NLRB v. Dan River Mills, Incorporated

• Decision Date: 26 January 1960
• Docket Number: No. 17693.,17693.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DAN RIVER MILLS, INCORPORATED, Alabama Division, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

274 F.2d 381 (1960)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DAN RIVER MILLS, INCORPORATED, Alabama Division, Respondent.

No. 17693.

United States Court of Appeals Fifth Circuit.

January 26, 1960.

COPYRIGHT MATERIAL OMITTED

Fred S. Landess, Atty., Thomas J. McDermott, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Stuart Rothman, Gen. Counsel, Fannie M. Boyls, Atty., N. L. R. B., Washington, D. C., for petitioner.

Frank A. Constangy, Constangy & Prowell, M. A. Prowell, Mildred McClelland, Atlanta, Ga., for respondent.

Before RIVES, Chief Judge, and BROWN and WISDOM, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

The Board seeks enforcement of its decision and order, 121 N. L. R. B. 82, holding that the Employer had violated § 8 (a) (1) by unlawful interference with protected rights, § 8(a) (3) by discriminatory discharge of five employees for union activities and § 8(a) (5) by bad faith refusal to recognize the union as bargaining agent in the Aliceville, Alabama mill. 29 U.S.C.A. § 158(a) (1), (3) & (5). We enforce in part.

The organizational activity at the Aliceville, Alabama mill began in early December 1956 and the events we deal with run into June 1957. The first union organizational meeting was held December 11, 1956, and on the following day two of the discharges here involved were made. By December 16 the Union claimed to have obtained authorization cards from a majority of the employees, and on that date, or a few days thereafter, notified the Employer and requested recognition. An election, originally ordered pursuant to representation proceedings and hearing, was never held as the Board dismissed the petition because of the Union's amended charge and the Board complaint made thereon asserting a § 8 (a) (5) unfair labor practice for refusing to recognize the Union.

§ 8(a) (1) Violation.

Little need be said about the Board's decision and the evidence on this score. The Employer does not concede the validity of the charge. Indeed, it asserts that the findings are strained and ought not to have been made. But it does expressly acknowledge with a candid and lawyer-like intellectual realism that takes into account the vivid delineation of responsibility between the Board and a reviewing court, N. L. R. B. v. Ferguson, 5 Cir., 1959, 257 F.2d 88, that on this phase the evidence was sharply conflicting and afforded the basis for contrary inferences by the fact finder.

This evidence which we need not detail amply justified the subsidiary conclusions adding up to unlawful interference. These included coercive interrogation of employees concerning union views and activity, threats to shut down the mill if the mill were organized, threats to discharge employees because of their union views and actions, surveillance of a Union meeting and the requirement that a discharged employee forsake union views as a condition to reemployment

The § 8(a) (3) Discharges.

Of course, the violation of § 8(a) (1) does not bring all discharges made during its pendency within § 8(a) (3). N. L. R. B. v. McGahey, 5 Cir., 1956, 233 F.2d 406, 410. A discharge becomes forbidden only if motivated by an unlawful purpose to discriminate against the Union or its adherents. A general bias or a general hostility and interference, whether proved or conceded, does not supply the element of purpose. It must be established with respect to each discharge. But antiunion bias and demonstrated unlawful hostility are proper and highly significant factors for Board evaluation in determining motive. N. L. R. B. v. WTVJ, Inc., 5 Cir., 1959, 268 F.2d 346; Smith Transfer Co. v. N. L. R. B., 5 Cir., 1953, 204 F.2d 738, 739-740.

We have no doubt as to the Employee James A. Clark. He was discharged the day following the first organizational meeting. The evidence was such that it did not compel acceptance of the Employer's contentions that Clark was discharged because he solicited union authorization cards from fellow employees contrary to a no-solicitation rule and under circumstances interfering with essential work. There was great doubt about existence of any such rule and its prior publication or posting, and whatever doubts arose from pre-discharge actions were dispelled by post-discharge efforts for reinstatement. The Employer by words which, if credited as stated, reflected their own motivation, N. L. R. B. v. Ferguson, supra, adequately demonstrated that Clark's discharge came from his union interest.

Nor do we as to James Elton Gibson and Berley L. Howard. Gibson was the target of much employer § 8(a) (1) coercive conduct. When he withstood this pressure and openly asserted that the Union was not going to be driven off, the plant superintendent charged that his overseer had reported that his production was low. The overseer denied making any such report and an analysis of the so-called "write-ups" on performance deficiencies were open to considerable question. True, two such events, absence from work because of illness and failure to clean air vents on February 5, were recited with substantial correctness. But there was sufficient basis, including credited testimony that Phillips, the overseer, never complained about failure to clean the air vents, to justify the inference that, even though accurate, these reasons given on the hearing were a pretext for the discharge. Mrs. Howard was likewise the target of Phillips' threatening predictions. Despite ten years of service her work then became the frequent subject of criticism by the two overseers, neither of whose testimony was credited and was almost invariably rejected by the trier. The "write-ups" as to her were also dubious both from intrinsic ambiguities and a sharp conflict on the underlying facts constituting the incidents.

The matter is much more uncertain as to Wilton Russell Bryant and George Newman. On objective facts all that seems to uphold the Board's decision as to Bryant is the fact that as would any respectable father, he acknowledged that his son, Sonny Bryant, was a good union man, the head of a union in a nearby electrical plant and one of those extremely active in setting up and conducting the first organizational meeting the night before. His discharge followed a few hours later. Offsetting this was evidence showing that reduction in maintenance work which Bryant was hired to do now required but one man, and the Employer picked the other (Montgomery) on the basis of comparative experience and efficiency. But the evidence does not end there, nor did the incident of his discharge. When he returned the next day to get his paycheck, he asked the plant superintendent if it was not a fact that he had been fired because of his own or his son's union activities. To this the plant superintendent replied, "Well, if that's the way you want it, that's all right with me. I want it to be a lesson to the rest of the employees." Thus it was a case of "* * * words attributed to those authorized to speak for management" which, we pointed out in N. L. R. B. v. Ferguson, supra, if they "are credited as having been said, their form and content and context eliminate all doubt on motive."

But as to George Newman, there is neither objective evidence nor credited expressions of incriminating motive. He was, to be sure, like others a target of § 8(a) (1) pressures. But his discharge was quite different. During the week prior to February 5, he was told by his overseer that a drawhand frame operator would take his job under a share-the-work program about which there seems to be no question. Newman's only concern was why a drawhand frame operator, rather than another classification, would be selected. Subsequently the plant superintendent called Newman in and said he understood Newman did not know why he was off during the preceding week. The plant superintendent then said, "Well, George, because you don't understand, I am going to lay you off and call it no work available."

That statement, on its face, is susceptible of many meanings, some permissible, some unlawful. Its variables are not reduced by reading prior § 8(a) (1) utterances into this episode. The threat implicit in the plant superintendent's question earlier made to Newman as to what Newman thought the Union could get him "besides fired or his job" is not sufficient. Nor was it aided by the superintendent's answer to Newman's earlier assertion that the plant would not really close as the divisional superintendent had publicly stated to the assembled employees would be the case if it were organized. To that the plant superintendent replied that they would just have to wait and see, but Newman should reconsider the matter. When Newman then asked if he was being fired, the plant superintendent replied, "No, there is plenty of time if that was necessary."

The bias and coercive threats were fully established, but except for union membership nothing else was proved save these equivocal conversational exchanges to show that this employee's discharge came from a purpose to discriminate. This unlawful motive "is not lightly to be inferred. In the choice between lawful and unlawful motives, the record taken as a whole must present a substantial basis of believable evidence pointing toward the unlawful one." N. L. R. B. v. McGahey, 5 Cir., 1956, 233 F. 2d 406, 413. This record, with all of its uncertainties, does not meet the standard set forth with logical clarity in N. L. R. B. v. Fox Mfg. Co., 5 Cir., 1956, 238 F.2d 211, 214, 215, amplifying the principles discussed in N. L. R. B. v. Coats & Clark, Inc., 5 Cir., 1956, 231 F.2d 567, 572, modifying the rule of N. L. R. B. v. Houston Chronicle Pub. Co., 5 Cir., 1954, 211 F.2d 848, 854. See also N. L. R. B. v. West Point Mfg. Co., 5 Cir., 1957, 245 F.2d 783, 786; N. L. R. B. v. Birmingham Pub. Co., 5 Cir., 1959, 262 F.2d 2.

The § 8(a) (5) Refusal to Recognize.

The Employer categorically declined to recognize or bargain with the Union on the forthright, albeit...