Bituminous Material & Supply Co. v. NLRB

Decision Date01 August 1960
Docket NumberNo. 16365.,16365.
Citation281 F.2d 365
PartiesBITUMINOUS MATERIAL & SUPPLY CO., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
CourtU.S. Court of Appeals — Eighth Circuit

Max Putnam, Des Moines, Iowa, for petitioner.

Fannie M. Boyls, Washington, D. C. (Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Alfred Avins, Atty., N. L. R. B., Washington, D. C., on the brief), for respondent.

Before GARDNER, WOODROUGH and BLACKMUN, Circuit Judges.

BLACKMUN, Circuit Judge.

Bituminous Material & Supply Co. by its petition seeks the review and setting aside of an order of the National Labor Relations Board issued September 17, 1959, and reported at 124 N.L.R.B. No. 125. The Board, by its answer and request, seeks enforcement.

Original charges alleging violations by Bituminous of § 8(a)(1) and (3) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 158(a)(1) and (3), were made by Chauffeurs, Teamsters and Helpers Local No. 371, an affiliate of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. The Regional Director's complaint alleged (a) Interrogation of employees with respect to union affiliations; (b) Termination on June 10, 1958, of a 5-man "construction crew" consisting of employees Jennings, Meyers, Rebmann, Atkins and Seys; (c) Termination on June 12, 1958, of employees Marberry and House; (d) Termination on or about June 18, 1958, of employees Nicewanner and Laymon; (e) Termination on or about June 21, 1958, of employees Guldenpfennig and Cooley; and (f) Refusal to reinstate these employees.

After hearing, the trial examiner recommended dismissal of the charges relating to employees Laymon, Guldenpfennig and Cooley. He found and concluded however, that Bituminous had violated § 8(a) (1) by interrogating employees concerning union activities and by threatening reprisals; that Bituminous had also violated § 8(a)(3) and (1) by discharging Marberry, House and Nicewanner; that there was no violation in the termination of the construction crew on June 10; and that there was a violation in failing to recall the crew on or about August 1, 1958. He made recommendations accordingly. The employer filed exceptions. The General Counsel did the same with respect to those rulings adverse to him other than the issue concerning Laymon. The Board adopted the examiner's findings and followed his recommendations with the exception that the Board concluded, one member dissenting, that the crew's termination was also a violation.1 The Board then issued its usual order requiring Bituminous to cease and desist, to offer reinstatement to the 8 employees and make them whole for any loss of earnings, and to post notices.

Bituminous in 1958 was engaged in the operation of an asphalt and fuel storage and delivery business. It had a terminal at Linwood, Iowa, on the Mississippi River. Some of the products it sold were brought in by river barge, unloaded by "cargo lines" and stored in tanks. On June 9, 1958, and for some time prior thereto, Bituminous had about 30 men in its employ.

The employer asserts in substance (a) that there is not "sufficient evidence", under applicable standards, to justify the Board's findings that the discharges in question were discriminatory and violative of the Act; (b) that there was no obligation on its part to recall or reinstate; (c) that the examiner's action in rejecting employer's Exhibit 4 and the Board's affirmance of this ruling were erroneous, and (d) that there was prejudicial bias on the part of the trial examiner against the employer which vitiated the presumption of correctness of his rulings and order.

§ 10(e) of the Act, 29 U.S.C.A. § 160 (e) provides that the "findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive." So does § 10(f). The standards to be applied in the interpretation of this statutory language are set forth in Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. It was there held, 340 U.S. at page 488, 71 S.Ct. at page 464, that the "substantiality of evidence must take into account whatever in the record fairly detracts from its weight"; that this does not mean that this court may displace the Board's choice between two fairly conflicting views; and that this court is not barred from setting aside a Board decision "when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board's view". It was also said, 340 U.S. at pages 492-493, 497, 71 S.Ct. at pages 467-469, that the examiner's findings are not "as unassailable as a master's"; that his report is as much a part of the record as the complaint or the testimony; and that his findings "are to be considered along with the consistency and inherent probability of testimony".

We observe, preliminarily, that (a) the existence of a non-prohibited reason for discharge of an employee does not negate a violation of the Act if the discharge is actually for a different and prohibited reason, N.L.R.B. v. Solo Cup Company, 8 Cir., 237 F.2d 521, 525; N.L.R.B. v. Hudson Pulp & Paper Corporation, 5 Cir., 273 F.2d 660, 666; and see Mitchell v. Goodyear Tire & Rubber Company, 8 Cir., 1960, 278 F.2d 562; (b) that the burden of proving charges of unfair labor practices is on the General Counsel, Local No. 3, etc. v. N.L. R.B., 8 Cir., 210 F.2d 325, 328-329, certiorari denied Local No. 3, etc. v. Wilson & Co., 348 U.S. 822, 75 S.Ct. 36, 99 L.Ed. 648; (c) that the mere fact of discharge creates no presumption of violation and an unlawful purpose is not lightly to be inferred, N.L.R.B. v. McGahey, 5 Cir., 233 F.2d 406, 413; N.L.R.B. v. Ford Radio & Mica Corp., 2 Cir., 258 F.2d 457, 461 (footnote); N.L.R.B. v. Sebastopol Apple Growers Union, 9 Cir., 269 F.2d 705, 714; (d) that a violation may be proved by circumstantial evidence, National Labor Relations Board v. Link-Belt Co., 311 U.S. 584, 602, 61 S.Ct. 358, 85 L.Ed. 368; N.L.R.B. v. International Union, etc., 8 Cir., 216 F.2d 161, 164; N.L.R.B. v. Pacific Intermountain Exp. Co., 8 Cir., 228 F.2d 170, 172, certiorari denied 351 U.S. 952, 76 S.Ct. 850, 100 L.Ed. 1476; N.L.R.B. v. International Union, etc., 8 Cir., 1960, 279 F.2d 951; and (e) that, however, fragmentary and unrelated suspicions are not sufficient and "mere suspicion or conjecture can not be accepted as substantial evidence", Local No. 3, etc. v. N.L.R.B., supra, at page 331 of 210 F.2d; N.L.R.B. v. Montgomery Ward & Co., 8 Cir., 157 F.2d 486, 491; Osceola Co. Co-op. Creamery Ass'n v. N.L.R.B., 8 Cir., 251 F.2d 62, 68. With these principles and those of Camera in mind, we consider the evidence here.

This case, as many others, presents conflicting evidence. Management witnesses for the most part take one position and employees another. Management asserts, also, that each discharge was for proper cause, viz., that the crew was running out of work, that Nicewanner quit and that Marberry and House were "horsing around", and not attending to duty and had been considered for discharge. The General Counsel claims that these are only excuses and that union activity was the reason for the terminations. There is even some disturbing intimation of entrapment. Under these circumstances it is obvious that every witness cannot be entirely correct. Strong arguments can be made — and are made here — supporting the opposing theories of the evidence. These arguments, however, are normally for the trier of fact and not for this court on review. Nevertheless, as required by Camera, we have examined and have been attentive to them.

Marberry and House. Marberry had worked for Bituminous in the summer and fall of 1957 as a pumper's helper. He returned in April 1958 in the same capacity. His pumper left in May and Marberry was promoted and given a raise. House became Marberry's helper. Marberry signed a union card on June 9. House also signed a card. He and House were discharged on June 12 when they came to work. Marberry testified that he had not received criticism of his work although he had been told on occasion that he would have to keep the pumping area cleaner. When he was discharged he was told that his work had not been satisfactory. He admitted some roughhousing with House. House did not testify.

There is evidence that at midnight on June 11 Bituminous' president and its general manager sought out employee Haynes when he came to work and asked him if he knew of any "card signers". Marberry and House were then identified by Haynes as men who had signed union cards. Upon this evidence and the fact of their discharge the next morning, the examiner and the Board found the terminations discriminatory. Although there is opposing testimony, we feel that this conclusion of the Board is supported by substantial evidence on the whole record.

Nicewanner and Exhibit 4. Nicewanner, one of about 15 truck drivers and described by his foreman as "one of my better drivers" in certain respects, had been employed by Bituminous from May to November in 1957, and again beginning March 28, 1958. He signed a union card on June 9. A few days later, while talking with the manager, Nicewanner asked if anyone had signed union cards. The manager said that they had and asked Nicewanner if he had signed one. He said he had not. The manager said, "Well, if you did, Everett, we don't want you or the truck, either one". The last day Nicewanner actually worked was June 13. On the 16th, at his request, he was given a few days off because his father had sustained a stroke. He left his telephone number with the office girl but received no call. The evidence does not disclose exactly when the employer acquired knowledge of Nicewanner's card signing....

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