National Labor Relations Board v. McGahey

• Decision Date: 18 May 1956
• Docket Number: No. 15691.,15691.
• Citation: 233 F.2d 406
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. T. A. McGAHEY, Sr., T. A. McGahey, Jr., Mrs. Altie McGahey Jones and Mrs. Wilda Frances McGahey Harrison, doing business as Columbus Marble Works, a Partnership, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

233 F.2d 406 (1956)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. T. A. McGAHEY, Sr., T. A. McGahey, Jr., Mrs. Altie McGahey Jones and Mrs. Wilda Frances McGahey Harrison, doing business as Columbus Marble Works, a Partnership, Respondents.

No. 15691.

United States Court of Appeals Fifth Circuit.

May 18, 1956.

Rosanna A. Blake, Atty., N. L. R. B., Marcel Mallet-Prevost, Asst. Gen. Counsel, Theophil C. Kammholz, Gen. Counsel, David P. Findling, Associate Gen. Counsel, Norton J. Come, Atty., N. L. R. B., Washington, D. C., for petitioner.

W. J. Threadgill, Columbus, Miss., W. Gordon McKelvey, Nashville, Tenn., John H. Holloman, Columbus, Miss., for respondents.

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

BROWN, Circuit Judge.

This Petition to enforce the order of the Board against Columbus Marble Works presents the usual contention, controversy, disagreement and dispute. It begins with the Employer¹ challenging the basic legality of the Board's order² because the Charge, upon which the complaint had to rest, was not served upon each of the members of the Employer-partnership. The Employer's argument is that since the 1947 Act put a six-months' pre-Charge time limit³ on Complaints and Orders, the whole process depends on service of such Charge in strict accordance with the Act.

The original Charge against Columbus Marble Works, October 27, 1952, and the Amended Charge of December 19, 1952, were each served by registered mail addressed to Columbus Marble Works, Columbus, Mississippi, and receipted for by an authorized mail clerk. The ruling figure of this enterprise "President", T. A. McGahey, Sr., had actual knowledge of the receipt of this Charge and undertook by a letter as "President" to detail the Company's position why the discharge of Ferguson and Hollinger was lawful. But none of the partners was listed by name, and in the original Complaint filed June 9, 1953, only the two McGaheys were listed as the partners "d/b/a Columbus Marble Works, a Partnership." The remainder of the family partners were not formally brought in until an Amendment to the Complaint January 4, 1954, on the eve of the hearing.

Conceding, as they must, that registered mail as a means or method is expressly⁴ permitted the Employer contends that such service must be upon, and hence must be mailed to, the "person against whom such charge is made" which in Mississippi is each of the partners since the entity has no status to sue or be sued, Blackwell v. Reed, 41 Miss. 102; Tabler v. Bryant, 62 Miss. 350; Enochs-Flowers v. Bank of Forest, 172 Miss. 36, 157 So. 711, 159 So. 407; American Jurisprudence, Vol. 40, Partnerships, Section 434, page 432.

But this ignores, we think, the intrinsic definition⁵ of "person" which plainly includes a partnership. The Act is fulfilled where the registered notice is sent to that person — the partnership addressed under its usual business name — where, as is so evident here, it was actually received and brought to the attention and active consideration of those in responsible direction of the partnership's business affairs. The objective of the Charge and the six-months' time limitation on it is to give notice when time, the freshness of the events, and the availability of witnesses afford some practical means of refutation, explanation, and defense. When that aim is satisfied in substantial fact, a technical procedural imperfection will not invalidate the whole proceeding. Olin Industries, Inc. v. N. L. R. B., 5 Cir., 192 F.2d 799, certiorari denied 343 U.S. 919, 72 S.Ct. 676, 96 L.Ed. 1332; N. L. R. B. v. Westex Boot and Shoe Co., 5 Cir., 190 F.2d 12. The service of the Charge was therefore adequate.

When it comes to the merits of the claim of Section 8(a) (1) interference, we think that the Board's order must be enforced. This results from the nature of our function in the review of these cases. We may, and do, exact compliance with the standard that the Board's conclusion must be substantiated by trustworthy substantial evidence on the record taken as a whole, N. L. R. B. v. Riverside Mfg. Co., 5 Cir., 119 F.2d 302; N. L. R. B. v. Williamson-Dickie Mfg. Co., 5 Cir., 130 F.2d 260; N. L. R. B. v. Huber & Huber Motor Express, Inc., 5 Cir., 223 F.2d 748; N. L. R. B. v. C. & J. Camp, Inc., 5 Cir., 216 F.2d 113; N. L. R. B. v. National Paper Co., 5 Cir., 216 F.2d 859; N. L. R. B. v. Houston Chronicle Publishing Co., 5 Cir., 211 F.2d 848; N. L. R. B. v. Blue Bell, Inc., 5 Cir., 219 F.2d 796, but we are not the factfinder whose function it is to accept or reject, credit or discredit, conflicting versions of factual events and the inferences to be drawn from them. N. L. R. B. v. Poultry Enterprise, Inc., 5 Cir., 207 F.2d 522; N. L. R. B. v. Goodyear Tire & Rubber Co., 5 Cir., 129 F.2d 661, certiorari dismissed 319 U.S. 776, 63 S.Ct. 1026, 87 L.Ed. 1723; Jacksonville Paper Co. v. N. L. R. B., 5 Cir., 137 F.2d 148, certiorari denied 320 U.S. 772, 64 S.Ct. 84, 88 L.Ed. 462; N. L. R. B. v. Coats & Clark (Acworth Plant), 5 Cir., 231 F.2d 567; N. L. R. B. v. Nabors, 5 Cir., 196 F.2d 272; N. L. R. B. v. Russell Mfg. Co., 5 Cir., 191 F.2d 358.

In this light, with testimony from many employees of persistent interrogation by McGahey, Sr. concerning their views on the question of unionizing the plant and the statements attributed to McGahey, Sr. showed, if credited, a purpose to interfere with employees' rights.

This is not to penalize the employer because of antiunion bias for we recognize that antiunion bias, strong convictions against unions or opposition to the underlying philosophy of the Labor Management Relations Act is not itself an unfair labor practice. In a free democracy, it is the citizen, not the Government, who fixes his own beliefs. The personal views of McGahey, or his colorful, forceful means of expression, do not, unless voiced in manner or circumstance warranting the inference of a purpose to thwart, impede or discourage the plain and statutory rights of employees, violate the law, or infuse power in the Board to coerce a change of heart. N. L. R. B. v. Goodyear Tire & Rubber Co., supra; N. L. R. B. v. Williamson-Dickie Mfg. Co., supra; Jacksonville Paper Co. v. N. L. R. B., supra; N. L. R. B. v. Riverside Mfg. Co., supra. McGahey must, of course, obey the law, but he need not believe in it. He may carry the McGahey beliefs to a McGahey-marked grave.

Nor is it to punish the employer because McGahey made inquiries whether the employees did or did not desire union representation. This is permissible under the Act. Had these been casual, moderate inquiries by McGahey unrelated to evidence indicating that employees had ground to consider them as forecasting reprisals, these acts would not have been an unfair labor practice. N. L. R. B. v. Blue Bell, Inc., supra; N. L. R. B. v. Nashua Mfg. Corp. of Texas, 5 Cir., 218 F.2d 886, citing with approval N. L. R. B. v. Montgomery Ward & Co., 2 Cir., 192 F.2d 160; N. L. R. B. v. Arthur Winer, Inc., 7 Cir., 194 F.2d 370; Sax v. N. L. R. B., 7 Cir., 171 F.2d 769. But interrogation becomes unlawful when it is a part of the means by which the employer's hostility carries with it the purpose to retaliate against Union sympathizers and, by threat of job or other reprisals, coerce them into a vote of action which does not express their free will.

The open threat to Hartley⁶ to shut down the plant, especially when coupled with comparable menacing predictions made to Hollinger,⁷ was ample, if believed, to sustain the conclusion that the employer was undertaking to discourage the employees in exercising rights secured to them by the Act. N. L. R. B. v. Rutter-Rex Mfg. Co., 5 Cir., 229 F.2d 816; N. L. R. B. v. Coats & Clark (Acworth Plant), supra; N. L. R. B. v. Denton, 5 Cir., 217 F.2d 567; N. L. R. B. v. Nabors, supra; N. L. R. B. v. Poultry Enterprises, Inc., supra; N. L. R. B. v. Nashua Mfg. Corp., supra; N. L. R. B. v. Williamson-Dickie Mfg. Co., supra.

But the claim of an 8(a) (3) unlawful discharge of Ferguson, a shipping clerk, and Hollinger, a crane operator, stands quite differently. The finding of 8(a) (1) guilt does not automatically make a discharge an unlawful one or, by supplying a possible motive, allow the Board, without more, to conclude that the act of discharge was illegally inspired. Indeed, we have frequently sustained 8(a) (1) charges while rejecting those under 8(a) (3), N. L. R. B. v. Riverside Mfg. Co., supra; N. L. R. B. v. Williamson-Dickie Mfg. Co., supra; N. L. R. B. v. Goodyear Tire & Rubber Co., supra; N. L. R. B. v. Coats & Clark (Acworth Plant), supra; N. L. R. B. v. Russell Mfg. Co., supra; N. L. R. B. v. Denton, supra.

The Board found Ferguson was discharged for union activities on Ferguson's testimony that some time prior to September 22, Cox, the superintendent, cautioned Ferguson against his talking so much for the union and, confirming his discharge, expressed regret that McGahey had taken such action although Cox had, he reminded Ferguson, warned him against that likelihood if he did not change his ways.

The Board's finding of an 8(a) (3) discharge of Hollinger, an ordinary crane operator, rested solely on Hollinger's testimony concerning the event described in note 7 and that occurring on the day of his discharge, October 6, when he sought explanation⁸ from McGahey, Sr.

The employer acknowledged the layoffs (or discharges) but had quite different reasons. Ferguson was the victim, not of antiunionism, but really of nepotism. He lost out because a close relative of the partners, Whitten, who in prewar years had been the shipping clerk, was proving himself to be unsuccessful as a traveling salesman, and a job had to be found for him when the employer took him off the road. McGahey and Jones (the husband of one of the partners) decided to give him Ferguson's job since, for the reasons discussed in Hollinger's case, business was slack and the plant could not take on an additional man.

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