National Labor Relations Bd. v. Cambria Clay Prod. Co.

• Decision Date: 07 July 1954
• Docket Number: No. 12072.,12072.
• Citation: 215 F.2d 48
• Parties: NATIONAL LABOR RELATIONS BOARD v. CAMBRIA CLAY PRODUCTS CO.
• Court: U.S. Court of Appeals — Sixth Circuit

215 F.2d 48 (1954)

NATIONAL LABOR RELATIONS BOARD v. CAMBRIA CLAY PRODUCTS CO.

No. 12072.

United States Court of Appeals, Sixth Circuit.

July 7, 1954.

Frederick U. Reel, Washington, D. C. (George J. Bott, David P. Findling, A. Norman Somers, Frederick U. Reel, Thomas R. Haley, N.L.R.B., Washington, D. C., on the brief), for petitioner.

J. Mack Swigert, Cincinnati, Ohio (J. Mack Swigert, Charles D. Lindberg, Cincinnati, Ohio, on the brief; Miller, Searl & Fitch, Portsmouth, Ohio, of counsel), for respondent.

Before McALLISTER and MILLER, Circuit Judges, and GOURLEY, District Judge.

McALLISTER, Circuit Judge.

The National Labor Relations Board filed a petition for enforcement of its order against respondent for claimed violation of Sections 8(a) (1), (3), and (5) of the National Labor Relations Act,¹ setting forth that the company had interfered with, restrained, and coerced its employees in the exercise of their rights to self-organization and collective bargaining through agents of their own choosing, as guaranteed by Section 7 of the Act, through discharging employees because of their union activity, refusing to reinstate employees who had been on strike, and declining to bargain collectively with the representative of its employees.

For ten years prior to 1951, the United Brick and Clay Workers of America, AFL, Local No. 879, had represented the production employees of the Cambria Company's plants at Blackfork, Ohio. Blackfork is a company town, and respondent owns all the land around the town comprising an area of approximately 6,000 acres. During the period aforesaid, the union had negotiated collective bargaining agreements between the employees and the company. The company has two plants at Blackfork, one, about a mile and a half from the other. They are designated, respectively, the silica plant and the clay plant. Employees of the silica plant customarily had a meeting of the union at 4:00 p. m. on the first Tuesday of each month at the Blackfork schoolhouse, and on these occasions, it was the practice of the employees on the afternoon shift to leave work to attend the meeting; and the company, aware of this practice, regularly deducted an hour's wages from the pay of such employees who attended the meeting.

On August 8, 1951, Hubert S. DeHart replaced Earl Mickey as superintendent of the silica plant. At the time DeHart became superintendent, Mr. E. E. Davis, Vice President of the company in charge of operations, instructed him to issue a rule forbidding the practice of employees leaving the job before their workday ended, unless prior permission from their superintendent or foreman had been obtained. It appears that when such crews would leave early, it would automatically close down the job then being worked upon. Accordingly, DeHart thereafter told Sherman Sparks, the union committeeman, that he could not allow the employees to leave their jobs and go to meetings in the prior accustomed way; and he requested Sparks and Oscar Straight, a former union committeeman, to bring the matter up in the union meeting; and this was done. On the occasion of the conversation with Sparks and Straight, DeHart told them that he could fire the employees for leaving work early to attend the union meetings but that it was all right to go to the meeting "that night." DeHart also told Straight that the employees did not have the right to shut the job down and all attend the meeting together; and that they would have to send committeemen instead. Nevertheless, thereafter, on November 7, 1951, the workers of the set gangs at the silica plant left work about 4:00 P.M. to attend a union meeting, without requesting prior permission from any official of the company.

Before leaving the plant, however, one of the employees told Kenneth Cofer, who was the checker with the set gang on the shift, that they were leaving for the meeting, and received no reply from him. Cofer was an hourly-paid employee, but had the authority to tell the men where they were expected to work and what they were to do. When there was no work to be done in the kiln, he would put them to work elsewhere; and he also directed them from time to time as to what kind of brick to set. It appears from the evidence introduced on behalf of the company that, at least before the new rule was issued by Superintendent DeHart, it was customary for the men to seek authority from Cofer to take time off during working hours, and that, on occasion, he either gave or denied such permission; and that the employees went to see him for this purpose even when the superintendent was present. On the day in question, after the men returned from the meeting, they were told by Cofer that they were discharged.

With respect to the discharge of the employees for taking time off during working hours to attend the union meeting, it nowhere appears in the evidence that any of the employees or union committeemen were told that they would be discharged if they left work early to attend the meeting. They had followed this practice for years. Although the union committeemen were told by the new superintendent that he could not permit the men to leave early without permission and that he could fire them for doing so, all the witnesses on this point testified that they did not understand they would be fired for leaving early to go to the meeting; and the union committeeman, a witness for the respondent company on the hearing, to whom the superintendent spoke regarding the new rule, testified that he did not understand from what the superintendent told him that the employees who attended union meetings as in the past would be fired without warning. Superintendent DeHart, although present at the Board hearing, did not testify. No notice was placed upon the bulletin board by any officials of the company respecting the new rule. Some months after the discharge of the men, Superintendent DeHart told the night superintendent at the silica plant, according to the latter's testimony, that the employees above mentioned "were mostly troublemakers and that was his chance to get rid of them. He said he told them not to go to these meetings, and they went anyhow * * that as long as they were union men they didn't want them * * * they fired those fellows on account of the union activities." The credibility of the night superintendent is assailed by respondent as being in contradiction of the testimony of other witnesses and because of the fact that he was an ex-convict, with a grudge against the company. It does not, in fact, appear that the witness had a grudge against the company. In any event, the Trial Examiner, in spite of the criminal conviction of the witness, characterized him as honest and sincere; and Superintendent DeHart did not contradict his testimony. The trier of facts, in this case the Board, is the judge of the credibility of the witnesses; and we see nothing in its acceptance of this testimony that would justify a court on review in rejecting it. Under the foregoing circumstances, we cannot say that, viewing the record as a whole, the findings of the Board that the employees in question were discharged for their union activities were not sustained by the evidence.

There was also substantial evidence that respondent exerted coercive pressure upon employees to withdraw from the union. It is true that such evidence is strongly controverted and, persuasive of the company's contention, it appears that their inquiry of employees as to whether they wished to withdraw from the union was consented to by the union's representative who approved the preparation of typewritten withdrawal slips to be signed by any member of the union who wished to discontinue his membership therein on the ground that, as the union's representative declared, a disgruntled union man was of no use to the union anyway. However, the evidence of the exertion of coercive pressure in a form other than the mere circulation of the withdrawal slips, is substantial, on the record, viewed as a whole. As to the employees, Miller, Friend, and Hall, who were, as the company claimed, discharged for leaving their work early, there was convincing enough evidence that it was the custom of employees on the set gangs, including the hourly-paid workers, to leave the plant when the piece-rate workers completed their quota before the end of the shift on the apparently accepted understanding that they had completed their allotted work at that time; and there was substantial evidence from which reasonable inferences could be drawn that the real reason for the discharge of these workers was because of their loyalty to the union in face of the effort of the company to have them withdraw from the union and its intention to terminate the employment of such men as were strong supporters of the union.

As to the discharge of Craddolph, who had worked for the company twenty-six years, and Galliamore, who had been an employee for thirty-three years, it is our view that there was substantial evidence from which reasonable inferences could be drawn that their discharge resulted from their union activities. They were both members of the union grievance committee and on two occasions, had gone to the silica plant, once, to investigate Friend's discharge, and again, to discuss with the officials the above mentioned discharges of both Friend and Hall. On this occasion, they had tendered a written grievance to the officials who had handed it back saying that they were "through with all that, we are not going to bother with that sort of thing any more." The respondent company insists this statement can only be interpreted as meaning that it would not permit committeemen from one plant to "process" grievances from the other plant. But it was for the Board to say whether the company thereafter discharged Craddolph and Galliamore because of their union activity in the matter. It is not clear exactly what jurisdiction Craddolph and Galliamore had...