NLRB v. Clement Brothers Company, 25319.

• Decision Date: 17 July 1969
• Docket Number: No. 25319.,25319.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CLEMENT BROTHERS COMPANY, Inc. and United Mine Workers of America, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

407 F.2d 1027 (1969)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CLEMENT BROTHERS COMPANY, Inc. and United Mine Workers of America, Respondents.

No. 25319.

United States Court of Appeals Fifth Circuit.

February 12, 1969.

Rehearing Denied July 17, 1969.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, John I. Taylor, Michael N. Sohn, Linda Sher, Attys., N. L. R. B., Washington, D. C., for petitioner.

Harry L. Griffin, Jr., Overton A. Currie, William T. Wood, Smith, Currie & Hancock, Atlanta, Ga., for Clement Brothers Co., Inc., Mark G. Kaplan, Boston, Mass., Angoff, Goldman, Manning & Pyle, Boston, Mass., for International Union of District 50, United Mine Workers of America.

Before WISDOM and AINSWORTH, Circuit Judges, and JOHNSON, District Judge.

JOHNSON, District Judge:

The NLRB petitions for enforcement of its order, reported at 165 NLRB No. 87, issued against Clement Brothers Company, Inc. (Company) and International Union of District 50, United Mine Workers of America (District 50) on June 21, 1967. The Board found that the Company violated Sections 8(a) (1), (2) and (3) of the National Labor Relations Act¹ (the Act) by rendering unlawful assistance to District 50 during a membership campaign, by entering into a collective bargaining agreement with District 50 when that Union did not represent an uncoerced majority of the Company's employees, by coercively interrogating and threatening its employees about their activities on behalf of the International Union of Operating Engineers, Local 926 (Operating Engineers) and by discharging three employees because of their activities on behalf of the Operating Engineers. The Board also found that District 50 violated Section 8(b) (1) (A) of the Act by coercing the Company's employees to sign its authorization cards and by entering into a collective bargaining agreement with the Company at a time when it did not represent an uncoerced majority of the Company's employees.

The Company is a North Carolina prime contractor engaged in the construction of a dam under contract with the United States Army Corps of Engineers near Carters, Georgia. A pre-hire agreement, permissible in the construction industry by virtue of Section 8(f) (1) of the Act, was executed on March 18, 1965. The first employee hired was Charles Farthing, District 50's job steward. By May 24, 1965, the date the collective bargaining agreement was executed, District 50 had admittedly obtained authorization cards from a substantial majority of the Company's 97 employees.² The Board, however, overruling the Trial Examiner, found that this majority was coerced. It found further that there were nine instances of job steward Farthing coercing employees to join District 50, six of which occurred prior to the execution of the contract. The Board also found that there were eight instances of coercion by the Company to join District 50, only one of which occurred prior to May 24.

The Board issued a standard order requiring the Company to cease and desist from recognizing District 50 or continuing their collective bargaining relationship. Similarly, it ordered District 50 to discontinue its activities as collective bargaining representative pending an election. The election was held November 6, 1967. The Company's employees cast 66 votes for the Operating Engineers and 28 for District 50. Eleven ballots were challenged. Neither the Company nor District 50 filed objections to the conduct of the election, and the Operating Engineers were certified as the bargaining representative. Both District 50 and the Company vigorously contested the Board's finding that District 50 did not represent an uncoerced majority of the employees in the unit on May 24, 1965.

The principal dispute involves the following extract from the Board's order:

"The Trial Examiner treated the question of District 50\'s pre-contract majority as one which was susceptible to resolution by a simple mathematical formula; we conclude that the character of the coercion should be more realistically measured in terms of its pervasive effect. We had found that in the period beginning approximately 8 weeks prior to the signing of the contract, as the evidence affirmatively shows, at least 7 employees were coerced into joining the Union. The likelihood that the coercion took place before the contract was executed was substantially more widespread than appears from the foregoing is suggested by respondents\' coercive tactics continuing after the contract was signed."

Respondents contend that the Board erred in deviating from a strict game of numbers and that, in any event, one of the numbers was wrong. Although the exact size of District 50's majority is not clear, it is not disputed that simply subtracting 7 from the total would not destroy it. Thus, were we to restrict the Board to a mathematical approach, it is clear that the conclusions that the Company violated Section 8(a) and that District 50 violated Section 8(b) (1) (A) could not be sustained.

The issue seems to reduce to whether the Board should be permitted to treat the specific instances of coercion as circumstantial evidence as well as or instead of direct evidence on the coerced majority issue. It is the Board's primary responsibility to find the ultimate facts under the statute. Oil, Chemical & Atomic Workers, etc. v. NLRB, 124 U.S.App.D.C. 113, 362 F.2d 943 (1966). Other fact-finders in our legal system are permitted to draw inferences from circumstantial evidence; respondents have suggested no reason why the Board should be treated differently. Nor does there seem to be anything suspect about this particular kind of circumstantial evidence. The Board inferred from 7 proven instances of coercion that other unproven instances had occurred. The Board might also have inferred that the coercion of the 7 had an indirect effect on others. It is true, of course, that in some circumstances courts exclude circumstantial evidence. For example, evidence of prior convictions is frequently excluded at a criminal trial. This is not because it is not probative, but rather because a jury may regard it as more probative than it is and because of the high standard of proof required to deprive a man of his liberty. Here, however, we are dealing with an expert fact-finder. If the ultimate fact is inferred, it "places no particular hardship on the employer or the union. It merely requires that recognition be withheld until the Board-conducted election results in majority selection of a representative." International Ladies Garment Workers Union v. NLRB, 366 U.S. 731, 739, 81 S.Ct. 1603, 1608, 6 L.Ed.2d 762. In a system of labor relations in which a majority may become the exclusive bargaining agent of all workers in...