NLRB v. Crosby Chemicals, Inc.

• Decision Date: 20 January 1960
• Docket Number: No. 17613.,17613.
• Citation: 274 F.2d 72
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CROSBY CHEMICALS, INC., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

274 F.2d 72 (1960)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CROSBY CHEMICALS, INC., Respondent.

No. 17613.

United States Court of Appeals Fifth Circuit.

January 20, 1960.

Fannie M. Boyle, Atty., Thomas J. McDermott, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Jerome D. Fenton, Gen. Counsel, Hans J. Lehmann, Atty., N. L. R. B., Washington, D. C., for petitioner.

Karl H. Mueller, Fort Worth, Tex., Hall & Callender, Columbia, Miss., Mueller & Mueller, Fort Worth, Tex., Toxey Hall, Bernard Callender, Columbia, Miss., Harold E. Mueller, Fort Worth, Tex., for respondent.

Before CAMERON, JONES and BROWN, Circuit Judges.

CAMERON, Circuit Judge.

The National Labor Relations Board has filed this petition to enforce its order of August 11, 1958¹ against Respondent Crosby Chemicals, Inc., a Mississippi corporation operating naval stores plants at Picayune, Miss. and at DeRidder, La. Robert H. Crosby, Sr. was chairman of Respondent's board of directors and its principal stockholder, and he had general charge of the Picayune plant. Robert H. Crosby, Jr., was president and Tommie Crosby was vice-president and was manager of the DeRidder plant.

In the latter part of July, 1956, these officers obtained knowledge that the International Chemical Workers Union, AFL-CIO, had begun an organization campaign in Respondent's two plants. August 27, 1956, the Union wired Respondent that a majority of the production and maintenance employees in the Picayune plant had authorized the Union to represent them for the purpose of collective bargaining and requesting recognition, following which a consent election was held in each of the plants December 6, 1956. The Union won the election in the Picayune plant and was certified December 14, 1956 as the bargaining agent for that plant. It lost the election at the DeRidder plant.

The Union filed a series of charges, six in number, charging that Respondent had violated various sections of the National Labor Relations Act² upon which on June 4, 1957 the Regional Director of the Board in New Orleans, La. filed a consolidated complaint against Respondent. The complaint embraced all of the charges, specifying twenty-five particulars in which various sections of the Act had been violated by R. H. Crosby, Sr., Tommie Crosby, and several of the supervisory employees. Respondent filed an answer denying generally the charges of violation contained in the complaint, and the case was heard by a Trial Examiner between July 9th and 17th, 1957, who filed his Intermediate Report October 22, 1957. Both parties filed detailed exceptions to the Examiner's report, that of the General Counsel specifying forty-four separate instances in which it was claimed that the Examiner erred either in his findings based on disputed evidence, or in the inferences and conclusions he had drawn from the evidence. Respondent also filed itemized exceptions to the Examiner's report, and the matter came on for hearing before a three-judge panel of the Board, which filed its opinion and entered its order August 11, 1958.

In the meantime Respondent had filed a motion to reopen the record so as to show that, in January, 1958, it had concluded a written contract with the Union. A copy of the contract was attached as an exhibit to the motion, along with a letter announcing the payment of a bonus to the employees of the Picayune plant corresponding to the bonus which had been paid to the employees of the DeRidder plant. The General Counsel had introduced into the record as an exhibit, a letter dated May 25, 1957 in which Respondent had offered the Union to pay the Picayune employees the same bonus it had paid to those employed at the DeRidder plant.

The Examiner analyzed the evidence in meticulous detail and resolved the great majority of the testimonial conflicts in favor of the Crosbys and their supervisory employees.³ He found in favor of the General Counsel's testimony with respect to four pre-election violations: (1) that Maintenance Superintendent Manberg exhibited a document to two employees "wherein he clearly sought to leave the impression that if the Union came into his plant wages would be cut to the alleged Union scale shown in the document;" (2) that Foreman Taylor stated to employee Lumpkin that if the Union came into the plant, Lumpkin would not be able to hold his job as a pipe fitter without serving out the residue of his apprenticeship; (3) that Tommie Crosby stated to employee Wise⁴ "to the effect that the bonus was not being paid because of the organizational effort of the Union among the Respondent's employees;" and (4) made a similar statement to employee Williams.

Based upon these findings and upon his conclusion that the two bonuses per year had been continued without interruption so long that they amounted to nothing more than additional wage payments, the Examiner concluded that Respondent had violated the Act by withholding the payment of a summer bonus at each of the plants and by withholding the payment of the December bonus at the Picayune plant; and that in the "discrimination * * * and coercing employees in the rights guaranteed in § 7 of the Act, as herein found, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of § 8(a) (1) of the Act."⁵ The Examiner recommended the entry of the usual cease and desist order and that it embrace the payment of the omitted bonuses.

Upon the hearing before the Board all of the rulings of the Examiner were affirmed except those specifically excluded. The Board disagreed categorically with the Examiner's ruling on the Taylor-Lumpkin conversation. According to Lumpkin, Foreman Taylor had shown him a contract "that the Union apparently had with another company and told him that, if the Union was voted in, wages would be cut to conform to those in the contract;" he also testified that Taylor expressed the opinion that Lumpkin would be forced to complete his four years apprenticeship if the Union should win. The Board rejected the conclusions of the Examiner.⁶ In so doing, it called attention to the fact that Taylor had testified "that Crosby, Sr. had given the foremen a sheet of paper showing the wage scale of a competitor company and told them just to show it to the employees."

The Board's ruling on this incident, coupled with the fact that neither the Examiner nor the Board failed to credit the statements made by R. H. Crosby, Sr., necessarily disposes of the finding "that Maintenance Superintendent Charles Manberg exhibited the same wage scale to employees Eldridge and Holston * * * wherein he clearly sought to leave the impression that if the Union came into his plant wages would be cut to the alleged union scale shown in the document." Responding to a leading question, Manberg had expressed the opinion that the employees' wages would be reduced to the union scale in effect in another plant if the Union won the election.⁷ Manberg denied making the statement quoted in the note, but testified, as all others did, that the wage scale in the competing plant was given to the foremen with instructions to show it to the employees, but "not to threaten them their wages would be cut." The Examiner really treated Manberg's statement as an expression of opinion, but found nevertheless that what he did was a violation of the Act.⁸ Undisputedly, Manberg had nothing to do with the fixing of wages, had authority only to show the wage scale to employees, not to comment upon it; and, at most, what he said could not be, and was not, construed as anything more than the expression of his opinion. This episode should have been handled by the Board in the same manner as that involving Taylor and Lumpkin. In any event, everything said and done in both comes under the protection of 29 U.S.C.A. § 158(c):

"The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit."

The Board disagreed with the Examiner also with regard to the testimony of employee Willis as to what Respondent's representative said at a meeting between management and the employees, — that "the Respondent would not pay the summer bonus to its employees because the organizational activities of the Union prevented it from making such payment." Since Tommie Crosby testified that he talked with Willis and told him merely "that the Respondent never intended to pay the summer bonus," the Board found, from a "complete failure of proof," that "Tommie Crosby did not state to Willis that the Respondent withheld the summer bonus because of the Union's organizing activities."

The Examiner found that Tommie Crosby had made a similar statement to employees Williams and Wise. The Board did not agree with the Examiner as to Wise.⁹ Assuming that the finding as to Williams was approved by the Board, it is clear that such an approval would have no more basis in substance than the others which it rejected. Moreover, even if Tommie did say to Williams that "He came back and found himself in the middle of a hornet's nest and couldn't, that he couldn't fire me, give me a raise or nothing without violating the Labor Law," he was on solid ground. The determination not to pay the summer 1956 bonus had been taken in June, while the statements attributed to Tommie were made in September and November. If, after the Union had notified Respondents of its organizational activities (August 27th), and had petitioned the Board for recognition as bargaining agent, Respondent had changed its mind and paid the bonus, it is clear that such action would have been made the subject of an unfair labor charge. The Union had, at that time, already filed two formal charges against Respondent, thus putting Respondent on notice that...