National Labor Relations Bd. v. Office Towel Supply Co., 99

• Decision Date: 06 January 1953
• Docket Number: Docket 22477.,No. 99,99
• Citation: 201 F.2d 838
• Parties: NATIONAL LABOR RELATIONS BOARD v. OFFICE TOWEL SUPPLY CO., Inc.
• Court: U.S. Court of Appeals — Second Circuit

201 F.2d 838 (1953)

NATIONAL LABOR RELATIONS BOARD v. OFFICE TOWEL SUPPLY CO., Inc.

No. 99, Docket 22477.

United States Court of Appeals Second Circuit.

Argued December 10, 1952.

Decided January 6, 1953.

George J. Bott, David P. Findling, A. Norman Somers, Bernard Dunau and Mary E. Williamson, Washington, D. C., for National Labor Relations Board.

Louis Borins and Isadore Snitzer, Buffalo, N. Y., for respondent.

Before AUGUSTUS N. HAND, CLARK and FRANK, Circuit Judges.

FRANK, Circuit Judge.

Mrs. Jenifer testified that, before her discharge, she had been engaged in activities directed to union organization. The Trial Examiner did not believe this testimony. In his report he said: "The undersigned is not convinced that prior to her discharge Jenifer engaged in any organizational efforts. Jenifer was not a persuasive witness and from the manner in which she testified and from her demeanor on the stand, the undersigned is unable to accord any weight to her testimony on purported concerted activities prior to her dismissal." On but one subject did the Examiner consider her corroborated, i. e., that, during the recess period on August 18, she and several other employees had discussed employee dissatisfaction and they had then concluded that a union was needed. But the Examiner found that the company, when it discharged Mrs. Jenifer later the same day, knew nothing whatever of this discussion except that she had remarked, "This is a hell of a place to work. They expect one girl to do the work of five and a girl doesn't get time to go to the ladies' room."

Of McDonald, the company's president who fired Mrs. Jenifer, the Examiner said: He "testified that for some time prior to her discharge Jenifer had failed to cooperate with the efficiency engineers who were doing time studies in her department, and as a result on August 18, when Senn, his office manager reported to him that during the recess period Jenifer had expressed great dissatisfaction with the plant and her job, he decided upon her dismissal.¹ McDonald denied that at the time he had any knowledge of Jenifer's alleged sponsorship of a union movement * * * The respondent denied having any knowledge of Jenifer's desires or plans to organize the employees and McDonald, who testified in this connection, impressed the Trial Examiner as an honest and straightforward witness. This conclusion is based upon his demeanor and forthrightness on cross-examination as well as direct examination and his cooperation with the General Counsel throughout the extended cross-examination."

1. The weight to be given the findings of an Examiner, when he sees and hears the witnesses and when his findings turn on his views of their credibility, we have recently discussed at some length in N. L. R. B. v. Dinion Coil Co., 2 Cir., 201 F.2d 484. There we sustained the Board's decision, which rejected an employer's plausible explanation of a discharge, solely because (a) the Examiner disbelieved the oral testimony of the employer's executive as to that explanation and (b) the Examiner based that disbelief on that executive's demeanor while testifying. In line with our opinion in the Dinion Coil case and the exposition we there gave concerning the effect of "demeanor evidence," we take as established in the instant case the following facts: (1) Mrs. Jenifer, before August 18, had not engaged in any protected activities. (2) On that date, she did discuss, with other employees, employee dissatisfaction and the need for a union. (3) In that discussion, she made the "hell-of-a-place-to-work" remark. (4) Later on the same day, McDonald learned of that remark, but he knew nothing more of the nature or contents of her discussion with the other employees. (5) Solely because of that remark, and her previous lack of cooperation with the efficiency engineers, he discharged her.

The Examiner concluded that the company had not violated the Act in discharging Mrs. Jenifer. The Board disagreed with the Examiner's legal conclusion but accepted his findings of fact.² On the basis of those facts, the Board, in its decision, concluded that Mrs. Jenifer "was discharged because she engaged in concerted activities." In reaching this conclusion, the Board held that the discussion between her and the other employees on August 18 "constituted concerted activity for mutual aid and protection within the meaning of § 7 of the Act 29 U.S.C.A. § 157"; that Mrs. Jenifer's statement to the group "was itself a complaint against existing conditions, calculated to induce group action by the employees to correct agreements"; and that such activity by her was an "indispensable preliminary step to employee self-organization" and consequently enjoyed the protection accorded by the Act to concerted activity. The Board said, in this connection, "Any other view concerning Jenifer's discharge would permit an employer to frustrate concerted activity at its inchoate stage and make a mockery of the guarantees of Section 7 of the Act." On that basis, the Board found that she was discharged because she had engaged in concerted activity, and that therefore the discharge violated the Act, despite the fact that the company at the time of her discharge did not know Mrs. Jenifer had been thus engaged in such activity. Chairman Herzog dissented, saying: "I cannot believe that Jenifer's remarks constituted the sort of concerted activity which Congress intended this Board to protect." We agree with him.

Doubtless an employee's remark, which otherwise would justify a discharge, may be made in a context of concerted activity with the result that the discharge of that employee for that remark is unlawful under the Act — provided the employer knows of that context at the time of the discharge, but not otherwise. We find it impossible to accept the Board's conclusion that here the employee was discharged "because" she "engaged in concerted activity," when the employer was wholly ignorant of that fact which the Board holds to be a cause of the discharge. Such a conclusion stretches too far the meaning of "because."

This case is unlike Cusano v. N. L. R. B., 3 Cir., 190 F.2d 898, where the company knew that the discharged employee had been engaged, before his discharge, in protected activity but attempted to justify the discharge on the ground of the company's belief that he had made a false statement about the company's profits. Although it happened that this belief was honest but mistaken, the court's decision (that the discharge was unlawful) did not turn on that fact. The court cited cases holding that, if an employer, having knowledge of the pertinent facts, violates the Act, his motives are irrelevant.

It is suggested that our decision, approving Chairman Herzog's views, will poke a large hole in the Act, since it will afford employers a good excuse for discharging employees by way of pretended ignorance of the fact that those employees were organizing a union or otherwise participating in protected conduct. But mere pretended ignorance will never serve as such an excuse. The crucial factor here is the Examiner's belief, grounded on "demeanor evidence," in the testimony of the employer's executive that he was entirely ignorant of the existence of any facts which, as a legal matter, constitute protected behavior.

We regard as in accord with our views the earlier but recent decision of the Board in Myers Products Corporation, 84 N.L. R.B. 32. There an employee, Bevan, at the time of his discharge, was in fact the spokesman for a group of employees which had been formed for their mutual protection. The employer discharged Bevan. The Trial Examiner found that the "management had no knowledge of the formation of the group when it discharged Bevan and his discharge had no...