National Labor Rel. Bd. v. Amalgamated Meat Cutters

• Decision Date: 18 March 1953
• Docket Number: No. 13343.,13343.
• Citation: 202 F.2d 671
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: NATIONAL LABOR RELATIONS BOARD v. AMALGAMATED MEAT CUTTERS & BUTCHER WORKMEN OF NORTH AMERICA, LOCAL NO. 127.

202 F.2d 671 (1953)

NATIONAL LABOR RELATIONS BOARD v. AMALGAMATED MEAT CUTTERS & BUTCHER WORKMEN OF NORTH AMERICA, LOCAL NO. 127.

No. 13343.

United States Court of Appeals Ninth Circuit.

March 18, 1953.

George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, Owsley Vose, James A. Ryan, Washington, D. C., and Louis Penfield, Attys., N. L. R. B., San Francisco, Cal., for petitioner.

Charles P. Scully, San Francisco, Cal., for respondent.

Before HEALY, ORR and POPE, Circuit Judges.

POPE, Circuit Judge.

Upon an application for enforcement of an order finding the respondent Union guilty of unfair labor practices under the National Labor Relations Act, as amended, 29 U.S.C.A. § 151 et seq., we are called upon to review the Board's conclusions (1) that the Union violated § 8(b) (2)¹ of the Act by causing Armour and Company, here called the Company, to discharge one Wyatt for his refusal to join the Union. and (2) that the Union violated § 8(b)(1) (A)² by warning Wyatt and his wife, also an employee, that they would lose their jobs if they did not join the Union.

The Board's finding on the first of these charges, namely, that the Union caused Wyatt's discharge, is without support in the record, and must be rejected. The Union representative was Weborg. The employer's representative was Gearhart. The only testimony that Weborg demanded or requested of Gearhart that Wyatt be discharged was that given by Wyatt. He testified that during a conversation with Gearhart, when Gearhart indicated that he should not come back to work the following morning, Gearhart said that "Weborg told me `I could not use you anywhere in the plant because you would not join the Union.'" Aside from this statement, hearsay as against the Union,³ there was nothing of substance either direct or circumstantial to show Wyatt's discharge was effected at the request of the Union.

The trial examiner, whose findings were adopted by the Board, found that there was no general arrangement between Weborg and Gearhart that new employees would be required to join the Union. The Company and the Union had no union-security agreement. Approximately 100 employees in the plant were not members of the Union and the trial examiner held that presumably they were not disturbed in their jobs. Gearhart testified that the Union did not demand or request Wyatt's discharge and Weborg said the same thing.

Wyatt, without previous experience in the kind of work he was here doing, had been given to understand that he was employed to take the place of another man who was absent on account of sickness. Gearhart testified that when Wyatt was allowed to go it was because he was replaced on the job by another man who had greater seniority and that there was no other work at which he cared to place him. This testimony is not contradicted.

Thus we are left with nothing but the hearsay testimony quoted above to support the Board's finding that the Union caused the discharge. § 10(b) of the Act, Title 29, § 160(b), provides: "Any such proceeding shall, so far as practicable, be conducted in accordance with the rules of evidence applicable in the district courts of the United States under the rules of civil procedure for the district courts of the United States * * *." Under that provision the hearsay evidence must be excluded from consideration by the Board and by us. Superior Engraving Co. v. National Labor Relations Board, 7 Cir., 183 F.2d 783, 792, 794, certiorari denied 340 U.S. 930, 71 S.Ct. 490, 95 L.Ed. 671. Wholly apart from this provision of § 10(b), in proceedings conforming to the requirements of the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq., agency findings "cannot be based upon hearsay alone". Willapoint Oysters v. Ewing, 9 Cir., 174 F.2d 676, 691.

Notwithstanding this want of anything but hearsay to support this particular portion of the complaint against the Union, the trial examiner arrived at his conclusion by saying: "However, the circumstances set forth in the evidence establish in the case of E. A. Wyatt, Gearhart must have been told by the Union that the Union objected to the continuation of Wyatt's employment." (Emphasis added.) The Board is not permitted to arrive at conclusions based on such speculations.

The second ground of complaint against the Union, namely, that it urged, threatened and warned employees of the Company that they would have to join the Union because the Company and the Union were operating under a closed shop agreement is sought to be supported by the testimony of Mrs. Wyatt and of...