NLRB v. Comfort, Inc.

• Decision Date: 11 October 1966
• Docket Number: No. 18210.,18210.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. COMFORT, INC., Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

365 F.2d 867 (1966)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. COMFORT, INC., Respondent.

No. 18210.

United States Court of Appeals Eighth Circuit.

September 13, 1966.

Rehearing Denied October 11, 1966.

COPYRIGHT MATERIAL OMITTED

Richard S. Rodin, Atty., National Labor Relations Board, Washington, D. C., for petitioner. Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and George B. Driesen, Atty., National Labor Relations Board, Washington D. C., were with him on the brief.

Bailey C. Webber, Ottumwa, Iowa, for respondent.

Before VOGEL, Chief Judge, and MATTHES and MEHAFFY, Circuit Judges.

MATTHES, Circuit Judge.

This case is before the court on the petition of the National Labor Relations Board pursuant to § 10(e) of the National Labor Relations Act, as amended, 29 U.S.C.A. §§ 151-168 (1959), for enforcement of the Board's order issued on June 2, 1965. The Board's decision and order are reported at 152 N.L.R.B. No. 106. No jurisdictional issue is presented. We modify the order as hereinafter set out and grant the enforcement of it as so modified.

The Respondent, an Iowa corporation, is engaged in the manufacture and sale of reclining chairs at Ottumwa, Iowa. In the latter part of September, 1963¹ it had approximately seventy production and maintenance employees. At that time Respondent's official and managing personnel were: Robert Last, Secretary-Treasurer and plant manager; Clair Burkhiser, a Vice-President active in plant management and operations; Ross Pannell, Superintendent; Wayne Netzley and Robert Bennett, Foremen; Lena Ream, Forelady; Virgil Corzette and Jerry Rankin, Supervisors.

The starting point for the unfair labor practice charges is the organizational efforts of the International Association of Machinists, District Lodge 105, AFL-CIO, hereafter referred to as Union. The complaint filed by the Board charged that Respondent had committed unfair labor practices within the meaning of § 8 (a) (1), (3) and (5) of the Act. In brief, the Board found that Respondent had engaged in surveillance and spying activities, had resorted to proscribed interrogation of its employees, and had otherwise interfered with, restrained, and coerced its employees in violation of § 8(a) (1) of the Act. The Board found further that by discharging employees Donald Coltrain, James Benedict and Floyd Palmer and by terminating the employment of its striking employees, Respondent had violated § 8(a) (3) and (1) of the Act, and that Respondent had violated § 8(a) (5) and (1) of the Act by refusing to recognize and bargain in good faith with the Union.

SECTION 8(a) (1) — SPYING AND SURVEILLANCE.

The campaign to organize Respondent's production and maintenance employees was commenced on September 23, 1963. On September 30th the Union filed a representation petition with the Board and a copy thereof was apparently received by Respondent on October 2nd. On the evening of October 3rd, a number of employees held a union meeting in the union hall in Ottumwa, Iowa. Burkhiser was seen in the vicinity of the hall between three and six p. m. that day by a number of Respondent's employees. He readily admitted that he was near the place of the meeting but unequivocally denied that he engaged in surveillance or was motivated by a desire to intimidate or frustrate the employees in their organizational efforts. He claimed that he had left Respondent's plant in order to attend to banking and other business, have his automobile serviced, and make plans for a hunting trip.

That the trial examiner took a dim view of Burkhiser's explanation is manifested by his report, wherein he stated in part:

"Burkhiser\'s story, in short, is that he, a busy plant executive who normally stayed close to the plant during working hours, or hurried back to it if he had to go downtown, merely happened to choose the day of a union meeting to spend 3 hours loitering near the union hall, waiting for a bank to open and hoping to encounter a friend to plan a hunting trip for 3 weeks later. Perhaps the story is not incredible on its face. But its falsity is revealed by the testimony of Foreman Bennett, a witness called by the Company, who testified that on the day following the meeting in question he told Burkhiser that some of the employees at the meeting the preceding day had seen Burkhiser there, to which Burkhiser replied that he had been there, had seen employee Stevens go in and had also seen employee Palmer there. * * *

"On this state of the record, I find that Burkhiser spied on the union hall on the occasion in question, and in the light of his sworn testimony on this matter, read in the light of the entire record, I find him totally unworthy of belief and to be credited only where his testimony is corroborated by other, more reliable witnesses. The espionage, of course, plainly violated Section 8(a) (1) of the Act."

Mindful of the admonition of the Supreme Court in Universal Camera Corporation v. N. L. R. B., 340 U.S. 474, 490-491, 71 S.Ct. 456, 95 L.Ed. 456 (1951), that we, as the reviewing court, are not to abdicate the conventional judicial function, and that it is our responsibility for assuring that the Board keeps within reasonable grounds, we have independently studied all of the evidence and pondered all facets of the incident. Burkhiser's explanation does have a ring of plausibility. His presence near the place where the employees were congregating could have been solely for legitimate personal or business reasons. Of course, a fact question was presented and it is plain that the trier of the facts did not choose to credit Burkhiser's testimony. The question of credibility is primarily a matter for Board determination. N. L. R. B. v. Morrison Cafeteria Co. of Little Rock, Inc., 311 F.2d 534, 538 (8th Cir. 1963); N. L. R. B. v. Byrds Manufacturing Corporation, 324 F.2d 329, 332 (8th Cir. 1963). In light of all of the circumstances the Board was not compelled to believe Burkhiser and disregard the adverse circumstantial evidence. Consequently, we conclude that the Board's finding that Burkhiser was engaged in spying and surveillance, and that such conduct was violative of § 8(a) (1) of the Act, is supported by substantial evidence. For cases holding that surveillance is an unfair labor practice, see and compare Edward Fields, Inc. v. N. L. R. B., 325 F.2d 754, 758-759 (2d Cir. 1963); Hendrix Manufacturing Company v. N. L. R. B., 321 F.2d 100, 104 n. 7 (5th Cir. 1963); N. L. R. B. v. Bonham Cotton Mills, Inc., 289 F.2d 903, 904 (5th Cir. 1961); Jackson Tile Manufacturing Company v. N. L. R. B., 272 F.2d 181 (5th Cir. 1959).

SECTION 8(a) (3) — DISCHARGES OF COLTRAIN, BENEDICT, PALMER.

The applicable legal principles are not in dispute. An employer who discriminates among employees does not violate § 8(a) (3) unless the discrimination is based upon union membership or other union connected activities. Thus the employer may discharge an employee with impunity if the discharge is not motivated by the employee's union activity. N. L. R. B. v. Ace Comb Company, 342 F. 2d 841, 847 (8th Cir. 1965); N. L. R. B. v. South Rambler Company, 324 F.2d 447, 449 (8th Cir. 1963); see also Steel Industries, Incorporated v. N. L. R. B., 325 F.2d 173, 176 (7th Cir. 1963), holding that "an employer has the right to discharge an employee for good reason, bad reason or no reason, absent discrimination." An employer's general hostility to unions does not in and of itself supply an unlawful motivation for a specific discharge. Fort Smith Broadcasting Company v. N. L. R. B., 341 F.2d 874, 878 (8th Cir. 1965); N. L. R. B. v. South Rambler Company, supra. The inference that an employee was discharged because of his union activity must be based upon evidence, direct or circumstantial, not upon mere surmise or speculation. N. L. R. B. v. South Rambler Company, supra; Osceola County Co-op. Creamery Ass'n v. N. L. R. B., 251 F.2d 62, 69 (8th Cir. 1958). The burden of proving an improper motivation for discharge is upon the Board. N. L. R. B. v. South Rambler Company, supra.

Coltrain was discharged on October 2nd. The Board found that he had been discharged because of his leadership in the union drive. Respondent contends that Coltrain was discharged for cause and that there is no substantial evidence in the record as a whole to support the Board's finding. We agree with Respondent and deny enforcement of that part of the Board's order relating to Coltrain.

It is, of course, true that Coltrain was a leader in the union drive but others were just as active in the organizational campaign. William E. Muchow and Ronald Wynn also solicited and obtained cards from other employees. They were not outrightly discharged.² Respondent argues that the two officials, Superintendent Pannell and Foreman Netzley, who effectuated the discharge, had no knowledge of Coltrain's prior union activity. Both of them testified unequivocally to that effect. The evidence tending to establish Respondent's knowledge of Coltrain's prior interest in the Union is somewhat meager. Supervisor Rankin knew of the card solicitation campaign but, according to his testimony, did not impart the information to either Pannell or Netzley. The Board found, however, that Rankin's knowledge constituted knowledge to Respondent. Even though we accept that premise, the evidence as a whole is insufficient to establish that Coltrain's union activities were the underlying reason for his discharge.

It was shown beyond dispute that Coltrain's workmanship had been of an inferior quality and had been the subject of criticism by his superiors for some time prior to his termination. The fact of the matter is that Coltrain had been previously discharged because of his inferior work performance. When he was reemployed he was informed that he was being placed on probation. A fair analysis of the evidence shows that despite repeated warnings, Coltrain's...