NLRB v. Lester Brothers, Incorporated

• Decision Date: 28 September 1964
• Docket Number: No. 9369.,9369.
• Citation: 337 F.2d 706
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LESTER BROTHERS, INCORPORATED, Respondent
• Court: U.S. Court of Appeals — Fourth Circuit

337 F.2d 706 (1964)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LESTER BROTHERS, INCORPORATED, Respondent

No. 9369.

United States Court of Appeals Fourth Circuit.

Argued June 17, 1964.

Decided September 28, 1964.

Margaret M. Farmer, Attorney, N. L. R. B. (Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and Melvin Pollack, Attorney, N. L. R. B., on brief), for petitioner.

Bailey Patrick, Jr., Charlotte, N. C. (Broaddus, Epperly & Broaddus, Martinsville, Va., and Blakeney, Alexander & Machen, Charlotte, N. C., on brief), for respondent.

Before SOBELOFF, Chief Judge, BRYAN, Circuit Judge, and HEMPHILL, District Judge.

HEMPHILL, District Judge.

The National Labor Relations Board, pursuant to the National Labor Relations Act (hereinafter called the Act), as amended (61 Stat. 136, 29 U.S.C. § 151 et seq., as amended by 73 Stat. 519) petitions for enforcement of the Board's order requiring Lester Brothers, Incorporated, to cease and desist from certain activities found to be unfair labor practices, to reinstate discharged employee Hobart Young, making him whole from any lost wages, restoring him to his former position and seniority, to make available records necessary to accomplish the above, and to post notices that the Company pledged itself not to interfere with, restrain, or coerce its employees in their right to join the United Brotherhood of Carpenters and Joiners of America, AFL-CIO (hereinafter referred to as the Union).

Respondent, a Martinsville, Virginia, business corporation (hereinafter called the Company) is engaged in the manufacture, processing and sale of prefabricated houses, lumber and building supplies, and was at the times referred to engaged in interstate commerce within the meaning of Section 2, subsection (6) of the Act.¹

From 1946 to 1959 no Union activity took place at the plant, but in that year the Union began activities culminating in two weeks of Union and Company activity similar but not identical to the pattern which often emerges in contests of this nature. Employees Martin and Craig were discharged because of Union activities,² were later reinstated, and, as a result of proceedings³ an enforcement order was issued against Respondent directing that the Company cease and desist from certain unfair labor practices, to reinstate the two employees, etc. On March 21, 1962 this Court granted the enforcement,⁴ and thereafter began the chain of events which present the issues presently before this Court.

Employee Young, who had a good record with the Company during five years of employment, except for three minor infractions,⁵ had been active in Union activities previously, was a witness for the Government in the 1960 action. His affiliation was known.⁶ On the morning of April 18, 1962, one Layenby⁷ Assistant Plant Superintendent, passed by the plant location where Young, who had been ordered to cut some 14' ¾" rafters, was operating a saw. Young claims he had the boy on the fork-lift used for such purposes pick up a bale of what was called 14' material and move it to the saw where Young measured some of the bale⁸ and, upon finding the length only 14' ½", refused the bale, and asked fork-lift operator to send a rick or bale of 16' material, from which he proceeded to cut rafters to fill his saw order. After he had cut approximately 10 pieces Layenby came by and asked why he was cutting rafters out of 16' material instead of 14' and Young attempted to explain. Layenby went to the office and shortly thereafter (35 rafters) Carmichael came up to the saw and told Young he was fired. Young testified he had cut the 14' ¾" rafters from 16' material before; Respondent's position was that Young was discharged for cause because he "wasted" material. The trial examiner found his error was human, that it was not uncommon and that there was no "malice aforethought."

On the weekend of March 30 — April 1, 1962, one Reid Stewart, International Representative for the Union, contacted interested employees, later met with Craig, Martin, and Young at Young's house. Young was given about 100 Union application cards which Young distributed. Young returned 40 to 45 signed. He planned another meeting April 17th,⁹ en route, near the meeting site, he met three men around a small building, one of whom was Posey Gilbert, Jr., another George Critts. This organizational meeting lasted from 7:00 P.M. to 9:30 P.M.

Other testimony reveals that Roy Warren, screen door department foreman, made statements that Lawson Lester, Respondent President, indicated he wanted a Company Union; that supervisor Thomasson pulled Union cards from the pocket of employee R. J. Foley and asked, "Boy, what are you doing with these damn things?" Later Thomasson came to Foley's work location, stated, "The damned old Union ain't in here yet and I know you can do the job faster than this"; that Posey Gilbert was at one time Assistant Foreman; that Respondent discouraged appearances of witnesses at the NLRB hearing; that there was a pattern of coercion against Union activity.

The question as to the real reason for the discharge of Hobart Young was a question of fact to be decided by the National Labor Relations Board, which...