NLRB v. Meinholdt Manufacturing, Inc.

• Decision Date: 29 November 1971
• Docket Number: No. 71-1143.,71-1143.
• Citation: 451 F.2d 737
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MEINHOLDT MANUFACTURING, INC., Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

451 F.2d 737 (1971)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MEINHOLDT MANUFACTURING, INC., Respondent.

No. 71-1143.

United States Court of Appeals, Tenth Circuit.

November 29, 1971.

L. M. Cornish, Jr., and Edward B. Soule, Topeka, Kan., for petitioner.

Robert E. Williams, Washington, D. C., for respondent.

Before JONES^*, HILL and BARRETT, Circuit Judges.

BARRETT, Circuit Judge.

This unfair labor practice case involves the question of whether there is substantial evidence supporting the National Labor Relations Board's conclusions that Meinholdt Manufacturing, Inc. of Topeka, Kansas, violated §§ 8(a) (1) (by prohibiting employee Irwin from talking to fellow employees at any time about terms and conditions of employment and threatening him with discharge should he do so and by threatening employees with discharge for engaging in union activities) and 8(a) (3) and (1) (for discharging employee Irwin because of his union activities) of the National Labor Relations Act. 29 U.S.C. § 158. The Board's Order directed the employer to reinstate Irwin in his former job and to make him whole in accordance with the Trial Examiner's remedy for any loss of earnings and to cease and desist.

The Board seeks enforcement of its Order and the employer seeks to set it aside. We deny enforcement. We find that the Order is not supported by substantial evidence.

This case, we believe, fits the rule stated in Interlake Iron Corporation v. National Labor Relations Board, 131 F. 2d 129, 133 (7th Cir. 1942):

"We recognize the right, the exclusive right, of the Board to draw reasonable inferences from the facts found. That is the province of the Board, and when inferences are reasonably drawn they constitute evidence and must be accepted by the courts as such; and inferences alone may, if reasonable, provide a link in the chain of evidence and constitute in that regard substantial evidence. But an inference cannot be piled upon an inference, and then another inference upon that, as such inferences are unreasonable and cannot be considered as substantial evidence." (Emphasis supplied.)

It is incumbent on general counsel of the Board to prove unlawful conduct and unlawful purpose is not lightly to be inferred. National Labor Relations Board v. Federal Pacific Electric Company, 441 F.2d 765 (5th Cir. 1971). And while ascribing proper weight to credibility determinations of the Trial Examiner and the Board, it is the duty of this court to review the record as a whole to determine whether there exists substantial evidence to support the Board. Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Mere suspicions of unlawful motivation are not sufficient to constitute substantial evidence. Lozano Enterprises v. National Labor Relations Board, 357 F.2d 500 (9th Cir. 1966). Substantial evidence is more than a mere scintilla. It means such evidence as a reasonable mind might accept as adequate to support a conclusion. Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126 (1938).

Irwin, a planer operator, was first discharged by Meinholdt, a small plant operation, on April 1, 1968. Irwin had "bugged" his employer for higher wages and better working conditions. He had expressed his complaints to other employees. Meinholdt officials testified that Irwin was discharged because he had often been absent from his planer machine. No union activities were then involved. Irwin, at his own request, was later rehired. When he returned Company officials admonished him to stay at his machine and to keep his "big mouth" closed and not to bug the Company or other employees about wages or working conditions. The Board put great weight upon the initial discharge, emphasizing that when Irwin was rehired he was told to keep his mouth shut, thus inferring that these admonishments restrained concerted activities of employees. Company officials testified that while Irwin was first discharged because of his absenteeism, they did acknowledge that Irwin had also "bugged" other employees by expressing his discontent concerning wages and working conditions. An employee who "bugs" management for higher wages and better working conditions and who speaks with fellow employees on the job relative thereto, is not engaged in the "concerted activity" of employees for mutual aid and protection prescribed by the Act. National Labor Relations Board v. Avondale Mills, 242 F.2d 669 (5th Cir. 1957), aff'd 357 U.S. 357, 78 S.Ct. 1268, 2 L.Ed.2d 1383 (1958); Midland Steel Products Co. v. National Labor Relations Board, 113 F.2d 800 (6th Cir. 1940). Irwin's own testimony was that he had been "arbitrating" his wages with Company officials for some time and that "I wanted more than what they offered." His complaints were directed exclusively to his own wages, hours and working conditions. It is in this context that the Board inferred that when Irwin was rehired, the admonishments given him by Company officials to stay at his machine and not to wander around the plant talking wages and working conditions with other employees, constituted a threat of discharge should Irwin participate in concerted union activities. Company officials Wills and Hays testified that these admonishments applied to working hours only. The Board's brief states otherwise. This inference is not supported by the record.

The Board determined that Irwin's first discharge was relevant background evidence "against which to assess subsequent remarks made by Company officials as well as to determine the Company's motivation" at the time of Irwin's second discharge on ...