NLRB v. Bear Brand Roofing, Inc.

• Decision Date: 10 December 1962
• Docket Number: No. 6986.,6986.
• Citation: 312 F.2d 616
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BEAR BRAND ROOFING, INC., Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

312 F.2d 616 (1962)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BEAR BRAND ROOFING, INC., Respondent.

No. 6986.

United States Court of Appeals Tenth Circuit.

December 10, 1962.

Robert Sewell, Washington, D. C. (Stuart Rothman, Dominick L. Manoli, Marcel Mallet-Prevost, and Melvin Pollack, Washington, D. C., on brief), for petitioner.

Leonard F. Banowetz, Wichita, Kan. (L. M. Weltmer, Mankato, Kan., on brief), for respondent.

Before MURRAH, Chief Judge, and LEWIS and SETH, Circuit Judges.

MURRAH, Chief Judge.

This is an enforcement petition by the National Labor Relations Board against respondent, Bear Brand Roofing, Inc., who the Board found had violated § 8(a) (1) and (3) of the National Labor Relations Act (29 U.S.C. § 158a 1 and 3), by coercively interrogating its employees about their union activity; by threatening an employee with reprisals, if he attended a union meeting; and, by discharging an employee because of union activities. The Board ordered respondent to cease and desist from these practices, post the usual notices, offer reinstatement to discriminatee, Hodge, and make him whole for any loss of pay suffered by the discrimination. Respondent resists the order on the ground that the underlying findings of fact made by the Board are not supported by substantial evidence.

The evidence as to the alleged discriminatory discharge of employee Hodge, indicates that Hodge had been employed by respondent approximately a year and a half, as an asphalt stillman at respondent's plant. During the latter part of April or May, 1960, Hodge and another employee, Norman Merklein, became interested in unionizing the employees. Upon advice of a former employee, they contacted a representative of the International Union of Operating Engineers, AFL-CIO, and arrangements were made to commence an organizational campaign. Several meetings were held in a small town about eight miles from where respondent's plant was located. Approximately eight to ten employees attended the meetings, including Hodge and Merklein. One such meeting was held on May 24th, three days before Hodge was discharged. At this meeting, union authorization cards were passed out, and several employees signed them and agreed to distribute them to other employees who had not attended the meetings. Hodge testified that other employees at the plant would ask him about the progress of the organizational meetings.

When Hodge reported for work at about 3:00 o'clock P. M. on May 27, 1960, he was told by Novicki, his foreman, that he was being discharged for unsatisfactory work. According to Hodge's testimony, he then told Novicki that the wrong man was being fired, to which Novicki replied, "Who is the right man? If you go up and tell Shank (respondent's plant manager), maybe you can stay on." Hodge replied, "I am no squealer." Novicki, however, testified that when he asked Hodge who the right man was, Hodge merely replied, "You know what I mean," and that he (Novicki) said, "No, I don't. Go speak to Mr. Shank." Apparently Hodge never spoke to Shank. At 5:00 o'clock on the same day, Shank received a telephone call from the National Labor Relations Board's office, informing him that a representation petition for election at Bear Brand Roofing, Inc. had been filed. Respondent contends that this is the first notice it had of any union activity, and Hodge could not, therefore, have been discharged for union reasons. Instead, respondent relies on an incident which occurred on or about May 16, 1960, as the motivating cause for Hodge's discharge. The undisputed evidence shows that on that date, while on the night shift, Hodge permitted the No. 2 still to overheat. When Novicki reported to work, Hodge informed him that the still was overheated and was warned to "Watch it a little closer." Novicki testified that he assumed that Hodge had meant that the temperature had not risen dangerously above the normal point, but upon final checking, found that it had been permitted to rise to a point capable of causing a flash fire or damage to the shingle manufacturing process. Novicki further testified that at various times in the past, he had spoken to Hodge about his unsatisfactory work, and had also discussed the matter with plant manager, Shank.

There is no direct testimony that respondent was aware of Hodge's union activities. The pivotal testimony, which seemed to persuade the Board, arises out of Hodge's visit to Novicki's home on May 29th, two days after his discharge. Hodge testified to the following conversation: "He ask me in and I went in and talked a little bit and I says, `John, I am not sore at you, I think a lot of you,' and John says, `I think a lot of you, too. I know you had stool pigeons out there, stool pigeons against me, tried to organize a union behind our back.'" Novicki did not deny the conversation, and the trial examiner credited this testimony and considering it, in connection with all...