Eastern Coal Corp. v. National Labor Relations Board

• Decision Date: 13 June 1949
• Docket Number: No. 5822.,5822.
• Citation: 176 F.2d 131
• Parties: EASTERN COAL CORPORATION v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Fourth Circuit

176 F.2d 131 (1949)

EASTERN COAL CORPORATION v. NATIONAL LABOR RELATIONS BOARD.

No. 5822.

United States Court of Appeals Fourth Circuit.

Argued April 13, 1949.

Decided June 13, 1949.

William A. Stuart, Abingdon, Va. (George Richardson, Jr., Bluefield, W. Va., on the brief), for petitioner.

William J. Avrutis and Frederick U. Reel, Attorneys, National Labor Relations Board, Washington, D. C. (David P. Findling, Associate General Counsel, and A. Norman Somers, Assistant General Counsel, National Labor Relations Board, Washington, D. C., on the brief), for respondent.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

PARKER, Chief Judge.

This is a petition by the Eastern Coal Corporation to review and set aside an order of the National Labor Relations Board which found that that company had discriminatorily discharged¹ six supervisory employees in violation of the terms of the National Labor Relations Act and directed that they be reinstated with back pay. The case had been heard before a trial examiner, who recommended that the Board enter an order containing, not only the reinstatement and back pay provisions, but also cease and desist provisions requiring the company to abstain from interfering with the right of organization on the part of its supervisory employees. After the filing of the trial examiner's report, but before the entry of the order by the Board, the Labor Management Relations Act of 1947, 29 U.S. C.A. § 141 et seq., was passed; and the Board held that, because of that act, it was without power to incorporate the cease and desist provisions in its order but that it, nevertheless, had power to require and should require reinstatement with back pay of the discharged employees, since their discharge amounted to an unfair labor practice under the statute in effect at that time. In its answer to the petition, the Board has asked that its order be enforced. Two distinct questions are presented for our consideration: (1) whether the Board's order is supported by "substantial evidence on the record considered as a whole", and (2) whether in view of the provisions of the Labor Management Relations Act there was power in the Board to enter it. We think that both these questions must be answered in the affirmative.

There was a lengthy hearing before the trial examiner at which the testimony ran to more than 1,600 pages, a large part of which has been quite unnecessarily printed in the appendix to the briefs. It was carefully summarized and appraised in the report of the trial examiner, and upon exceptions to his report, it was reviewed and analyzed in the Board's order. There is wide conflict not only in the testimony of the witnesses but also with respect to the conclusions and inferences which may be drawn from it; and the lengthy briefs of counsel are devoted in large measure to arguing questions of credibility and as to which of these inferences is the more reasonable. Our function, however, is not to pass upon questions of credibility nor to find facts from the testimony, but to determine whether the findings of the Board are supported by substantial evidence when the record is considered as a whole; and, as to this, we think there can be no doubt.

The company owns coal mines in Pike County, Kentucky, in which, prior to July 1, 1944, there had been organization of the rank and file labor but not of the supervisory employees. The rank and file labor had been organized by the United Mine Workers of America, and on or about the first of July 1944 the supervisory employees in two of the company's mines had organized a local union affiliated with that labor organization. The officials of the company announced a neutral attitude, but there is evidence that they were much opposed to having their supervisory employees organized by the labor organization which had organized their rank and file labor, that they refused to deal with a grievance committee of the supervisors union and stated that, whether or not they would recognize and deal with the union itself, would have to be determined by their bargaining agency and that they took steps to rid themselves of those who were prominent in the supervisors' organization. In this connection, there is evidence tending to show that Bernard Riddle and Tony Fanto were appointed about this time to the positions of mine superintendent and mine foreman, respectively; that they were urged by the general manager from time to time to discharge union men who were prominent in the union organization; that, when they failed to do so, they themselves were discharged; and that, following their discharge, there was a widespread rumor that they had been discharged for such failure, and that the supervisors union thereupon practically ceased to function.

Following the discharge of Riddle and Fanto on October 1, 1944, Rufus McKee was made superintendent, and between November 15, 1944 and February 18, 1945 he discharged the president and the treasurer of the supervisors union and three other supervisory employees who were members and demoted another supervisory employee who was a member. There is evidence that these men were competent and efficient, that they were miners of long experience, that most of them had served in a supervisory capacity for a long period of time and that their services were much needed. The grounds given for discharge were gross negligence and disobedience of orders; but there is abundant evidence that these charges were entirely unwarranted and were a mere pretext for getting rid of men whom the company desired to be rid of for some other reason which it wished to conceal. That this reason was the union affiliation of the discharged employees is a legitimate inference, not only because no other reasonable inference could be drawn from the facts as found by the Board, but also because of the antiunion attitude of McKee and the expressions which the Board found that he had used with respect to discharging members of the union.

To analyze in detail the circumstances surrounding each of the six discharges would unduly prolong this opinion; and there is no occasion to do so, as the facts are fully set forth in the report of the trial examiner and are reviewed in the order of the Board, where they may be read by those who are interested. There was evidence to support the position of the company, but it was for the Board, not us, to say what of the evidence was to be believed and what facts were established by it. The ultimate question in the case, the question as to the real reason for the discharges, was a question of fact for the Board; and, in the light of all the evidence, we cannot say that the Board's action was without substantial support. As we said in Hartsell Mills Co. v. N. L. R. B., 4 Cir., 111 F.2d 291, 293: "It must be remembered, in this connection, that the question involved is a pure question of fact; that, in passing upon it, the Board may give consideration to circumstantial evidence as well as to that which is direct; that direct evidence of a purpose to violate the statute is rarely obtainable; and that where the finding of the Board is supported by circumstances from which the conclusion of discriminatory discharge may legitimately be drawn, it is binding upon the courts, as they are without power to find facts or to substitute their judgment for that of the Board."

See also N. L. R. B. v. Emery, 4 Cir. 173 F.2d 349; N. L. R. B. v. Norfolk Shipbuilding Co., 4 Cir. 172 F.2d 813; N. L. R. B. v. Harris-Woodson Co., 4 Cir., 162 F.2d 97; West Virginia Glass Specialty Co. v. N. L. R. B., 4 Cir., 134 F.2d 551, 552. In the case last cited this Court dealt with the complaint, repeated here, that the trial examiner almost invariably, in case of conflict, accepted the testimony of the Board rather than that of the company. We said: "In an effort to offset this evidence the petitioner contends that in the main the statements and conduct derogatory to the Flints attributed to the company's officials were denied by them; that in every instance of conflict the examiner and the Board rejected the testimony of the company's officials who were men of integrity and good repute and accepted the testimony presented by their adversaries; that the testimony of the latter was shot through with inconsistencies and improbabilities and lacked corroboration which must have been available if the testimony were true. These arguments might be pertinent and persuasive if we were considering the evidence in an equity case or the finding of a judge sitting without a jury in a case at law. In these cases it would be our duty to decide whether the findings were clearly erroneous, and if so, to reverse the judgment. But such is not our function in reviewing the findings of the National Labor Relations Board. In so doing it is beyond our power to resolve conflicts in the evidence or even to inquire whether the findings of the Board are so clearly erroneous that an injustice has been done."

We then quoted the following statement of the rule from N. L. R. B. v. Waterman S. S. Corp., 309 U.S. 206, 208, 209, 60 S.Ct. 493, 84 L.Ed. 704, which seems to be conclusive of the questions here involved: "* * * It is of paramount importance that courts not encroach upon this exclusive power of the Board if effect is to be given the intention of Congress to apply an orderly, informed and specialized procedure to the complex, administrative problems arising in the solution of industrial disputes. As it did in setting up other administrative bodies, Congress has left questions of law which arise before the Board — but not more — ultimately to the traditional review of the judiciary. Not by accident, but in line with a general policy, Congress has deemed it wise to entrust the finding of facts to these specialized agencies. It is essential that courts regard this division of responsibility which Congress as a matter of policy has embodied in the very statute from...