National Labor Relations Board v. Armour & Co.

• Decision Date: 25 June 1954
• Docket Number: No. 14821.,14821.
• Citation: 213 F.2d 625
• Parties: NATIONAL LABOR RELATIONS BOARD v. ARMOUR & CO.
• Court: U.S. Court of Appeals — Fifth Circuit

213 F.2d 625 (1954)

NATIONAL LABOR RELATIONS BOARD v. ARMOUR & CO.

No. 14821.

United States Court of Appeals, Fifth Circuit.

June 25, 1954.

John C. Carey, Counsel, Atlanta, Ga., A. Norman Somers, Asst. Gen. Counsel, David P. Findling, Assoc. Gen. Counsel, George J. Bott, Gen. Counsel, Louis Schwartz, Edmond F. Rovner, for National Labor Relations Board, Washington, D. C., for petitioner.

Harold L. Langdon, Chicago, Ill., Leon Sarpy, New Orleans, La., Chaffe, McCall, Toler & Phillips, New Orleans, La., for respondent.

Before STRUM and RIVES, Circuit Judges, and DAWKINS, District Judge.

DAWKINS, District Judge.

This is a petition for the enforcement of an order of the Board, directing Armour and Company to cease and desist from certain activity at its Orlando, Florida, plant and affirmatively to offer one Robert L. Owens full reinstatement to his former position of employment, with retroactive emoluments, and to post the usual notices.

Certain background facts may be stated as uncontested. The respondent operated a branch processing and packing plant at Orlando, Florida, and for the purposes of the Act, was engaged in interstate commerce. It employed about 25 or 30 persons at the time involved herein, among whom was Owens, one of two beef-boners, who had been so employed for more than a year at the time. Early in August, 1951, United Packing-house Workers of America, CIO, (herein called Union) began a campaign to organize respondent's employees at the Orlando plant, and employee Owens was its leader in the campaign. On August 11, the Union sent a letter to respondent claiming to represent a majority of its employees and requesting bargaining negotiations. On August 14, the Union petitioned the Board for an election. On August 17, Owens was discharged by respondent. On October 3, 1951, an election was held, resulting in the designation of the Union as representative of the employees. A contract between the Union and respondent was subsequently negotiated and executed.

On October 11, 1951, the Union filed with the Board a charge against respondent, and on April 3, 1952, the Board issued a complaint, charging respondent with unfair labor practices within the meaning of Section 8(a) (1) of the Act¹ by interrogating its employees on union activities and threatening them for engaging in such activities; and within the meaning of Section 8(a) (3) of the Act² by discharging Owens because of his union activities. A full hearing was had before a duly designated Trial Examiner, and the Board adopted the Examiner's findings and recommendations as its own, and issued its order on April 15, 1953.

The pertinent evidentiary facts upon which the Examiner based his conclusions may be summarized as follows:

As to the first charge — During the week after respondent received the Union's notice on August 11, one of the supervisors asked an employee if he had been approached by the union representative. Upon receiving an affirmative answer, the supervisor inquired what the representative looked like and what the employee thought of the Union. The employee gave some description of the representative but denied any interest in the Union because he had a family. The supervisor told the employee that the branch manager had heard that organization was being attempted and wanted to know who got the Union started. This same employee testified that another supervisor (Daniel, head of the beef department) had made similar inquiries of him. Owens testified that Daniel had also made similar inquiries of him and two other employees on the morning of the day Owens was discharged, but that all three denied having anything to do with the union.

At the end of the following week, one Miller applied for work with respondent and was hired as a truck driver. At the employment interview, he was asked his views on the Union and replied that if an employer treated his employees all right there was no need for a union but that a union was needed in the event of ill treatment. Miller also testified that in the following week he overheard a supervisor (Pratt, shipping clerk) tell an employee (Faulk) that when the union came in the employer was required to guarantee only 36 hours per week and the employees would not get the hours they had been getting. Pratt denied this under oath, and the Board did not call Faulk as a witness.

A few days before the election on October 3, another supervisor (Pace) approached another employee and asked him if he believed in unions. The employee replied that he did, that he had had experience with the railroad union and considered it a fine one.

As to the second charge — About two months before Owens was discharged, respondent's manager (Vassar) informed Daniel, Owens' immediate superior, that he wanted to let Owens go because he was not satisfied with Owens' work and had found him in the egg room several times, engaged in conversation. Subsequently, Vassar talked to Daniel several times about Owens' work and his visits to the egg room, but Daniel never got around to warning Owens that Vassar intended to discharge him if he did not improve. Daniel thought Owens was a good beef boner and had a personal regard for him. On August 17, Vassar told Daniel that he had seen Owens in the egg room "every time he went down the hall" and instructed Daniel to discharge Owens. Daniel did so, telling Owens that he was being discharged because of the shortage of boning cattle; but he told Owens that if he could subsist on part-time work until the winter season, he (Daniel) would talk to Vassar and attempt to have Owens re-employed.

Vassar testified that there was an acute shortage of beef at this time and that...