National Labor Relations Board v. Williamson-Dickie Mfg. Co.

• Decision Date: 23 July 1942
• Docket Number: No. 10200.,10200.
• Citation: 130 F.2d 260
• Parties: NATIONAL LABOR RELATIONS BOARD v. WILLIAMSON-DICKIE MFG. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

130 F.2d 260 (1942)

NATIONAL LABOR RELATIONS BOARD v. WILLIAMSON-DICKIE MFG. CO.

No. 10200.

Circuit Court of Appeals, Fifth Circuit.

July 23, 1942.

Robert B. Watts, Gen. Counsel, Ernest A. Gross, Associate Gen. Counsel, and David Findling, Atty., National Labor Relations Board, all of Washington, D. C., for petitioner.

Sidney L. Samuels, of Fort Worth, Tex., for respondent.

Before HUTCHESON, HOLMES, and McCORD, Circuit Judges.

HUTCHESON, Circuit Judge.

Williamson-Dickie Manufacturing Company is a Texas corporation engaged in Fort Worth in the manufacture of men's and boys' work pants, shirts, coveralls, and overalls. Upon charges of the Amalgamated Clothing Workers of America, the National Labor Relations Board, on February 11, 1941, issued its complaint against the Company charging it with unfair labor practices in violation of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C.A. § 151 et seq. The complaint charged that respondent, had in violation of Section 8(1)¹ of the Act, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed to them by Section 7 of the Act, and had in violation of Section 8(3)² of the Act, discriminatorily discharged four employees, Donald Travis Dean, Joyel Esteene Foreman, Charles William Phillips, and Phillip Tony Meek.

The Company made specific denial of the material allegations of the complaint. On March 1, 1940, a hearing was held at Fort Worth before a Trial Examiner. At the conclusion of the hearing the Examiner made findings of fact and conclusions of law, and held that the Company was guilty of the unfair labor practices alleged, save and except as to the discharge of Charles William Phillips. The Board affirmed these findings and conclusions except as to Phillips. It found that all four employees named in the complaint had been discriminatorily discharged because of and to discourage membership in a labor organization, and that by such discrimination the respondent had discouraged membership in the union, and had been guilty of the unfair labor practice denounced in Section 8(3). It further found that by statements of certain supervisory employees, and by the granting of a well-timed wage increase on August 30, 1940, the Company had interfered with, restrained, and coerced its employees in violation of Section 8(1). The Board accordingly ordered the Company to cease and desist from its unfair labor practices, to offer reinstatement with back pay to the four discharged employees, and to post appropriate notices of compliance. This petition for enforcement of those orders, thus presents two aspects. One has to do with violation of Section 8(1) the subject of the cease and desist orders, the other, with violation of Section 8(3), the subject of the orders to take affirmative action. As to the first, the evidence shows that the respondent issued strict orders against circulation of union literature on company time and on mill property, and required of all employees, supervisory as well as others, strict compliance with the rule against discussing the union while employees were at work in the plant. There is evidence too that it was itself endeavoring to comply, and to compel its employees³ to comply with the provisions of the National Labor Relations Act, prohibiting it from encouraging or discouraging labor organizations or membership in them, and from interfering with the right of their employees to self-organization, from which the Board could have found that no case of interference, restraint, and coercion, in violation of Section 8(1) of the Act, was made out. The Board however found that by various anti-union statements of supervisory employees and by acts and attitudes, including the sudden granting of a wage increase, respondent interfered with, restrained and coerced its employees, in violation of Section 8(1) of the Act. Taking the evidence as a whole we cannot say that these findings are without support in the evidence. The Board's orders to cease and desist from such practices will therefore be enforced.

As to the second aspect of the petition, the enforcement of the affirmative orders requiring reinstatement of those discharged, we think it clear that the findings that the discharges were discriminatory within the meaning of Section 8(3), are without support in the evidence. Enforcement of these orders will therefore be denied.

Because of the highly explosive character of the controversies arising under the National Labor Relations Act and its enforcement, there has been much looseness and confusion of thought and language in its enforcement not only as to the meaning and effect of the section of the statute in question here, defining and prohibiting the unfair labor practice of discriminatorily discharging, to encourage or discourage union membership but also as to the function of the Board as champion not only against discriminatory discharges but against discharges for cause of any members of a union whose cause, as accuser, the Board has actively espoused.⁴ The result has been an interpretation of the statute not only in union pronouncements⁵ but by employees and agents of the Board and sometimes as here, an application of it by Examiner, and Board, as a barrier not against discriminatory discharges of union men but against any discharge for a cause not deemed sufficient by Examiner or Board. Because this is so, we think it well to here restate the principles controlling the decision of this case before making their application to its facts.

"* * * As between employer and employee the statute confers no right of action triable by a jury or otherwise. No provision in it authorizes an employee to make claim. The act does not purport to confer, it does not confer, private rights. * * * The procedure the statute outlines is not designed to award, the orders it authorizes do not award, damages as such. The proceeding is not, it cannot be made, a private one to enforce a private right. It is a public procedure, looking only to public ends. The statute has in mind the maintenance and furthering of industrial amity, and therefore peace, the prevention of industrial war. * * * The statute authorizes reparation orders not in the interest of the employee, but in the interest of the public. A cease and desist order operating retrospectively is not a private award * * *. It is a public reparation order, operating retrospectively by way of an order to cease and desist as to unfair practices, from their beginning; practices as to which, because forbidden in the interest of industrial amity, and therefore peace, Congress has the right to eradicate them as from the beginning." Agwilines, Inc., v. N.L.R.B., 5 Cir., 87 F.2d 146, at page 150, 151. "* * * Orders for reinstatement of employees with back pay are somewhat different. They may impoverish or break an employer, and while they are not in law penal orders, they are in the nature of penalties for the infraction of law. The evidence to justify them ought therefore to be substantial, and surmise or suspicion, even though reasonable, is not enough. * * * So far as the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., goes, the employer may discharge, or refuse to reemploy for any reason, just or unjust, except discrimination because of union activities and relationships." N. L. R. B. v. Tex-O-Kan Mills, 5 Cir., 122 F.2d 433, at page 438. (Italics supplied.)

In N. L. R. B. v. Riverside Mfg. Company, 5 Cir., 119 F.2d 302, at page 307, we said of a discharge: "The only facts found which at all tend to support the Board's conclusion that he was discharged for union activity are that he was a member of the union, and the management did not like the union or his belonging to it, and had said so. If real grounds for discharging him had not been shown, or if he had been discharged for trivial or fanciful reasons, these facts would have supported an inference that he was discharged for union activity, but when the real facts of the discharge appear, these facts are stripped entirely of probative force. For it is settled by the decisions that membership in a union is not a guarantee against discharge, and that when real grounds for discharge exist, the management may not be prevented, because of union membership, from discharging for them."

In respect of the unfair practices in question the controlling fact question is whether the evidence supports the ultimate findings that the employees in question were discriminated against, that is, were treated differently from employees similarly situated, in order to discourage membership in a labor organization. The Examiner has found that three of the employees were, that one was not, the Board that all four were discriminatory discharged. The respondent insists that there is no evidence whatever that there were any employees situated as these were, except as to membership in the union, who, notwithstanding the similar circumstances, were retained in respondent's employ, and therefore none that the employees in question were discriminatory discharged. We agree with respondent.

The record will be searched in vain to find any resemblance between the cases of the four employees who were discharged and the cases of any of those not discharged upon which an inference that the discharges were discriminatory could be based. It will be searched in vain too for any evidence either that no non-union members, or more union that non-union members were discharged within the same period. Quite to the contrary it shows that great numbers of non-union employees were discharged during the same period, whether for cause or, as the union bulletin quoted in the preceding note says, without cause, the record does not show. But it does show that a great many more non-union than union employees were discharged in this period. It shows too, as the findings do, positively and without dispute, the circumstances under which the four were discharged,...