National Labor Rel. Bd. v. Armstrong Tire & Rubber Co.
| Decision Date | 21 December 1955 |
| Docket Number | No. 15635.,15635. |
| Citation | 228 F.2d 159 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ARMSTRONG TIRE AND RUBBER COMPANY, Tire Test Fleet Branch, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Rosanna A. Blake, Atty., Marcel Mallet-Prevost, Asst. Gen. Counsel, Theophil C. Kammholz, Gen. Counsel, David P. Findling, Associate Gen. Counsel, Samuel M. Singer, Atty., National Labor Relations Board, Washington, D. C., for petitioner.
Richard C. Keenan, F. A. Kullman, of Kullman & Lang, New Orleans, La., for respondent.
Before HUTCHESON, Chief Judge, and HOLMES and RIVES, Circuit Judges.
The Board petitions for enforcement of its order issued against respondent1 on February 18, 1955, based on findings that respondent violated Section 8(a) (1) of the Act, 29 U.S.C.A. § 158(a) (1), by threatening a number of its employees with discharge, loss of job benefits, and the closing down of its tire testing operations, if they joined the union;2 and promising them a pay raise, increased retirement benefits, and job security if they remained unorganized. Independent violations of Section 8(a) (3) and (1) of the Act were predicated upon the further finding that respondent discriminatorily discharged Erwin Albrecht, ostensibly for violating its policy prohibition against employees on sick leave engaging in other work, but actually, according to the Trial Examiner and Board, because of his pro-union activity during the union's organizational campaign.
Resisting the instant petition for enforcement on much the same grounds as it relied upon to defeat the remedial order before the Trial Examiner and Board, respondent here argues that it is not chargeable with the alleged coercive remarks supposedly made to its employees by Randal Scharmen, since Scharmen was not, as a matter of law, embraced within the Act's definition of a "supervisor",3 this individual supposedly being without the required authority under that statutory definition to hire and/or fire other employees, discipline them, otherwise "responsibly to direct them, * * * adjust their grievances, or effectively to recommend such action". Alternatively, respondent insists that there is no substantial evidence to support the finding that its alleged supervisors, Scharmen and Haidet, actually made the coercive statements attributed to them, but, even assuming they were made as found, such statements do no violate Section 8(a) (1) of the Act; that further, assuming their remarks were intimidatory within the prohibition of 8(a) (1), any coercive effect thereof was subsequently dissipated and rendered innocuous by statements of respondent's managerial executives4 to its assembled employees at a meeting held on May 11, 1953, that the employees would not suffer any discrimination because of their union activity or membership. Finally, respondent insists that the testimony reveals Erwin Albrecht was terminated for justifiable cause under the Act, because of his intentional violation of respondent's rule and policy prohibiting an employee from using "sick leave" to engage in other work; and alternatively, that Albrecht's discharge could not have been discriminatorily motivated in the absence of any convincing proof that respondent knew of Albrecht's pro-union activity prior to his discharge.
We have carefully reviewed respondent's above enumerated arguments, inter alia, in the light of the testimony and the findings of both the Trial Examiner and Board. In spite of respondent's contrary insistencies in its able and exhaustive brief, we are thoroughly convinced that this is essentially another factual dispute in which there exists the required evidentiary support for the Board's conclusions that Scharmen was a "supervisor", for whose coercive remarks resp...
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Surprenant Manufacturing Company v. N. L RB
...event the union won the election, did not completely erase the effect of the coercive statements previously made. N.L.R.B. v. Armstrong Tire & Rubber Co., 228 F.2d 159, 161, C.A. 5th; N.L.R.B. v. Fulton Bag & Cotton Mills, 175 F.2d 675, 676-677, C.A. 5th. It will be noticed in passing that ......
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