NLRB v. United Brass Works, Inc.

• Decision Date: 25 February 1961
• Docket Number: No. 8190.,8190.
• Citation: 287 F.2d 689
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNITED BRASS WORKS, INC., Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

287 F.2d 689 (1961)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNITED BRASS WORKS, INC., Respondent.

No. 8190.

United States Court of Appeals Fourth Circuit.

Argued November 7, 1960.

Decided February 25, 1961.

Paul J. Spielberg, Atty., N. L. R. B., Washington, D. C. (Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Melvin J. Welles, Atty., N. L. R. B., Washington, D. C., on the brief), for petitioner.

J. W. Alexander, Jr., Charlotte, N. C. (Blakeney, Alexander & Machen, Charlotte, N. C., on the brief), for respondent.

Before SOBELOFF, Chief Judge, BOREMAN, Circuit Judge, and BRYAN, District Judge.

BOREMAN, Circuit Judge.

This is a petition for enforcement of an order of the National Labor Relations Board directing the United Brass Works, Inc., to cease and desist from engaging in certain unfair labor practices, to reinstate with back pay certain employees said to have been discharged for union activity, to supply certain business records pertinent to contract negotiations, and to bargain in good faith with the union representing its employees. We are of the opinion that enforcement must be denied for the reasons hereinafter stated.

United Brass Works, Inc., hereinafter referred to as the company, opened its small metal fabricating plant in Randleman, North Carolina, in January 1958, employing local unskilled workers in a training program at a standard starting wage of $1.10 per hour, with increases as merited. Following union organizational activity among company employees starting in April 1958, a Board election was held on July 24, 1958, at which the employees selected the Sheet Metal Workers International Association, AFL-CIO, as their collective bargaining representative. This union was so certified on August 1, 1958. The former employees, Robert E. York, Tommy Meyers and Buddy F. Robbins, allegedly discriminated against, had been continuously employed by the company since February and March 1958 and had engaged in the union organizational campaign.

In August and September of 1958, excessive inventories necessitated a reduction in the plant work force, and during this period the total number of employees was reduced from thirty-one to twenty-six. On August 29, 1958, employee York was discharged along with one other worker.¹ Thereafter, about September 11, 1958, a majority of the union members voted to strike in protest of alleged discrimination in the discharge of their fellow employees and during the ensuing strike period, September 11 to October 1, 1958, the company hired six new employees as permanent replacements for some of the strikers.

Upon charges duly filed by the union and the individual employees, a consolidated complaint was issued against the company and, following a hearing on March 24 and 25, 1959, the Trial Examiner concluded that the discharge of York was discriminatory within the prohibitions of sections 8(a) (1) and 8(a) (3) of the National Labor Relations Act;² that since Meyers and Robbins were striking in protest of the discriminatory and unjustified discharge of York, they had the status of unfair labor practice strikers and, hence, could not be permanently replaced; that in denying them reinstatement, the company was guilty of a second unfair labor practice in violation of the above same sections of the act.

The company excepted to the findings of the Trial Examiner,³ and upon review the Board affirmed the Trial Examiner's report and adopted his findings and conclusions. In arriving at his conclusion that the discharge of York was discriminatory and based upon his union membership and activity, the Trial Examiner stated that "the only evidence offered by Respondent to establish the reason for York's selection for termination was that given by Fromberg," the company's production shop foreman, to the effect that the release was due to York's "attitude and (lack of) loyalty to the Company." (Emphasis supplied.) This evidence he discredited, stating that it had not been "given in a manner to convince me of its truthfulness."

It is not the function of a Court of Appeals in Labor Board cases to pass upon the credibility of witnesses. N. L. R. B. v. School-Timer Frocks, Inc., 4 Cir., 1955, 224 F.2d 336. However, where material uncontradicted evidence has been ignored, N. L. R. B. v. Cleveland Trust Co., 6 Cir., 1954, 214 F.2d 95, 98, or where evidence has been disregarded or eliminated by the casual expedient of discrediting an employer's witnesses, N. L. R. B. v. Miami Coca-Cola Bottling Co., 5 Cir., 1955, 222 F.2d 341, 345, the result is that the Trial Examiner's report and the Board's findings will not be accorded the presumption of correctness usually attributed to the trier of fact. N. L. R. B. v. National Paper Co., 5 Cir., 1954, 216 F.2d 859, 861-863; Local No. 3, United Packinghouse Workers of America v. N. L. R. B., 8 Cir., 1954, 210 F.2d 325, 330. See Universal Camera Corp. v. N. L. R. B., 1951, 340 U.S. 474, 496-497, 71 S.Ct. 456, 95 L.Ed. 456. Upon review of Board action we do not try the facts as a trial court nor do we review them as upon an appeal in equity or in law of a case heard without a jury, but it is nonetheless our duty to determine from the record as a whole whether substantial evidence to support the Board's decision and order is present and to deny enforcement if there is not. N. L. R. B. v. Southland Mfg. Co., 4 Cir., 1952, 201 F.2d 244.

At the time of York's discharge, it was undisputed that it was economically necessary that the company curtail production and reduce its work force. The Examiner himself found that "some reduction in staff was economically justified on August 29," 1958, the date of York's dismissal. This company had operated the same type of business before going to Randleman and it was undisputed that it was company policy, when effecting reductions in force, to give first consideration to comparative merit, taking into account ability, industriousness, aptitude, attitude and attendance, and if those considered for release were of equal merit then to apply seniority principles. There is no suggestion that this policy was adopted for discriminatory purposes or any other not in good faith. The sole question in selecting York for discharge was whether the company was acting upon York's performance record or because of his union membership and activity.

York himself admitted that he had been repeatedly reprimanded by his supervisors for being too slow in the performance of his work; for "spilling a barrel of stems"; for talking to such an extent that it interfered with his work; for spending excessive time in the rest room; for his "attitude" and "numerous" things like that; for insubordinate "talking back" and for "running his lip back to his foreman." Despite the fact that all other employees (with the exception of one Brigman), union and nonunion alike,⁴ had received merit pay increases, York acknowledged that he had not. He conceded that, in response to his inquiries, his failure to receive an increase was uniformly attributed by his supervisors to the above noted deficiencies in his work performance. He further admitted that only twenty minutes before he was discharged he had been the object of yet another reprimand for spending too much time away from his work, and that he had responded with an insolent retort which we consider too vulgar to repeat.

This evidence, adduced from York himself, fully discloses that his job performance was frequently unsatisfactory and objectionable to his supervisors. Certainly, there is no evidence in the record to even suggest that any employee retained by the company had a poorer employment history and work record. York acknowledged that he was the thirty-first and last employee hired by the company and that he had no seniority over any other person.

Undoubtedly York was an active participant in the union organizational campaign. He had offered his home for several of the early meetings; he served as the union observer at the Board election; and he was a member of the union's contract negotiation committee (though he was later voted off of this committee by the union members). The company officials were well aware of York's union participation.

Indeed, neither York nor the Board has suggested that the frequent reprimands were undeserved or unjustified or that they were precipitated by an antiunion animus on the part of the company. But the effect of the Board's decision is that York's discharge itself was so motivated despite his past conduct and that his employment was terminated for reasons independent of his poor job performance. In a similar case, Martel Mills Corp. v. N. L. R. B., 4 Cir., 1940, 114 F.2d 624, 631, involving determination of an employer's motivation for the discharge of a union member, this court said:

"We do not lose sight of the fact that our inquiry is centered upon the motivating cause of the employer\'s action. The task is a difficult one. It involves an inquiry into the state of mind of the employer. Such inquiry is laden with uncertainties and false paths. Obviously our chief guide is the words of the witness under oath who undertook to disclose the workings of his mind. If his explanation is a reasonable one, the onus is upon the Board to establish the falsity of this explanation and the truth of its own interpretation. * * *.

* * * * * *

"* * * An examination of * * * the record makes it obvious that two separate explanations are advanced for Whittle\'s dismissal: the Martel Mills alleges that at the time of the general lay-off, it discharged an inefficient worker; the Board concludes that the Martel Mills seized the opportunity to discharge the employee because of his union activities. Aware of the burden of proof that is imposed upon the Board in proving the employer\'s dominant motivation in discharging the employee * * * we are of the opinion that the evidence advanced to support

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