National Labor Rel. Bd. v. Robbins Tire & Rubber Co.

• Decision Date: 25 June 1947
• Docket Number: No. 11841.,11841.
• Citation: 161 F.2d 798
• Parties: NATIONAL LABOR RELATIONS BOARD v. ROBBINS TIRE & RUBBER CO., Inc.
• Court: U.S. Court of Appeals — Fifth Circuit

161 F.2d 798 (1947)

NATIONAL LABOR RELATIONS BOARD v. ROBBINS TIRE & RUBBER CO., Inc.

No. 11841.

Circuit Court of Appeals, Fifth Circuit.

May 21, 1947.

Rehearing Denied June 25, 1947.

Gerhard P. Van Arkel, Gen. Counsel, National Labor Relations Board, and A. Norman Somers, Asst. General Counsel, National Labor Relations Board, both of Washington, D. C., and T. Lowry Whittaker, Sr. Atty., National Labor Relations Board, of New Orleans, La., for petitioner.

C. A. Poellnitz, Jr., and W. H. Mitchell, both of Florence, Ala., for respondent.

Before HUTCHESON, McCORD, and WALLER, Circuit Judges.

HUTCHESON, Circuit Judge.

This is another in that long list of enforcement proceedings, in which, galled by the appearance of unfairness¹ made by a record in which the Board acts as both accuser and judge,² the employer rebels against the findings of Examiner and Board as arrived at to accomplish the board's "pre-determined purpose of punishing this respondent."

While from a human standpoint, such an approach is understandable, it is calculated on the record before us to generate more heat than light, and not to be very helpful in the discharge of our part in the administro-judicial process the statute prescribes.³ This, as the statute lays it down, is to determine whether the Board's findings are supported by evidence and the order is in accordance with law. Of course, even though the findings were supported by evidence, we could not find the order in accordance with law if it appeared that the hearings were conducted unfairly, that is with favoritism to the Union or a determination to sustain the Board in the charges it has filed at the Union's request. Neither could we so find if the findings were without support in the evidence. The fact alone, however, of which Respondent makes so much, that Examiner and Board uniformly credited the Board's witnesses and as uniformly discredited those of the Respondent, though the Board's witnesses were few and the Respondent's witnesses were many, would not furnish a basis for a finding by us that such a bias or partiality existed and therefore the hearings were unfair. Unless the credited evidence, as it does not here, carries its own death wound, that is, is incredible and therefore, cannot in law be credited, and the discredited evidence, as it does not here, carries its own irrefutable truth, that is, is of such nature that it cannot in law be discredited, we cannot determine that to credit the one and discredit the other is an evidence of bias. We put aside then crimination and recrimination and address ourselves to the case Petitioner presents,⁴ the defense Respondent puts forward.⁵

Arguing that the record amply supports its findings that unfair labor practices were engaged in, the Board points with confidence to the record of what was said and done, while the matters under review were transpiring. Respondent insist that the hearings were entered upon and the findings made with a predetermined purpose on the part of Examiner and Board to convict and punish it on trumped up and unsupported charges of unfair labor practices. In support of its position, Respondent insists that in every instance of conflict the Examiner and the Board discredited Respondent's witnesses in favor of those for the Board, though the Respondent's were disinterested and many, and the Board's witnesses were greatly interested and few. In further support of its position, Respondent points to the fact that the two employees whose discharges are complained of did do the things they were charged with doing, i. e., talking and loafing during work hours and disturb-in the other employees. It insists that in the face of this proof, the Board could not find that the discharges were on account of union membership of the discharged employees and for the purpose of discouraging union activities, and, therefore, the findings and order may not stand.

It may be taken as settled that the right of an employer to discharge an employee, for cause or without cause, is the same whether the employee is or is not a member of a union. An employer may not, however, discharge or discriminate between employees, whether or not members of a union, for the purpose of discouraging membership in, or action on behalf of, a union. Here there is evidence that the employer was biased against unionization, and the ground of the discharges seems not greatly serious, for though the employees had been cautioned to desist, they had not been threatened with discharge if they did not. Here, too, the discharged persons are union members who have been active in, or sympathetic toward, union affairs. When then the employer discharged them, he did so at the peril of a finding by the Board that since the cause assigned was not one for which discharges were ordinarily made, or even threatened, the employer's antipathy to union membership, interest, or activity had tipped the balance in the scales of causation and had become the causa causans, the real cause of the discharge. It is the law, too, that when, as here, evidence is susceptible of two inferences, one that the discharges were not, the other that they were, for union activities, it is for the Board and not the Court to make the determination whether the cause assigned was the real cause or whether the real cause was antipathy to unions and unionizing activities.

Unfortunately for Respondent's cause, while the record does contain a great deal of evidence in support of its position that its attitude was correct throughout and that the discharges were for the cause assigned and not to discourage union membership, the record also contains evidence from which it could be found that Respondent was biased against unionization and that the discharges were because of this. It is settled law that when the record shows such a bias and also shows that men were discharged after their union membership had been brought into question in a manner showing dissatisfaction with and disapproval of it, the findings of the Board that their discharge was for union activities and not for the reason assigned may not be successfully challenged here. On the record the Board's petition should be granted. An enforcement decree may be presented for entry.

WALLER, Circuit Judge (specially concurring).

The issue of the Unionism of the discharged employees is so completely obscured by their obnoxiousness in interfering with other employees and in disregarding the rules that I concur with reluctance in the enforcement of the Board's order. This reluctance is based upon two grounds. First I think the Examiner disregarded the overwhelming weight of credible evidence in making his findings. Second, in spite of pronouncements to the contrary by judges of great name, learning, and position, I do not believe that Article III of the Federal Constitution authorizes Congress to withdraw from the Federal Courts all power to find the truth in "cases and controversies" arising under the Constitution and laws of the United States. In the face of the impelling precedents I have heretofore hesitated to speak my views, and I do so now in full awareness that my giving utterance thereto will doubtless appear bumptious and impertinent, and furthermore that a concurring opinion convinces few, binds no one, and decides nothing. But the sincerity of my belief in the soundness of those views urges me to set them out nevertheless. In so doing, I shall perforce disregard oft-repeated admonitions that a judge of an inferior court should employ his talents in deciding cases rather than in writing legal treatises or essays.

Sections 1 and 2 of Article III of the Constitution provide:

"Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior Courts, shall hold their Offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their Continuance in Office.

"Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; — to all Cases affecting Ambassadors, other public Ministers and Consuls; — to all Cases of admiralty and maritime Jurisdiction; * * * to controversies between two or more States."

This, according to Justice Story, in Martin v. Hunter, 1 Wheat. 304, 14 U.S. 304, 4 L.Ed 97, "is the language creating and defining the judicial power of the United States. It is the voice of the people of the United States in establishing one of the three branches of their government." Its language, the decision held, was mandatory and Congress could not ignore or deviate from it. Emphasis was placed on the fact that the judicial power "shall be vested" and not "may be vested."

These words vest the whole judicial power of the United States "in one Supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish," whose judges should hold office during good behavior, and whose compensation could not be diminished during their continuance in office.

Since the same section of Article III that vests the judicial power in these Federal Courts provides for the tenure of their judges and the security of their compensation, does it not necessarily follow that only those Federal tribunals that have judges whose tenure and compensation are thus secured may exercise Federal judicial power, and that any tribunal not having a judge appointed during good behavior is not a Court that can be vested with this judicial power, regardless of the nomenclature of such tribunal? If so, would it not also follow that a judge who has a tenure of office fixed in years can discharge only administrative duties? Although one may be called "a judge" of The Tax ...