred Hooper, Jr., George Q. McGown, III, R. W. Decker, McGown, Godfrey, Logan & Decker, Fort Worth, Tex., for petitioner.

Dominick L. Manoli, Associate Gen. Counsel, N. L. R. B., Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., Melvin Pollack, Atty., N. L. R. B., Washington, D. C., Stuart Rothman, General Counsel, Janet Kohn, Attorney, National Labor Relations Board, Washington, D. C., for respondent.

Before BROWN and BELL, Circuit Judges, and SIMPSON, District Judge.

SIMPSON, District Judge.

Presented by the Petitioner, Martin Sprocket & Gear Company, Inc., (hereinafter Martin) is a Petition for Review of an Order of the National Labor Relations Board (hereinafter the Board). We are asked to set aside an Order finding Martin in violation of Section 8(a) (1)¹ of the National Labor Relations Act by reason of coercive interrogation of its employees with respect to their Union affiliations and activities, and Section 8(a) (3)² by discriminatorily discharging an employee named Jefferson Davis King. The Board, having adopted the Trial Examiner's findings and recommendations, issued a Cease and Desist Order as to the 8(a) (1) and (3) violations and ordered that King be reinstated with back pay.

Petitioner's brief urges six assignments of error, which collectively can be summarized as follows:

The Order of the Board cannot stand because the Examiner's findings were erroneous, and, consequently, the conclusions so reached are not supported by substantial evidence.

As to the violation of 8(a) (1),³ the Petitioner contends that the Order, holding a violation of this section had occurred, is violative of the constitutionally guaranteed right of freedom of speech. It is insisted by Martin that what its foremen and other officials said to several of the employees, concerning the possibility of a Union being started, was only an expression of their personal opinion; secondly, it is complained that there is lacking any evidence whatsoever to show that the interrogation of these employees was a concerted action on the part of Martin.

With respect to the violation of 8(a) (3),⁴ Martin contends that the Order violates the right of an employer to discharge an employee for any reason for which it sees fit and under any circumstances reasonable or unreasonable, fair or unjust so long as it does not do so because of Union activity. In support of this, it is urged that such a finding is not based on substantial evidence.

Martin is a relatively small concern, having a day and night shift composed of some one hundred employees. The record indicates that the managerial staff was quite friendly to the employees. Martin sponsored a bowling team, and not infrequently, several of the foremen and the Vice-President participated.

During the early part of May, 1961, the discharged employee, Jefferson Davis King, together with two other employees, his brother-in-law, Billy Gene Clark, and one Josh Ray Allen, discussed the desirability of being represented by a Union.⁵ After contacting a Union organizer, they tried to interest other day-shift employees in joining the Union.

On Monday, May 15, a Union representative waited at the gate to pass out Union authorization cards and other literature to the employees as they changed shifts. Prior to this distribution, but on the same day, Bill Howard, one of the foremen, approached Josh Ray Allen and questioned him concerning rumors of the employees trying to organize a Union. Howard told him, "I don't think that the company needs a Union out here. We don't want any rumors about one going on."

That Monday night was league night at the bowling alley. Several employees, including King, were warming up when Howard arrived. Howard asked how many of them had signed and sent in their authorization cards to the Union. While King announced that he had, the others evaded the question. Although jests about the Union were exchanged during the match, the employees all testified Howard appeared concerned and was quite serious when he asked them about who had signed authorization cards. On the other hand, Howard insisted he was only joking.

Terry Armstrong, an employee who worked in the main office, testified that on the following day, May 16, he and Joe Martin, the President, discussed the Union's chances of succeeding if an election was held. He further stated that Joe Martin asked him how Jeff King felt about the Union. Terry said he avoided giving a direct answer.

On the next day, King was discharged. Before the Examiner, management witnesses, Howard and the managing Vice-President, Trout, testified that King was discharged because he was not giving them a day's work, that what he did was not up to par, and that he was accident prone. Other employee witnesses testified that these reasons were asserted to them by Trout and Howard shortly after the discharge.

King began his employment with Martin in 1955. Starting in December 1957 with an injury to his head, King suffered recurring disabling injuries up until 1960. These injuries necessitated periods of convalescence, the longest lasting for four months. It is undisputed that during the times King was recovering, Martin paid him his full salary. The company paid for medical expense, including psychiatric treatment. Howard testified that while he was dubious about the extent of King's injuries, he did encourage this sick pay and further, he arranged on King's return for an increase in King's wages. The company records indicate that from his last return in January of 1961, until his discharge on May 17, 1961, King was present almost every day and was not plagued with further injuries. From the evidence, King's discharge in 1960, after three years of intermittent injuries, would be readily understandable. But the evidence demonstrates just the opposite in that, as mentioned above, he received a pay raise and in addition was given progressively lighter work. The discharge came swiftly after his Union interest was made known to Martin.

In opposition to the Order charging violations of Section 8(a) (1) and 8(a) (3), Martin's main contention is that the Secretary has not produced even a scintilla of evidence to support either charge, and that the Petitioner, while under no duty to come forth with any evidence of its innocence, has adequately shown through the testimony of its President, Vice-President and foreman that the inquiries made among the employees were expressions of personal views only and that valid grounds were present for King's discharge. That Petitioner complains that the testimony of these officials was arbitrarily disregarded by the Trial Examiner and likewise by the Board, which adopted the Examiner's findings and conclusions.

This contention will not stand critical examination. To the contrary, the record contains ample testimony by King, Allen, Armstrong and Runyon countervailing Martin's evidence. In addition to the live testimony of the several employees, the history and background of the controversy raise strong inferences of concerted company action in restraining and interfering with employees as to their Union activities and affiliations, and of a discriminatory discharge of King.

It is undisputed that the president and other members of management questioned different employees and expressed the company's viewpoint against Unions.

On May 17 ...