National Labor Rel. Bd. v. East Texas Steel Castings Co., 14459.

• Decision Date: 07 May 1954
• Docket Number: No. 14459.,14459.
• Citation: 211 F.2d 813
• Parties: NATIONAL LABOR RELATIONS BOARD v. EAST TEXAS STEEL CASTINGS CO., Inc.
• Court: U.S. Court of Appeals — Fifth Circuit

211 F.2d 813 (1954)

NATIONAL LABOR RELATIONS BOARD v. EAST TEXAS STEEL CASTINGS CO., Inc.

No. 14459.

United States Court of Appeals Fifth Circuit.

March 31, 1954.

Rehearing Denied May 7, 1954.

David P. Findling, Assoc. Gen. Counsel, N. L. R. B., A. Norman Somers, Asst. Gen. Counsel, N. L. R. B., Milton Eisenberg, Atty. Gen. Counsel, N. L. R. B., George J. Bott, General Counsel, Frederick U. Reel, Attorneys, National Labor Relations Board, Washington, D. C., for petitioner.

O. B. Fisher, J. D. McLaughlin and H. B. Harrison, all of Paris, Tex., for respondent.

Before HUTCHESON, Chief Judge, and BORAH and RIVES, Circuit Judges.

BORAH, Circuit Judge.

This case is before the court on petition of the National Labor Relations Board, seeking enforcement of its order requiring respondent, East Texas Steel Castings Company, Inc., to cease and desist from discouraging membership in any labor organization of its employees by discriminatorily refusing to hire, or discharging or refusing to reinstate any of them, or by discriminating in any other manner in regard to their hire or tenure of employment; from refusing to bargain collectively with the United Steel Workers of America, C. I. O., as the exclusive representative of all its employees in the appropriate unit; from engaging in surveillance of union meetings, questioning its employees concerning their union membership, threatening them with reprisals, or discriminatorily carrying out any physical examination programs for the purpose of discouraging union membership; and in any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them under Section 7 of the Act, 29 U.S.C.A. § 151 et seq. The order further directed respondent to offer immediate and full reinstatement to twelve named employees and to make them whole for any loss of pay they may have suffered by reason of respondent's conduct; to offer A. L. Christian immediate employment as a crane operator and to make him whole; to bargain collectively with the United Steel Workers, C. I. O., as the exclusive bargaining representative of all the employees in the appropriate unit; and to post appropriate notices at its plant in Longview, Texas.

At the threshold of this case we are met with a variety of tenuous jurisdictional questions. First, respondent insists that no original charge was ever filed against it. The burden of this contention seems to be founded on the fact that the original charge, filed on April 26, 1951, and served the same day by postpaid registered mail, erroneously named the "East Texas Electric Steel Company" as the employer. Eleven days later a first amended charge was filed to cure the error by correctly naming respondent, East Texas Steel Castings Company, Inc., as the employer against whom the charge was brought. Secondly, respondent contends that no one in fact at any time charged it with a violation of section 8(a) (5) of the Act. The record discloses that the original charge, dated April 20, 1951, the first amended charge, dated May 7, 1951, and the second amended charge, dated September 10, 1951, all alleged in substance that on various dates between April 10, 1951, and August 29, 1951, respondent had engaged in unfair labor practices within the meaning of section 8(a) (1) and section 8(a) (3) of the Act. On September 21, 1951, a third amended charge was filed against respondent. This amended charge reiterated the alleged violations of section 8(a), subsections (1) and (3), and added an allegation to the effect that on or about September 7, 1951, respondent refused to bargain with the United Steel Workers of America, C. I. O., in violation of section 8(a) (5) of the Act.

As to the first contention, that no formal charge was filed against or served on respondent, there is nothing to indicate that respondent was in any way misled or prejudiced by the clerical error, which was corrected eleven days after the original charge was filed and served on respondent. Moreover, we do not agree with the respondent's view that this was the same as issuing a complaint without a charge being filed. Surely the correction of minor errors of this nature is a proper function of the amended charge.

Respondent's second jurisdictional point is no better taken. It is true that the third amended charge introduced for the first time an allegation of violation of section 8(a) (5) of the Act. However, the alleged violation of section 8(a) (5) did not occur until almost five months after the original charge was filed. Section 10(b) of the Act provides in part that no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made. Here, the charge and the amended charges were all filed with the Board within six months following the occurrence of the events to which they related. Accordingly, we think the Board had jurisdiction to consider the alleged violation of Section 8(a) (5) of the Act.

Respondent's contention that the Board failed to afford the parties an opportunity to adjust and settle their differences and thus failed to comply with the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq., does not merit discussion. When this point was first raised at the hearing, the Trial Examiner immediately recessed the proceeding to afford the parties an opportunity to settle their differences but no settlement was reached.

This brings us to the numerous questions involving the alleged discriminatory discharges. In substance the amended complaint alleged and the answer denied that on various dates from April to September, 1951, the respondent discriminatorily dismissed and refused to hire seventeen named employees¹ to discourage membership and activity in the union. In his report the Trial Examiner recommended that the allegations of the complaint relating to R. L. Manning, Hulan Laminack, and R. M. Richardson be dismissed. Upon review, the Board adopted the Trial Examiner's findings and conclusions save those relating to Odes Laminack, which the Board reversed.

After careful study of all of the evidence in the case, we are of the opinion that the record adequately supports the Board's findings in so far as they relate to all six of the so-called "physical examination discharges."² In general, the facts are these: On April 9, 1951, an organizational meeting of respondent's employees was held at an intersection of two highways, called the "Y". During the course of the meeting respondent's personnel director and works manager were observed circling the "Y" in an automobile. The following morning, while talking in a group, Lockridge, Z. B. Jones, and Newsome were approached by Williams, respondent's assistant superintendent. Williams told the three employees that they had been seen at the organizational meeting which was held at the "Y" the day before and inquired as to whether they had joined the union. Later, the same day, Lockridge and Z. B. Jones were called from their work and sent to a Doctor Swinney for physical examinations. The doctor found that Lockridge suffered from asthma and that Jones had varicose veins. Respondent argues that it was for these physical reasons that Lockridge and Z. B. Jones were discharged immediately. One week later Newsome, the third member of the group questioned by Williams, was also sent to Dr. Swinney for a physical examination and, thereafter, he was discharged, allegedly because of varicose veins.

The record discloses that Lockridge was employed at the plant in January, 1946. At that time he was given a physical examination and was hired despite the fact that he then had an asthmatic condition. Lockridge testified that he had not been bothered in any way by his asthma up until the time of his discharge, that he had never been to a doctor for treatments of any kind, and had not because of his condition lost any time from work during the five year period when he was employed at the plant. The second member of the group, Z. B. Jones, age 37, was first employed at the plant in 1948. At that time Jones was given a physical examination by Dr. Swinney and was asked as to the condition of his leg to which Jones replied that he had had varicose veins since he was 14 years old. Nonetheless, he was hired. Garland Newsome's case is similar to that of Jones. Newsome had had varicose veins for approximately 20 years. He was employed in 1948, and the varicose vein condition had never bothered him in his work or otherwise. Following his discharge by respondent because of claimed physical unfitness due to the presence of varicose veins, Newsome passed the required physical examination and was employed by the General Motors Company in Saginaw, Michigan. The fourth physical examination discharge was Ezeckiel Rogers. Rogers commenced work at the plant in 1943 and later became a swing grind operator. He also attended the organizational meeting at the "Y" on April 9, 1951. On April 12, 1951, he was sent to Dr. Swinney for a physical examination. Dr. Swinney found that Rogers had high blood pressure and a heart murmur. Respondent claims that it was because of this physical disability that Rogers was discharged the next day. However, immediately following the dismissal Rogers was examined by a Dr. McCree, who found nothing wrong with his heart and informed him that his blood pressure was satisfactory. Moreover, Rogers thereafter successfully passed the pre-employment physical examination required by the Brown & Root Company and he was employed by that Company to do strenuous work. The fifth physical examination dischargee, Wilson C. Bogan, began work at the plant in 1946. He was prominent in union activities and attended the organizational meeting at the "Y". The following day his foreman asked Bogan whether he had attended the meeting. When Bogan admitted that he had attended...