National Labor Relations Bd. v. Lamar Creamery Co., 16361.

• Decision Date: 21 June 1957
• Docket Number: No. 16361.,16361.
• Citation: 246 F.2d 8
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LAMAR CREAMERY COMPANY, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

246 F.2d 8 (1957)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LAMAR CREAMERY COMPANY, Respondent.

No. 16361.

United States Court of Appeals Fifth Circuit.

June 21, 1957.

Kenneth C. McGuiness, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Owsley Vose, Edward D. Friedman, Attys., N. L. R. B., Stephen Leonard, Asso. Gen. Counsel, Washington, D. C., for petitioner.

J. F. McLaughlin and O. B. Fisher of Fisher, McLaughlin & Harrison, Paris, Tex., for respondent.

Before RIVES, JONES and BROWN, Circuit Judges.

RIVES, Circuit Judge.

This petition is for enforcement of an order of the National Labor Relations Board reported in 115 N.L.R.B. 1113.¹ The Board found that, in denying employment to Elmer Clyde Owen, respondent violated Section 8(a) (1), (3), and (4) of the Act.² It found that the controlling motivations for respondent's action were that it believed that Owen had been an active union member, and that he had recently given testimony against a former employer in an unfair labor practice proceeding.

Respondent, opposing enforcement of the Board's order, insists: I., that its finding that respondent denied employment to Owen because he had so testified against his former employer, or because he was an active union member, is not supported by substantial evidence on the record considered as a whole; II., that Section 8(a) (1) and (3) of the Act are not applicable, and that Section 8(a) (4) does not extend to the hiring of applicants for employment; III., that the Board erred in refusing to permit testimony that respondent had sold its plant; and, IV., that the order of the Board and the notice required to be posted are too broad in scope.

No useful purpose would be served by detailing the evidence already set forth at length in the report of the Board's decision and order, and which convinces us that its findings are supported by substantial evidence on the record considered as a whole.

We agree heartily with the sentiment recently expressed by the Second Circuit that,

"Unless there is a clear Congressional mandate to the contrary the Board should be required to utilize every resource at its command to protect witnesses * * * who have been placed in jeopardy because the Board has required them to appear and give testimony." Pedersen v. National Labor Relations Board, 234 F.2d 417, 420.

We can see no sufficient reason to deny application to the facts of this case of Sections 8(a) (1) and 8(a) (3) of the Act. This Court is already committed to the proposition that "the word `employee' is broad enough to include, and does include, a job applicant who is discriminately denied employment in violation of § 8(a) (3)." National Labor Relations Board v. George D. Auchter Co., 5 Cir., 209 F.2d 273, 277. Nor, in view of the underlying purposes of the Act, and of the broad definition of "employee" in Section 2(3)³, see Phelps Dodge Corporation v. National Labor Relations Board, 313 U.S. 177, 191-192, 61 S.Ct. 845, 85 L.Ed. 1271, do we have any difficulty in agreeing with the District of Columbia Circuit that an applicant for employment should be treated as an "employee" within the meaning of Section 8 (a) (4). John Hancock Mutual Life Ins. Co. v. National Labor Relations Board, 89 U.S.App.D.C. 261, 191 F.2d 483, 485. We further agree with that decision that the words "or otherwise discriminate" as used in that subsection include discrimination in regard to the hiring of an employee. To the same effect, see National Labor Relations Board v. Syracuse Stamping Co., 2 Cir., 208 F.2d 77, 80.

After the Board had ordered a further hearing before the Trial Examiner limited to additional cross-examination of Owen by the respondent, the respondent offered to prove that it had gone out of business and had sold all of its assets. The Trial Examiner, however, refused to receive any evidence upon the subject of the sale. If the Board's order has become impossible of enforcement by reason of such claimed changed conditions, that is a matter for later proof before the Board, and its consideration at this time is premature. National Labor Relations Board v. Talladega Cotton Factory, 5 Cir., 213 F.2d 209, 217-218, 40 A.L.R.2d 404.

The Board found but one narrow unfair labor practice or violation of the Act, namely, that respondent refused to hire Owen because he had given testimony under the Act or because of union membership or union activities. Part 1 (b) of its Order,⁴ is not supported by the findings, is too broad, and as to that part of the order we deny enforcement. See National Labor Relations Board v. Express Publishing Co., 312 U.S. 426, 433, 61 S.Ct. 693, 85 L.Ed. 930; May Dept....