National Labor Relations Bd. v. Bar-Brook Mfg. Co., 14971.
| Decision Date | 09 May 1955 |
| Docket Number | No. 14971.,14971. |
| Citation | 220 F.2d 832 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BAR-BROOK MANUFACTURING COMPANY, Inc., Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
George J. Bott, General Counsel, Melvin Spaeth, Elizabeth W. Weston, Atty. N.L.R.B., A. Norman Somers, Marcel Mallet-Prevost, Assts. Gen. Counsel, David P. Findling, Associate Gen. Counsel. N.L.R.B., Washington, D. C., for petitioner.
Samuel Lang, New Orleans, La., Philip Goode, Shreveport, La., Kullman & Lang, New Orleans, La., for respondent.
Before HUTCHESON, Chief Judge, BORAH, Circuit Judge, and DAWKINS, District Judge.
This proceeding is before this court upon the petition of the National Labor Relations Board for enforcement of its order, issued against respondent on June 17, 1953, as amended on February 3, 1954, reported at 105 N.L.R.B. No. 89.
The Board found that respondent violated Section 8(a) (1) and (5) of the Act, 29 U.S.C.A. § 158(a) (1, 5), by refusing to recognize and bargain with Local 79, International Brotherhood of Boilermakers, Iron Ship Builders and Helpers of Amerca, A. F. L., even though this Union had been elected and certified as the statutory representative of respondent's employees. In addition, the Board found that respondent independently violated Section 8(a) (1) of the Act by threatening employees with reprisals unless they ceased their union activity.
The respondent contests enforcement of the order based upon the findings, that respondent "violated Section 8(a) (1) of the Act by threatening employees with reprisal unless they ceased their union activities", upon the ground that the findings of the trial examiner adopted by the Board as to the conduct of and remarks made by Plant Superintendent Swor and Foreman Steiner are not supported by substantial evidence and, if they are, they do not in law constitute violations of Section 8(a) (1) of the Act.
It contests enforcement of the finding and order, that respondent violated Section 8(a) (1) (5) by refusing to recognize and bargain with the duly elected and certified representative of respondent's employees, on the ground that the certification upon which the Board's order is based is invalid because: (a) the Board's determination that seasonal workers were eligible to vote in the election as members of the unit was arbitrary and capricious; (b) the election was invalidated by the conduct of members of the union which had been brought to the attention of the Board both before and after the election; and (c) the conduct of the representation proceedings violated the National Labor Relations Act, the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq., and its own rules and regulations resulting in a denial of due process and a fair trial.
The Board vigorously opposing these contentions, is here insisting by brief and oral argument: that the record fully supports examiner's findings as to the unfair labor practices charged; that the election was fairly and properly conducted; and that respondent's objections to it are without merit and were properly rejected by the board.
We agree with the Board that this is so. A careful reading of the examiner's intermediate report demonstrates, we think, that instead of presenting the picture, sometimes presented by some intermediate reports, of an examiner uniformly crediting the witnesses for the general counsel and as uniformly discrediting those for the respondent, the report shows, a careful and studied consideration of the evidence, an equally careful weighing of credibility and appraisement of the effect of the evidence, and considered conclusions impartially arrived at.
To the extent, then, that the respondent's attack is upon the examiner's determinations as to the credibility of the witnesses and the facts established on the record, its attack upon them must be rejected as unmeritorious. To the extent that the attack is upon the legal sufficiency of the evidence, in the light of the claim of privilege, with respect to the remarks made by Foreman Steiner and of the claim that the incidents were too isolated, we think it was well within the legal competency of examiner and Board to make the determinations they did in both of those respects. The objections to the findings, that there have been 8(a) (1) violations, are...
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