NLRB v. Council Manufacturing Corporation

• Decision Date: 13 July 1964
• Docket Number: No. 17534.,17534.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. COUNCIL MANUFACTURING CORPORATION, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

334 F.2d 161 (1964)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. COUNCIL MANUFACTURING CORPORATION, Respondent.

No. 17534.

United States Court of Appeals Eighth Circuit.

July 13, 1964.

Morton Namrow, Attorney, N. L. R. B., Washington, D. C., Arnold Ordman, General Counsel, N. L. R. B., Washington, D. C., Dominick L. Manoli, Associate General Counsel, N. L. R. B., Washington, D. C., Marcel Mallet-Prevost, Asst. General Counsel, N. L. R. B., Washington, D. C., and Elliott Moore, Attorney, N. L. R. B., Washington, D. C., for petitioner.

Edgar E. Bethell, of Bethell & Pearce, Fort Smith, Ark., for respondent.

Before VAN OOSTERHOUT, BLACKMUN and MEHAFFY, Circuit Judges.

BLACKMUN, Circuit Judge.

The National Labor Relations Board seeks enforcement here of its 3-member panel order issued June 26, 1963, directed to Council Manufacturing Corporation. 143 NLRB No. 23. The Board adopted the trial examiner's findings and conclusions to the effect that Council had violated § 8(a) (1) and (3) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 158(a) (1) and (3). Specifically, it found a § 8(a) (1) violation in the plant engineer's alleged statement that the company's president would close or automate the plant in the event of unionization, and § 8(a) (3) and (1) violations in the discharge of employee James N. Lott. The union concerned is Allied Industrial Workers of America, AFL-CIO.

The facts are not in much dispute. Council has a plant, which was not organized, on the north side of Fort Smith, Arkansas. It manufactures icemaking machines. Lott, during the last war, worked in defense industry in various machinist capacities. He held membership in the International Association of Machinists Union with a general machinist's rating. For many years, before and after his defense work and up to 1956, he was a professional wrestler.

Lott found employment with Council in May 1960. He was hired as a common laborer at $1.25 an hour. Four months later the employee who did machine work for Council left its employ. Lott spoke to the president and got the job of company machinist. In three weeks his pay was increased to $1.40. In the latter part of 1961 Lott threatened to leave because he had not received a further raise which he claimed had been promised. His rate was increased to $1.75 and he stayed on. The same thing happened in January 1962 and his pay was advanced to $2. He remained at this level until his termination on November 19, 1962. The $2 rate was the highest paid any non-supervisory employee in the plant. The quality of Lott's work was not questioned.

Lott also had outside activity. For some years he leased and operated the sports arena in Fort Smith. He rented this place for union meetings, including those of Allied, and for public gatherings. He promoted wrestling matches. He appeared on a weekly television wrestling interview program which in 1961 was sponsored by Council.

In January 1961 some of the plant employees asked Lott to head a campaign to organize the plant for the Machinists' Union. He discouraged that move at that time. A similar request was made of him in September 1962 when the inquiring employees indicated that they were interested in Allied. Lott got in touch with Clarence Gilmore, the union representative. Gilmore at the time was busy elsewhere but said that if Lott wanted to go ahead he should do so and "see what he could do". Lott and his helper, Taylor, proceeded to talk to employees. He was in touch with Gilmore again in November. He told Gilmore that the employees were ready to have a meeting. It was arranged that one would be held at the sports arena at 4:30 P.M. on Monday, November 19, immediately after work. Employees were notified orally of this meeting.

About fifteen minutes before quitting time on November 19 Lott was called to the office of Plant Manager Beith and told he was being terminated. Lott testified that Beith then said that this was because "We are just going to close the machine shop entirely down, and contract all of the work out". Lott returned to the plant on the following day to pick up his tools. He saw Mr. Council, the president, and asked him why he was discharged and whether the union meeting had anything to do with it. Lott testified that Mr. Council replied, "No, it wasn't the Union at all. In fact, he was not against the Union, but he did not like for the racketeers to come in like they were on the * * * south side of town" where the company's other Fort Smith plant was located.

Beith had been engaged by Council on November 9, 1962. He reported for work on November 15. This was only four days prior to Lott's discharge. He was placed in complete charge of all production. Beith testified that he spent his first days acquainting himself with the plant; that he observed a lack of activity in the machine shop area; that over the weekend he analyzed the personnel records and found that Lott was receiving higher pay than the next employee and more than his lead man; that he decided that the work "was repetitive machine operator work rather than machinist"; that because of this and because the wages were out of line he decided to discharge Lott; that in his termination interview with Lott he told him that they did not have the work load to maintain two men in the machine shop; that he had not complained about the quality of Lott's work and, so far as he knew, his work was acceptable; that Lott has not been replaced by another machinist; that, after he left Taylor carried on the work without overtime and had no difficulty in maintaining the work load; that when Lott was discharged he, Beith, had no knowledge of any union activity in the plant; that he learned of the union meeting only on the following morning; that he had made other changes in personnel and production since he had been with the plant; and that Lott's interest in the union had no bearing whatsoever upon his discharge which "was an action of economic necessity as I saw it". On cross-examination Beith stated that the next employee separation he effected was that of a supervisor on December 11; that he discharged no other non-supervisory employee; that he arranged for Taylor to have a helper at times; that the work force at the plant had been increased by 40 or 45 people starting about November 26; and that Taylor was doing everything that Lott did before the latter was laid off.

Lott testified that about November 1 Plant Manager Corbell told him, when they were discussing a newspaper item about a union, "Before we have a union here, Mr. Council would close it down, or put it in automation". There was no corroboration. Corbell denied making this statement.

The employer reminds us of certain established rules applicable to these enforcement proceedings. We have these and others in mind:

1. In determining the issue of substantiality of the evidence under § 10 (e) of the amended Act, 29 U.S.C.A. § 160(e), we must consider the record as a whole and in the light of the Supreme Court's observation that

"Congress has merely made it clear that a reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board\'s view."

Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951). Each of us, in writing for this court, has had occasion recently to note and apply Universal Camera's standard. N. L. R. B. v. International Bhd. of Boilermakers, 321 F.2d 807, 810 (8 Cir. 1963); Gem International, Inc. v. N. L. R. B., 321 F.2d 626, 627-628 (8 Cir. 1963); N. L. R. B. v. Fruin-Colnon Constr. Co., 330 F.2d 885, 889-890 (8 Cir. 1964); Bituminous Material & Supply Co. v. N. L. R. B., 281 F.2d 365, 367 (8 Cir. 1960). The court also did this in A. P. Green Fire Brick Co. v. N. L. R. B., 326 F.2d 910, 912 (8 Cir. 1964) and N. L. R. B. v. Arkansas-Louisiana Gas Co., 333 F.2d 790 (8 Cir. 1964).

2. The General Counsel has the burden of proving an unfair labor practice by a preponderance of the evidence. Iowa Beef Packers, Inc. v. N. L. R. B., 331 F.2d 176, 182 (8 Cir. 1964); Cedar Rapids Block Co. v. N. L. R. B., 332 F.2d 880, 884 (8 Cir. 1964); Bituminous Material & Suppy Co. v. N. L. R. B., supra, p. 367 of 281 F.2d.

3. "The near coincidence of the layoffs with the union activity, without more, is not...