N.L.R.B. v. Hale Mfg. Co., Inc., 77-1280

• Citation: 570 F.2d 705
• Decision Date: 27 February 1978
• Docket Number: No. 77-1280,77-1280
• Parties: 97 L.R.R.M. (BNA) 2618, 83 Lab.Cas. P 10,351, 2 Fed. R. Evid. Serv. 966 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HALE MANUFACTURING COMPANY, INC., Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 705

570 F.2d 705

97 L.R.R.M. (BNA) 2618, 83 Lab.Cas. P 10,351,

2 Fed. R. Evid. Serv. 966

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HALE MANUFACTURING COMPANY, INC., Respondent.

No. 77-1280.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 16, 1977.

Decided Feb. 1, 1978.

Rehearing Denied Feb. 27, 1978.

Bernard P. Jeweler, Atty., National Labor Relations Board, Washington, D. C. (argued), Michael S. Winer, Atty., John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, National Labor Relations Board, Washington, D. C., on brief, for petitioner.

Branham Rendlen, Hannibal, Mo. (argued), Roger D. Sanders, Sherman, Tex. (argued), and Don L. Jarvis, Sherman, Tex., on brief, for respondent.

Before HEANEY, WEBSTER and HENLEY, Circuit Judges.

WEBSTER, Circuit Judge.

The National Labor Relations Board seeks enforcement of its order against Respondent, Hale Manufacturing Co. ¹ The Board held that the Company violated § 8(a)(1) of the National Labor Relations Act by discharging seven production employees because of their concerted request for a pay raise, thereby infringing upon rights guaranteed to them under the Act. Respondent challenges both the substance of the Board's decision and the procedure by which it was reached. We grant enforcement.

I.

Hale Manufacturing operates a production facility for the manufacture of horse trailers in Taylor, Missouri. During the period in issue the plant manager of this facility was Al Godsey, who was also responsible for the sale and distribution of the trailers. James McKinney was the shop foreman in the facility, and, although he was discharged with the other workers, his dismissal is not alleged to be a violation of the Act because he was a supervisory employee. At the time of the incident, the Company had eleven workers in its employ, including the seven production workers involved in this case.

On previous occasions the production workers had been able to present grievances and suggestions to Godsey and to work with him in implementing their ideas. In particular, in response to an earlier complaint about their compensation, Godsey had instituted a bonus plan to augment the workers' hourly wages. This plan set a base figure for each trailer produced and allowed the workers to share any amount by which production costs for the month fell below this figure multiplied by the number of trailers produced.

During the latter part of February 1976, a shortage of parts at the plant forced a temporary production halt. Godsey asked James McKinney to select three or four of the production employees to inventory and clean up the next day, and, on February 27, 1976, four men (including McKinney) worked from four to six hours at these tasks. Sometime during the following week, McKinney computed the anticipated bonuses for February and mentioned this figure to the other employees. When payroll checks were received on March 5, however, the workers received less than they had expected. Godsey explained that he had treated the clean-up work by the four employees as a production cost and this had reduced the bonus fund by the amount of such wages. The same day, Godsey and one of the employees, Dennis Stice, engaged in a heated discussion on this topic.

On March 8, 9, and 10, while Godsey was away from the plant on a sales trip, the workers continued their discussions and decided to approach Godsey with a request to eliminate the bonus plan and replace it with a straight hourly wage of $5 per hour. During this period, they continued their work producing trailers. When Godsey returned to the plant about 9:00 on the morning of March 11, McKinney informed him that the employees wished to meet with him. Godsey then went into the foreman's office, where the seven production employees and McKinney were assembled. After an exchange of remarks dealing with working conditions, but mostly with the salary plan the workers wanted instituted, Godsey asked, "What will it take?" McKinney responded that they desired the elimination of the bonus plan and the institution of a straight $5 per hour rate. Godsey responded, "There just isn't any way I am paying it; you are all going to have to go home." There was testimony that Godsey was angrier than the workers had even seen him before and that the tone of his voice reflected the significance of his mood. The employees then proceeded to punch out on the timeclock and leave the building. As he was leaving the office, one of the employees, Joe Thomas, asked if Godsey needed 13 cents to mail Thomas' paycheck, to which Godsey responded that he could "handle that."

During the next two days, there were conversations between some of the workers and some of the Company's other employees one involved Gregg Niese, the bookkeeper; the other, John Totsch a truckdriver and salesman in which it became evident that the parties had differing interpretations as to what had occurred in the meeting. Godsey communicated directly with only two of the discharged persons. On March 12, Godsey spoke with Jim McKinney, who had come to the plant to return his keys. Godsey told McKinney that he felt the workers had quit; McKinney disagreed with him. In response to McKinney's inquiry about getting his job back, Godsey told him that the position of shop foreman was being eliminated. Godsey told McKinney that, if the employees wanted to come back to work, they should be there Monday morning and they could attempt to work something out. He stated, however, that there were two workers that he did not want back at all but did not identify them to McKinney.

On or about May 17, 1976, Leslie Heinze accompanied his cousin to the plant so that the cousin could submit an employment application. At that time, Godsey asked Heinze to come into the office so he could talk to him. In response to a question as to why the employees had quit, Heinze did not deny that they had quit but rather referred to their low pay as the reason. ²

The test of whether or not an employee has been discharged depends upon the reasonable inference that the employees could draw from the language used by the employer. NLRB v. Hilton Mobile Homes, 387 F.2d 7, 9 (8th Cir. 1967); see Viele & Sons, Inc., 227 NLRB No. 284, 94 LRRM 1558 (1977); AMP, Inc., 218 NLRB 33, 89 LRRM 1272 (1975). In NLRB v. Trumbull Asphalt Co. of Delaware, 327 F.2d 841, 843 (8th Cir. 1964), Judge, now Mr. Justice, Blackmun said,

The fact of discharge of course does not depend on the use of formal words of firing. It is sufficient if the words or action of the employer "would logically lead a prudent person to believe his tenure had been terminated".

In the case before us, the Administrative Law Judge found that Godsey had fired the workers on March 11, 1976. "I agree that the words spoken by Plant Manager Godsey on March 11 could be reasonably interpreted by the employees to indicate that Godsey had fired them, and even though Godsey did not directly and specifically tell the employees that they were fired or terminated."

In reviewing that finding, the standard of our review is governed by statute. Section 10(e) of the NLRA, 29 U.S.C. § 160(e), states that "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 standard has been interpreted in numerous decisions, including those of the Supreme Court.

(A) court may (not) displace the Board's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo. Congress has merely made it clear that a reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board's view.

Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951); see NLRB v. Walton Mfg. Co., 369 U.S. 404, 405, 82 S.Ct. 853, 7 L.Ed.2d 829 (1962) (per curiam); R. J. Lallier Trucking v. NLRB, 558 F.2d 1322, 1326 (8th Cir. 1977); NLRB v. Columbia Tribune Publishing Co., 495 F.2d 1384, 1389 (8th Cir. 1974); NLRB v. Penzel Construction Co., 449 F.2d 148 (8th Cir. 1971) (per curiam); NLRB v. Morrison Cafeteria Co. of Little Rock, 311 F.2d 534 (8th Cir. 1963). The question of the credibility of witnesses is primarily one for determination by the trier of fact. NLRB v. Midwest Hanger Co., 550 F.2d 1101, 1104 (8th Cir.), cert. denied, --- U.S. ----, 98 S.Ct. 112, 54 L.Ed.2d 90 (1977); Chemvet Laboratories, Inc. v. NLRB, 497 F.2d 445, 449 (8th Cir. 1974); NLRB v. Penzel Construction Co., supra, 449 F.2d at 149.

This Court has noted, however, that this rule is not to be applied mechanically, and determinations made by the Board must be based upon inferences reasonably drawn from the evidence before it. In NLRB v. Hart Beverage Co., 445 F.2d 415, 419-20 (8th Cir. 1971), the Court said,

(W)e must accept the agency's findings of fact if they are supported by substantial evidence on the record considered as a whole . . . . However, we are not to abdicate our judicial function and become a mere rubber stamp for administrative action. . . . And we must keep in mind that the "substantiality of evidence must take into account whatever in the record fairly detracts from its weight."

Accord, NLRB v. Century Broadcasting Corp., 419 F.2d 771 (8th Cir. 1969); see NLRB v. Payless Cashway Lumber Store of South St. Paul, Inc., 508 F.2d 24 (8th Cir. 1974); NLRB v. Alva Allen Industries, Inc., 369 F.2d 310 (8th Cir. 1966).

Applying this standard to the facts of this case, and, after an examination of the record of the proceedings before the Administrative Law Judge, we conclude there is substantial...