NLRB v. RC Can Company, 21326.

• Decision Date: 22 January 1965
• Docket Number: No. 21326.,21326.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. R. C. CAN COMPANY, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

340 F.2d 433 (1965)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. R. C. CAN COMPANY, Respondent.

No. 21326.

United States Court of Appeals Fifth Circuit.

January 22, 1965.

Hans J. Lehman, Atty., Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Asso. Gen. Counsel, N. L. R. B., Washington, D. C., Arnold Ordman, General Counsel, Allison W. Brown, Jr., Attorney, N. L. R. B., for petitioner.

Karl H. Mueller, Harold E. Mueller, Mueller & Mueller, Fort Worth, Tex., for respondent.

Before TUTTLE, Chief Judge, and BROWN and GEWIN, Circuit Judges.

TUTTLE, Chief Judge:

The Board seeks enforcement of its order finding violations by the respondent of Sections 8(a) (3), (4), (1) and (5) of the National Labor Relations Act and requiring the reinstatement of an employee Scott. We think that there would be no profit in our reciting the facts upon which the Board could properly find that the company violated Section 8(a) (1) of the Act by threatening employees with loss of benefits and layoffs or discharges in order to discourage activities on behalf of the Union and in failing to bargain in good faith with the Union in violation of Sections 8(a) (5) and (1) of the Act. We discuss more fully the charge, sustained by the Board, that the company violated Sections 8(a) (3), (4) and (1) of the Act by laying off and failing to reinstate Milford Scott because of his leadership in the Union and because he had given testimony in a prior Board proceeding against the company.

Scott was a valuable employee of the company. He held a semi-skilled position as a "convolute setup man." A part of his duties was maintenance and adjustment of the machines on which he worked, together with a stitching machine and a threader. On occasion his duties included welding and the making of parts in the machine shop. It is not disputed that the company knew Scott to be a leader of the Union. On April 26, 1962, the company announced a layoff on account of reduction in work. Under the company policy, the senior employee was permitted to "bump" a junior employee provided the senior was able to perform the work of the bumped employee. Here an employee named Murphy, who had not been trained in the convolute setup work or in maintenance and repair work, was permitted to bump Scott. The company gave Murphy some six weeks training in his new duties as to maintenance and he also received frequent assistance from a company foreman in order to perform the work that Scott had previously performed. Scott was given no opportunity to bump any of the three employees who had less seniority than he did. There was credible evidence from which the Board could find that there had been a predetermined effort to get rid of Scott. We conclude that there was sufficient basis for the Board's determination that Scott's layoff resulted from the improper motive of discriminating against him by reason of his having given testimony against the company. The Board's findings, therefore, of violations under Sections 8(a) (1), (3) and (4) of the Act as to its layoff of Scott are fully justified.

We come next to the part of the enforcement order that required the company to reemploy Scott. This gives us considerable concern as it did the Examiner and the dissenting member of the Board because of Scott's admitted threat against the company's manager Smith.

As stated by the Examiner,

"There is no dispute as to the facts, Scott having admitted what occurred. On the day in question Scott drove to the plant by himself and asked to see Plant Manager Smith. When advised that Smith would see him, he requested and was granted permission to be accompanied by employees Huffman and Brewer, these being the members of the bargaining committee. After a few minutes wait in the outer office, and without Scott\'s telling the others the purpose of his visit, all three were ushered into Smith\'s office. What happened then can best be described in Scott\'s own words:

"`And the first thing I said to Mr. Smith was, I asked him if he had guts enough to talk to me alone. And he said he didn\'t have anything to talk to me about since the lay-off. And at that time I said I thought I had a hell of a lot to talk about. And in response he told me that I couldn\'t curse in his office like that and to come on out. And at that time I went outside and waited, and Mr. Smith stayed inside. And then I went back in about 5 minutes. * * * I came back and asked him if he didn\'t have enough guts to finish what he star

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