NLRB v. Tennessee Packers, Inc., Frosty Morn Division

• Citation: 390 F.2d 782
• Decision Date: 06 March 1968
• Docket Number: No. 17183,17644.,17183
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TENNESSEE PACKERS, INC., FROSTY MORN DIVISION, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

390 F.2d 782 (1968)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TENNESSEE PACKERS, INC., FROSTY MORN DIVISION, Respondent.

Nos. 17183, 17644.

United States Court of Appeals Sixth Circuit.

March 6, 1968.

Lawrence M. Joseph, Atty., N.L.R.B., Washington, D. C., for petitioner; Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Herman M. Levy and Harold B. Zanoff, Attys., N.L.R.B., Washington, D.C., on brief.

Asa R. Ambrister, Nashville, Tenn., and George V. Gardner, Washington, D. C., for respondent.

Before WEICK, Chief Judge, and O'SULLIVAN and EDWARDS, Circuit Judges.

EDWARDS, Circuit Judge.

Since 1958 the National Labor Relations Board has been engaged in seeking to require respondent in these unfair labor practice cases to conform its labor policies to the requirements of the National Labor Relations Act.

The litigation which has resulted is recorded in the following case citations: N. L. R. B. v. Tennessee Packers, Inc., Frosty Morn Div., 124 N.L.R.B. 1117 (1959); 143 N.L.R.B. 494 (1963), enforced, 339 F.2d 203 (6th Cir. 1964); 146 N.L.R.B. 165 (1964), enforced, 344 F.2d 948 (6th Cir. 1965); 154 N.L.R.B. 819 (1965), enforced, 379 F.2d 172 (6th Cir. 1967), cert. denied, 389 U.S. 958, 88 S.Ct. 338, 19 L.Ed.2d 364 (1967).

We consider this background relevant to resolution of the fact disputes pertaining to respondent's motions in the seven discharge, lay-off, or transfer cases brought before us by the current NLRB enforcement petitions. (In No. 17,183 the Board asks this court to enforce its order reported at 153 N.L.R.B. 1411 (1965), while in No. 17,644 the Board seeks enforcement of its orders found at 157 N.L.R.B. 53 (1966) and 158 N.L.R.B. No. 114 (1966)).

Basically, these cases present disputes of fact between the affected employees and respondent's managerial personnel as to what occasioned the disciplinary measures taken. With one exception (not now before us) the Trial Examiner and the Board credited the testimony of the employees and did not credit that of the management. We have reviewed this conflicting testimony and note that in each instance of discharge, lay-off, or transfer a plausible nondiscriminatory explanation is given by respondent's witnesses, just as an equally plausible discriminatory explanation is provided by the employee testimony.

The credibility of witnesses presenting conflicting testimony is, of course, for the Board to determine. E. g., United Fireworks Mfg. Co. v. N. L. R. B., 252 F.2d 428 (6th Cir. 1958); Houchens Market, Inc. v. N. L. R. B., 375 F.2d 208, 211 (6th Cir. 1967).

Our appellate function is not to determine whether or not these fact disputes are decided correctly, but whether the Board's findings are "supported by substantial evidence on the record considered as a whole." 29 U.S.C. § 160(e) (1964); Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); N. L. R. B. v. Tennessee Packers, Inc., 379 F.2d 172, 180 (6th Cir.), cert. denied, 389 U.S. 958, 88 S.Ct. 338, 19 L.Ed.2d 364 (1967).

In each of these cases (excepting that of Helen Latta, which we deal with separately hereafter) we hold there was substantial evidence that 1) each employee was an experienced employee with a satisfactory work record; 2) the individual concerned was known by the respondent to be an active union adherent; 3) the discharge, lay-off, or transfer was not in accord with the individual's seniority status as compared with at least some unaffected employees; and 4) each such discharge, lay-off, or transfer was effected by respondent in the immediate aftermath of some union activity (or the result of some union activity) on the part of the employee concerned.

We have previously dealt with the matter of proximity between recent union activity protected by the NLRA and measures taken against employees which are defended by the employer on nondiscriminatory grounds. Such proximity can lend support to a Board inference of unfair labor practice. N. L. R. B. v. Iron City Sash & Door Co., 352 F.2d 437, 438 (6th Cir. 1965); N. L. R. B. v. Delight Bakery, Inc., 353 F.2d 344, 345 (6th Cir. 1965); See also N. L. R. B. v. Jamestown Sterling Corp., 211 F.2d 725 (2d Cir. 1954).

In this last case, Judge Medina said:

"The unexplained coincidence of time with respect to the principal events was really no coincidence at all, but rather part of a deliberate effort by the management to scotch the lawful measures of the employees before they had progressed too far toward fruition. * * * If employees are discharged partly because of their participation in a campaign to establish a union and partly because of some neglect or delinquency, there is nonetheless a violation of the * * * Act." N. L. R. B. v. Jamestown Sterling Corp., 211 F.2d 725, 726 (2d Cir. 1954).

Without seeking to analyze all of these cases in detail, we set out the substantial facts which support the NLRB's findings in the two which appear to us to offer the strongest cases for respondent.

James Gough was discharged by respondent for "refusal to do the work." He had been an employee for 10 years prior to the discharge. He was the first Negro in the cattle kill department to put on a union button. He testified that after he put the button on his foreman "commenced riding" him. He testified that on the day he was discharged additional duties had been added to his job and he couldn't keep up. He flatly denied refusing to do the work.

The Trial Examiner and the Board found:

"I am convinced and find that Respondent was not truly motivated by its asserted reason for discharging Gough, an employee of almost 10 years of service. Gough was the first Negro employee to wear a union button openly at work in the hog and cattle kill departments. In the course of his work, he came in contact with a considerable number of other Negro employees in these departments. Both McGregor and Barnes admitted seeing Gough wear his union button. Coincidental with his commencement to wear a union button, McGregor began to criticize him constantly about his work, so that all the employees in the department decided to remove their buttons shortly before his discharge in an effort to relieve Gough of this criticism. On the morning of April 27 McGregor seized upon Gough\'s attention to his primary and required offal removing duties which kept him from getting to perform the extra hide work which had been assigned to him during the last 2 months and, instead of giving him some requested help with the offal work, summarily discharged him. Although Gough had never refused to work on the hides but had merely pleaded with McGregor for some help with his offal removing duties so as to enable him to get to the hides. McGregor thereafter asserted that Gough was discharged on the obviously erroneous and pretextious ground that he had refused to perform his work. Barnes acquiesced in the decision to discharge McGregor, although he knew at that time that most of Gough\'s offal removing functions would soon be eliminated, as in fact it was by the time of the instant hearing, by the new equipment then in the process of being installed. Gough was then replaced by Long, a Negro employee known by Respondent to be a nonsupporter of the Union because he openly wore a red or `company\' button at work. Thereafter, Long was given help on the kill floor at different times and by

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