NLRB v. WR Bean & Son, Inc.
| Decision Date | 12 January 1972 |
| Docket Number | No. 71-1417 Summary Calendar.,71-1417 Summary Calendar. |
| Citation | 450 F.2d 93 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. W. R. BEAN & SON, INC., Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Washington, D. C., Walter C. Phillips, Director, Region 10, William E. Caldwell, Atty., N.L.R.B., Atlanta, Ga., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, William J. Rains, Regional Atty., Region 10, N.L.R.B., for petitioner.
Frank E. Specht, Robert C. Lemert, Jr., Smith, Currie & Hancock, Atlanta, Ga., for respondent.
Before GEWIN, GOLDBERG and DYER, Circuit Judges.
The National Labor Relations Board petitions for enforcement of its order issued against W. R. Bean & Son, Inc. (Company) finding it in violation of Section 8(a)(1) and (3) of the National Labor Relations Act1 by its discharge of a single employee, Rosa Ruth Holmes, for engaging in union activity.2
The Company challenges the Board's determination as not supported by substantial evidence on the record as a whole and questions the appropriateness of the relief ordered by the Board. The Company further argues that the rulings of the Trial Examiner on discovery motions and evidentiary matters constituted prejudicial error and denied the Company due process of law.
We consider it unnecessary to outline the evidence in detail and therefore make only a brief summary of the facts involved. Holmes was originally employed by the Company in July 1965 and was first discharged that same month. The Board subsequently found that her discharge on that occasion resulted from her activity on behalf of the Atlanta Bookbinders' and Binderywomen's Union, Local 96 (Union). Pursuant to the Board's order3 Holmes was reinstated as a regular, part-time employee whose primary function was to work Sunday and Monday nights in the Company's bindery.
In February 1969 the Union was certified by the Board as the collective bargaining representative for the Company's employees. During the organizational campaign Holmes distributed union authorization cards and supported the Union's efforts in conversations with fellow employees and at meetings of employees called by the Company. Following the certification, Holmes was elected as one of three employees to serve on the Union negotiating committee.
On March 13, 1969, Holmes was notified at work that her mother had died unexpectedly. She was excused from work by her foreman, Jerry Baker. The Board found that she remained away from work approximately three weeks. During the period of her absence, Holmes telephoned Baker and told him that she was thinking about returning to work. Baker told her to let him know when she was going to return.
Holmes returned to work in the first part of April. On April 11, 1969, Holmes attended the first Union bargaining session with Company officials and several other employees.
On April 20, 1969, Holmes was notified at work that her son had been killed in an automobile accident and she left work with Foreman Baker's knowledge. Although the evidence is in violent conflict, the Board credited Holmes' testimony that after she had been off for some time as a result of this second tragedy she called Baker and told him that she was still upset and would like to have additional time before returning to work. The Board found that Baker then expressed his understanding and told Holmes to take her time about returning. It is clear that sometime near the middle of May Holmes asked a fellow employee, Violet Davis, to speak to Foreman Baker about a possible change in Holmes' work shift. The Board credited Davis' testimony that Baker told her that he saw no reason why Holmes could not change shifts and that when Holmes got ready to come back to work to report to Superintendent Carter's office and discuss the subject with him.
The second union bargaining meeting was held on May 15, 1969. At that time Holmes had not returned to work, but at the insistence of employee Davis and union representative Crunkleton, Holmes did attend the May 15 meeting. Vice President Campbell testified that he was shocked to see her at the meeting and that following the meeting Vice President Campbell and one of the Company owners discussed their surprise at seeing Holmes at the meeting. According to evidence presented by the Company, the next day Vice President Campbell completed a review of Holmes' absentee record and made the decision to discharge her. The Company claims at the time of the May 15 meeting they had already begun to review Holmes' absentee record with a view toward termination. But nothing was said to Holmes by any Company official during or after the May 15 meeting about her attendance at the meeting or about her not yet having returned to work.
Holmes did not attend the third bargaining meeting on May 23. Although the Company claimed that at this meeting the Union representatives were informed that Holmes had been discharged, the Board credited the Union representatives' testimony that they were told only that Holmes was being considered for discharge. Holmes was not told of this conversation.
Not until the opening of the next bargaining meeting on May 29, 1969 was Holmes informed by the Company that she had in fact been fired. Notice of her discharge dated May 19, 1969 was received by her through the mail when she returned home after the meeting.
There is conflicting evidence regarding the facts and motives surrounding this discharge. The Company claims that Holmes was discharged because of excessive absences during 1968 and 1969. It argues that actually Holmes was afforded preferential treatment as a Board reinstated employee, and that she was discharged only after a review of her absentee record indicated that it was more excessive than any other employee in the Company.
However the Board concluded that notwithstanding Holmes' record of excessive absenteeism, the Company did not become upset about the absenteeism until she attended the May 15 bargaining session. The Board further found that Holmes' absences in April and May had been excused by Foreman Baker, and concluded that her...
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