Jacksonville Paper Co. v. National Labor R. Board

• Citation: 137 F.2d 148
• Decision Date: 18 October 1943
• Docket Number: No. 10571.,10571.
• Parties: JACKSONVILLE PAPER CO. v. NATIONAL LABOR RELATIONS BOARD.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

137 F.2d 148 (1943)

JACKSONVILLE PAPER CO. v. NATIONAL LABOR RELATIONS BOARD.

No. 10571.

Circuit Court of Appeals, Fifth Circuit.

July 9, 1943.

Writ of Certiorari Denied October 18, 1943.

Louis Kurz, Reuben Ragland, and Thos. B. Adams, all of Jacksonville, Fla., for petitioner.

Robert B. Watts, Gen. Counsel, and Earnest A. Gross, Associate Gen. Counsel, both of Washington, D. C., and J. Michael Early, Atty., National Labor Relations Board, of New Orleans, La., for respondent.

Before HUTCHESON and WALLER, Circuit Judges, and COX, District Judge.

Writ of Certiorari Denied October 18, 1943. See 64 S.Ct. 84, 88 L.Ed. ___.

WALLER, Circuit Judge.

Petitioner seeks to set aside, and Respondent to have enforced, an order of the National Labor Relations Board which held:

1. That the Everglades Paper Company branch of Petitioner had been guilty of discrimination in regard to the hire and tenure of employment of Henry Soriano, thereby discouraging membership in the union and, therefore, engaged in unfair labor practices within the meaning of Section 8(3) of the National Labor Relations Act, 29 U.S.C.A. § 158(3).

2. That the Petitioner was guilty of interfering with, restraining and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, 29 U.S. C.A. § 157, amounting to unfair labor practices under Section 8(1) of the Act.

The complaint alleged other infractions of the Act, some of which were dismissed, but on the charge that the Petitioner violated Section 8(5) of the Act by refusing to bargain collectively the Board stated in its findings: "Since it is not shown that the Union suffered a loss of its majority through any unfair labor practice of the respondent, the latter was under no duty to recognize the Union or to bargain with it. Consequently, we are of the opinion, and find, that the respondent has not refused to bargain collectively with the Union as the exclusive representative of the employees at its Miami branch, within the meaning of Section 8(5) of the Act."

The evidence was taken before Trial Examiner Howard Myers, whose rulings on the evidence and whose conduct of the trial were commendably accurate and fair.

It is not for this Court to say that the Examiner and the Board were in error in believing the testimony of one witness over another. That is the peculiar province of the Board. But the Court is not without power to interpret or construe the testimony of the witnesses whom the Board and the Examiner have chosen to believe. It is within the province of the Court to determine whether or not words spoken and actions taken amount, as a matter of law, to unfair labor practices under Section 8 of the Act. It is the province of the Board to determine whether words were spoken or acts were done. However, the legal effect of the words spoken or acts done, and a determination of whether or not they amounted to a violation of the Act, may be a legal question and within the power of the Court to determine. It is also within the power of the Court to determine whether or not there is a total lack of evidence on which any particular finding could be predicated. It is also within the power of the Court to determine whether or not there is any ambiguity or inconsistency in the findings of the Board.¹

The incidents and acts relied upon by the Board in the present case are:

1. That on January 20 or 21, 1942, eight employees had filed application cards to join the Union. Zink, the Union Business Agent, called upon Mixson, the Manager, and requested the latter to recognize him as the bargaining agent for the employees. The Manager referred him to the President, Mr. McGehee, in Jacksonville.

2. On the same day one Aaron, a truck driver, was asked by Mixson if he belonged to the Union and what he expected to gain by belonging to the Union, and if he expected to make anything after paying the Union off; that a racketeer had started the Union and a bunch of racketeers headed it, and that the employees could not hope to gain anything out of it. Witness Aaron's reply was: "I told him if it took racketeers to get us a raise and better working conditions, I did not mind it, and we did not get to talk very much further then, because Bauer, the shipping clerk, asked me about backing the truck up."

3. The witness Aaron further stated that he had a job offered him by the Southern Food Stores and that he went back to Mr. Mixson, the Manager, and asked the latter to call up Southern Food Stores and state that there would be no hard feelings if he, Aaron, took the job. Mixson then asked about the Union: "had it washed up; I told him I did not think it was; that I was not making any money, and I had to get another job, and as far as I was concerned, it was, and he said, `would you give me a letter to that effect?', and I told him if he wrote the letter I would sign it."

"Q. What did he say to that? A. He didn't say any more then."

"Q. Did he write the letter? A. No, sir."

4. Henry Soriano, a witness for the Board, testified: "I asked Mr. Mixson if I had a chance of getting on steady, and he told me he had nothing to do with it, that Dick (Bauer) was the one that hired and fired."

The above paragraphs one to four were all the conversations had by any witness with the General Manager, Mixson. There was testimony by witnesses as to what Bauer was reputed to have said that Mixson said, but which conversations were denied both by Mixson and Bauer. Hearsay testimony of this nature is receivable only as an admission against interest.

The only other agent of the company in any sort of a supervisory capacity who is said to have been guilty of unfair labor practices is Dick Bauer, the shipping clerk, who had the right to hire and fire the truck drivers. The testimony before the Board revealed the following as to Bauer's statements and activities. The witness Zink testified that he and witness Aaron went to Bauer's home in the latter part of January and sought to get Bauer to join the Union. It developed Bauer had the right to hire and fire and, therefore, was not eligible. The witness Zink gave the following testimony as to statements by Bauer in Bauer's home:

"So, in the meantime, you know, just in passing conversation, I asked him about a fellow named Jack Mertz, that used to work there, that also was a member of the union, and why he was fired; that it had been rumored that he was fired for union activities, and I wanted to clear it up and see whether he was or not. He told me that they let him go because they found out he was in the Puritan Dairy strike, and had classed him as a labor agitator, and got rid of him.² Then, they had another fellow there, you know, the conversation led on, and Joe Chambers' name was brought up. At that time he was an employe of the Everglades, but previous to working at the Everglades he was with the Seybold Baking Company, which was out on strike at the time, and he had gotten a job at the Everglades as a driver; and, he says — (Emphasis added.)

"Trial Examiner Myers: Who says —

"The Witness: Dick Bauer said Joe Chambers was placed to go a couple of weeks previous to the night I was there; that he got orders from Jacksonville to let him go; that he was a labor agitator, and he told Mr. Mixson if they let Joe Chambers go, they will leave one of the best drivers they have go; and, due to that fact, they kept Joe on, and he was still working at the time and he continued to work until the Seybold strike was settled.

"Q. (By Mr. Wiggins) At this particular visit that you had with Mr. Bauer, did he say anything about any of the other employes, if you recall? Were any of the other employes, other than Chambers, discussed? A. Robert Aaron said that Mr. Mixson figured he was one of the ring leaders in organizing the Everglades Paper Company.

"Trial Examiner Myers: Who said that?

"The Witness: Dick Bauer.

"Trial Examiner Myers: Dick Bauer said what?

"The Witness: That Mr. Mixson figured that he thought Robert Aaron was one of the ring leaders in the organizing of the plant.

"Q. (By Mr. Wiggins) Did he say anything about how this would affect his job? A. You mean Dick?

"Q. No, Robert Aaron. A. You mean that Dick said it would affect his job?

"Q. Did Dick say anything about Aaron being a ring leader, or how it would affect his job? A. He said that they probably would let him go later on."

The witness further testified that neither Aaron nor Chambers was discharged by the company.

Witness Robert R. Aaron, a truck driver, corroborated witness Zink as to the discussion at the home of Bauer, and further added, when asked the question: "Did Bauer express himself as to what he thought about anyone?" "A. Only that he said that he had belonged to several unions before he came to work in Miami, and he was a 100 per cent union man, as far as he could be, but he could not be with us then."

The witness Aaron testified that he later got another job and quit Petitioner, and afterwards came back to the Company, requested his old job, and got it back.

The witness Soriano testified in regard to shipping clerk Bauer that he started to work for the Company under shipping clerk Bauer as a part-time employee; that the second week he was there: "Dick told me he thought he would put me on steady. He liked my work, and liked the way I run it." He testified that he ran a truck for a week and Bauer told him business had fallen off and he was going to lay up the truck and lay the witness off a little while until it picked up again, after which the witness did extra work loading and unloading box cars from time to time. (Emphasis added.)

He further testified that he asked Bauer if he had a chance to get back on as a regular truck driver and Bauer kept ignoring him, and that this continued for two weeks. That a few days later he saw Bauer and wanted again to know if he could get on steady, when Bauer said: "Well, you had your chance to get on steady, but, since you joined the...