NLRB v. Southern Materials Company, 9604.
| Decision Date | 28 April 1965 |
| Docket Number | No. 9604.,9604. |
| Citation | 345 F.2d 240 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SOUTHERN MATERIALS COMPANY, Inc., Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Paul J. Spielberg, Atty., N. L. R. B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Nancy M. Sherman, Atty., N. L. R. B., on brief), for petitioner.
Daniel R. Coffman, Jr., Jacksonville, Fla. (Hamilton, Bowden & Coffman, Jacksonville, Fla., on brief), for respondent.
Before SOBELOFF and BRYAN, Circuit Judges, and HUTCHESON, District Judge.
In March, 1962 United Industrial Workers of North America of The Seafarers International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO and Inland Boatmen's Union of The Seafarers International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO, hereinafter referred to as the Union, began a campaign among the employees of Southern Materials Company, Incorporated of Norfolk, Virginia, hereinafter referred to as the Company, for the purpose of organizing the employees in order that the Union might become bargaining agent for the group.
There was an energetic campaign conducted by the Union. The Company undertook to meet the issues by conducting a campaign in opposition. Representatives of the Company made speeches to groups of employees, had personal discussions with some of them and mailed letters pointing out the benefits provided employees by the Company.
On June 4 the Union petitioned the National Labor Relations Board, hereinafter referred to as the Board, for an election. The Company voluntarily consented to the election which was held on June 28.
In the meantime Teamsters Local 822, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter referred to as Teamsters, intervened and was also placed on the ballot.
At the election the Company received 344 votes, the Union received 196 and the Teamsters 2.
On July 6, 1962 the Union filed objections to the result of the election charging the discriminatory discharge of fourteen employees and verbal misconduct by the Company in violation of Section 8(a) (1) of the National Labor Relations Act.
In advance of the hearing before the Trial Examiner counsel for the Company directed to the General Counsel interrogatories seeking discovery of facts believed to be of aid in defense. The Trial Examiner denied counsel the right to have these interrogations answered and on appeal that action was affirmed by the Associate Executive Secretary.
As a result of proceedings before the Board we are here concerned with only two of the fourteen employees alleged to be victims of discrimination; the finding of the Board that the Company violated Section 8(a) (1) of the Act by coercing employees; and whether the Board should permit pre-hearing discovery.
(1) The Termination of Employment of Jack B. Harris.
Harris was a truck driver at Campostella during the time of the election campaign. He was a supporter of the Union, although it appears that in at least one conversation with a company official he expressed his opposition to the Union. Actually, he was rather actively in favor. On June 5, 1962, while on Company time in the dispatcher's office, he made threats of serious personal violence in a conversation with two other drivers, one a colored man, neither of whom had joined the Union. For this he was discharged on June 9.
In the week before the election, the Company posted official notices concerning the election, at the instruction of the Board. These notices contained sample ballots and other information. One was in a glass covered bulletin board in the truck shop at Campostella, which board was unlocked and was used for the posting of various notices to employees. At that time, Saturday, June 23, 1962, Harris had been discharged. The sample ballot appeared on the center panel of the notice. On the same day, a Company propaganda leaflet was placed on the same bulletin board below and to the left of the official notice. No one worked in the truck shop on Sunday, June 24, and the doors were closed and locked. About 11:30 P.M. on that night, Jack B. Harris entered the truck shop by opening the doors and took two flashlight photos of the bulletin board. The first did not turn out well, so he took the second. That photo shows the center panel of the official notice covered by the Company propaganda leaflet. The Vice-President of the Company noticed the coverage of the official notice about 5:30 A.M. Monday, June 25, when he came to work and immediately had the Company leaflet removed from the official notice. The Company attorney was notified of the coverage and of its removal.
Despite the testimony of an employee that he saw the conditions shown by the photo on Friday, June 22, and continuously thereafter through June 27, which was denied by Vice-President Gourley and mechanic Jenkins, the Trial Examiner concluded the leaflet was not over the notice on Saturday evening and that it was removed early Monday morning.
Despite the overwhelming proof as disclosed by the record that Harris broke into the shop, placed the notices on the bulletin board as described and took the photo for the admitted purpose of prejudicing the Company and that he had theretofore made threats of serious bodily harm in connection with Union activity on Company premises and on Company time, the Board has ordered his immediate and full reinstatement, without prejudice to seniority and other rights and that he be reimbursed for any loss of pay he may have suffered.
The bare recital of the facts is sufficient to show the impropriety of the action of the Board.
(2) Termination of Employment of William H. Sawyer.
This employee was a crane operator who had been employed by the Company for over 20 years, the last 12 years' service being at Richmond. On June 15, 1962, the Company being in need of a crane operator at the Lynchburg plant, suggested that Sawyer be transferred to Lynchburg. The situation was an emergency one and a relief operator was needed in Lynchburg on Monday, June 18. Sawyer was at first reluctant to accept a transfer, but after talking with his wife decided to do so. His work week on the new assignment was 4 hours shorter and he was required to do no work after 1 P.M. on Saturdays. He remained on this job for 3 weeks, during which time the Company paid his transportation, hotel room and board.
The election was held on June 28, 1962 and on July 3 Sawyer quit his job. It is clear from the record that Sawyer was deeply concerned with the outcome of the election, being an ardent advocate of the Union. It is equally clear from the record that the transfer to Lynchburg was in the ordinary course of operation of the business. According to the testimony of Sawyer himself, he is quick tempered and he was in good standing with the Company when he quit. The Board places emphasis upon the fact that Sawyer was not offered a transfer back to Richmond. Sawyer did not request such transfer, but apparently left in a pique because of the failure of the Union to win the election. After notifying the Company on the Saturday he was quitting, he agreed to continue 2 days longer at the request of Company officials. Some time later after returning to Richmond, he called one of the Company officials to make inquiry concerning reemployment. He was told that he would have to see President Hofheimer and Vice-President Wingo. In response to that advice, Sawyer indicated he was not further interested and he obtained a position with another concern.
There is a considerable amount of testimony concerning this episode, including conversations alleged to have taken place from time to time. While the Company admittedly opposed the Union in the election, the record as a whole does not support the charge of discrimination on account of Union activities in its dealings with Sawyer. On the contrary, the record reveals that Sawyer was a valued employee of many years standing, on close personal terms with his superiors, who apparently felt free to discuss matters with him. Being disappointed and resentful because of the outcome of the election, which obviously caused feelings to run high, in a fit of anger Sawyer gave notice that he would quit. After thinking it over, he called Mr. Emerson concerning reemployment, and being told he would have to apply to Messrs. Hofheimer and Wingo for reinstatement he refused to do so.
The Board has picked out several episodes to undertake to justify its action in ordering the reinstatement of Sawyer but a consideration of the record as a whole clearly reveals that Sawyer quit his job voluntarily after the outcome of the election was known. No request for a transfer to Richmond was made by him. The reluctance of the Company to lose his services was demonstrated by the request that he continue and he did continue his work for two days longer. After his return to Richmond he made inquiry concerning reemployment. This inquiry met with no rebuff. He was simply directed how to proceed. For some reason he was unwilling to make application to the officials named and for reasons of his own he sought and obtained employment elsewhere.
(3) A careful examination of the 271 pages of the Joint Appendix, of which 208 pages consist of transcribed testimony, fails to sustain the charge of improper or coercive conduct of Respondent.
An analysis of the examination and cross-examination of the 31 witnesses who testified, clearly points up the conclusion stated. A detailed discussion would be unreasonably tedious and burdensome.
It is sufficient to say that of those employees who testified concerning such acts, only four alleged to have been the subject of violation of Section 8(a) sub-section (3) were called as...
To continue reading
Request your trial
-
Federal-Mogul Corp. v. N.L.R.B.
...employees out of 1,000 employees were involved in the interrogations in the Huntsville Mfg. Co. case. See also N. L. R. B. v. Southern Materials Co., 345 F.2d 240 (4 Cir. 1965) where only 15 out of 542 employees were involved. In Utrad Corp. v. N. L. R. B., 454 F.2d 520 (7 Cir. 1971) only 3......
-
NLRB v. Safway Steel Scaffolds Company of Georgia
...case, the court held that there was no abuse of discretion in denying the motions for pretrial discovery. In NLRB v. Southern Materials Co., 4th Cir. 1965, 345 F.2d 240, 244, on the other hand, the Fourth Circuit said in dictum that the Board should generally allow pretrial discovery inasmu......
-
NLRB v. REX DISPOSABLES, DIV. OF DHJ INDUSTRIES, INC.
...5 Cir. 1967, 383 F.2d 273; NLRB v. Miami Coca-Cola Bottling Co., 5 Cir. 1968, 403 F.2d 994, 996. Also see NLRB v. Southern Materials Co., 4 Cir. 1967, 345 F.2d 240, 244. We adhere to that doctrine despite the able but highly technical opinion of the Second Circuit to the contrary in NLRB v.......
-
N.L.R.B. v. P.B.& S. Chemical Co.
...29 U.S.C. 158(a)(1) and 157; NLRB v. Jamestown Veneer & Plywood Corp., 194 F.2d 192, 194 (2 Cir. 1952); see NLRB v. Southern Materials Co., 345 F.2d 240, 242-243 (4 Cir. 1965). The Board ultimately bottomed its decision on the finding that the employer discriminated against the three disrup......