AP Green Fire Brick Company v. NLRB

• Decision Date: 30 January 1964
• Docket Number: No. 17293.,17293.
• Citation: 326 F.2d 910
• Parties: A. P. GREEN FIRE BRICK COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

326 F.2d 910 (1964)

A. P. GREEN FIRE BRICK COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 17293.

United States Court of Appeals Eighth Circuit.

January 30, 1964.

Robert J. Griffith, St. Louis, Mo., for petitioner.

William J. Avrutis, Attorney, N. L. R. B., Washington, D. C., Arnold Ordman, General Counsel, N. L. R. B., Washington, D. C., Dominick L. Manoli, Associate General Counsel, N. L. R. B., Marcel Mallet-Prevost, Asst. General Counsel, N. L. R. B., and Melvin Pollack, Attorney, N. L. R. B., Washington, D. C., for respondent.

Before VOGEL, BLACKMUN and RIDGE, Circuit Judges.

VOGEL, Circuit Judge.

A. P. Green Fire Brick Company, petitioner, seeks to have this court review and set aside an order of the National Labor Relations Board issued against it on February 5, 1963, pursuant to § 10(c) of the National Labor Relations Act, as amended, 61 Stat. 136, 73 Stat. 519, 29 U.S.C.A. § 151 et seq. The Board, by its answer, asks that its order be enforced. No question of jurisdiction is involved. The Board's decision and order are reported in 140 N.L.R.B. No. 101.

Adopting the Intermediate Report and Recommended Order of its Trial Examiner, the Board found that petitioner had violated § 8(a) (1) of the Act, 29 U.S. C.A. § 158(a) (1), by making threats and coercive statements to its employees. It further found that petitioner had violated § 8(a) (3) of the Act, 29 U.S.C.A. § 158 (a) (3), by discriminatorily discharging employee Earl F. Docekal. It also found, based upon the Trial Examiner's Report, that petitioner had not engaged in other alleged unfair labor practices and approved the dismissal with respect thereto.

The order of which enforcement is sought requires the petitioner to cease and desist from the unfair labor practices found and from in any other manner interfering with, restraining or coercing its employees in the exercise of their right to self-organization under the Act. Affirmatively, the order directs the petitioner to offer employee Docekal immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and to make him whole for any loss of earnings he may have suffered because of the discrimination against him, with back pay computed in the customary manner.

In seeking review, petitioner asserts (1) that the Board's findings of interference, restraint and coercion, and that the discharge of employee Docekal was wrongful are not supported by substantial evidence contained in the record as a whole. Petitioner further claims (2) that its president's speeches to the employees dissipated or disavowed any impropriety that might conceivably have occurred; (3) that employee Docekal's alleged organizational activities were not shown to be within the petitioner's knowledge; and (4) that his discharge was for dishonesty instead of activities in support of unionization.

Petitioner is a Missouri corporation with its principal office and plant in Mexico, Missouri. It manufactures refractory products as well as other items chiefly for the steel, glass, chemical and oil industries. It has locations or markets throughout a good share of the world. Its Mexico, Missouri, plant is the largest individual fire brick plant in existence. It has 23 acres under roof, ranging from one story to five stories high. It is engaged in interstate commerce.

On October 12 and 13, 1961, the National Labor Relations Board conducted a consent election among the company's 641 employees at its Mexico plant. The vote was 316 for the union and 317 against, with 5 challenges. Following objections to petitioner's conduct filed by the union, the Regional Director investigated, set the election aside and held a second election on December 20 and 21, 1961. In the second election the union lost by 29 votes.

The standard by which this court reviews and passes upon fact determinations and orders of the National Labor Relations Board has been well set forth in Bituminous Material & Supply Co. v. N. L. R. B., 8 Cir., 1960, 281 F.2d 365, 367, as follows:

"§ 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\'."

This court in N. L. R. B. v. Morrison Cafeteria Co. of Little Rock, Inc., 8 Cir., 1963, 311 F.2d 534, 538, stated:

"* * * The rule in this Circuit is that `the question of credibility of witnesses and the weight to be given their testimony\' in labor cases is primarily one for determination by the trier of facts. Paramount Cap Mfg. Co. v. N. L. R. B., 260 F.2d 109 (8 Cir. 1958); Kitty Clover, Inc. v. N. L. R. B., 208 F.2d 212, 214 (8 Cir. 1953). See, also, N. L. R. B. v. Walton Mfg. Co., 369 U.S. 404, 407-408, 82 S.Ct. 853, 7 L.Ed.2d 829 (1961). This Court is not the place where that question can be resolved, unless it is shocking to our conscience."

With these standards in mind, we examine the record.

Earl F. Docekal, with whose discharge these proceedings are concerned, worked for petitioner from August 1941 until his discharge on March 5, 1962. At the time of his discharge and for the major portion of the years of his employment, he was engaged as a truck lift operator. His employment record was good. Up to the time of his discharge he had never been disciplined. Bert Francis, his shift foreman for eight years, could recall of no occasion when he criticized Docekal. In April 1961 Docekal asked the United Brick and Clay Workers Union of America to organize the employees of petitioner's plant at Mexico, Missouri. On the evening of April 14 union organizer McKay held a meeting with Docekal and ten other of petitioner's employees at a union hall located above a local tavern in Mexico. Although the testimony was highly disputed, the Examiner and the Board found that the meeting was under surveillance by two of the company foremen; that when the employees ascertained this, they became frightened. The men in attendance were given a supply of union application blanks and the meeting was broken up. The employees who were there tried to slip out of the building surreptitiously behind other persons who were walking by or else by going into a nearby alley. The Board concluded that the foremen were present for the purpose of observing the union meeting in order to find out which employees attended and that they thereby learned of Docekal's presence, interest and activity concerning union organization. Thereafter Docekal personally signed up 190 employees of the petitioner.

On October 12, 1961, which was the first day of the first election, company foreman Ralph Gallop appeared in a shack under the kiln where a number of employees were eating. He told the employees that, "* * * they would know how we voted after the election because the ballots would be numbered and every man would have a number." Later Gallop in effect reaffirmed his statement, telling the employees that, "* * * he was almost right about the ballots, that it would be our clock number." The Board found, adopting the Examiner's Intermediate Report, that Gallop's conduct would reasonably tend to prevent those in favor of the union from voting and that such plan was plain interference with the employees' rights.

About two weeks prior to this incident, Gallop talked with employee Pierce in the presence of another employee. The testimony indicates:

"He said that he had heard that, he knew how I stood, I was strong on the union, and he would bet $500 that the union did not go in. I said, `No, I haven\'t got that kind of money.\' He said, `I will bet $50.\' I said, `I couldn\'t raise $50 either.\' He said, `If I bet with you it would have to be cash on the board because after the election I would have trouble finding you to collect.\' I believe he said, `You wouldn\'t be around here any more.\'"

Two or three weeks prior to the first election, foreman Gallop also had a conversation with employee William Behan. The record indicates:

"Mr. Gallop said, `You think that we don\'t know that you signed a union card.\' I said that I never signed one. He said, `By God, I know the guys who signed the cards, and I have got them right here in my pocket,\' and I told him, `You show me my name on those cards and I will own up to it.\' And after that he said, `I guess you realize if this union goes in your hours will be cut to 32 hours, and more than likely we will move some of our equipment to Arkansas and Albuquerque because we can get labor cheaper there.\' Mr. Gallop said, `If this union gets in,\' he said, `you will have to hunt you up another daddy-in-law with a farm.\'

About three days thereafter foreman Gallop talked to Behan again:

"A. Gallop said, `About the other day, I want to clarify myself on that,

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