NLRB v. Big Three Welding Equipment Company
| Decision Date | 21 April 1966 |
| Docket Number | No. 21732.,21732. |
| Citation | 359 F.2d 77 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BIG THREE WELDING EQUIPMENT COMPANY, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., Dominick L. Manoli, Assoc. Gen. Counsel, N. L. R. B., Nancy M. Sherman, Atty., N. L. R. B., Arnold Ordman, Gen. Counsel, Washington, D. C., for appellant.
Charles R. Vickery, Jr., and Huggins, Vickery & McConnell, Houston, Tex., for appellee.
Before RIVES, WISDOM and GEWIN, Circuit Judges.
The National Labor Relations Board seeks to enforce its order against respondent, Big Three Welding Equipment Company (Company), to cease and desist from "interfering with, restraining, or coercing employees in the exercise of their statutory rights" and, affirmatively, to offer reinstatement and restitution of back pay to those employees dismissed from their jobs because of union or concerted activity. The order of the Board was issued pursuant to Section 10(e) of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., upon a finding that the Company violated Section 8(a) (1) of the Act by intimidating employees engaged in efforts to organize, by means of unlawful threats, economic inducements, and interrogations; and Section 8(a) (1) and (3) by discharging employees Guy East, Ruble C. Gentry, Jr. and Johnnie Cecil Gripon for their union or concerted activities.
The questions presented are as follows: (1) Did the Board have sufficient evidence to find (a) the Company unlawfully threatened, induced and interrogated its employees to dissuade them from organizing; (b) the Company discharged the above named employees for their union and concerted activities; (c) employee East was not a "supervisor" as defined by Section 152(11) of the Act?1 (2) Should employees Gentry and Gripon be reinstated with back pay in view of the contention that they were guilty of misconduct including thievery?2
The facts may be outlined as follows: Big Three Welding Equipment Company manufactures oxygen, acetylene, nitrogen and argon which it sells to industrial consumers. It has plants and related operations in various locales; however, the only facility involved in this litigation is the plant in Orange, Texas, where there were approximately 28 employees at the time of the alleged violations.
During the early part of October, 1962, the employees of the Orange operation began discussing among themselves the possibility of "going union" because of dissatisfaction with working conditions, wage scales and fringe benefits. The evidence shows that employees Gentry, Gripon and East were instrumental in arranging an employees' meeting in the middle of October, during which Gentry was elected "representative or spokesman." Gentry and Gripon are brothers-in-law and often were closely associated in their activities. Following the meeting, a substantial number of employees3 signed cards stating, "I agree to organize."4 Soon thereafter, Company management became aware of the employees' activity and began responding to it.
Following a number of confrontations between local management and employee leaders, the President of the Company, Harry K. Smith, came to Orange to settle the matter. He heard complaints from each of the workers and promised numerous reforms, including wage increases, added insurance benefits, better working conditions, etc. The record reveals that there was a great deal of hostility on the part of management toward the unionization efforts.
Near the end of November, 1962, East was called to Houston and questioned concerning his union activities. Later that day he was discharged. During the months of December and January, 1963, there was renewed restlessness among the employees because of the failure of the Company to implement the promised reforms. Another employees' meeting was held during which Gentry was again elected "representative". In the middle of February, Gentry took further employee complaints to management, and both he and Gripon were fired the next day.
In March, approximately 70% of the employees at the plant signed authorization cards from the International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO.5 Smith soon reappeared and again interrogated employees concerning their activities. A poll was conducted by Butler, whom the Trial Examiner found to be Personnel Manager. Of the 14 employees polled, 3 voted for the union and 11 against it. The Board began an investigation, held a hearing, adopted the Trial Examiner's findings and conclusions as to the violations, and issued its order.
In the circumstances and under the facts presented in this case this Court will accept the credibility findings of the Examiner6 (as adopted by the Board). A reading of the record compels the conclusion that the Company violated Section 8(a) (1) of the Act by threatening, inducing and interrogating its employees in regard to union activities. Employees testified that on numerous occasions management threatened them with discharge, shut-down, demotion, and other reprisals if they continued unionizing efforts. Moreover, upon hearing of the union efforts at Orange, Mr. Smith readily agreed to grant a wide range of benefits — from wage increases to safer working conditions — to induce anti-union sentiment among the workers. Lastly, the record reveals that management interrogated employees concerning their union involvement almost constantly from the beginning of the labor dispute. No citation of authority is necessary to hold such actions violative of the Act. In fact, neither in brief nor upon oral argument does the Company vigorously contest that portion of the Board's finding.
We consider next the question of whether the Company violated Section 8(a) (1) and (3) of the Act by discharging employees East, Gentry and Gripon because of their union activities. The record clearly shows that these three employees were the leaders or "instigators" of the union movement at the Orange plant and that management recognized them as such. Since the examiner credited the employees' testimony as to statements allegedly made by management indicating they were being fired for union activity, we are left with no choice but to conclude the Board had ample evidence on which to base its finding to the same effect. The Company's claim that they were discharged because of thievery, insolence and disloyalty was rightfully rejected by the Board because the evidence to that effect is overshadowed by evidence establishing the existence of a discriminatory motive on the part of the Company.7 These findings of fact necessarily compel a conclusion that the Company violated Section 8(a) (1) and (3) as to Gentry and Gripon; however, if East was a "supervisor" as defined by Section 152(11), his discharge was not a violation of Section 8(a) (1) and (3), regardless of the motives here involved. Oil City Brass Works v. N. L. R. B. (5 Cir. 1966) 357 F.2d 466.
The Company contends that, as a "dispatcher" of company trucks and drivers, East was a "supervisor" and could be discharged for union activity without violating the Section 8 provisions. In view of our decision in N. L. R. B. v. Charley Toppino and Sons, Inc., 332 F.2d 85 (5 Cir. 1964), the testimony given by East himself during the hearing makes it abundantly clear that he was a supervisor.8 Practically all of the duties of the dispatcher in Toppino had their equivalent or counterpart in the duties assigned to and performed by East.9 In addition, East gave orders to the drivers concerning work to do when they were not driving the trucks, while the dispatcher in Toppino gave only "friendly advice."
While we affirm the Board's finding that the Company was motivated by anti-union sympathies when it fired Gentry and Gripon, we must further decide the question of whether the order directing their reinstatement should be enforced in view of the fact that both of them admitted pilferage of goods and equipment from the Company.
During the hearing, Gentry gave testimony as follows:
This testimony was substantiated by the statement of Gentry's accomplice, Rufus Gearen:
There was also further evidence of similar misconduct on the part of Gentry.
During the hearing Gripon testified as follows:
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