NLRB v. Transport Clearings, Inc.

• Decision Date: 21 January 1963
• Docket Number: No. 19423.,19423.
• Citation: 311 F.2d 519
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TRANSPORT CLEARINGS, INC., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

311 F.2d 519 (1962)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TRANSPORT CLEARINGS, INC., Respondent.

No. 19423.

United States Court of Appeals Fifth Circuit.

December 27, 1962.

Rehearing Denied January 21, 1963.

Stuart Rothman, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Peter M. Giesey, Melvin Pollack, Attys., N.L.R.B., Washington, D. C., for petitioner.

George E. Seay, Malone, Seay & Gwinn, Dallas, Tex., for respondent.

Before BROWN and BELL, Circuit Judges and SIMPSON, District Judge.

BELL, Circuit Judge.

The Labor Board seeks enforcement of an order¹ finding that the employer violated § 8(a) (3) and (1) of the Act by discharging two employees because of union activity and § 8(a) (1) of the Act by interrogating employees concerning union activity and by threatening them with economic reprisal for union activity. 29 U.S.C.A. § 158(a) (1) and (3).²

Respondent was engaged in the business of purchasing and collecting freight bills of motor carriers. At the time in question, October 1960, some twenty eight clerical employees were employed by Respondent and these were supervised by a general manager and an office manager. The evidence on which the Board could have relied was that Brewer, one of the employees whose discharge is here involved, spoke to an union organizer and arranged for a meeting of interested employees off premises on Friday, October 14. Lindsey, the other employee discharged, attended the meeting along with Brewer and several other employees. Lindsey was contacted prior to the union meeting but during the same day by the office manager regarding union activity. Lindsey advised him that he and Brewer were equally guilty in organizing for the union. The office manager, in response to an inquiry from Lindsey, stated that he did not think the general manager would fire anyone because of union activity.

Lindsey was summoned to the office of the general manager and summarily discharged, effective immediately, on Monday, October 17 on the ground that his work had not been satisfactory. He was told that a more experienced collector was being employed in his place. This proved not to be the fact as the replacement employee had no previous experience and he was not interviewed until two days after the discharge. Lindsey had been hired on July 12 during the same year and had received a regular pay raise in mid-September. He had been complimented by the office manager on his September work. There was evidence showing that he had decreased the delinquency rate on the accounts assigned to him from August to September. He had a run in with the general manager during September concerning a matter unrelated to the discharge which resulted in the general manager apologizing to him and refusing to let him resign. On the other hand, there was evidence that Lindsey was doing poor work, had been previously warned, was discharged purely for this reason, and that the general manager who discharged him did not know of his union activity. The office manager who did know of his union activity was present at the time he was discharged but testified that his union activity had nothing to do with his being discharged. The Board ascribed the knowledge of the office manager of his union activity to the general manager.

There was testimony that on the same day the general manager asked another employee whether he had been to the union meeting and whether two other named employees had attended the meeting. The employee admitted that he had been there and signed an union card but did not identify any other employees who attended the meeting. The office manager later told this employee that the employer might close if the employees went union. The office manager told another employee that there would be twenty-odd women walking the streets looking for jobs if the union came in because the doors would be closed tight, and to another he said, "If that union comes in, these doors will be closed; there will be a lot of you girls looking for a job."

The replacement for Lindsey was hired on Wednesday, October 19 and reported to the general manager that Brewer confronted him during his first two days of work in an effort to get him to join an union. The general manager then instructed the office manager to have Brewer stop his union activity during working hours. On Monday, October 24, Brewer asked the secretary to the general manager to show him a petition against the union which he understood had been circulated. It was shown to him but he refused to sign it. Later in the day Brewer was called into the office of the general manager and questioned regarding his reasons for favoring the union. During the course of this conversation Brewer was reminded that he had received seven raises since being employed in August 1959 but was cautioned not to discuss his raises with other employees. On the same day but after office hours, Brewer, while conversing with the secretary to the general manager and two other employees, stated to them that he had been in the office of the general manager and had been reminded of his seven raises during the past year This conversation was reported to the general manager the next morning by his secretary. Brewer was called that afternoon to the office of the general manager and discharged in the presence of the office manager and with the secretary taking down the conversation in shorthand. His discharge was also effective immediately. In fact, both of the discharges here involved were in the midst of a pay period.

The order of the Board followed. In addition to finding the violations, Respondent was required to cease and desist from the unfair labor practices found, and from in any manner infringing upon the rights of its employees under the Act. The two discharged employees were to be reinstated with back pay.

According to Respondent the Board erred in holding that Brewer and Lindsey were discharged for union activity. It is contended that the holding is contrary to and unsupported by the substantial evidence on the record considered as a whole, and that both were discharged for cause. This assignment of error is couched in the background of a strenuous assertion that the trial examiner was not an impartial fact finder but a zealous prosecutor, prejudiced and biased against Respondent. Respondent also complains of that part of the order instructing it to cease and desist telling employees that they were putting their jobs in jeopardy by engaging in union activity.

We will consider first the charge against the trial examiner. This court in the leading case of N. L. R. B. v. Phelps, 5 Cir., 1943, 136 F.2d 562, speaking through Judge Hutcheson, carefully considered the necessity for impartiality on the part of a trial examiner. The principle was said to be that a respondent in a hearing before a trial examiner under the National Labor Relations Act is entitled to a fair trial by an impartial non-partisan trier of the facts. This is, it was said:

"* * * the essence of the adjudicatory process as well when the judging is done in an administrative proceeding by an administrative functionary as when it is done in a court by a judge. Indeed, if there is any difference, the rigidity of the requirement that the trier be impartial and unconcerned in the result applies more strictly to an administrative adjudication where many of the safeguards which have been thrown around court proceedings have, in the interest of expedition and a supposed administrative efficiency been relaxed. Nor will the fact that an examination of the record shows that there was evidence which would support the judgment, at all save a trial from the charge of unfairness, for when the fault of bias and prejudice in a judge first rears its ugly head, its effect remains throughout the whole proceeding. Once partiality appears, and particularly when, though challenged, it is unrelieved against, it taints and vitiates all of the proceedings, and no judgment based upon them may stand."

And in Sardis Luggage Company v. National Labor Relations Board, 5 Cir., 1956, 234 F.2d 190, we noted that the Act requires that the rules of evidence be followed in Board hearings only "so far as practicable." 29 U.S.C.A. § 160 (b). Departure from the rules of...