NLRB v. Dal-Tex Optical Company, 19222.
| Decision Date | 28 November 1962 |
| Docket Number | No. 19222.,19222. |
| Citation | 310 F.2d 58 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DAL-TEX OPTICAL COMPANY, Inc., Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Melvin A. Pollack, Atty., N. L. R. B., Washington, D. C., for petitioner.
Emil Corenbleth, Dallas, Tex., for respondent.
Before TUTTLE, Chief Judge, and RIVES and JONES, Circuit Judges.
A union1 lost an election in which it sought to become the bargaining agent for employees of the respondent, Dal-Tex Optical Company, Inc. The respondent, Dal-Tex, has its place of business at Dallas, Texas. Its business is manufacturing optical supplies and equipment, principally optical lenses. The efforts at organization commenced in August 1959, and the election was held on October 30, 1959. There were 96 votes against the Union and 33 votes favoring it. Five ballots were challenged. The Union filed objections to the election. The Regional Director investigated, made a finding that Dal-Tex had interfered with the election by threats of loss of employment, and made a report recommending that the election be set aside. Dal-Tex filed its exceptions to the Regional Director's report. This was Case No. 16-RC-2571. Meanwhile the Union filed charges against Dal-Tex asserting that it had wrongfully discharged nine employees because of their activities on behalf of the Union. A complaint was made against Dal-Tex, not on the charge of wrongfully discharging employees but on the stated grounds of threats and promises. This is Case No. 16-CA-1325. These cases were consolidated and to this Dal-Tex objected.
The hearing of the consolidated 2571-1325 case was held on April 25-26, 1960. At the hearing Willie B. Green, Willis McNeely, Billy Rogers McNeely, Jesse Whitaker and Curtis Anderson appeared as witnesses in response to subpoena and all of them testified as witnesses for the Board's General Counsel except Anderson. On April 27, 1960, Green filed a charge that he had been discharged because of his testimony. This was followed by charges that Willis McNeely had been discharged, that the employment status of Billy Rogers McNeely and Jesse Whitaker had been discriminatorily changed, and that Curtis Anderson had been discriminated against by the giving to him of a violation slip, all because of their testimony in the No. 2571-1325 case. The complaint on these charges initiated the proceeding known as Case No. 16-CA-1358.
In the XXXX-XXXX hearing there was testimony of threats and promises made by Cornelia Banks and by Willie B. Green. Dal-Tex contended that Cornelia Banks was not a supervisor but the Examiner and the Board drew the inference, which was a permissible one upon the testimony, that she was employed in a supervisory capacity. Willie B. Green, who, for some reason or other, is better known in the record as Shaw Green, was conceded to be a supervisor and had worked as such in the shipping department of Dal-Tex for about seven years. On November 17, 1959, Green had given an affidavit to a field examiner of the Board in which he stated that, during the week of the election he had been called to the office of Lester I. Pearle, Vice-President of Dal-Tex, who said he was doubtful of Jesse Whitaker, Billy Rogers McNeely, Willis McNeely, and three others and directed Green to tell them that if the Company lost the election these men would lose their jobs in one way or another. Green's affidavit recites that he delivered the message as directed but told his auditors that the Company was trying to scare them and it would be for their interest to vote for the Union. Said the affiant Green, "I will talk loud when talking for the Company, and talk low when talking about the Union." This affidavit closed with the significant statement that On December 16, 1959, Green and fourteen other supervisory employees of Dal-Tex signed and swore to an affidavit procured by Dal-Tex or its counsel in which it was set forth that he was told by Irving Greenberg, President, and Lester I. Pearle, Vice-President, of Dal-Tex, that he should not discourage union membership and should make no threats, and that he had not discussed any union or election matters with any of the Dal-Tex employees. On February 18, 1960, Green made a third affidavit reaffirming the first he made and stating that the second, which was untrue in part, was signed because of fear of losing his job. At the hearing Green's testimony conformed in substance to the affidavits given to the representatives of the Board. At the conclusion of Green's testimony, counsel for Dal-Tex represented that Vice-President Pearle was absent from Dallas, Texas, where the hearing was being held; that Shaw Green, by his testimony, had double-crossed Dal-Tex; that it was surprised; and that Pearle's testimony was necessary to show that Green's testimony was false. Dal-Tex moved that the case be kept open until the following day so that Pearle could be made available as a witness. The motion was denied. On April 26, 1960, a few hours after the hearing concluded, Green was discharged by Greenberg, the President of Dal-Tex.
Willis McNeely, a brother-in-law of Green, gave two weeks' notice that he was quitting to get a better job. The date he gave the notice is disputed. At the XXXX-XXXX hearing he testified that Green had told him that if Pearle found out they were for the Union he would find a way to get rid of them. On April 26, 1960, shortly after the hearing came to an end, McNeely was told that the following day would be his last day of work.
Jesse Whitaker had been an employee of Dal-Tex since 1953. In 1957 he was made a leadman and was paid a salary by the week rather than a wage by the hour. Salaried employees were not docked for time off for illness or emergencies as were hourly employees. Whitaker was under summons to testify at the Board hearing and was present. Because of the belief of the Examiner that his testimony would be...
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