NLRB v. American Art Industries, Inc.

• Decision Date: 20 November 1969
• Docket Number: No. 26543.,26543.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AMERICAN ART INDUSTRIES, INC., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

415 F.2d 1223 (1969)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AMERICAN ART INDUSTRIES, INC., Respondent.

No. 26543.

United States Court of Appeals Fifth Circuit.

September 5, 1969.

Rehearing Denied November 20, 1969.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Allison W. Brown, Jr., Lawrence J. Sherman, Ronald W. Egnor, Attys., N.L.R.B., Washington, D. C., Harold A. Boire, Director, Region 12, N.L.R.B., Tampa, Fla., for petitioner.

Joseph A. Perkins, Hilary Silverman, Miami, Fla., for respondent.

Before WISDOM and MORGAN, Circuit Judges, and DAVIS^*, Court of Claims Judge.

LEWIS R. MORGAN, Circuit Judge:

This case arises out of a petition brought by the National Labor Relations Board (hereinafter, the Board) pursuant to Section 10(e) of the National Labor Relations Act, as amended, 29 U.S.C. § 151 et seq., (hereinafter, the Act), for the enforcement of two orders against the respondent, American Art Industries, Inc. (hereinafter, the Company). In the first proceedings before the Board, reported at 166 NLRB No. 109, the Board found that the Company had violated Section 8(a) (1) of the Act by coercively interrogating its employees, threatening to close its plant if a union was brought in, promising benefits to undermine the union's organizing drive, and threatening to discharge any employee who joined in a strike against the Company. The Board also found that the Company violated Section 8(a) (3) and (1) of the Act by discriminately discharging four employees because of their organizational activity on behalf of the union. Finally, the Board found that, since July 22, 1966, the Company has refused to recognize and bargain with the Union, General Sales Drivers and Allied Employees, Local No. 198, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, which represented a majority of its employees in an appropriate bargaining unit, in violation of Section 8(a) (5) and (1) of the Act. In the second proceeding before the Board, reported at 170 NLRB No. 70, the Board found that the Company had violated Section 8(a) (4) and (1) of the Act by discharging two employees because they had testified in behalf of the General Counsel in the prior proceeding.

Pursuant to these findings, the Board ordered the Company to cease and desist from the unfair labor practices found to have been committed and in any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. By way of affirmative action, the Board ordered the Company to bargain collectively with the Union as the exclusive representative of all employees in the bargaining unit upon request, to offer reinstatement to those striking employees who made an unconditional request for reinstatement, to reinstate the unlawfully discharged employees and make them whole for wages lost as a result of their having been discharged, and to post appropriate notices.

The facts of the case are as follows: On July 13, 1966, an employee of the Company, one Jesus Diaz, obtained approximately fifty authorization cards from the Union's representative in order to begin a union organizing drive at the Company's plant. Some of these cards were given to three other employees of the Company, Reverend J. D. Mosely, Carlos Paez, and Herman Gonzalez, who were also participating in the union organizing drive. On July 18th, the four organizers began making solicitations with the Company's employees for membership in the Union.

On July 19th, Joe Foster, the Company's vice-president, had conversations with three of the organizers at their work stations in the plant. In these conversations, Joe Foster inquired whether the organizers had "heard anything about the Union", and stated to each that if the union did come in, the plant would be closed.

During the lunchtime break on July 19th, Ted Foster, the president of the Company, had a conversation with about twelve of the Company's employees who were sitting on the ground outside the plant eating their lunch where he told them of his intention to install lunch facilities at the plant.

Jesus Diaz testified that later in the afternoon he overheard a conversation between Ted Foster and his brother Joe inside the plant to the effect that authorization cards had been given out and that the union organizers would be dismissed because the work was slow.¹ Shortly before the close of the business day, the four organizers were told that business was slow and that the Company was being forced to close some departments and that they were being laid off.

On the following morning, the four organizers returned to the Company's parking lot to collect signed authorization cards from some employees and to distribute unsigned cards to others. The word spread that the four men had been dismissed and the employees began to congregate in the parking lot. Mr. and Mrs. Ted Foster then arrived at the plant and went over to the assembled employees. Mrs. Foster spoke to the employees and, although there is conflicting testimony as to her exact words, she said in substance that if they did not begin working by 8:00 a. m. they would be fired. The assembled employees responded to this by shouting that they wanted the union and then went to the union hall to take a vote, the purpose of which is unclear, and then returned to picket the plant, carrying signs which read: "Employees of American Art on strike because of unfair labor practices. Teamsters Union 198".

On July 21st, the Company invited all of the strikers including the four laid-off organizers, to return to work by posting notices at the plant and by sending each striker a copy of the notice by mail. The strike, however, continued until the first proceeding came before the Board in November of 1966.

On July 22nd, the Union made a written demand for recognition, claiming to represent a majority of the Company's production and maintenance employees, to which the Company replied, denying the Union's majority status and advised the Union to "use the facilities of the National Labor Relations Board to determine the rights of the parties".

In response to a Union application for reinstatement on behalf of thirty-six named employees, the Company, on November 7, 1966, made an unconditional offer to the employees to return to their old jobs. Two employees, J. D. Mosely and Horatio Trujillo, accepted the Company's offer and reported for work on the 15th and 16th of November, respectively. Both men were subpoenaed and testified as witnesses for the General Counsel a few days after resuming their work with the Company. When they reported for work after testifying, they were told that there was no work for them and that they would be called when any work became available. Neither of the men were called back to work.

The Company resists enforcement of the Board's orders on two main grounds: first, that the Company was denied a fair trial by the bias and prejudice of the trial examiner; and, secondly, that findings of the Board are not supported by substantial evidence on the record as a whole.

The Company asserts in its brief several manifestations of the alleged bias and prejudice of the trial examiners in the two proceedings, but after careful consideration of the records in each proceeding, we cannot say

that the proceedings were characterized by fell expedition or determined purpose to reach a predetermined end, or were attended with suppressive and exclusionary rulings and actions, designed to prevent and preventing a fair hearing. Continental Box Company v. N. L. R. B., 5 Cir., 1940, 113 F.2d 93, 96.

On the contrary, we feel the two trial examiners' "conduct * * * comported with the high standards that a litigant has a right to expect under the Labor Act and under the Administrative Procedure Act." N. L. R. B. v. Transport Clearings, Inc., 5 Cir., 1962, 311 F.2d 519. The fact that the trial examiners and the Board generally credited the Board's witnesses and discredited those of the Company is not enough to establish that the hearing was unfair because of bias and prejudice. See N. L. R. B. v. Bush Hog, Inc., 5 Cir., 1968, 405 F.2d 755, 756. Likewise, a trial examiner has the right to examine and cross-examine witnesses in order that the facts are clearly and fully developed. N. L. R. B. v. Bryan Manufacturing Co., 7 Cir., 1952, 196 F.2d 477. Finally, it is not error for a trial examiner to take judicial notice of a prior proceeding before the Board involving the same parties as in the present action, as was done in the second proceeding. N. L. R. B. v. Reed & Prince Manufacturing Co., 1 Cir., 1953, 205 F.2d 131, 139-140. The Company's contention that Trial Examiners Ladwig and Kessel were biased and prejudiced against the Company is without merit.

The Company, in support of its contention that the findings of the trial examiners and the Board were not supported by the substantial evidence in the record taken as a whole, argues that we should decline to follow the action of the trial examiner in crediting and discrediting the testimony of the various witnesses. A review of the record demonstrates that there was a substantial conflict in the evidence, with the version of the facts presented by the Company's witnesses directly conflicting with the version presented by the Board's witnesses. The trial examiner consequently was faced with the task of deciding which side's version to believe. Although in a proper case the Court may decline to follow the action of the examiner in crediting and discrediting testimony even though the Board has adopted the examiner's findings, N. L. R. B. v. Elias Brothers Big Boy, Inc., 6 Cir., 1964, 327 F.2d 421, 426, we are generally bound by the credibility choices made by the trial examiner. Nabors v. N. L. R. B., 5 Cir., 1963, 323 F.2d 686, accord N. L. R. B. v. Monroe Auto Equipment Co., 5 Cir., 1968, 392...