National Labor R. Board v. Goodyear Tire & Rubber Co., 10138.

• Decision Date: 06 July 1942
• Docket Number: No. 10138.,10138.
• Citation: 129 F.2d 661
• Parties: NATIONAL LABOR RELATIONS BOARD v. GOODYEAR TIRE & RUBBER CO. OF ALABAMA.
• Court: U.S. Court of Appeals — Fifth Circuit

129 F.2d 661 (1942)

NATIONAL LABOR RELATIONS BOARD v. GOODYEAR TIRE & RUBBER CO. OF ALABAMA.

No. 10138.

Circuit Court of Appeals, Fifth Circuit.

July 6, 1942.

Robert B. Watts, Gen. Counsel, National Labor Relations Board, Ernest A. Gross, Associate Gen. Counsel, and Mortimer Kollender, Asst. Gen. Counsel, all of Washington, D. C., for petitioner.

J. C. Inzer, Frank J. Martin, O. R. Hood, and Roger C. Suttle, all of Gadsden, Ala., and Forney Johnston, of Birmingham, Ala., for respondent.

James B. Allen, of Gadsden, Ala., for intervener.

Before HUTCHESON, HOLMES, and McCORD, Circuit Judges.

HUTCHESON, Circuit Judge.

On May 26, 1937, Etowah, a local labor organization denied recognition by respondent as sole bargaining agent, filed its petition with Mr. Feidelson, Regional Director, for an election to determine its right to such representation. The next day, United,¹ a nationally affiliated labor organization filed against respondent, charges of unfair labor practices. An amended charge and a complaint were filed August 3, and thereafter the proceedings out of which this petition grows, dragged their slow length along until on May 4th, nearly 5 years afterwards, the petition for enforcement came on for hearing here. The taking of evidence, filling 8,000 typewritten pages was concluded December 1, 1937. On September 6, 1938, there was a Board order that no intermediate report be issued by the trial examiner but that proposed Findings of Fact, Conclusions of Law, and Order, should be filed instead. These, detailed and voluminous, were filed October 25, 1939, and on March 9, 1940, the equally voluminous final decision and order was filed. On December 1, 1941, the Board filed its petition for enforcement, respondent thereafter filed its answer, the local labor organization, Etowah, intervened, and on May 4th, the hearing came on here. Calling this state of the record to our attention, respondent appealing to the record itself and moving also to take testimony in support, insists, in limine; that both the proposed and the final findings of fact and conclusions of law were written by persons disqualified by prejudice, partisanship and bias; that respondent has been thereby denied due process; and that the findings and order should be set aside and the record re-referred to the Board as now constituted for new and unprejudiced findings. In addition it insists; that because of elapsed time between complaint and order there is now no relation whatever between them; that the order has become obsolete; and for that reason too, it should be set aside and the proceeding remanded to the Board to bring the evidence down to date and make the appropriate order.

On the merits, as to the discharges and layoffs found to have constituted unfair labor practices, and the provisions of the order requiring reinstatement and back pay, respondent vigorously insists that there is no evidence to support the findings and that the order may not stand. On the merits as to the finding that Etowah is dominated, interfered with or supported by the company, and the order that it be disestablished as representative, while both Etowah and respondent insists that there is no evidence to support them, the respondent, interested mainly in the orders requiring reinstatement with back pay, while pointing out that it refused to recognize Etowah unless and until in an election it was certified by the Board, devotes little of its brief or argument to them. Etowah however, as the labor organization really affected by the order, vigorously contests the findings and order as wholly unfounded and as doing a great injustice to the employees, in effect, depriving them of their guaranteed statutory right of self-organization, and choice of their own representative.

We make short shrift of the preliminary objection by respondent to the findings and order as prejudiced, of its motion to take testimony, and of its request that because of the unfair hearing, the matter be sent back for redecision by the Board as now constituted, by saying that no case for such action is made out. This is so first, because under settled law, Cf. N. L. R. B. v. Lane Cotton Mills, 5 Cir., 108 F.2d 568, the motion does not present a case for the taking of additional evidence. It is so second, because a careful study of the findings convinces us that they were not as charged by respondent, drawn with a partisan and prejudiced view, exhibiting a fell purpose and design to sweepingly and without examination, determine every charge of the complaint against respondent. They were, instead, drawn in a painstaking and conscientious effort to carefully canvass and separately dispose of every issue raised by the complaint, some² of them in respondent's favor, some in favor of the Board. Further if we could agree with respondent that to the extent that the findings and order were against it, they were not only incorrectly but unfairly found, we should still deny its request for a return of the case for redecision upon the record. For a careful study of it shows that it is without substantial conflict as to the material facts upon which the decision of each tendered issue turns, and that what the ultimate findings should be, is, as to each issue, except one, the discharge of Parker, to be determined as matter of law. As to some of the issues the record does not admit of any other findings than were made. As to others, the record wholly fails to support the findings. As to the claim that the entry of the order was at first, and its enforcement has since been, so long delayed that the order is now obsolete and would do violation to the real facts now existing, we think it is without point as to the discharges, and as to all the other orders, except those denying recognition to and requiring disestablishment of Etowah as representative. We think however that as to those portions of the findings and order, there should be re-reference to the Board for further and prompt hearings and findings and orders on them, bringing the proceeding to date.

We turn then to a consideration on the merits, of the petition for enforcement of the other orders. Of these the discharges fall broadly into three groups, A, the eviction on June 8, 1936, of 12 United employees, and the failure to rehire them until 1937, B, the 1936 discharges of Morgan, Christopher and Taylor, C, the 1937 discharges. We think the findings are supported, and enforcement should be ordered as to Groups A and B, and unsupported and enforcement should be denied as to all except Parker in Group C. Our reasons for these conclusions may be briefly stated. First come the evictions. There is much contention as to whether respondent was responsible for the high state of feeling and the acts of violence in Gadsden in 1936 which followed the efforts of United to completely organize the Gadsden plant, and a great part of the evidence deals with these matters preceding and leading up to the eviction of the 12 employees. While we think the evidence supports the Board's finding that respondent in this proceeding cannot escape responsibility for a part in that state of feeling and those acts, we think all of this is beside the mark on the eviction charges here under review. For it is not denied by respondent, indeed it puts forward as a defense, that the 12 were evicted because of their membership in or sympathy with United, as a result of the demands of other employees that they be evicted. Difficult as an employer's position may be under such circumstances, its duty is plain. The statute prohibits discrimination against persons on account of their membership in or activities on behalf of unions. It specifically prohibits the discharge of employees for the purpose and with the effect of discouraging membership in a union. On the admitted facts respondent cannot escape responsibility for these evictions and discharges. The discharges in Group B of Morgan, Taylor and Christopher, while not under precisely the same circumstances, took place under circumstances sufficiently close to them to sustain, indeed to require the conclusion that these discharges were the result of the feeling against United then rampant in the plant and community, and, to say the least of it, yielded to by respondent. It was its duty to resist such violent domination of its right and power to employ whether manifested by or toward United. It cannot escape responsibility for the consequences of its failure to discharge that duty. The findings as to these discharges are well sustained.

As to the 1937 discharges, the matter stands differently. Here, unlike those in Groups A and B, the discharges were not a group result of group pressure by employees and therefore determinable as a group. As to them, each case must be examined and determined on its own individual facts, N. L. R. B. v. Tex-O-Kan Flour Mills Co., 5 Cir., 122 F.2d 433. We have therefore carefully examined the record and canvassed the fact findings as to each of these discharges in the light of this examination. Accepting the preliminary fact findings of the Board as correctly found as to each, we think it clear that under the controlling principles of law its ultimate finding in each case, except that of Parker, is wholly without support in the evidence. Taking them individually and as a whole, the ultimate findings or inferences of the Board were based on nothing more than that the evidence showed antipathy to United, and the persons discharged in each case for an assigned cause, were members of or applicants for membership in United. This will not at all do. Nothing is better settled in the law than that while discharges may not be made because of and to discourage union membership or activity, membership in a union is not a guarantee against discharge, nor does the fact alone, that an employer dislikes a union or a union man, prevent his exercising his undoubted right to discharge....