Oil City Brass Works v. NLRB

• Decision Date: 08 February 1966
• Docket Number: No. 21755.,21755.
• Citation: 357 F.2d 466
• Parties: OIL CITY BRASS WORKS, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

357 F.2d 466 (1966)

OIL CITY BRASS WORKS, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 21755.

United States Court of Appeals Fifth Circuit.

February 8, 1966.

John H. Benckenstein, Beaumont, Tex., for petitioner.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Paul J. Spielberg, Atty., Arnold Ordman, Gen. Counsel, Melvin Pollack, Atty., N.L.R.B., Washington, D. C., for respondent.

Before RIVES, WISDOM and GEWIN, Circuit Judges.

RIVES, Circuit Judge:

Oil City Brass Works¹ petitioned this Court to review and set aside an order of the National Labor Relations Board² issued against it. The Board in its answer requested enforcement of the order.

Oil City's plant at Beaumont, Texas, includes a foundry, a machine shop and a forge shop. John Hammock was a supervisory employee in charge of what is called the "ring-side crew" on the night shift. Oil City refused to recall Hammock from layoff status. After proper proceedings, the Board found that Oil City had committed an unfair labor practice and ordered the Company to reinstate Hammock with back pay. 147 N.L.R.B. No. 76.

In the Spring of 1962, the Union³ began its drive to organize Oil City. At a meeting on March 3, 1962, Hammock and some 15 employees signed cards authorizing the Union to act as their bargaining agent. On March 6 the Company received a request from the Union to recognize it as bargaining agent of the forge shop employees, which it refused.

The Union then filed unfair labor practice charges. In return for withdrawing the charges, the Company agreed to recognize the Union and place certain men who had been laid off on a preferential rehiring list. All these actions were subject to a check of the Union's authorization cards.

A card check followed and it was found that the Union was entitled to recognition. However, on June 13, 1962, the Union again filed charges. The Union alleged, inter alia, that Oil City had refused to bargain and that it had discriminatorily laid off or discharged persons supporting the Union. The Board after a three-day hearing found for the Union and Oil City complied with the Board's order. 141 N.L.R.B. 131.

It is out of the testimony by Hammock given at those proceedings that the present case arises. At the time the Union filed unfair labor charges for the second time, supervisor Hammock was still on layoff status.

George E. Bryant, III, son of the Company's president George E. Bryant, Jr., is assistant to the president. On July 20, Bryant, III, called Hammock and offered him work as a blacksmith in charge of a new night crew to be assembled. Bryant, III, called Hammock the next day and explained that he could only "get * * * three of the old men back." Bryant asked Hammock if it "would be all right with * * * him if he went to the unemployment office and got three rookies" and that he "would bear with * * * Hammock until the men caught on to the work." This latter conversation took place on Saturday, July 21, and the Board hearing was on Monday, July 23, 1962.

Monday morning Hammock called Bryant, III, and told him that he had been subpoenaed to testify that day. Bryant, III, told him, in effect, not to worry and that he would try to make arrangements with the doctor for Hammock to get a required physical examination that afternoon after the hearing. At the hearing Hammock testified adversely to the Company's interests.

When Hammock called the Company that afternoon, Bryant, III, gave the phone to his father Bryant, Jr., who told Hammock that they didn't have a crew ready yet. He also told Hammock there were no hard feelings over his testimony. But on Thursday, the day after the Board proceeding ended, Bryant, III, told Hammock that the Company no longer wished to employ him. Hammock testified that Bryant, III, said, "No, John, I am sorry. Being as you are a blacksmith and a supervisor, and went with labor, we don't have no place in our organization for you."⁴

The Board found that the Company was well aware of Hammock's union membership before it offered to rehire him. Thus, the Board concluded that Hammock was denied reinstatement because of his having testified adversely to the Company. Oil City, on the other hand, contended that Hammock's union affiliation first came to its attention at the hearings. Hammock was denied reinstatement, according to the Company, because of his union membership and because he lied previously when he told the Company that he was not a union member.

If Hammock was fired solely because of his union affiliation, there has been no unfair labor practice on which the Board can predicate its order. The National Labor Relations Act does not protect supervisory personnel. NLRB v. Edward G. Budd Mfg. Co., 169 F.2d 571 (6 Cir. 1948), cert. den., Foreman's Ass'n of America v. Edward G. Budd Mfg. Co., 335 U.S. 908, 69 S.Ct. 411, 93 L.Ed. 441 (1949); NLRB v. Griggs Equipment, Inc., 307 F.2d 275 (5 Cir. 1962). It is settled that the Act does not preclude a company from firing or refusing to recall from layoff status a supervisory employee solely because that employee is affiliated with a union. Texas Co. v. NLRB, 198 F.2d 540 (9 Cir. 1952); NLRB v. Inter-City Advertising Co., 190 F.2d 420 (4 Cir. 1951), cert. den., 342 U.S. 908, 72 S.Ct. 301, 96 L.Ed. 679 (1952); NLRB v. Edward G. Budd Mfg. Co., supra.

Moreover, if Hammock were fired merely for lying, the Act would afford him no protection. Griffin Hosiery Mills, 102 N.L.R.B. 1592 (1953), at 1594; cf. Valentine Sugars, Inc., 102 N.L.R.B. 313 (1953).

Before reaching the thorny legal questions which embellish this case, it is necessary to resolve the factual conflicts. The Trial Examiner found that Bryant, III, was clearly aware of Hammock's union activity before he testified at the Board hearing. In reasoning to this conclusion, the Trial Examiner used the following language:

"With respect to the Respondent\'s defense, I am unable to credit the testimony of Bryant III, that he first became aware of Hammock\'s union sympathies through Hammock\'s testimony at the hearing. A card check was made subsequent to March 22, 1962, and was participated in by Respondent\'s payroll check. A letter from Respondent\'s attorney to the Union, states, in part, that a card check undertaken pursuant to a March 22 understanding had shown that one card examined had been executed by a supervisor and was accordingly not counted, and that one had been printed and not signed. Colloquy by counsel for Respondent indicated the printed card was that of Blacksmith W. E. Maddox. The credited testimony of Blacksmith Maddox, a supervisor, reveals that during the month of March or April, Bryant, Jr., conversed with Maddox in the presence of John Hammock concerning some faulty work. During the conversation Bryant, Jr., stated that Hammock and Maddox had signed the union authorization cards because he had `pulled their names out of a hat.\' I conclude that Bryant, here had reference to the card check hereinbefore mentioned and that Bryant, Jr., learned of Hammock\'s union allegiance subsequent to the card check, but before this conversation. Bryant III, denies having been told by his father that Hammock had signed an authorization card, but considering the opposition and hostility to the Union that existed in March and April, as found by the Board in the prior case which finding I officially notice and take cognizance of, and considering the high station of Bryant III, in the managerial hierarchy of Respondent, I am impelled to the conclusion that Bryant III, became aware in advance of the prior hearing that the card check had revealed Hammock\'s execution of a union authorization card. I cannot believe that Bryant, Jr., remained entirely reticent about this development, or that in the anti-union atmosphere that then existed, Bryant III, held himself so aloof from the crucial developments relating to the Union\'s organizational efforts that he remained unapprised, even by his own father, of Hammock\'s action."

The Trial Examiner goes on to conclude that Hammock was fired in part, if not entirely, because of his testimony. Again, in his supplemental decision the Trial Examiner re-adopts this finding. The Board, after its review, acquiesced in the Trial Examiner's rationale and findings on this matter.

The record thus presents a conflict. Bryant, III, testified that he did not know of Hammock's union activity until the hearing. This testimony was not credited by the Board. Instead, the Board chose to draw certain secondary inferences based on the undisputed primary fact inferences proved before the Trial Examiner. Where the ultimate facts found by the Board are supported by circumstantial evidence from which the conclusions may reasonably and legitimately be drawn, they are binding on the reviewing court. This conclusiveness is required even where the court might have drawn different inferences, for the Act commits the resolution of equally conflicting inferences to the Board. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); NLRB v. Camco, Inc., 340 F.2d 803 (5 Cir. 1965); Saginaw Furniture Shops, Inc. v. NLRB, 343 F.2d 515 (7 Cir. 1965); Duo-Bed Corp. v. NLRB, 337 F.2d 850 (10 Cir. 1964), cert. den. 380 U.S. 912, 85 S.Ct. 897, 13 L.Ed.2d 798; Martin Sprocket & Gear Co. v. NLRB, 329 F.2d 417 (5 Cir. 1964); see also, Great Atlantic & Pacific Tea Co. v. NLRB, 354 F.2d 707 (5 Cir. 1965) at 709; NLRB v. Mira-Pak, Inc., 354 F.2d 525 (5 Cir. 1965) at 527.

The test is whether taking the record as a whole the Board reasonably and legitimately could have drawn the secondary inference that it drew. This case presents one more situation involving the "crucial" period when the union seeks to organize a plant. Congress sought uniformity in the fact-finding process by entrusting it to a Board which sees all of the cases involving these highly specialized problems, and thereby develops expert knowledge....