Gullett Gin Co. v. National Labor Relations Board, 12798.

• Decision Date: 18 March 1950
• Docket Number: No. 12798.,12798.
• Citation: 179 F.2d 499
• Parties: GULLETT GIN CO., Inc. v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Fifth Circuit

179 F.2d 499 (1950)

GULLETT GIN CO., Inc. v. NATIONAL LABOR RELATIONS BOARD.

No. 12798.

United States Court of Appeals Fifth Circuit.

January 30, 1950.

Rehearing Denied March 18, 1950.

Conrad Meyer, III, New Orleans, La., Lawrence A. Molony, New Orleans, La., for petitioner.

I. J. Gromfine, Attorney, David P. Findling, Assoc. Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, Nat. Labor Relations Bd., Washington, D. C., for respondent.

Before HUTCHESON, Chief Judge, and HOLMES and McCORD, Circuit Judges.

HUTCHESON, Chief Judge.

While the order sought to be enforced contains provisions ordering the respondent to cease and desist from (a) discouraging membership in any labor organization and (b) interfering with, or coercing, its employees in the right of self organization, these are merely secondary or incidental provisions of the order. Its prime provisions are those requiring respondent to offer reinstatement to, and make whole, ten tinshop employees¹ because of the discrimination against them charged and found.

Unlike the situation obtaining in the usual case of claimed discriminatory discharges, there is no claim here that these persons were discharged on account of their activity in favor of or against a particular union or labor organization which had organized, or was campaigning to organize, the plant. The primary claim made and supported by evidence is that, while in the course of taking in their own behalf concerted activity for the mutual aid or protection of the employees involved, activity protected by Sec. 7 of the Labor Management Relations Act, 29 U.S.C.A. § 157, the named persons were peremptorily discharged in violation of their rights under the act and contrary to the duties and obligations of their employer, and that such discharges constituted an unfair labor practice in violation of Sec. 8(a) (1) of the act, 29 U.S.C.A. § 158(a) (1).

As a further and independent ground of decision, the Board found: that these employees, assembled for the purpose of gaining a raise in wages, constituted a labor organization as defined in Sec. 2(5) of the act, 29 U.S.C.A. § 152(5); that their discharge amounted to a discrimination in the terms of hire or tenure of employment, discouraging membership in such organization; and that it was, therefore, in violation of Sec. 8(a) (3) of the act.

The respondent, admitting that the men were discharged, urges upon us that, upon the undisputed evidence, they were discharged for insubordination in refusing to obey the order of their employer to return to work and not in the course, and because, of the exercise of rights guaranteed to them under the act.

The Board found that there was no insubordination, no refusal to obey orders to return to work, in fact, no positive orders of that kind given, and that their discharge, coming, as it did, in the course of a meeting arranged between the representative of the employer and these tin shop employees for the purpose of discussing wages, was a discharge in violation of the rights guaranteed by the act.

Contesting the findings of the Board, the respondent insists, first, that while it is true that their discharge occurred at the end of a conference, invited by the employees to discuss a wage demand, the discharge had nothing to do with the demand itself. It was based upon the employees' refusal to go back to work when told to do so after the employer had explained that, because of a pending representation election in the plant, it could do nothing about the demand, and the discussion had come to an end.

The Board did not accept this version of what occurred as a correct one. Neither do we. While different participants tell the tale of the occurrence differently, these differences are not material. Indeed on what we regard as the controlling issues in the case, there are no differences.

The record shows, without conflict; that the meeting was arranged for and held in the shop; that there was a discussion at the meeting; that Wallace, for the respondent, patiently and carefully explained that he could do nothing, on account of the pending election for representation, about the demand; and that instead of accepting this statement without demur, the employees persisted in trying to further discuss the question with him.

According to Wallace's own testimony, this is the way the discharges came about. After he had finished explaining the situation and the men had made no move in acceptance of it, he said, "Boys, I would like for you to stay on, but there is one of two things you can do. You can quit, and if you quit, you are going to lose your seniority and you wont be able to vote in this election. The other one is, you can take this job and go on with it, and wait until the outcome of the election. Now what are you going to do?" They waited a while, and they didn't sic what to do. There was not a murmur out of anyone. I said, `Well, Boys, I am not sure that we can have you sitting around on tables and not having you do anything. I am afraid I will have to make up your minds for you. I am going to fire you and all of you consider yourselves fired as of this date.'"

Witnesses for the men gave a little different version of the conversations and differed a little from Wallace as to the time given the men to answer his question, Wallace putting it at 5 minutes, some of the men putting it as practically no time at all.

This difference, however, is not at all material. The question put peremptorily was not, under the circumstances a fair...