N.L.R.B. v. Gulf States United Telephone Co.

• Decision Date: 20 December 1982
• Docket Number: No. 81-4095,81-4095
• Citation: 694 F.2d 92
• Parties: 112 L.R.R.M. (BNA) 2131, 96 Lab.Cas. P 13,999 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GULF STATES UNITED TELEPHONE COMPANY, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 92

694 F.2d 92

112 L.R.R.M. (BNA) 2131, 96 Lab.Cas. P 13,999

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GULF STATES UNITED TELEPHONE COMPANY, Respondent.

No. 81-4095.

United States Court of Appeals Fifth Circuit.

Dec. 20, 1982.

Elliott Moore, Deputy Associate Gen. Counsel, Mendelssohn V. McLean, N.L.R.B., Washington, D.C., for petitioner.

Durwood Crawford, Steve Kardell, Jr., Dallas, Tex., for respondent.

Application for Enforcement of an Order of the National Labor Relations Board.

Before WISDOM, POLITZ and TATE, Circuit Judges.

POLITZ, Circuit Judge:

The National Labor Relations Board petitions for enforcement of an order issued to Gulf States United Telephone Company. In resisting the order, Gulf States posits two issues for review: (1) whether the Administrative Law Judge erred in admitting identification evidence; and (2) whether the ALJ's findings, as adopted by the Board, are supported by substantial evidence. Upon a close examination of the record, guided by the rubric announced in Universal Camera Corp. v. NLRB, 340 U.S. 474, 491, 71 S.Ct. 456, 466, 95 L.Ed. 456 (1951), "whether on the record as a whole there is substantial evidence to support" the agency's factual findings, and mindful that this evaluation of the evidence "is a question which Congress has placed in the keeping of the Courts of Appeals," id., we find the evidence sufficient and grant enforcement.

Facts

Gulf States provides telephone services to numerous Texas communities. This controversy involves the Kaufman office within the Athens District. Gene King managed the Kaufman operation, assisted by R.L. Mooneyham, supervisor of the installation and repair unit consisting of four employees.

Arthur Roberts was hired on September 22, 1978, and began a 90-day probationary period ¹ under Mooneyham's supervision. After a minimum amount of on-the-job training, ² Roberts was assigned a vehicle and began solo work. Concerned about his performance, Roberts inquired of his superiors and was usually reassured but was sometimes cautioned. ³

The bargaining agreement between Gulf States and the union expired on November 30, 1978, but work continued thereafter on a day-to-day basis. In early December, Roberts joined the union. Mooneyham informed Roberts that he could continue working should a strike be called, that work assignments would be made available in a manner that would not require the crossing of a picket line. Most, if not all employees, were offered this option. When the union called a strike on December 18, 1978, Roberts joined those who declined to work. ⁴ On the last day of his probationary period, while out on strike, Roberts was fired by King, who cited poor job performance as the reason for his action.

The strike ended in February of 1979. Under the settlement agreement, Roberts was re-employed on a probationary basis. About five weeks after Roberts was re-employed, Gulf States received a service report postcard critical of a repairman. The card came from Mrs. Harold Bowen, a customer, who wrote that the repairman complained about wages and indicated dissatisfaction with the strike results. King ordered an investigation and Mooneyham interviewed Mrs. Bowen, who advised that she had not personally heard the reported statements but had written the postcard at her husband's request. Mr. Bowen was not interviewed. In response to questions, Mrs. Bowen gave the approximate date of the repairs, noted that the work was done on their back porch, and described the repairman as being dark-haired and of medium height. This description fit Roberts and at least two other employees.

Mooneyham examined Gulf States' service records which reflected that Roberts, and others, had made calls to the Bowen home to work on a back porch connection during the time period involved. Notwithstanding, Mooneyham concluded that Roberts was the employee who had made the critical statements. King and Mooneyham then inspected other jobs performed by Roberts. On March 21, 1979, King discharged Roberts, informing him that the consistency and quality of his work was unacceptable. Roberts either denied any mistakes or insisted that any shortcomings resulted from insufficient training or his employer's failure to furnish necessary equipment.

Identification Evidence

At the hearing, the ALJ asked Mr. Bowen if he could select Roberts from a group of spectators in the courtroom. Gulf States objected, claiming a proper foundation had not been laid; specifically, that there was no evidence of Roberts' physical appearance in March 1979, as contrasted with his appearance and dress at the time of the hearing. The objection was overruled. Mr. Bowen could not identify Roberts, either while seated among the spectators or while standing alone. Roberts later testified that his hair might have been an inch longer in March, and although clean-shaven at the hearing, he said he might have had a mustache in March. He also spoke to his usual mode of dress at work. Gulf States contends on appeal that the identification evidence, more precisely the evidence of failure of identification, was improperly admitted, again challenging the evidentiary foundation and the change in appearance.

We examine this assignment of error mindful that an ALJ should adhere to the rules of evidence but need not do so slavishly; the rule of practicality should appertain. Helena Laboratories Corp. v. NLRB, 557 F.2d 1183 (5th Cir.1977) (citing Sardis Luggage Co. v. NLRB, 234 F.2d 190, 192 (5th Cir.1956)). The admissibility of identification evidence lies within the sound discretion of the trial judge. Meadows & Walker Drilling Co. v. Phillips Petroleum Co., 417 F.2d 378 (5th Cir.1969). The ALJ had discretion to permit or reject the identification testimony. He was aware of sufficient qualifying data, particularly the differences in physical appearance and dress. Gulf States' objection bore more on the weight than the admissibility of the evidence in the context of the ALJ hearing. We discern no abuse of discretion in the admission of this evidence.

Substantial Evidence on the Record as a Whole

The critical question presented today is whether the findings and conclusions of the ALJ, adopted by the Board, are supported by substantial evidence when one views the record in its entirety. The scope of our review is limited, and we may deny enforcement of an order of the Board only " 'if, after full review of the record, we are unable conscientiously to conclude that the evidence supporting the Board's decision is substantial.' " Berry Schools v. NLRB, 653 F.2d 966, 969 (5th Cir.1981) (quoting NLRB v. Mueller Brass Co., 509 F.2d 704, 706-07 (5th Cir.1975)). In this regard we noted recently in Dow Chem. Co., Texas Div. v. NLRB, 660 F.2d 637, 643 (5th Cir.1981): "When the board's findings are reasonable and supported by substantial evidence, a court will affirm them, though the court might well have made contrary findings if sitting de novo."

In the case at bar, the ALJ concluded that "only when Roberts went out on strike was it necessary to fire him for the first time." This is a reference to the December 1978 dismissal. Concerning this dismissal, the ALJ further stated: "The summary discharge ... while he was on strike, without warnings, is some evidence that...