National Labor Rel. Bd. v. JAMESTOWN VENEER & P. CORP., 126
| Decision Date | 06 February 1952 |
| Docket Number | Docket 22150.,No. 126,126 |
| Citation | 194 F.2d 192 |
| Court | U.S. Court of Appeals — Second Circuit |
| Parties | NATIONAL LABOR RELATIONS BOARD v. JAMESTOWN VENEER & PLYWOOD CORP. |
George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, Harvey B. Diamond and John E. Jay, Attys., Washington, D. C., for petitioner.
Charles A. Drake, Utica, N. Y., for respondent, Ferris, Burgess, Hughes & Dorrance and R. G. Dunmore, Jr., Utica, N. Y., of counsel.
Before SWAN, Chief Judge and CHASE and FRANK, Circuit Judges.
This is a petition by the National Labor Relations Board for enforcement of its order of February 8, 1951 which directs the respondent employer to cease and desist from certain unfair labor practices and to offer reinstatement with back pay to five employees. The respondent objects only to the affirmative part of the order. It contends that the record considered as a whole does not support the Board's finding that in violation of section 8(a)(1) and (3) of the Act, 29 U.S.C.A. § 158(a)(1) and (3), the respondent discriminatorily discharged employee Powers and discriminatorily refused to recall or reinstate employees Wilcox, Sheppard, Davis and Morgan.
The discharge of Powers: The trial examiner and the Board found that Powers, a fireman employed at the respondent's plant, was discharged on or about July 22, 1949 because of the employer's anti-union animus. Powers was a member of the recently organized union and his testimony that he had told superintendent Henry of his membership was credited in preference to Henry's denial of the conversation. Upon the hearing the respondent admitted the discharge and adduced evidence which, if credited, would require a finding that he was discharged for good cause. But the trial examiner did not credit the respondent's witnesses for reasons which he set forth in his Intermediate Report. Without repeating them in detail, it will suffice to note that the respondent's principal witness had taken inconsistent positions with respect to the termination of Powers' employment. In September 1949 he asserted in a letter that Powers had quit voluntarily on July 16th; in the respondent's original answer sworn to by him on June 29, 1950 he denied that Powers was discharged; in the amended answer sworn to a month later he admitted the discharge; and at the hearing he testified that on July 20, 1949 he had ordered Powers to be discharged for the reasons now relied upon as adequate cause. The trial examiner rejected the evidence that Isaacson directed Ellis to discharge Powers, that Ellis did discharge him, and that Powers quit his job voluntarily; he credited Powers' testimony that Henry told Powers on July 22 that he was included in the lay-off of employees necessitated by business reasons. In the light of findings of anti-union animus, which the respondent's brief does not challenge, the trial examiner concluded that Henry's asserted lay-off of Powers was a pretext and the real situation was that he was then and there discharged for discriminatory reasons. The issue turns essentially on the credibility of witnesses. We cannot say that the record as a whole does not support the finding.
Refusal to reinstate Wilcox, Morgan, Sheppard and Davis: These four employees were members of the night shift working at the plant on Friday, July 22, 1949. Due to slackness of business the employer laid off 16 employees on that date and eight more on July 27th. It is not disputed that the July lay-offs were dictated by economic reasons and were necessary. About 11 P. M. on July 22nd foreman Morrison announced the lay-off to the night shift. This was two and a half hours before the end of the shift.1 He urged the men to stay and finish the shift. All did so except the four...
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