National Labor Relations Bd. v. Whitin Machine Works

• Decision Date: 05 June 1953
• Docket Number: No. 4713.,4713.
• Citation: 204 F.2d 883
• Parties: NATIONAL LABOR RELATIONS BOARD v. WHITIN MACHINE WORKS.
• Court: U.S. Court of Appeals — First Circuit

204 F.2d 883 (1953)

NATIONAL LABOR RELATIONS BOARD v. WHITIN MACHINE WORKS.

No. 4713.

United States Court of Appeals First Circuit.

June 5, 1953.

Marcel Mallet-Prevost, Washington, D. C., Attorney (George J. Bott, General Counsel, David P. Findling, Associate General Counsel, A. Norman Somers, Assistant General Counsel and Jean Engstrom, Washington, D. C., Attorney, on brief), for petitioner.

George H. Mason, Worcester, Mass. (Vaughan, Esty, Crotty & Mason, Worcester, Mass., on brief), for respondent.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

HARTIGAN, Circuit Judge.

The National Labor Relations Board, pursuant to the National Labor Relations Act, as amended, 61 Stat. 136, 29 U.S.C.A., § 151 et seq., has petitioned this court for enforcement of its order of July 21, 1952, under § 10(e) of the Act, against the respondent Whitin Machine Works.

The respondent is a Massachusetts corporation engaged in the manufacture, sale and distribution of textile machinery at Whitinsville, Massachusetts, and employs approximately 5600 people. About 3200 of respondent's production and maintenance employees are represented by the United Steelworkers of America, CIO, and about 50 by the Patternmakers Association. The Board's jurisdiction is not contested.

In proceedings instituted by the United Steelworkers of America, CIO, the Board found that the respondent interfered with, restrained and coerced its employees in violation of § 8(a) (1) of the Act by discriminatorily discharging Raymond M. Tancrell, an accounting department employee, in violation of § 8(a) (3). The Board thereupon issued the usual order requiring respondent to cease and desist and to take certain affirmative action, including the reinstatement of Tancrell with back pay.

The sole question presented is whether substantial evidence on the record considered as a whole supports the findings of the Trial Examiner, which were adopted by the Board, that the respondent discharged Tancrell because he was attempting to organize the approximately one hundred and fifty workers in the accounting department.

When a charge is made that by firing an employee the employer has exceeded the lawful limits of his right to manage and to discipline, substantial evidence must be adduced to support at least three points. First, it must be shown that the employer knew that the employee was engaging in some activity protected by the Act. Second, it must be shown that the employee was discharged because he had engaged in a protected activity. National Labor Rel. Bd. v. Reynolds Internat. Pen Co., 7 Cir., 1947, 162 F.2d 680; National Labor Relations Board v. Citizen-News Co., 9 Cir., 1943, 134 F.2d 970; Interlake Iron Corp. v. National Labor Relations Board, 7 Cir., 1942, 131 F.2d 129. Third, it must be shown that the discharge had the effect of encouraging or discouraging membership in a labor organization. See Wells, Inc., v. National Labor Relations Board, 9 Cir., 1947, 162 F. 2d 457, 459, 460. The first and second points constitute discrimination and the practically automatic inference as to the third point results in a violation of § 8(a) (3). See National Labor Relations Board v. Gaynor News Co., 2 Cir., 1952, 197 F.2d 719, 722, certiorari granted, 1953, 345 U.S. 902, 73 S.Ct. 640; But cf. National Labor Rel. Bd. v. Reliable Newspaper Del., 3 Cir., 1951, 187 F.2d 547.

Until there is a reasonable basis in the evidence for making these findings, the employer need not excuse or justify his action. See National Labor Rel. Bd. v. Reynolds Internat. Pen Co., supra, 162 F.2d at page 690; Interlake Iron Corp. v. National Labor Relations Board, supra, 131 F.2d at page 133. When the evidence of the charging party has raised a reasonable inference of discrimination, that inference may still be rendered unreasonable by the employer's excuse or justification, see Ohio Associated Tel. Co. v. National Labor Relations Bd., 6 Cir., 1951, 192 F.2d 664, 666; Wyman-Gordon Co. v. National Labor Relations Board, 7 Cir., 1946, 153 F.2d 480, 487, so that more evidence must be produced to establish the alleged discrimination. See National Labor Relations Board v. Mylan-Sparta Co., 6 Cir., 1948, 166 F.2d 485, 490.

In order to supply a basis for inferring discrimination, it is necessary to show that one reason for the discharge is that the employee was engaging in protected activity. It need not be the only reason but it is sufficient if it is a substantial or motivating reason, despite the fact that other reasons may exist. See National Labor Rel. Bd. v. Electric City Dyeing Co., 3 Cir., 1950, 178 F.2d 980; Edward G. Budd Mfg. Co. v. National Labor R. Board, 3 Cir., 1943, 138 F.2d 86, 90, 91, certiorari denied, 1944, 321 U.S. 778, 64 S.Ct. 619, 88 L.Ed. 1071. Although the discharge of an inefficient or insubordinate union member or organizer is lawful, it may become discriminatory if other circumstances reasonably indicate that the union activity weighed more heavily in the decision to fire him than did dissatisfaction with his performance. Motivation is an elusive fact, and this gives rise to the difficulty of assessing the strength of the inference that Tancrell was fired because of his union activity.

There is ample evidence in this case that respondent was aware that Tancrell was active in a concerted movement among the clerks and office workers of the respondent's accounting department. Sometime in February of 1951, about two months before Tancrell's discharge, he was one of forty-three signers of a petition for a wage increase. The company's controller, Max F. Thompson, responded to this petition with a letter assuring the employees of the accounting department that their petition would receive sympathetic consideration and inviting them to seek individual interviews for the discussion of any particular grievances. Pursuant to this general invitation, Tancrell sought and obtained an interview with Thompson on the day following publication of the letter. During this interview, Thompson indicated his dissatisfaction over the fact that Tancrell, whom he considered as a supervisor, should have found it necessary to resort to "group activity," in concert with subordinate employees, for the adjustment of wage grievances. Thompson testified that thirty of the forty-three petitioners were given increases shortly after their request, and twelve others received raises sometime later. Besides Tancrell, there was only one other individual carrying a supervisory title who signed this petition and Thompson testified that the company looked with disfavor on the performance of this person and was trying to ease him out of his job.

Subsequently, on April 12, 1951, Tancrell solicited the aid of Mrs. Cahill, an employee in the Methods Department, whose customary duties included the compilation of names and addresses of employees for various purposes. Tancrell asked Mrs. Cahill to obtain a list of the names and addresses of employees in the Methods Department for the use of a union he was attempting to organize. There is evidence that in obtaining this list, Mrs. Cahill concealed and even misrepresented its purpose, which considerably annoyed the employees who signed and greatly disturbed the heads of the department. When Thompson discharged Tancrell on April 18, 1951, he made no mention of this incident, but alluded solely to Tancrell's failure to measure up to the standards expected of a supervisor. Respondent admits that Tancrell's participation in the unauthorized and irregular circulation of this list "accelerated" its decision to terminate Tancrell's services.

However, this admission by no means disposes of the issue of respondent's motivation because the company adduces several other reasons justifying the dismissal of Tancrell. First of all, respondent contends that Tancrell does not even come under the protection of the...