Acme Products, Inc. v. NLRB

• Decision Date: 13 February 1968
• Docket Number: No. 18863.,18863.
• Citation: 389 F.2d 104
• Parties: ACME PRODUCTS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

389 F.2d 104 (1968)

ACME PRODUCTS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 18863.

United States Court of Appeals Eighth Circuit.

February 13, 1968.

Jack L. Whitacre, of Spencer, Fane, Britt & Browne, Kansas City, Mo., for petitioner; Harry L. Browne, Kansas City, Mo., on the brief.

Corinna Lothar Metcalf, Atty., N. L. R. B., for respondent; Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Lawrence M. Joseph, Atty., N. L. R. B., on the brief.

Before VAN OOSTERHOUT and MATTHES, Circuit Judges, and HARRIS, District Judge.

VAN OOSTERHOUT, Circuit Judge.

This case is before us upon petition of Acme Products, Inc., (Acme), to review the order of the National Labor Relations Board issued May 9, 1967. The Board has filed an answer and a cross-petition seeking enforcement of its order. The Trial Examiner's decision recommending the dismissal of all charges and the two-to-one Board panel decision upholding the violations charged and the Board's order are all reported at 164 NLRB No. 62. Jurisdiction of this court under § 10(e) and (f) of the National Labor Relations Act as amended, 29 U.S. C.A. § 151 et seq., is established.

The Board majority found Acme had violated the Act in the following respects:

(1) Section 8(a) (3) and (1) by discharging six employees (Ross, Smith, Rice, O'Dell, Stone and Goodman), for union sympathies and activities.

(2) Section 8(a) (1) by coercively interrogating employees as to union activities and sympathies.

(3) Section 8(a) (5) and (1) by unlawfully refusing to bargain with the union (District Lodge No. 71, International Association of Machinists and Aerospace Workers, AFL-CIO).

Acme is engaged in the manufacture of trailer hitches at its two plants in Kansas City, Missouri, located about one and one-half miles apart. The hitches are manufactured at Plant No. 1. The assembly, packing and shipping of the completed units is done at Plant No. 2. Total employment of hourly workers fluctuated between eight employees in the slack season to twenty-four employees in the peak season which runs from about February to August. The events upon which the charges here involved are based occurred in January and February 1966. During that period the company employed about fourteen hourly paid employees and was about to expand its work force for the peak season. William Kreiling, president of the company, kept in close touch with the plant operations at both plants. His testimony, which in some respects was in conflict with that of the Board's witnesses, was credited by the Trial Examiner.

The basic issue before us is whether there is substantial evidentiary support upon the record as a whole for the Board's findings of violations of the Act. The law applicable to the charges has been considered and discussed frequently by this court and other courts and appears to be well settled. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, teaches that the findings of the Board must be supported by substantial evidence on the record as a whole; that the findings of the Trial Examiner are part of the record and that evidence supporting a conclusion may be less substantial when an experienced Trial Examiner, who has seen and heard the witnesses, reaches a contrary conclusion to that reached by the Board, and that this is particularly true when the credibility of witnesses is involved.

In Universal Camera, the Court expressly rejected the contention that a court is bound by the Board's rejection of a Trial Examiner's findings. It discusses the function of the Trial Examiner and the legislative history of the Act and goes on to say:

"We do not require that the examiner\'s findings be given more weight than in reason and in the light of judicial experience they deserve. The `substantial evidence\' standard is not modified in any way when the Board and its examiner disagree. We intend only to recognize that evidence supporting a conclusion may be less substantial when an impartial, experienced examiner who has observed the witnesses and lived with the case has drawn conclusions different from the Board\'s than when he has reached the same conclusion. The findings of the examiner are to be considered along with the consistency and inherent probability of testimony. The significance of his report, of course, depends largely on the importance of credibility in the particular case." 340 U.S. 474, 496, 71 S.Ct. 456, 469.

The Supreme Court directed that upon remand the Court of Appeals should "accord the findings of the trial examiner the relevance that they reasonably command in answering the comprehensive question whether the evidence supporting the Board's order is substantial."

Of course, the Board is not conclusively bound by the Trial Examiner's findings. However, in resolving the crucial issue of whether the Board's determination is based upon substantial evidence on the record considered as a whole, the Trial Examiner's findings which turn on credibility determinations with respect to witnesses whom he alone saw and heard, are entitled to considerable weight. N. L. R. B. v. Johnnie's Poultry Co., 8 Cir., 344 F.2d 617, 618; Wm. H. Block Co. v. N. L. R. B., 7 Cir., 367 F.2d 38, 42; Amco Electric v. N. L. R. B., 9 Cir., 358 F.2d 370, 373; Indiana Rayon Corp. v. N. L. R. B., 7 Cir., 355 F.2d 535, 537.

The Board is entitled to draw reasonable inferences from the evidence but some substantial evidentiary basis must exist to support the inferences drawn. Inferences cannot be based purely on speculation. Recently, in Dierks Forests, Inc. v. N. L. R. B., 8 Cir., 385 F.2d 48, 52, Judge Matthes for this court reviewed the scope of the Universal Camera substantial evidence standard and included a quotation from Judge Blackmun's opinion in N. L. R. B. v. Council Mfg. Corp., 8 Cir., 334 F.2d 161, 165, reading in part:

"We have the impression that the Board of late has tended to overstretch on this type of issue and that, in the light of Universal Camera, a foundation of much greater substance is required than the isolated statement present here. We have refused enforcement in similar situations, particularly on interrogation, in recent cases."

What is there said, fully applies to our present case.

The resolution of the relevant fact issue here turns largely upon whether the testimony of the Board's witnesses or the conflicting testimony of President Kreiling is to be credited. The Examiner who heard the witnesses credited Kreiling's testimony. Sound reasons are set out in his report for so doing and they will not be repeated here. Board member Brown, in agreement with the Trial Examiner, states:

"There are, to be sure, suspicious circumstances attending the discharges of the complainants. But the testimony which the Trial Examiner has credited, and which I

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