Ohio Associated Tel. Co. v. National Labor Relations Bd.

• Citation: 192 F.2d 664
• Decision Date: 29 November 1951
• Docket Number: No. 11327.,11327.
• Parties: OHIO ASSOCIATED TEL. CO. v. NATIONAL LABOR RELATIONS BOARD.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

192 F.2d 664 (1951)

OHIO ASSOCIATED TEL. CO. v. NATIONAL LABOR RELATIONS BOARD.

No. 11327.

United States Court of Appeals Sixth Circuit.

Decided November 29, 1951.

Sidney Griffith, Columbus, Ohio (Power & Griffith, Donald C. Power, and Sidney D. Griffith, all of Columbus, Ohio, on the brief), for petitioner.

George J. Bott, David P. Findling, A. Norman Somers, Arnold Ordman, Morris A. Solomon, Washington, D. C., on the brief for respondent.

Before HICKS, Chief Judge, SIMONS and MILLER, Circuit Judges.

SIMONS, Circuit Judge.

Upon the complaint of the general counsel of the National Labor Relations Board, Ohio Associated Telephone Company was charged with unfair labor practices in discharging six employees for participation in a strike, for urging employees to abandon the strike and threatening them against engaging in union activities upon its property, all in violation of § 8(a) (1) and (3) of the Labor Management Relations Act, 29 U.S.C.A. § 158(a) (1, 3). The regional examiner recommended that the complaint be dismissed in its entirety. Upon exceptions filed by the Union to his intermediate report, the Board entered an order directing the petitioner to cease and desist from discouraging membership in the Union, from instructing its employees to refrain from union activities on company premises during company time; from interfering with them in their right to self organization and to offer immediate and full reinstatement to employees John F. Hachten, Charles C. Kibler and Virginia M. Spires without loss of pay. The petitioner seeks to set aside the order and the Board requests a decree for its enforcement.

In December, 1947, Local 503 of the Ohio Federation of Telephone Workers, Inc., was certified by the Board as the sole collective bargaining agent for the petitioner's non-supervisory employees in the Marion district and on January 3, 1948 the petitioner entered into a collective bargaining agreement with it, effective for one year, and renewable from year to year unless terminated upon notice. On October 27, 1948, the Union notified the petitioner that it desired to terminate the agreement and to negotiate a new one. Negotiations began in December 1948 and continued through January 17, 1949 when they were abruptly broken off by the Union, the principal issue being the Union's demand for a union shop which the petitioner declined to accept. On April 7, 1949, the Union ordered a strike in which approximately all of the employees participated for the first few weeks. A picketline was established in front of the main exchange building and at the front and rear of the plant building. It was maintained until June 15, 1949, when it was withdrawn by reason of a restraining order issued by the Court of Common Pleas of the county based upon numerous acts of violence committed by striking employees, both on and off the picket-line. On July 12, 1949, the Union terminated the strike and notified the petitioner to that effect. Upon receipt of this notice, the petitioner immediately notified all striking employees except six that their jobs were open and that they should return to work. The reason given for not notifying five of the six employees was that they had engaged in such violent and reprehensible conduct during the strike that their reinstatement as employees was impossible.

The alleged misconduct of the six discharged employees was of such foul, obscene, and violent nature that the petitioner's officers felt forced to take cognizance of it for the Company's protection, the protection of its employees, and the public in general. Its Vice President and General Manager Williams suggested to the employees that they report in writing all acts of violence and the like which were directed at them personally or occurred in their presence. From statements thus secured from non-striking employees and supervisors, it decided not to rehire those thought to have been guilty of the misconduct. The decision was based upon a careful review by Williams in conference with other officials of the Company.

The examiner after a thorough and careful analysis of the evidence recommended the dismissal of the complaint in so far as it was based upon discriminatory discharges. The Union filed exceptions to the intermediate report only in respect to Hachten, Kibler, and Spires, and a probationer by the name of Gladys Erow. His recommendation as to Erow was approved and the complaint as to her dismissed. His recommendation as to Hachten, Kibler and Spires was disapproved and their discriminatory discharge forms the basis for the affirmative directives of the order.

The Board in its opinion agrees with the examiner's conclusion that the conduct of the three discharged employees, whose cases are here involved, was of such character, if proved, that the petitioner would have been justified in discharging them. It held, however, that the record does not establish that any of the three engaged in misconduct. The only basis for the examiner's findings in this respect, it urges, is contained in the testimony of management representatives that they received reports of misconduct from employees who claimed to have observed it. In no instance did any of the reporting employees testify as to such misconduct. Therefore, it argues, the testimony of management representatives is nothing but hearsay. The written reports were unsworn statements made outside the hearing by persons not subject to cross-examination, uncorroborated by evidence, direct or circumstantial, and have no probative weight. It urges the well established principle that mere uncorroborated hearsay does not constitute substantial evidence. Moreover, it says the record discloses that the petitioner discharged Kibler, Hachten, and Spires because they engaged in concerted strike activity and, accordingly, violated § 8(a) (3). In our judgment, the Board misconceives the scope of the Hearsay rule and misapplies it to the evidence in the present case. True it is that the Company discharged three employees who had been engaged in the strike. But discharge after participating in a strike without more is not conclusive proof that they were discharged because they had so participated. Granting that an inference may be drawn from the mere fact of participation followed by discharge that such participation was its cause, the inference disappears when a reasonable explanation is presented that participation in the strike was not the cause of their discharge.

This leads us to a consideration of the true scope of the Hearsay rule and to the issue that was presented by the record to the examiner and the Board. The issue was not whether the discharged strikers had been guilty of misconduct but whether the employer had committed an unfair labor practice. It was the employer who was on trial and the employer alone, and whether it had discharged strikers for union activity or for legitimate cause becomes a question that...