Heights Funeral Home, Inc. v. NLRB, 24023.

• Decision Date: 22 November 1967
• Docket Number: No. 24023.,24023.
• Citation: 385 F.2d 879
• Parties: HEIGHTS FUNERAL HOME, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

385 F.2d 879 (1967)

HEIGHTS FUNERAL HOME, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 24023.

United States Court of Appeals Fifth Circuit.

November 22, 1967.

E. H. Thornton, Jr., Dyche, Wheat, Thornton & Wright, Houston, Tex., for petitioner.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Charles N. Steele, Atty., N.L. R.B., Washington, D. C., Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Allison W. Brown, Jr., Edith Nash, Attys., N.L.R.B., for respondent.

Before BELL, COLEMAN and GODBOLD, Circuit Judges.

COLEMAN, Circuit Judge:

This case is before the Court on the petition of Heights Funeral Home, Inc. for review of an order of the National Labor Relations Board, issued June 20, 1966, finding that the Company violated § 8(a) (1) of the National Labor Relations Act, as amended, by illegally interrogating employees, threatening them with discharge, giving the impression of surveillance, soliciting employees to withdraw from the Union, and by granting employee benefits. The Board cross petitions for enforcement. The decision and order of the Board have been reported and may be found in 159 N.L.R.B. No. 69. Upon a thorough examination of the record we are convinced, without any necessity for prolonged discussion, that the Board findings as to these § 8(a) (1) violations are supported by substantial evidence in the record as a whole and that in these respects the order must be enforced.

In the same proceedings, reported as above, the Board further found that the Company violated § 8(a) (3) and (1) by discharging an employee by the name of Jackson J. Matthews because of his activities on behalf of the Union. The disposition of this portion of the case justifies more elaborate discussion.

The Petitioner and its affiliates own and operate three funeral homes in Houston, Texas. It had 44 employees. In June, 1965, the Union filed its representation petition covering non-supervisory employees of the Heights Funeral Home. The representation hearing began on July 16th and was recessed to August 4th. On that date the Union stipulated that Matthews was a supervisor. On August 6th there was another recess to August 11th. Matthews was discharged the next day. As might have been anticipated, this "put the fat in the fire". On August 9th Matthews filed an unlawful discharge complaint with the Regional Director. When the representation hearings were reconvened on August 11th Matthews' supervisory status became an issue, despite the prior stipulation. The Regional Director held that Matthews, in fact, had not been a supervisor. The Board affirmed this holding and there was no petition for review. In the election held on December 1st the Union lost, 30 to 1, with Matthews not voting.

On January 31, 1966, the hearing began on Matthews' complaint that he had been unlawfully discharged. The employer vigorously sought to relitigate the supervisory status of Matthews and offered evidence in support of its contentions. The Trial Examiner, on the ground that the issue had already been litigated in a related proceeding, refused to permit relitigation, Board Rule 102.67(f).¹

Nevertheless, the Trial Examiner recommended that the complaint be dismissed in so far as it alleged a violation of § 8(a) (3). He regarded the reasons given by petitioner for Matthews' discharge as pretextual but concluded that the evidence was insufficient to establish that the termination was unlawfully motivated. The Board disagreed with this conclusion as follows:

"The record reveals that Matthews commenced participation in the organizing campaign on July 6, about 1 month before his discharge, and thereafter, while at work, talked to fellow employees about the Union in person or by telephone about every other day. About July 15, 1965, Respondent\'s agent, Barber, posing as an insurance counselor making a survey of the employees\' sentiments with respect to hospitalization and insurance benefits, questioned Matthews as to whether the Respondent `ought to have an organization\' or `a guild\'. In the ensuing discussion, Matthews indicated his dissatisfaction with employment conditions. Soon thereafter, Respondent\'s President, Waltrip, revealed his awareness of Matthews\' union sympathies when he called Matthews into his office and pointed out that he knew more about the Union than any of the employees thought. Waltrip then threatened to discharge Matthews, and said he would discharge all his employees before Respondent would ever sign a contract with the Union. On August 7, 1965, less than 2 weeks after this discussion with Waltrip, Matthews\' employment was terminated under circumstances fully discussed in the Trial Examiner\'s Decision. In light of Respondent\'s union animus, demonstrated by its numerous other unfair labor practices, its unlawful interrogation and intimidation of Matthews, and the timing of the discharge, we are convinced that Respondent either knew of Matthews\' organizing activity or believed that he favored unionization. In an attempt to conceal the fact that Matthews\' discharge was motivated by such antiunion considerations, Respondent offered clearly pretextual reasons. Accordingly, we conclude that Respondent discriminatorily discharged employee Jackson J. Matthews in violation of Section 8(a) (3) and (1) of the Act."

We hold that there was ample evidence in the record to support this conclusion of the Board, if Matthews was not a supervisor.

This leaves for decision the matter of whether the petitioner was entitled to relitigate the supervisory issue.

In view of Amalgamated Clothing Workers of America v. N.L.R.B., June 27, 1966, 124 U.S.App.D.C. 365, 365 F.2d 898, petitioner says that it had an...