National Labor Relations Bd. v. Falls City Creamery Co.

• Decision Date: 10 November 1953
• Docket Number: No. 14794.,14794.
• Citation: 207 F.2d 820
• Parties: NATIONAL LABOR RELATIONS BOARD v. FALLS CITY CREAMERY CO.
• Court: U.S. Court of Appeals — Eighth Circuit

207 F.2d 820 (1953)

NATIONAL LABOR RELATIONS BOARD v. FALLS CITY CREAMERY CO.

No. 14794.

United States Court of Appeals, Eighth Circuit.

November 10, 1953.

Martin Sacks, Atty., National Labor Relations Board, Kansas City, Mo. (George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, Elizabeth W. Weston, and Henry Rose, Attys., all of National Labor Relations Board, Washington, D. C., on the brief), for petitioner.

Harry R. Henatsch, Omaha, Neb. (Kennedy, Holland, DeLacy & Svoboda, Omaha, Neb., on the brief), for respondent.

Before GARDNER, Chief Judge, and WOODROUGH and COLLET, Circuit Judges.

COLLET, Circuit Judge.

This cause is before this court on the petition of the National Labor Relations Board to enforce its order directed to Respondent Falls City Creamery Company of Falls City, Nebraska. Jurisdiction is not in question. The cause originated upon a complaint filed by the teamsters' union against respondent, charging acts of intimidation, threats and surveillance, designed to discourage union affiliation by its employees, and the discharge of two employees, John and William Schlicker, because of their activity in undertaking to organize a union of respondent's employees. The trial examiner found that Charles James, president of respondent, committed an act of unlawful surveillance by driving near enough to the home of William Schlicker to be recognized by employees gathered there for a union meeting on the evening of April 24, 1951; that a foreman, Gililand, had committed acts of unlawful intimidation by stating to an employee, Virginia Foster, that if she joined the union not to say anything to anyone about it, because if she did she would probably get fired; and in stating in answer to a question by Wilma Stump as to what he thought of the union movement, that he did not think there would be as much work for her if there was a union. The trial Examiner further found that John and William Schlicker were unlawfully discharged because of their activity in undertaking to establish a union. The Board adopted the findings of the examiner and issued its order requiring the reinstatement of the two employees and prohibiting acts of coercion or intimidation. Enforcement of the order is resisted upon the ground that the alleged acts of surveillance and intimidation were not unlawful and that the discharge of John and William Schlicker was not on account of any union activity on their part but was because of their misconduct. The nature of the issues presented requires a somewhat detailed recital of the facts relating to each. First, as to the charge of unlawful surveillance.

Respondent has been engaged for many years in the creamery and poultry business. There had been no union of its employees at its plant. It employs a total of approximately 80 employees. It owns and operates a number of large trucks of the semitrailer type with which cream, eggs and other produce are transported from gathering points in Nebraska and Kansas regularly, and occasionally from more distant points. At the plant in Falls City, Nebraska, butter is manufactured, eggs are candled and processed, poultry is killed and dressed, and other operations incident to a business of this type are performed. The business had been under the active management of Charles James and Earl Tubach for several years prior to the return of James' son, Robert James, from the service in 1946. About 1949 Robert James was placed in the position of actively managing the creamery business and his father relinquished active management.

During the early part of 1951, respondent's business was losing money. It was determined that the plant had to be remodeled. Charles James resumed active participation in the operation of the business and the over-all supervision of the remodeling work, although Robert remained in primary charge of its management. Charles James had final authority. In the later stages of the remodeling work it was necessary to suspend temporarily the processing of cream while the laying of concrete floors in that part of the plant was being done. Regular employees were working overtime at nights in order that the work might be completed in time to process approximately $60,000 worth of cream that had accumulated before it became necessary for it to be processed by another plant at a loss of four or five thousand dollars, or totally lost. An incident was reported to Charles James of one of the employees refusing to assist in replacing churns in position on the night of April 19, 1951. When, on the night of April 20, Charles James questioned the workman about the incident, the workman cursed him and attempted to hit him with a rock, whereupon James discharged him. The afternoon of April 20, Charles James ordered John and William Schlicker discharged. When Foreman Kelly informed William that he was discharged, William showed him a union card. Kelly reported the incident to Robert James. It was reported to Charles James by the truck foreman, Chever, that when Chever gave John Schlicker his check the evening of April 20, 1951, that Schlicker said he would be back in about three days, and directing a profane epithet¹ to Chever, said, "I got you * * * right where I want you." James testified that these incidents gave him considerable concern. He and Robert James insist that they knew nothing of any union activity on the part of the Schlicker brothers prior to the time of their discharge. The trial examiner concluded that the inference was justified that they did. Whether they did or not, which will be discussed more in detail later in connection with the question of the discharges, it is undisputed that Charles James called the employees in the candling department together on April 23, 1951, and told them in plain words that he had no objection to their forming a union if they wanted to, and that their work would not be jeopardized if they did so. James testified that because of the incidents referred to he was keeping the plant under closer observation. On the evening of April 24, 1951, he went by the plant about 7 p. m. The major part of the plant is located between Stone and Chase Streets. Both of those streets run north and south. Stone is on the east and Chase on the west side of the plant. The numbered streets run east and west. Sixth Street is on the north side of the plant. The plant is near the south edge of the town. James drove south from uptown to the plant, drove around it and was on his way back to town on Chase Street when, arriving at Tenth and Chase, he saw a number of cars parked in the middle of the block on Chase between Tenth and Eleventh and another car in the center of the street. He did not know that William Schlicker lived in the middle of the block between Tenth and Eleventh on Chase, or that a union meeting was to be held there that evening, but he was curious and thought there might be a union meeting in progress. We may assume, since the trial examiner was justified in so inferring, that James desired to see whether it was a union meeting. Instead of proceeding north on Chase Street, past William Schlicker's home, he turned east on Tenth Street to Stone, then north on Stone Street to Eleventh, then west on Eleventh. Driving slowly he crossed Chase Street, proceeded on west one block, then south to Tenth, and back east on Tenth to Stone. James testified he then went north on Stone Street uptown. William and John Schlicker and other employees were in the front yard of William's home and saw James as he passed the Tenth and Eleventh Street intersections with Chase Street. William says he passed those intersections at least six times. John put the number at four or five. The time was fixed at about 7:30 p. m. It was not dark but did get dark about 8:00. The closest James was to the Schlicker place was approximately 150 feet. Chase and Stone Streets were well traveled streets on a direct route from the plant to the business part of the town. There was no evidence of previous hostility toward the union. If there had been union hostility or there was evidence of planned espionage, the conduct of James might constitute sufficient evidence to justify the conclusion that it would have caused employees concern and interfered with their freedom in engaging in union activities, as we have held. National Labor Relations Board v. Laister-Kauffmann Aircraft Corp., 8 Cir., 144 F.2d 9; National Labor Relations Board v. Brashear Freight Lines, 8 Cir., 119 F.2d 379. But assuming the fact to be, as the examiner found, that James was "somewhat interested in what the crowd was doing and that he suspected that a union meeting was in progress," an isolated instance of observation merely to find out what was going on without something to indicate that the information sought to be obtained was to be used to the disadvantage of the employees, or that the conduct was, in view of all surrounding circumstances, such that the employees might reasonably assume the observation would result to their detriment, there could be no restraint, and hence no unlawful surveillance. The Board and the trial examiner misconceived the legal effect of the facts and circumstances shown in finding unlawful surveillance.

Several charges of unlawful intimidation were presented. Two were sustained by the trial examiner and the Board. One of those two was that Gililand, foreman of the candling department, told Virginia Foster, about the middle of May, 1951, as heretofore indicated, "not to say anything to anyone if she had joined the union, or if she hadn't, because if she did, she would probably get fired." Gililand denied making the statement. The Board found the testimony of the witness Foster the more credible. It is the prerogative of the Board to weigh the evidence. Under these circumstances the evidence is sufficient to sustain the Board's finding that the statement was made. And if it was made it was an...