National Labor Relations Bd. v. National Paper Co.

• Decision Date: 16 November 1954
• Docket Number: No. 14945.,14945.
• Parties: NATIONAL LABOR RELATIONS BOARD, v. NATIONAL PAPER COMPANY, Southern Detectives, Inc. and James M. Fier.
• Court: U.S. Court of Appeals — Fifth Circuit

216 F.2d 859 (1954)

NATIONAL LABOR RELATIONS BOARD, v. NATIONAL PAPER COMPANY, Southern Detectives, Inc. and James M. Fier.

No. 14945.

United States Court of Appeals Fifth Circuit.

November 16, 1954.

John S. Patton, Atty. N. L. R. B., Atlanta, Ga., A. Norman Somers, Asst. Gen. Counsel, David P. Findling, Associate Gen. Counsel, George J. Bott, Gen. Counsel, Bernard Dunau, Robert G. Johnson, Attys, N. L. R. B., Washington, D. C., for petitioner.

Frank A. Constangy, John M. Slaton, M. A. Prowell, Atlanta, Ga., for National Paper Co., for respondent.

Hugh Howell, Hugh Howell, Jr., Atlanta, Ga., for Southern Detectives, Inc., and James M. Fier.

Before HUTCHESON, Chief Judge, and RIVES and TUTTLE, Circuit Judges.

RIVES, Circuit Judge.

The Board petitions for enforcement of its order issued against respondents on February 24, 1953, based on findings that respondent, National Paper Company (hereinafter called National), violated Section 8(a) (1) of the Act, 29 U.S.C.A. § 158(a) (1), by threatening its employees with discharge for union membership, promising them benefits if they renounced the union, and otherwise unlawfully interrogating them as to their union activities; that respondent National had further violated Sections 8(a) (3) and (1) of the Act by discharging an employee, Dorothy Cole, because she joined the union; and had refused to bargain with the union in good faith, in violation of Section 8(a) (5) and (1) of the Act. The Board further found that respondents National and Southern Detectives, Inc. (hereinafter called Southern) had jointly engaged in unlawful interference and restraint of National's employees, in violation of Section 8(a) (1) of the Act, by subjecting them to coercive surveillance by armed guards during an impasse in bargaining negotiations culuminating in a strike; and finally, that all three respondents were jointly responsible for certain threatening and insulting telephone calls found to have been made during the strike to National employee Jewell Sanders by one of the armed guards, the individual respondent Fier, in further violation of Section 8(a) (1) of the Act. See 29 U.S.C.A., § 151 et seq. The decision and order of the Board are reported at 102 N.L.R.B. 1569.

Respondent National is a Georgia corporation with its principal office in Atlanta, Georgia, where it is engaged in the processing and sale of paper products. In January, 1951, the union¹ undertook to organize National's employees. At a Board-conducted election held on March 15 the union prevailed, and on March 27 it was certified as the exclusive bargaining representative for the 67 employees in the unit.

I. The Board's findings of interference and restraint.

Bargaining conferences were begun on May 14, and there is some testimony, credited by the Trial Examiner and the Board, that while negotiations were being held National's superintendent Elliott told employees, Pritchard and Keith, that they "would have already had a raise" but for the advent of the union in the plant, and that he would guarantee their jobs if they would withdraw from the union, but that if they ever "walked out" they would not "have a job back in the plant." According to further testimony, another employee, Harry Hall, whose authority to bind respondent National is strongly disputed, told a then recently hired worker, James Heard, that it was "a pretty good thing" he did not belong to the union, or he would not "have a job any more".

The above recited testimony incorporates substantially all of the probative evidence upon which the Board's findings of interference and restraint may lawfully be based,² though admittedly there is other credited testimony properly referable to the refusal to bargain charge which purports to quote remarks by Superintendent Elliott to employees Smith, Sanders, and Cole to the effect that National's president, Wellhouse, would never sign a contract with the union. Elliott denied making these statements, and both he and Wellhouse further denied making any remarks concerning Wellhouse's aversion to an agreement with the union, though their testimony was rejected by the Trial Examiner and Board. Elliott testified affirmatively that, in order to dissipate a rumor circulated by the union in June, 1951, to the effect that National would discharge any employee who withdrew from the union for prior activity in its behalf, he informed the employees that, whether they renounced the union or not, "they wouldn't lose their job as long as anyone come there and did their work, * * * that they could feel safe." Credibility of the witnesses was primarily for the Trial Examiner's determination, and if we accord to his Intermediate Report and to the Board's findings based thereon the usual presumption that the Examiner had the best opportunity to hear and observe the witnesses and to judge of their credibility, we would hold that the Board's findings of interference and restraint are supported by substantial evidence. For reasons hereafter to be stated, we cannot in this case accord to the Examiner's report and the Board's findings based thereon the full measure of the usual presumption of correctness.

II. The discharge of Dorothy Cole.

Of the 67 employees in the bargaining unit, Dorothy Cole is the only one³ claimed to have been discriminatorily discharged prior to the strike. She was hired on a trial basis on July 26, 1951, along with another probationary employee, Rachel Wood. After a trial period lasting for approximately 14 working days she was discharged, according to Superintendent Elliott, for inefficiency and inability to learn her job. It is undisputed that the other employee, Rachel Wood, who had been hired at the same time and on the same trial basis as Cole, was not discharged prior to the strike, though she was also a union member.

The Board found that Cole's joining the union actually precipitated her discharge, and that respondent's claim as to her inefficiency was but a pretext in view of testimony by Cole and other union members "that Elliott expressed satisfaction with her work". On the basis of this record, however, it seems to us that the validity of the Board's finding and reinstatement order as to Cole hinges mainly upon the sufficiency of the evidence to impute knowledge of Cole's union membership to respondent, in view of the settled principle that at least some legally justifiable inference of employer knowledge of a dischargee's union membership is an essential prerequisite to a valid finding of discriminatory discharge therefor. See N. L. R. B. v. Whitin Machine Works, 1 Cir., 204 F.2d 883, 884; Tampa Times Co. v. N. L. R. B., 5 Cir., 193 F.2d 582, 583; N. L. R. B. v. Westinghouse Electric Corp., 6 Cir., 179 F.2d 507. The evidence fails to show that Cole's union affiliation was brought to respondent's attention during her short tenure at the plant other than on the basis of pure inference and suspicion, in the manner hereinafter set forth.

In respondent National's behalf, Superintendent Elliott testified positively that he had no knowledge of Cole's union membership until he saw her with Rachel Wood on the picket line during the strike of August 16th, which took place two days subsequent to Cole's discharge, though his testimony was not credited by the Board. However, it is conceded that both the Trial Examiner and the Board inferred respondent's knowledge of Cole's union adherence from a conversation between another employee, Jewell Sanders, and the owner of a local restaurant, in which Sanders stated in the presence of a National supervisor, Scarborough, that Cole had joined the union, which information the Trial Examiner "reasonably inferred" was communicated to Superintendent Elliott and prompted her discharge, in spite of Scarborough's testimony denying the incident and his uncontradicted denial of having heard the alleged conversation, and despite further denials both by him and Elliott that he ever reported any such information concerning Cole. A majority of the Board, apparently recognizing the weakness of the Trial Examiner's inference as to respondent National's knowledge of Cole's union membership in view of the testimony of Scarborough and Elliott, sought support in stating that "Respondent's plant complement was so small as to justify the inference that the union activities of its employees generally, including those of Cole, came to the notice of higher management officials."⁴ Testimony which requires the pyramiding of so many inferences in order to sustain a finding of a discriminatorily motivated discharge cannot legitimately substitute for that "substantial evidence" essential to enforcement of a Board order. Accordingly, the Board's findings and order as to the discriminatory discharge of this employee must be denied enforcement.⁵ N. L. R. B. v. Shen-Valley Meat Packers, 4 Cir., 211 F.2d 289; N. L. R. B. v. Falls City Creamery Co., 8 Cir., 207 F.2d 820; N. L. R. B. v. Radcliffe, 9 Cir., 211 F.2d 309.

III. The Board's findings of respondent National's refusal to bargain and the resulting strike.

Following the union's certification on March 27, 1951, only three bargaining conferences were held before the strike of August 16th. The testimony is in conflict as to the progress made at the meetings of May 14, June 8, and August 4, the Board contending it shows that National made only minor and illusory concessions, and rendered the consummation of any agreement impossible through its adamant refusal to consider or grant any wage increase or "fringe benefits"⁶ demanded by the union. National, however, while conceding that it has consistently, though justifiably, refused to submit to the union's equally stubborn insistence upon a wage increase and other monetary demands, vigorously protests the validity of the Trial Examiner's conclusion that, by such refusal, it has refused to bargain in good faith, as well as the Board's finding that it "approached the conference table with a...