Avondale Shipyards, Inc. v. NLRB, 24357.

• Decision Date: 28 February 1968
• Docket Number: No. 24357.,24357.
• Citation: 391 F.2d 203
• Parties: AVONDALE SHIPYARDS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

391 F.2d 203 (1968)

AVONDALE SHIPYARDS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 24357.

United States Court of Appeals Fifth Circuit.

February 28, 1968.

Michael J. Molony, Jr., New Orleans, La., for petitioner; Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, La., (R. K. McCalla, New Orleans, La., on the brief).

Marcel Mallet-Prevost, Asst. Gen. Counsel, Harold B. Zanoff, Atty., N. L. R. B., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Paul J. Spielberg, Attys., N. L. R. B., Washington, D. C., for respondent.

Before RIVES and GODBOLD, Circuit Judges, and HUGHES, District Judge.

GODBOLD, Circuit Judge:

Avondale Shipyards, Inc. petitions for review of a decision and order of the National Labor Relations Board.¹ The Board accepted the findings of its Trial Examiner requiring reinstatement of six employees found to be discharged in violation of §§ 8(a) (1) and (3),² and, in addition, concluded that conversations with three employees violated § 8(a) (1). The Board cross-petitions for enforcement of its order.

Avondale employs approximately 6,000 in its shipyards at Harvey and Avondale, Louisiana. The union began its organizational campaign in March 1964 and by June 1965 had obtained approximately 900-1,000 authorization cards. On February 10, 1965 a letter was sent the company notifying it of the identity of 14 union committeemen. They were active union adherents. On March 1 or 2 the company was informed of an additional committeeman (Baker).

The § 8(a) (1) violations

There need be no recital of the evidence of employee interrogation. It is more than adequate to reach the required standard of substantial evidence on the record as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); see NLRB v. Brown, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965).

The § 8(a) (3) violations

Employees involved are Alford, Finch, Borne, Forbes, Baker and Boyd. All except Baker and Boyd were discharged or quit within a few days of the time their identity as committeemen was made known to the company in February. Baker was fired within three or four days of the time his identity was made known on March 1 or 2. Boyd's discharge was on March 3.

The case of Alford, discharged on February 16, is not even close. It turns in considerable degree on credibility determinations which the Board was authorized to make. The order should be enforced as to him.

Finch quit his job on February 16. There is substantial exidence to support the Board's conclusion that he was forced to quit by statements of his supervisors, the nature of which, especially in light of Finch's known nervous condition, foreseeably would cause him to resign. NLRB v. Tennessee Packers, Inc., 339 F.2d 203 (6th Cir. 1964); NLRB v. East Texas Motor Freight Lines, 140 F.2d 404 (5th Cir. 1944); see Radio Officers Union v. NLRB, 347 U.S. 17, 45, 74 S.Ct. 323, 338, 98 L.Ed. 455, 479-480 (1954).

Forbes also quit, on February 17. There is substantial, in fact almost compelling, evidence from Forbes' credited testimony describing a conversation with his foreman, Betancourt, that Forbes was transferred to new work in the belief, and with the result, that he would quit rather than perform the new duties. NLRB v. Cone Bros. Contracting Co., 317 F.2d 3 (5th Cir.), cert. denied, 375 U.S. 945, 84 S.Ct. 353, 11 L.Ed.2d 275 (1963); Bausch & Lomb Optical Co. v. NLRB, 217 F.2d 575 (2d Cir. 1954).

Boyd was discharged on March 3 or 4 following his performance of work which was unsatisfactory. But whether it was defective because of his failure to read and follow blueprints or because of confusing instructions from the foreman was for the Board to determine, and its conclusion is supported by adequate evidence.

At the time of his discharge, March 5, Baker was assigned to a welding job in the bow of a barge. During the preceding two days his production had fallen to half the standard footage of welding expected of a welder. The position in which he was working on the discharge date required his welding machine to be placed some distance away and out of his sight. The Trial Examiner credited Baker's testimony that someone repeatedly tampered with the controls of his machine, causing the temperature to vary and requiring him to stop work to reset the machine, which slowed his production. The Trial Examiner's finding of discriminatory discharge was grounded on the theory that the company, having knowledge of Baker's difficulties with his equipment, failed to make a real investigation or to "make any allowances" for Baker's low production. The Trial Examiner did not credit Supervisor Nicholson's testimony that after Baker complained that someone was tampering with his machine he Nicholson watched it for an hour and saw no indication of the alleged interference. But there is no evidence that the company induced harassment of Baker or contributed to it. Compare NLRB v. Tennessee Packers, Inc., 339 F.2d 203 (6th Cir. 1964). Baker was a marginal employee, a chronically slow welder. His work had been the subject of numerous complaints, and of investigations by his supervisors after complaints (including investigations on February 16 and 26), and only a week before discharge he had been warned that if his work did not improve he would be discharged. All this occurred prior to any union activity on his part. The Board contends that when other welders were low in performance they were given assistance to improve. But from July, 1964 through March, 1965 the night welding superintendent, who discharged Baker, fired five welders for failing to meet production standards.³

The Trial Examiner omitted reference to Baker's undisputed past record of unsatisfactory performance and the warning a week before discharge that his work would have to improve.

Borne was a first-class machinist who had worked for the company for 13 years. On February 18 he machined away too much of a metal casting and ruined it, and was discharged. The casting was not for routine shipbuilding but for use in a special construction job for the Coast Guard on which there was a penalty...