National Labor Rel. Bd. v. Miami Coca-Cola Bottling Co.

• Decision Date: 13 May 1955
• Docket Number: No. 15290.,15290.
• Citation: 222 F.2d 341
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MIAMI COCA-COLA BOTTLING COMPANY, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

222 F.2d 341 (1955)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MIAMI COCA-COLA BOTTLING COMPANY, Respondent.

No. 15290.

United States Court of Appeals Fifth Circuit.

May 13, 1955.

James A. Ryan, Atty., Owsley Vose, Associate Chief Enforcement Bureau, David P. Findling, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Fannie M. Boyls, Atty., National Labor Relations Board, Washington, D. C., for petitioner.

Theo Hamilton, Hamilton & Bowden, Jacksonville, Fla., for respondent.

Before HUTCHESON, Chief Judge, HOLMES, Circuit Judge, and DAWKINS, District Judge.

DAWKINS, District Judge.

The Board seeks enforcement of its order requiring respondent to reinstate one employee, to reimburse another for time lost as a result of a layoff, to cease and desist from interfering with, restraining and coercing employees and to post notices. The Board found that respondent: (1) violated section 8(a) (3) of the Act, 29 U.S.C.A. § 158(a) (3), by discharging Phyllis Wingate because of her organizational activities; (2) also violated that section by laying off Lester Anderson for one week because of his union activities; and (3) violated section 8(a) (1) when one of its supervisory employees, J. B. Monk, assaulted two union officials who were distributing literature outside the plant.

The union¹ began its campaign to organize respondent's employees in late October or early November, 1952. About the 8th of November respondent's president received a letter from the union giving notice of its activities. On November 17th Wingate was discharged, and on the following two days some employees struck and picketed the plant in protest over her discharge. On November 29th Anderson was laid off for one week on a charge of loafing. On March 3rd, 1953, during working hours, Monk came out of respondent's plant and assaulted union representatives on the street while they were distributing literature. Charges were filed by the union, resulting in the order heretofore mentioned.

I. The Discharge of Wingate.

This employee was the receptionist and switchboard operator for respondent and had been so employed for about a year when organizational activities began. She joined the union about November 1st and became active in its campaign, soliciting memberships from plant employees and drivers. According to her testimony she carried a union button about the size of a half dollar, which she said was placed on her desk "some time" on Friday, November 14th. She stated the button remained on her desk, in open view, through the remainder of Friday and on Saturday morning (her testimony on this point was corroborated by two drivers who were members of the union and who said they saw the button on her desk). On the following Monday she was discharged and told there had been complaints from customers about the way she had talked on the telephone.

Respondent produced the testimony of several fellow workers and of Mrs. Buckner, its president, to the effect that Wingate had habitually used vulgar and profane language in the office and on the telephone; that she often was insubordinate and criticized her superiors and fellow employees; that customers had made complaints about her vulgarity and discourtesy while talking to them on the phone; that she had been repeatedly advised, implored and warned to refrain from such speech and conduct. Mrs. Buckner testified that she had become disgusted with Wingate and had on several occasions requested supervisors to correct the situation; that she finally became convinced Wingate would not improve and instructed supervisor Stevens to discharge her, which he did.

Wingate admitted on cross-examination that she used some of the language attributed to her; and when questioned about specific occasions later testified to by respondent's witnesses, she would not deny the offensive language and conduct, but stated either that she didn't remember or that the incidents "may have" occurred.

The trial examiner discredited respondent's explanation for Wingate's discharge, finding it a "mass of contradictory, inconsistent, and confusing testimony," and determined that Wingate was discharged because of her union activities. The Board held: "It is not unreasonable to conclude that such behavior became suddenly insufferable just a few days after the Union filed its representation petition, when the decision to discharge her summarily was made. We find on the basis of the evidence and the Trial Examiner's credibility findings that there is no substance to the alleged explanation for Wingate's discharge, and that she was discharged for union activities."

On this record, in the face of uncontradicted testimony by respondent's witnesses and Wingate's admissions, it cannot be questioned that she regularly used offensive and often profane language and for some time had conducted herself in a manner objectionable to fellow workers and supervisory personnel. We are therefore constrained to doubt that the issues presented could properly be resolved on the basis of credibility, for the Board could not have found that Wingate was completely innocent. The conclusion, then, must have been that despite Wingate's conduct, she was discharged because of her union activities. However permissible that inference might otherwise be, it was necessarily based upon a finding that respondent's management knew or could be presumed to have known that Wingate was a union member and active in the campaign. We think there is no substantial evidence upon which such a finding could be based.

Mrs. Buckner and other witnesses testified positively that they did not know Wingate was active in the campaign; in fact, Mrs. Buckner stated that the letter received from the union led her to believe the organizational efforts were directed only toward plant employees and drivers and that she did not know any office employees were involved. Wingate did not testify that she had directly discussed her union activities with or in the presence of any management personnel. The Board apparently relied heavily upon the presence of the union button on her desk two days before her discharge; but all management witnesses denied seeing it, and Wingate testified only that one supervisor passed her desk and another talked with her near the desk. To conclude from such evidence that respondent discharged Wingate because of her union activities requires the pyramiding of inferences which has been so often rejected by the Courts. N.L.R.B. v. National Paper Co., 5 Cir., 216 F.2d 859; N.L.R.B. v. Armour & Co., 5 Cir., 213 F. 2d 625; Tampa Times Co. v. N.L.R.B., 5 Cir., 193 F.2d 582. Enforcement of the order with respect to Wingate must be denied.

II. The Layoff of Anderson.

This employee had worked for respondent for about ten years as a stacker of coca-cola cases, being also in charge of rotating the stock and keeping the stockroom in order. In October, 1952, respondent began installation of new machinery and equipment to effect the modernization of its system of stacking cases, and Anderson was assigned to do various odd jobs, such as painting, cleaning up, etc. He had become active in the union's campaign and was on the picket line during the strike resulting from Wingate's discharge. He testified that a few days later he talked with Mrs. Buckner about a job in the refrigeration department, telling her he thought he had proved himself worthy of promotion, but he quoted her as saying: "Yes, you proved yourself the other day down there on the street. You took the business out of my hands. Now I am not allowed to say anything. To hell with you, Lester. Get out of here. I don't want to talk with you no way." He also stated Mrs. Buckner told him he could expect cold treatment thereafter.

He testified that a few days later, on November 29, while returning to his duties from the water cooler in the yard, he was stopped and accused of loafing by Monk. An argument ensued and he said Monk told him he should be fired. He stated that about twenty minutes later he was summoned to the office of the general superintendent, Pinter, and laid off for a week on the charge of loafing. He swore that he denied the charge and challenged Pinter to produce witnesses who could substantiate it, but that Pinter refused to do so.

When he returned to work after the layoff, Anderson was assigned to a new job in the renovated stacking department, and on the following day complained of an injury to his back. He was sent to a doctor and has...