Filler Products, Inc. v. NLRB

• Decision Date: 31 March 1967
• Docket Number: No. 10749.,10749.
• Citation: 376 F.2d 369
• Parties: FILLER PRODUCTS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

376 F.2d 369 (1967)

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

No. 10749.

United States Court of Appeals Fourth Circuit.

Argued January 13, 1967.

Decided March 31, 1967.

COPYRIGHT MATERIAL OMITTED

J. Frank Ogletree, Jr., Greenville, S. C. (Thompson, Ogletree & Haynsworth, Greenville, S. C., Calhoun & Johnston, Atlanta, Ga., and Bowles & Boyd, Richmond, Va., on brief), for petitioner.

Warren M. Laddon, Atty., N. L. R. B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Elliott Moore, Atty., N. L. R. B., on brief), for respondent.

Before BOREMAN and BRYAN, Circuit Judges, and RUSSELL, District Judge.

DONALD RUSSELL, District Judge:

Filler Products, Inc. (hereinafter called Company) petitions the Court to set aside an Order of the National Labor Relations Board finding it guilty of interfering with its employees' right to organize, discriminatorily discharging an employee, refusing to reinstate strikers engaged in a strike "prompted in part by unfair labor practices" and failing to bargain with the representative of its employees. 29 U.S.C.A. Section 158(a) (1) (3) and (5). The Board, in turn, has cross-petitioned for enforcement of the Order.

The proceedings involved the operation of the Company's food processing plant at Forest Park, Georgia,¹ and dealt with events limited in time to a period of less than a month. In the latter part of May, 1964, an organizational campaign was begun among the unorganized workers at such plant by the United Packinghouse, Food and Allied Workers, AFL-CIO (hereinafter called Union). On June 15, after this organizational drive had proceeded for about two weeks, the Union, asserting that "a substantial number" of the Company's employees wished to be represented by it for purposes of collective bargaining, filed its petition with the Atlanta, Georgia, Regional office of the National Labor Relations Board for a "representation election". This petition, mailed by the Union to the Board on June 15, was received in the Regional Office on June 16; and a copy was apparently on the same day mailed to the Company. Also, on June 15, manifestly as a contemporaneous act, the Union wrote, though it did not mail until the next day, a registered letter advising the Company that a majority of its employees were members of the Union and requesting recognition as the bargaining agent. Delivery of this letter to the Company was attempted sometime on June 18 but was refused by the Company. The letter was returned to the Union, unopened, on or after June 19.

At the commencement of work in the plant on June 18, a strike began in the shipping room of the Company and quickly spread to the other departments. Five days later the strike was abandoned but, upon application for reinstatement, the strikers were refused, the Company contending that they had, during the strike, been legally replaced. The Union, thereupon filed charges under the National Labor Relations Act against the Company with the Regional Office of the Labor Board. The Director of the Regional Office, after investigation, concluded that there was "insufficient evidence" to support a complaint based on the charges submitted by the Union. Upon appeal by the Union from this decision of the Regional Director, the General Counsel of the Board "sustained in part" the appeal and found that there were certain circumstances present in the case "warranting determination based on record testimony developed at a hearing before a trial examiner". The Complaint in this proceeding was accordingly issued and hearings had. The Trial Examiner filed a report, which, as modified in one important particular, was adopted by the Board. The Company's challenge is directed to this order.

JURISDICTION OF THIS COURT

This Court's jurisdiction of the proceedings rests upon the uncontested allegation of the petition that the Company maintains a place of commerce in the State of North Carolina, within this Judicial Circuit. Cf., Olin Industries, etc. v. National Labor Relations Board (5th Cir., 1951) 191 F.2d 613, n. 1, reh. den. 192 F.2d 799, cert. denied 343 U.S. 919, 72 S.Ct. 676, 96 L.Ed. 1332, reh. den. 343 U.S. 970, 72 S.Ct. 1055, 96 L.Ed. 1365.

FUNCTION OF THE COURT IN THIS TYPE OF REVIEW

The role of the Court in proceedings such as these has been often stated. It is the province of the National Labor Relations Board to find the facts, pass on the credibility of witnesses, and resolve contradictions in the testimony; and only if such findings are not supported by substantial evidence on the record considered as a whole will the Court set aside such findings. Northern Virginia Steel Corporation v. N. L. R. B., 300 F.2d 168, 170, 4th Cir., 1962. But, as this Court emphasized in N. L. R. B. v. A. S. Abell Company, 327 F.2d 1, 5, 4th Cir., 1964, "This is not to say, however, that our (the Court's) inquiry should go no further than to ascertain whether there is evidence in the record which, in and of itself, tends to support the Board's conclusion. Rather we are obliged to scrutinize the whole record, taking into account whatever fairly detracts from the evidence relied upon by the Board." In short, the requirement of "substantial evidence" is properly held to mean that, "The Board's findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board's decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both." Universal Camera Corp. v. National Labor Relations Bd., (1951) 340 U.S. 474, 490, 71 S.Ct. 456, 466, 95 L.Ed. 456.

FINDINGS OF COERCIVE CONDUCT UNDER SECTION 8(a) (1)

The first findings of the Board involve the charges of violations of Section 8(a) (1) of the Act. Such findings rest upon claims of coercive conduct on the part of the president of the Company, impermissive interrogations of employees by certain alleged supervisors, and unlawful interference with union activity through the closing of certain doors to the Company's plant during the organizational campaign.

The last of these charges may be quickly disposed of. During the period of the union drive, the Company closed two vertical, overhead doors, one to its shipping room and the other to one of its production departments. The Company's position was that the doors were closed at the instance of the Federal food inspector. The doors were not locked and were only "partially" closed. Nor were the doors normally used by the employees for entrance to the plant.

The Board based its finding in this matter on a single piece of testimony given by an employee to the effect that a supervisor had stated to him "the reason the doors are down, someone has been issuing out cards and a rat has been sneaking in the door". From that testimony, the Board concluded that the closing of the doors was "designed to interfere with the employees' union activity and restrain them in the exercise of their rights" and was "a violation of Section 8(a) (1)." There was not a particle of evidence that any Union representative ever had used or attempted to use, the doors in question. The reference in the conversation with the supervisor to a "rat * * * sneaking in the door" was thus without any support in the record; no such incident was even hinted at in the testimony. Nor did the Union offer any other evidence to show that the closing of the doors interfered in any way with the Union's efforts to organize the Company's employees. Under these circumstances, the bare comment of a supervisor, whose very status as a supervisor was strongly disputed, without the least supporting evidence of any actual interference with union activity, is insufficient to warrant the finding made by the Board.

The Board further found violations of Section 8(a) (1), based on coercive employee interrogation, and improper surveillance, or creation of the impression of surveillance, of union activity on the part of the president of the Company.

The testimony of Sarah Pruitt, an employee on the night shift, and her husband, Harold Pruitt, is relied on by the Board for its finding of coercive employee interrogation by the Company's president. When Sarah Pruitt left work at about one-thirty on the morning of June 13, she met her husband and proceeded to drive away from the plant. The president of the Company in his car stopped them. He came to the side of the Pruitt car. After Mrs. Pruitt admitted she was an employee, Filler asked whether she had signed a union card. At first, Mrs. Pruitt denied she had but, after Filler repeated insistently his question, she acknowledged that she had signed such card. Filler thereupon observed that he already knew that she had and added "that I also knew (know) what was (is) going on back there in the plant." He went on to add that he knew "about the Union business". As evidence of his knowledge of Union activity, he proceeded to tell Mrs. Pruitt she "had attended two meetings" and that she was "supposed to attend another meeting tomorrow", information that incidentally was accurate. In referring to the Union, Filler said that the employees were "all just cutting (their) own throats", and "that he really didn't need the night shift, he just kept the night shift on so that we would have something to do" and concluded by remarking that he could "close the plant down".

At the conclusion of the meeting the next day, two employees testified that they had observed Filler driving "slowly" in his car about half a block from the place where the Union had met. Two days later the employees working on the night shift in the corn chip department reported for work wearing Union buttons. About 10:30 to 11:00 o'clock that night Filler appeared in the department, walked around the department observing the employees with their Union...