Greco v. NLRB, 14422.

• Decision Date: 22 April 1964
• Docket Number: No. 14422.,14422.
• Citation: 331 F.2d 165
• Parties: Mickey GRECO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Continental Can Company, Inc. and United Papermakers and Paperworkers, AFL-CIO, Intervenors.
• Court: U.S. Court of Appeals — Third Circuit

331 F.2d 165 (1964)

Mickey GRECO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Continental Can Company, Inc. and United Papermakers and Paperworkers, AFL-CIO, Intervenors.

No. 14422.

United States Court of Appeals Third Circuit.

Argued December 2, 1963.

Decided April 22, 1964.

Caesar C. Guazzo, New York City, for petitioner.

Paula Omansky (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Melvin J. Welles, Attys., National Labor Relations Bd., on the brief), for respondent.

Rothbard, Harris & Oxfeld, Newark, N. J., Samuel L. Rothbard, Abraham L. Friedman, Newark, N. J., on the brief, for intervenor-respondent, United Papermakers and Paperworkers, A.F.L.-CIO.

Charles J. Biddle, Drinker, Biddle & Reath, Philadelphia, Pa., W. S. Ryza, James G. Davis, Pope, Ballard, Uriell, Kennedy, Shepard & Fowle, Chicago, Ill., on the brief, for intervenor, Continental Can Company, Inc.

Before STALEY, GANEY and SMITH, Circuit Judges.

STALEY, Circuit Judge.

Petitioner Mickey Greco seeks review of an order of the National Labor Relations Board dismissing an unfair labor practice complaint based upon his charges that he and several other co-workers were wrongfully discharged from employment by the intervenor, Continental Can Company, Inc. The complaint alleged that both this employer and the certified representative of the employees, United Papermakers and Paperworkers, AFL-CIO, had engaged in discriminatory activity in violation of § 8(a) (1), (2) and (3), and § 8(b) (1) (A) and (2) of the National Labor Relations Act, 29 U.S.C.A. §§ 158(a) and (b). The trial examiner found that the charges of discrimination had been sustained by the evidence adduced at the hearing before him. A three member panel of the Board, see 29 U.S.C.A. § 153(b), adopted his findings of fact but, one member dissenting, concluded that the discharges were not unlawfully motivated. 136 N.L.R.B. 1135 (1962).

Greco was employed at a recently opened plant of Continental Can in Carteret, New Jersey. David Roggenkemper was the manager of this plant. Following an election of the employees on April 20, 1960, the papermaker union became the certified bargaining representative of these employees, and Local 790 was chartered to represent them. George Pescatore was the vice president and regional director for the union in this area, and James Russo was elected president of the local.

Negotiations between the company and the union for a new collective bargaining agreement commenced in June, 1960. Several meetings were held, but the major obstacle to an accord appeared to be a dispute over the basic hourly rate to be paid the employees; the union sought the rate paid at another of the company's plants, $1.91 per hour, while the company offered $1.81 per hour at a meeting on July 13. On July 16 the union membership held a meeting to consider the company's last offer and voted to strike the plant on July 25 unless the company increased its offer to $1.91 per hour. However, Pescatore directed Russo to call a special meeting on company premises for July 22 to consider an increase in the company's proposal to $1.86 per hour. Russo and several members of the union vehemently protested the calling of this meeting in view of the previous strike vote of the membership. At this meeting Pescatore's authority was challenged, a disturbance arose, Pescatore left the meeting, and, on his information, several union members were fired by Roggenkemper.

As we have previously indicated, the trial examiner concluded that the discharges were discriminatorily motivated, and his evidentiary findings were adopted in toto by the Board. Nevertheless, the Board concluded that the employees were discharged for fighting. The petitioner contends that this determination constitutes an unwarranted reversal of the trial examiner on a question of fact, while the Board asserts that it merely drew a different inference or conclusion from the evidence adduced at the hearing.

We agree with the Board that its difference with the trial examiner concerned the ultimate conclusion to be inferred from the evidence. We further agree that this is within the province of the Board, provided that the inference it seeks to draw is such as "reasonably may be based upon the facts proven." (Emphasis supplied.) Republic Aviation Corp. v. National Labor Relations Board, 324 U.S. 793, 800, 65 S.Ct. 982, 986, 89 L.Ed. 1372 (1945). Accord: Radio Officers' Union, etc. v. National Labor Relations Board, 347 U.S. 17, 48-52, 74 S.Ct. 323, 98 L.Ed. 455 (1954); International Union of Electrical, Radio and Machine Workers v. National Labor Relations Board, 273 F.2d 243, 247 (C.A.3, 1959). The conclusion of the Board thus must be a reasonable and logical deduction from the evidence.

We turn then to an application of that standard to the findings of fact adopted by the Board as to the circumstances attending the discharges. These findings are based upon substantial evidence and, as printed in the Joint Appendix of the parties, comprise fifteen pages of the trial examiner's Intermediate Report. Because they are of critical significance on the question of motivation for the discharges, we quote the following portion of them:

"There is no doubt Pescatore was working closely with the Company before and throughout the operations of the Carteret plant. Thus, when Russo refused to call a meeting for July 22, for the purpose of taking a second strike vote on the Company\'s last offer, Pescatore, having already made arrangements with Roggenkemper for use of the cafeteria, promptly ordered Russo hold sic a meeting that afternoon. Shortly before the meeting, Pescatore spoke to Russo and after questioning his ability to control the membership, Pescatore declared he would show him how to handle `these bums.\' In this spirit, Pescatore went to the meeting and proceeded to demonstrate his ability to control the membership. Pescatore, as detailed above, in unmistakable language told the members they were going to vote and vote his way, to accept the last offer, under threat of his revoking the strike sanction, and with the additional warning that if they went on strike the Company would shut down the plant. It is undisputed that Mickey Greco and his group vigorously and loudly protested Pescatore\'s manner of conducting the meeting and his insistence that they vote and vote to accept the last offer. Again, there is no doubt commotion and bedlam immediately followed Pescatore\'s announcement that the men start voting. The disorder, it strikes me, began when Jakovenko, who resented Pescatore\'s attitude and went berserk, rushed toward Pescatore in a threatening manner and had to be restrained by a number of men. I am also firmly convinced Pescatore\'s

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