NLRB v. Borden Company

• Decision Date: 04 March 1968
• Docket Number: No. 24294.,24294.
• Citation: 392 F.2d 412
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The BORDEN COMPANY, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

392 F.2d 412 (1968)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The BORDEN COMPANY, Respondent.

No. 24294.

United States Court of Appeals Fifth Circuit.

March 4, 1968.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Robert M. Lieber, Atty., NLRB, Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Glen M. Bendixsen, Atty., NLRB, for petitioner.

C. Dale Stout, Kullman & Lang, New Orleans, La., for respondent.

Before JONES, WISDOM and DYER, Circuit Judges.

WISDOM, Circuit Judge:

February 5, 1965, two employees of The Borden Company began a low key union drive to obtain union representation of the Company's employees. Borden responded — also on a low key — by evidencing in various ways its dislike for unionism. Over a year later a pro-union employee was discharged. The National Labor Relations Board charged Borden with violating Sections 8(a) (1) and 8(a) (3) of the National Labor Relations Act, 29 U.S.C. § 151 et seq. The Board, affirming the Trial Examiner, found Borden in violation of the Act and ordered it to cease and desist its antiunion conduct and to reinstate the discharged employee, Alejandro Vasquez. The Board now petitions for enforcement of that order. We enforce the order relating to the Section 8(a) (1) violation. Taking the record as a whole, we find a lack of substantial evidence to support the Board's finding that Vasquez was discharged in violation of Section 8(a) (3).

I.

We consider it unnecessary to relate in detail each act on the part of Borden Company management that gave rise to the 8(a) (1) violation. We see substantial evidence in the record that (1) in the hiring of two employees Borden or its agent attempted to interrogate the applicants concerning their union sentiments;¹ (2) during a series of home visits supervisors and managers attempted to induce employees to inform on the union sympathy of fellow employees;² (3) in the plant a supervisor created the impression of surveillance of union activity by declaring he had knowledge of the participants and the details of the activity;³ (4) the plant manager, in a speech to all employees, pointedly referred to the trouble and suffering that could occur because of union entrance into the plant, suggesting the possibility of economic reprisal against union activity.⁴

We believe it important to point out that in this case Borden's response to the union drive was generally restrained and legally sophisticated. We approve the Company's use of outlines when interviewing does take place, and neither this Court nor the Board condemns home visits as coercive per se. Except for the references to the serious consequences and the far-reaching effect that signing of a union card could have on the employees and their families,⁵ we find the speeches made by the plant manager within the realm of privileged conduct; the financial burdens to which union members may be subjected and the company's existing benefits are proper subjects for management presentation.⁶ We refer to inoffensive company conduct to underline our view that in this case, as in N.L.R.B. v. R. Meyer Hotel Co., 5 Cir. 1967, 387 F.2d 603, "A careful reading of the joint appendix makes it clear that some of the credibility choices made by the trial examiner leave an objective reader of the cold record with some degree of skepticism." Nevertheless, we have reviewed the record with care and, "on the basis of the crediting of the testimony believed by the trial examiner and the Board, we conclude that there was substantial evidence on the record as a whole to require the affirmance of this determination." N.L.R.B. v. R. Meyer Hotel Co., supra, at p. 604.

II.

Of course, "management can discharge for good cause, or bad cause, or no cause at all. It has, as the master of its own business affairs, complete freedom with one specific, definite qualification: it may not discharge when the real motivating purpose is to do that which Section 8(a) (3) forbids."⁷ N.L. R.B. v. McGahey, 5 Cir. 1956, 233 F.2d 406, 413. Examining the record as a whole, we fail to find substantial evidence to support the conclusion that in discharging Vasquez Borden discriminated "in regard to * * * tenure of employment * * * to encourage or discourage membership in any labor organization." National Labor Relations Act § 8(a) (3).

The only facts in the record supporting antiunionism as a motivating factor in Vasquez's discharge are related by Vasquez himself;⁸ "the beginning and the end of the thread, and everything between, are supported by testimony of no one else." N.L.R.B. v. Texas Industries, Inc., 5 Cir. 1967, 387 F.2d 426, 427. Many of these facts are not uncontradicted. Thus, while "the initial choice between two equally conflicting inferences of discriminatory or non-discriminatory employer motivation for an employee discharge is primarily the province of the Board,"⁹ "the reviewing court must not confine itself to consideration of evidence `which, when viewed in isolation', supports the Board's findings, but must also take `into account contradictory evidence or evidence from which conflicting inferences could be drawn.' * * * `The substantiality of evidence must take into account whatever in the record fairly detracts from its weight. * * *'"¹⁰

We observe at the outset that despite the urging of the General Counsel, we do not view this discharge as the culmination of a coherent campaign establishing a pattern of employer conduct which amply warrants an inference of discriminatory purpose.¹¹ The General Counsel directs our attention to Great Atlantic & Pacific Tea Co., Inc. v. N.L.R.B., 5 Cir. 1966, 354 F.2d 707, 709, where we said: "the Board is not compelled to accept the employer's statement when there is reasonable cause for believing the ground put forward by the employer was not the true one, and that the real reason was the employer's dissatisfaction with the employee's union activity." We suggest that, by the same token, the Board is not compelled to accept the employee's statement when there is reasonable cause for believing the ground put forward by the employee was not the true one and that the real reason was the employer's dissatisfaction with the employee's performance of his duties on the job. In cases arising under this section of the Act the burden of proof is on the General Counsel, not on the employer.¹²

Vasquez's immediate supervisor — The Superintendent of the Shipping Department — testified that he talked to Vasquez a number of times concerning the over seventy complaints received from route salesmen about the way in which Vasquez was performing his job. Vasquez was a loader for the wholesale route trucks. The salesmen complained that he loaded the conveyors too fast, in the wrong sequence, and that he made errors in the quantities of cartons or bottles he loaded. The superintendent named many of the route salesmen and specified some of the complaints. The working foreman in the shipping department and three route salesmen all testified before the Trial Examiner: They related specific examples of Vasquez's mistakes and referred to a general dissatisfaction with the way Vasquez had been loading the trucks. Vasquez's performance was compared — unfavorably — to that of the other loader in the wholesale shipping department. The General Manager and the General Plant Superintendent testified to having conversed with the Shipping Department Superintendent, three weeks before Vasquez's discharge, on the subject of Vasquez's poor performance. Other than in the testimony of Vasquez himself, who claimed he knew of only a few mistakes he had made and that the superintendent was picking on him, no evidence can be found in the record to contradict that related above concerning Vasquez's poor performance in the three months preceding his discharge.¹³

III.

A final issue arises from the failure of the counsel for the Board's General Counsel to produce affidavits of two employees who testified at the hearing, a violation of the Board's own Rules and Regulations, 29 C.F.R. 102.118. Leo Adame testified before the Trial Examiner as to facts relating to Vasquez's discharge. At the conclusion of his direct examination, counsel for Borden requested that counsel for the General Counsel produce Adame's pretrial affidavits and statements. One such statement was produced. However, during cross-examination it was learned that Adame had signed two affidavits; the second related to Adame's own discharge and "to union activities at the plant". The request for production of this affidavit was refused by the Board's counsel and Borden's motion to strike Adame's testimony was denied by the Trial Examiner.

Ray Gonzales also testified in this case, and his testimony related to the 8(a) (1) violation. He had also signed an affidavit in a related case involving The Borden Company, but that fact was not revealed in the course of the hearing in the instant case, nor did Borden's counsel learn of it until some four months later. Borden filed a motion with the Board to strike Gonzales's testimony or to remand the proceedings to the Trial Examiner because of the non-production of this affidavit; the Board apparently denied this motion.

It is true that under the Jencks Act, 18 U.S.C. § 3500, a witness' statements in the possession of the Government must be turned over to the proper demanding party only where they relate to the subject matter of the witness' direct testimony. See Palermo v. United States, 1959, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287.¹⁴ This case, however, involves not the Jencks Act but 29 C.F.R. § 102.118, which provides:

No regional director * * * attorney, * * * general counsel, member of the Board, or other officer or employee of the Board shall produce or present any files, documents, reports, memoranda or records of the Board * * * in * * * any cause pending in any court or before the Board * * * Provided, After a witness called by the general counsel

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