National Labor Rel. Bd. v. United States Gypsum Co.

• Decision Date: 31 August 1953
• Docket Number: No. 14048.,14048.
• Citation: 206 F.2d 410
• Parties: NATIONAL LABOR RELATIONS BOARD v. UNITED STATES GYPSUM CO.
• Court: U.S. Court of Appeals — Fifth Circuit

206 F.2d 410 (1953)

NATIONAL LABOR RELATIONS BOARD v. UNITED STATES GYPSUM CO.

No. 14048.

United States Court of Appeals Fifth Circuit.

August 6, 1953.

Rehearing Denied August 31, 1953.

Owsley Vose, Atty., NLRB, A. Norman Somers, Asst. Gen. Counsel, David P. Findling, Assoc. Gen. Counsel, George J. Bott, Gen. Counsel, Marshall J. Seidman, Washington, D. C., for petitioner.

Harold D. Burgess and Charles M. Price, Chicago, Ill. (MacLeish, Spray, Price & Underwood, Chicago, Ill., of counsel), for respondent.

Before HOLMES, 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 to cease and desist from discouraging membership in any labor organization of its employees by discriminatorily discharging or refusing to reinstate, or failing to recall any of its employees; from interrogating its employees concerning their union membership, activity, or attitude; and from interfering with, restraining, or coercing its employees in the exercise of their right to self organization. The Board's order affirmatively directed respondent to offer to reinstate and to make whole three employees whom the Board found to have been illegally discriminated against in regard to their hire or tenure of employment, and to post appropriate notices.

The questions presented for our determination are: (1) whether the Board properly included in its complaint allegations that respondent discriminatorily laid off and refused or failed to reinstate Bennie Pearson and Paul Johnson; (2) whether the Board properly found that respondent discriminatorily laid off or refused to recall Paul Johnson, Hiram Peoples, and Bennie Pearson because of their Union activity; and (3) whether the Board erred in finding that the respondent unlawfully interrogated and threatened its employees. A fourth question is presented by respondent's motion for leave to adduce additional evidence with respect to the organization and existence of a local union at respondent's Greenville, Mississippi, plant, which local allegedly had not complied with subsections 9(f), (g), and (h) of the National Labor Relations Act,¹ as amended.

The first point concerns a variation between the timely amended charge filed by the union, The International Woodworkers of America, C.I.O., and the complaint issued by the Board. Respondent contends the unfair labor practices alleged in the complaint occurred more than six months prior to the filing of the second amended charge and the Board was prohibited by section 10(b) of the Act from issuing a complaint based thereon. The amended charge filed on April 25, 1949, in so far as here important, alleged generally that respondent had engaged in unfair labor practices within the meaning of section 8(a)(3) of the Act by discharging Flannigan Harper and Hiram Peoples, on April 10, and February 6, 1949, respectively, because of their membership in and activities on behalf of the International Woodworkers of America, C.I.O., a labor organization. Respondent concedes that this charge was timely filed. Thereafter, on April 17, 1950, the second amended charge was filed by the union, reiterating the allegation that respondent had violated section 8(a)(3) of the Act but deleting the name of Flannigan Harper and alleging, in addition to Hiram Peoples, that respondent laid off and refused to employ Bennie Pearson and Paul Johnson, on February 5, 1949, and January 26, 1949, respectively, all because of their membership in and activities on behalf of the union. In Cathey Lumber Co. v. N. L. R. B., 5 Cir., 185 F.2d 1021, affirming per curiam 86 N.L.R.B. 157, set aside on other grounds, 189 F.2d 428, the charge named three employees as having been discharged in violation of Section 8(a)(3) of the Act. The complaint, which was issued more than six months after the discharges in question, named seventeen additional employees as having been discharged at the same time. There, as here, the employer contended that the complaint was invalid but we did not think so. We reaffirmed our view on the subject in Stokely Foods, Inc. v. N. L. R. B., 5 Cir., 193 F.2d 736. See also N.L.R.B. v. Westex Boot and Shoe Co., 5 Cir., 190 F.2d 12, 13-14. Respondent has presented nothing new on the issue. Accordingly, we adhere to our former decisions.

As to respondent's second point, we are of opinion that substantial evidence on the record considered as a whole supports the Board's findings that because of his union activities respondent discriminatorily failed to reemploy Hiram Peoples. On the other hand, a fair estimate of the entire evidence leaves us firmly of the conviction that there is a lack of substantial evidence to support the Board's finding of discriminatory termination of the employment of Bennie Pearson and Paul Johnson. On the contrary, we think the evidence overwhelmingly indicates that these two men were laid off and not recalled because they were unusually poor workmen.

Bennie Pearson was employed in the Board Mill as a grinder operator. All of the evidence on the subject discloses that Pearson was a shiftless, undependable, habitually tardy employee, who had been admonished for his failings on numerous occasions and had failed to mend his conduct. Isac Carter, an hourly-paid fellow employee in the grinding room, testified that Pearson could not operate a grinder because he would let it run empty and was late for work most of the time. G. M. Vaught, the Superintendent of the Board Mill, warned Pearson several times that if he did not cease his tardiness and perform better on the job, foreman Mauceli was going to lay him off and he, Vaught, would not interfere. In response to a question as to the factors taken into consideration in selecting men to be layed off, Joe Mauceli stated that in Pearson's case "It didn't take long. He was just the sorriest man I had." He also testified that he had threatened Pearson with discharge if he did not come in on time. Another shift foreman, Clarence Sheppard, swore that Pearson was laid off for the reason that he was not dependable and would permit his grinder to run empty. James Bentley, at the time of his testimony the proprietor of a furniture store in Saltillo, Mississippi, but formerly employed by respondent in the grinding room, classified Pearson as a poor workman. Indeed, Bennie Pearson's own testimony revealingly corroborates the testimony offered by respondent's witnesses:

"Q. Didn\'t he Mauceli tell you that if you didn\'t do better and get to work on time that he\'d have to let you go? A. That\'s right.

* * * * * *

"Q. Quite a number of times you would be late, wouldn\'t you? A. I was on time more times than I was late.

"Q. About 50-50? A. Yes, sir.

"Q. Would that be about right? A. Yes, sir."

Turning now to Paul Johnson, the testimony of fellow workmen and superiors again combines to clearly indicate that he was a highly unsatisfactory employee. Joseph Brown and Ed Jones, who were employees with Johnson in the Press Board Department, testified that he was the type who would not do his fair share of the work, as long as he could place the burden on another. However, the principal fault which respondent found with Johnson's work was the fact that he talked too much. Five witnesses testified that Johnson was a habitual talker, that he would frequently wander off the job, and that his talking interfered with his work and that of others. Four witnesses...