Marshfield Steel Company v. NLRB

• Decision Date: 20 November 1963
• Docket Number: No. 17315.,17315.
• Parties: MARSHFIELD STEEL COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

324 F.2d 333 (1963)

MARSHFIELD STEEL COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 17315.

United States Court of Appeals Eighth Circuit.

November 20, 1963.

Ransom A. Ellis, Jr., of Walker, Daniel, Clampett, Rittershouse & Ellis, Springfield, Mo., made argument for the petitioner and filed brief.

Leo N. McGuire, Atty., N. L. R. B., Washington, D. C., made argument for the respondent and Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Warren M. Davison, Atty., N. L. R. B., Washington, D. C., were with him on the brief.

Before VOGEL and MATTHES, Circuit Judges, and ROBINSON, District Judge.

VOGEL, Circuit Judge.

Marshfield Steel Company, a corporation, petitions this court to review and set aside an order of the National Labor Relations Board issued February 1, 1963, reported at 140 N.L.R.B. No. 99, wherein the Board found petitioner guilty of violating §§ 8(a) (1) and 8(a) (3) of the National Labor Relations Act as amended, 61 Stat. 136, 29 U.S.C.A. § 151 et seq. The Board, in its answer to the petition, has requested enforcement of its order. This court has jurisdiction under the provisions of 29 U.S.C.A. § 160.

Petitioner is engaged in the manufacture of tandem suspensions for highway semi-trailers in Marshfield, Missouri, and was formed as a separate corporation in early 1960. Prior thereto petitioner had operated as Hutchens & Sons Metal Products in Springfield, Missouri. Petitioner commenced its operations at Marshfield in May 1960. By January 1962 it employed about 60 men there. At the same time, petitioner still employed approximately 150 workers at its operation in Springfield, Missouri, which operation was eventually "faded out" and transferred to Marshfield. The Springfield operation had a union contract with the Allied Industrial Workers.

The record indicates that union activity in the form of an organizational campaign at petitioner's Marshfield plant first began early in 1962. Employees Roger Murphy and Fred Williams obtained authorization cards from the union (United Steel Workers of America) and during the first several months of 1962 signed up approximately 30 of petitioner's employees. A representation election was scheduled for June 8, 1962, but was cancelled prior thereto.

On June 15, 1962, a complaint was filed on behalf of the union. The complaint charged that petitioner: (1) On May 1, 1962, discharged employees Fred Williams, Myrl Page, Edward Towers and Roger Murphy for engaging in activities on behalf of the union in violation of § 8 (a) (3); and (2) threatened employees that if the union won the election the plant would be moved or closed; threatened to discharge employees if union activities resumed; interrogated employees concerning their membership in and activities on behalf of the union; suggested to employees that they withdraw from membership in or support of the union; and engaged in surveillance or created the impression of surveillance of its employees' union activities, all in violation of § 8(a) (1).

Following a hearing, the Trial Examiner issued his Intermediate Report, finding that the petitioner had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and that it take certain affirmative action, including offering reinstatement to employees Murphy, Williams, Page and Towers, together with any loss of earnings they had suffered by reason of their discharge, plus 6% interest thereon, with the usual notices and postings. Other charges contained in the complaint were dismissed. The Board adopted the Intermediate Report and Recommended Order of the Trial Examiner.

Petitioner urges this court to hold that the Board's order is not supported by substantial evidence. Particularly as to the discriminatorily discharged employees Williams, Page and Towers, it claims that they were discharged for repeated violation of a well known, existing plant rule against leaving machines before quitting time and they had been previously warned that further violations would result in discharge; and that Murphy was discharged because of excessive absenteeism and loafing in the rest room and his discharge occurred only after supervisors had thoroughly checked his record. Petitioner further contends that the Board exceeded its authority under § 10(c) of the Act, 29 U.S.C.A. § 160(c), by awarding interest on back pay to the discharged employees and also that that portion of the order of the Board which requires petitioner to cease and desist its alleged unfair labor practices as to "any other labor organization" is so broad as to be unenforceable.

As is true in most of these cases, the testimony is conflicting and contradictory. Nevertheless, it is well estabished that this court may not overrule findings of the Board where they are supported by substantial evidence on the record considered as a whole. N. L. R. B. v. Morrison Cafeteria Co. of Little Rock, Inc., 8 Cir., 1963, 311 F.2d 534, 538; N. L. R. B. v. Des Moines Foods, Inc., 8 Cir., 1961, 296 F.2d 285, 286.

An examination of the entire record indicates quite clearly that substantial evidence does support the Board's findings and order. As to the § 8(a) (1) violations, Murphy and Williams testified that company supervisor Gayle Price told them that "* * * if a union came in to the plant President Hutchens told him he would move the plant back to Springfield." Such testimony was corroborated by Wayne King, the union representative. Testimony of employee Thomas was that the petitioner's manager McDonald told him, "Yes, if the plant went union, that it would be closed down." Employee Alvis L. Rost corroborated this by stating that McDonald told him that if a union got in they could lock the doors of the building. There is testimony in the record that, in response to an inquiry from employee Miles as to whether any more employees would be discharged, petitioner's foreman McKinney stated, "No, not until the union started raising another stink,"; "That is why the last guys were fired." Miles additionally testified that Max Estes, one of petitioner's supervisors, stated that, "The company would move if the union won * * *." As to the finding of interrogation of employees, the evidence indicated that manager McDonald inquired of employees Thomas and Rost whether they "knew anyone that had signed a union card".

Threats, such as to move the plant back to Springfield or close it if the union won, and coercive interrogation of employees in the course of an organizational campaign constitute interference and restraint within the scope of § 8(a) (1). N. L. R. B. v. Morrison Cafeteria Co. of Little Rock, Inc., supra; N. L. R. B. v. Griggs Equipment Co., Inc., 5 Cir., 1962, 307 F.2d 275; N. L. R. B. v. Bendix Corporation (Research Laboratory Division), 6 Cir., 1962, 299 F.2d 308, certiorari denied, 371 U.S. 827, 83 S.Ct. 47, 9 L.Ed.2d 65; N. L. R. B. v. Solo Cup Co., 8 Cir., 1956, 237 F.2d 521.

The record considered as a whole also contains substantial support for the Board's finding that petitioner was in violation of § 8(a) (3) of the Act in that employees Murphy, Williams, Towers and Page were discriminatorily discharged because of their activity in behalf of the union, and that such was done for the purpose of discouraging membership in the union. Petitioner does not dispute the Board's finding that each of the discharged employees in question was engaged in union activities. It contends, however, that it had no knowledge of these activities and, thus, that the Board was incorrect in finding that the employees were discriminatorily discharged. Petitioner's assertion as to the law is correct. Osceola Co. Coop. Cream Ass'n v. N. L. R. B., 8 Cir., 1958, 251 F.2d 62, 67; N. L. R. B. v. Stafford, 8 Cir., 1953, 206 F.2d 19. Petitioner's argument is particularly unpersuasive here, however, since its manager McDonald himself testified that he knew of the union's attempt to organize the plant about the middle of March 1962. The record further contains substantial testimony that on April 30, 1962, the day before the discharges, McDonald stated to employee Henry Thomas that he "knew who is running" the union; that he knew "who is handing out those cards"; and that he "was going to clean out a nest". McDonald told Thomas that if he, Thomas, "testified to this before the Board, of course, he McDonald would have to deny it". Later that day he told employee Thomas that he had his Thomas' name on the list to be fired the next morning but, apparently because Thomas at that time confessed that prior thereto he had lied to McDonald when he denied signing a union card, McDonald said Thomas would not be discharged and that he "could go tell his union friends that they would not be needing to expect too many more checks from Marshfield Steel". The next day Williams, Page, Towers and Murphy were discharged.

The statements referred to above were in the main denied by witnesses for the petitioner. However, the credibility of the witnesses, the determination of which of contradictory statements were to be believed and the weight to be given the testimony were matters for determination by the Board. § 10 (e) of the Act as amended, 29 U.S.C.A. § 160(e) specifically provides, among other things:

"* * * The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive."

This court, in N. L. R. B. v. Morrison Cafeteria Co. of Little Rock, Inc., 8 Cir., 1963, 311 F.2d 534, 538, said:

"* * * The rule in this Circuit is that `the question of credibility of witnesses and the weight to be given their testimony\' in labor cases is primarily one for determination by the trier of facts. Paramount Cap Mfg. Co. v. N. L. R. B., 260 F.2d 109 (8 Cir. 1958); Kitty Clover, Inc. v. N. L. R. B., 208 F.2d 212, 214 (8 Cir. 1953). See, also, N.

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