NLRB v. Georgia Rug Mill

• Decision Date: 18 September 1962
• Docket Number: No. 19223.,19223.
• Citation: 308 F.2d 89
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GEORGIA RUG MILL, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

308 F.2d 89 (1962)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GEORGIA RUG MILL, Respondent.

No. 19223.

United States Court of Appeals Fifth Circuit.

September 18, 1962.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Allison W. Brown, Jr., Atty., N. L. R. B., Washington, D. C., for petitioner.

Frank A. Constangy, Atlanta, Ga., for respondent.

Before BROWN, WISDOM and BELL, Circuit Judges.

WISDOM, Circuit Judge.

The National Labor Relations Board seeks enforcement of its order that the respondent, Georgia Rug Mill, cease violating Section 8(a) (1) of the Labor Management Relations Act, 29 U.S.C.A. § 158(a) (1) and that it reinstate two employees dismissed in contravention of Section 8(a) (3). The Board's decision and order are reported at 131 NLRB, No. 160. Georgia Rug Mill raises scarcely a murmur against the first charge, and, while not conceding that it violated the Act, does not resist enforcement of the cease-and-desist order. The controversy centers on the discharge of the two employees who, according to the Board's findings, were dismissed because of their union activities. In testing the Board's findings, we apply the same test of substantiality of evidence to reinstatement cases as to other cases under the Act. N. L. R. B. v. Walton Manufacturing Co., 1962, 369 U.S. 404, 82 S.Ct. 853, 7 L.Ed. 2d 829. The rule of review, as stated in Universal Camera Corp. v. N. L. R. B., 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, is the same in all Labor Board cases, and the Board's findings will be set aside only "when the record before a Court of Appeals clearly precludes the Board's decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both."

I.

Both the Trial Examiner and the Labor Board found that George Gaines was dismissed by the Georgia Rug Mill because of union activity. We agree.

Gaines was an unabashed union supporter. He attended meetings, spoke in favor of the union "all over the mill," and persuaded employees to sign union cards. The pretext for firing Gaines arose when he purportedly over-stayed a leave he had requested. When he reported to work after three days absence, he discovered that his timecard had been removed from the rack. He was told to report to Gregg, his supervisor, in the morning. When he did so, Gregg accused him of over-staying his leave. Gaines denied this. There was a heated exchange, enlivened by obscenities. During the course of the quarrel Gregg stated that he had heard Gaines was working for the union. Gregg finally told Gaines, "You was fired yesterday when you didn't come in." Gaines ended the interview by threatening to give Gregg a beating if he ever caught him outside the mill.

The Company explains that Gaines's leave was for two days, not three; that when Gaines failed to report for work on the third day, his foreman removed his timecard and instructed him to report to Gregg the next morning; that the purpose was to find out whether Gaines had a valid excuse for over-staying his leave. The Company contends that when questioned, Gaines became obscene and insubordinate and, because of this, was fired.

There are several flaws in the Company's interpretation of the incident. First, it assumes that Gaines unquestionably over-stayed his leave. The evidence, however, was conflicting whether he had asked for two or three days off. The Trial Examiner found that Gaines had actually requested a three-day leave; the Board found it unnecessary to resolve the question. The Trial Examiner's finding is supported by the evidence, at least to the extent that the Company supervisors themselves were unsure as to the length of the leave which Gaines had requested. Although Gregg, his supervisor, testified that Gaines had asked for a two-day leave and that he had written a leave-of-absence notice for such a period that same day, the testimony shows that on the following Monday, when Gaines had been gone only one work-day, Gregg asked Gaines's substitute, Reynolds, how long he was going to fill in for Gaines. Moreover, on Tuesday night, when Gaines would have been expected back had his leave been for only two days, Reynolds "was told to stay a few minutes and see if Gaines did come in." This evidence would indicate that there was at least some doubt in the minds of Gaines's immediate superiors as to the duration of Gaines's leave.

There is testimony that the decision to fire Gaines was arrived at the day before the dispute took place between Gaines and Gregg. Another employee testified that the day before Gaines was discharged, Brooks, a foreman, asked him if he would "be interested in a hyster fork lift job" for the third shift because they were "going to fire a boy" for "talking too much." Gaines at that time was the hyster operator on the third shift. Moreover, Gregg told Gaines during their quarrel that he had been dismissed the previous day. This interpretation of the evidence, which both the Board and the Trial Examiner apparently accepted, is strengthened by the fact that Gaines's timecard had already been removed when he reported back for work.

Gaines's insubordination is only the last of four explanations the Company gave at different times for Gaines's discharge. Supervisor Brooks told an employee that Gaines was going to be fired for "talking too much"; Gaines's separation notice stated that he was discharged because he over-stayed his leave and because of "his past record"; finally, the Company took the position that Gaines was really dismissed because of his insubordination and use of abusive language on Gregg. When an employer shifts position several times in explaining why an employee has been fired, his own case is weakened, and the Board's conclusion that the true reason was for union activity is correspondingly strengthened. See N. L. R. B. v. International Furniture Co., 5th Cir.1952, 199 F.2d 648.

The evidence of the Georgia Rug Mill's general anti-union activity stands almost undisputed in the record. Although "a general bias or a general hostility and interference, whether proved or conceded, does not supply the element of purpose," which must be established with respect to each discharge, "antiunion bias and demonstrated unlawful hostility are proper and highly significant factors for Board evaluation in determining motive." N. L. R. B. v. Dan River Mills, Inc., 5th Cir.1960, 274 F.2d 381, 384. There is support for the finding that the Company's anti-union policy was directed against George Gaines specifically. When Brooks offered Gaines's job to another employee, he stated that Gaines had "been talking too much." Several weeks later, Brooks, in threatening an employee that he "couldn't expect to get a job in that county," if he were "fired on account of the union," used Gaines as an example. When asked if it were not "against the law to fire people on account of the union," Brooks retorted, "Yes. But you don't have to put that on the papers. Look what happened to Walt Hughes, Chester Bridges and George Gaines. The law hasn't helped them any so far. * * * All they can do is file unfair labor charges." It is also noteworthy that Gregg, in his altercation with Gaines, accused him of "working for the union." These statements, reinforced by Gaines's open and active promotion of the union, clearly establish an "unlawful motive" on the part of the Rug Mill for Gaines's dismissal, and the employer's explanation is not "so overwhelming" as to make the controverting evidence "unacceptable as a matter of law." N. L. R. B. v. Jackson Tile Mfg. Co., 5th Cir.1960, 282 F.2d 90, 92.

The Labor Board's finding that George Gaines's union activity was the real cause of his dismissal is clearly supported by substantial evidence on the record as a whole.

II.

It is much...