NLRB v. Texas Industries, Inc., 24255.
| Decision Date | 28 December 1967 |
| Docket Number | No. 24255.,24255. |
| Citation | 387 F.2d 426 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TEXAS INDUSTRIES, INC., Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Marcel Mallet-Prevost, Asst. Gen. Counsel, NLRB, John E. Nevins, Atty., NLRB, Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Allison W. Brown, Jr., Atty., NLRB, for petitioner.
Fred O. Weldon, Jr., Dallas, Tex., for intervenor.
John Bernard Nelson, John Edward Price, Fort Worth, Tex., for respondent.
Before TUTTLE, GEWIN and GODBOLD, Circuit Judges.
The National Labor Relations Board found that Texas Industries, Inc., violated § 8(a) (3) and (1) of the Act1 by discharging employee Kenneth Hester, a truck driver, because of union activity. It seeks enforcement of its order requiring reinstatement and back pay and the usual accompanying relief. Enforcement is denied, because there is not substantial evidence that the company had knowledge of any union activity by Hester.
Hester was hired in late April. The company knew he was a union member and then on strike against a motor carrier. Texas Industries was not organized at that time and no organizational activity was going on.
Within a week it became known among his fellow workers that Hester had experience in union matters, and some of them asked him to organize a local at the plant. He declined, indicating that he had not completed his 90-day probationary period.
On June 20 Foreman Lewis and Shipping Foreman Meyer called in Hester and reprimanded him for making late deliveries. That was all the conversation — there was no discussion of union or union activities. When Hester left the conference, employee Rich asked what he had been called in for. According to Hester his answer was:
The Trial Examiner characterized Hester's version of his conversation with Rich as follows:
"Because he was embarrassed and disliked and distrusted Blackie, Hester replied with a cock-and-bull story that the aforementioned supervisors had called him in to ask `if I could help them straighten out the driver\'s complaints and get everything squared away to where everybody would be happy.\' He told Blackie that he had answered his superiors with the remark that after he had served his 90-day probationary period he would go `to the union and then write everything down on paper and hand it over to Mr. Sewell * * * president of the company, and get everything to where everybody would be happy.\'"
What Hester describes as a "big line of bull," and the Trial Examiner as a "cock-and-bull story", the Board in its brief refers to as "Hester erroneously stated." These are new euphemisms in judicial proceedings for the making of untrue statements. No one, including Hester, contends the statements were true.
Shortly thereafter Hester told other employees that after his probationary period he would see Mr. Sewell (the company president) "to more or less get that cement plant straightened out," and would get management to fire Meyer and he would take over Meyer's job. In similar euphemistic manner this is characterized as an "erroneous report" by Hester.
Several employees told Meyer about Hester's statements made to Rich and the other drivers. Not more than four or five...
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