OSCEOLA CO. CO-OP. CREAM. ASS'N v. NATIONAL LAB. REL. BD.

• Decision Date: 03 January 1958
• Docket Number: No. 15775.,15775.
• Parties: OSCEOLA COUNTY CO-OPERATIVE CREAMERY ASSOCIATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

251 F.2d 62 (1958)

OSCEOLA COUNTY CO-OPERATIVE CREAMERY ASSOCIATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 15775.

United States Court of Appeals Eighth Circuit.

January 3, 1958.

S. F. Wadden, Sioux City, Iowa, and Louis L. Corcoran, Sibley, Iowa (Sifford & Wadden, Sioux City, Iowa, on the brief), for petitioner.

William W. Watson, Atty., N. L. R. B., Washington, D. C. (Jerome D. Fenton, Gen. Counsel, Stephen Leonard, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Owsley Vose, Atty., N. L. R. B., Washington, D. C., on the brief), for respondent.

Before GARDNER, Chief Judge, and WOODROUGH and VAN OOSTERHOUT, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

Osceola County Co-Operative Creamery Association, hereinafter called the Creamery, has petitioned this court to review and set aside an order issued by the National Labor Relations Board on March 26, 1957, pursuant to section 10 of the National Labor Relations Act, as amended (29 U.S.C.A. § 151 et seq.), hereinafter called the Act. The Board in its answer has requested enforcement of its order.

The Creamery is located at Sibley, Iowa, within this Circuit. This court has jurisdiction under section 10(e) and (f) of the Act. It is conceded that the Creamery was engaged in commerce within the meaning of the Act, and that the Union here involved is a labor organization admitting to its membership the Creamery employees.

The Board sustained the trial examiner's findings and conclusions and determined that the motivating cause of the discharge by the Creamery of its employees, Loetscher and Haren, was the union activities of such employees, and that such discharge was in violation of section 8(a) (3) and (1) of the Act.¹ The Board's order requires the Creamery to cease and desist from unfair labor practices found, and from in any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed in section 7 of the Act. Affirmatively, the Board's order requires petitioner to offer reinstatement to Loetscher and Haren, to reimburse them for any loss of pay they may have suffered as a result of discrimination against them, and to post the usual notices.

The issue presented for our consideration is whether the Board's finding that the Creamery discharged Loetscher and Haren because of their union activities is supported by substantial evidence on the record as a whole. It is the contention of the Creamery that Loetscher and Haren were discharged for cause because of their incompetency and inefficiency and their failure to observe company rules pertaining to time for reporting for work and the type of clothing to be worn on the job. The Creamery contends that there is no substantial evidence to support a finding that the union activity on the part of the discharged employees was the cause of their discharge.

Section 10(f) of the Act, so far as it pertains to the scope of review of the Board's order, provides, "the findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall in like manner be conclusive." The Board's finding based upon substantial evidence on the record considered as a whole may not be disturbed by a court of appeals even though the reviewing court might have reached a different conclusion upon conflicting evidence. The reviewing court has no right to try the case de novo. N. L. R. B. v. Solo Cup Co., 8 Cir., 237 F.2d 521, 522; N. L. R. B. v. Pacific Intermountain Express Co., 8 Cir., 228 F.2d 170. In N. L. R. B. v. Gala-Mo Arts, Inc., 8 Cir., 232 F.2d 102, this court refused to uphold the Board's finding of a discriminatory discharge in violation of the Act. The court on the question of the scope of review states (at page 105):

"The rule with reference to the review of findings of the Board is now, we believe, established by what is said by the Supreme Court in Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 464, 95 L.Ed. 456. It is our duty to consider not only the evidence tending to support the Board\'s findings but also the evidence conflicting therewith. * * *"

The court then quotes from Local No. 3, United Packinghouse Workers of America, C. I. O. v. N. L. R. B., 8 Cir., 210 F.2d 325, 330, as follows:

"Since the decision of the Supreme Court in Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 464, 95 L.Ed. 456, it is incumbent upon this court in cases here on petition for review of an order of the National Labor Relations Board to consider the conflicting evidence and if it is our duty to consider it then we must pass upon its weight."

Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, is the controlling case governing the scope of review to be given to National Labor Relations Board decisions. There, the Supreme Court, in discussing the legislative history of the scope of review provisions of the Act, calls attention to public and congressional dissatisfaction with the "abdication" with which some courts granted enforcement of the Board's orders under the Wagner Act, which Act provided that the Board's findings were conclusive if supported by evidence. The Court points out that the present standard broadens the responsibility of the courts in the review of Board decisions, and indicates that no definite formula for judicial review can be laid down but that much must be left to the sound judicial discretion of the reviewing court. The Court does state (340 U.S. at page 490, 71 S.Ct. at page 466):

"We conclude, therefore, that the Administrative Procedure Act and the Taft-Hartley Act direct that courts must now assume more responsibility for the reasonableness and fairness of Labor Board decisions than some courts have shown in the past. Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function. Congress has imposed on them responsibility for assuring that the Board keeps within reasonable grounds. That responsibility is not less real because it is limited to enforcing the requirement that evidence appear substantial when viewed, on the record as a whole, by courts invested with the authority and enjoying the prestige of the Court of Appeals. The Board\'s findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board\'s decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both."

We now summarize some of the pertinent facts. The Creamery is a farmers' cooperative corporation organized under the Iowa law pertaining to cooperative organizations. It is managed by a board of five directors elected by its 2,500 farmer members. Its employees number 65. The Creamery processes milk and cream and makes butter, powdered milk, cheese, ice cream, and other dairy products.

Loetscher had been employed by the Creamery continuously from 1952 to the time of his discharge on January 12, 1956. He served as a relief driver for various milk pickup routes, and when not so engaged he worked inside the plant as a general helper. Haren was employed during substantially the same period, except for a brief interval during which he was employed elsewhere. His work was that of a general helper. The function of a general helper was to work where needed and to replace men on regular jobs when such men were absent because of illness or vacation. General helpers at some time or other worked in almost every department of the Creamery pursuant to assignment.

There is strong testimony on the part of the Creamery that Loetscher and Haren disrupted work by habitually reporting late. It was often necessary to phone them to find out if they were coming to work. Loetscher and Haren also frequently failed to observe the company's sanitary rule requiring them to wear white clothes when working with dairy products. There is also substantial evidence that they visited too much while at work, that they loafed on the job, that they interfered with the work of other employees, and that they performed some of their work in an unsatisfactory manner. Three employees testified as to the unsatisfactory work by the discharged employees. Employee Kor, in charge of the storeroom and loading, told Manager Jorgensen in December 1955 that he would prefer not to have Loetscher assigned to his crew because "he didn't do satisfactory work, he was late, a man has always got to wait for him, he'd come out there and start visiting, holding up some of the other fellows, started wrestling and stuff like that."

The trial examiner in his report attempts to minimize the evidence as to the unsatisfactory nature of the work record of the discharged employees. He stated that as he read the time cards, Haren had reported after 7 a. m. on 146 days out of 326 days worked, and that Loetscher had reported after 7 a. m. on 79 out of 95 days worked, which is somewhat less than the number of late arrivals claimed by the Creamery. The examiner also discounts the evidence given by fellow employees as to unsatisfactory work on the part of the discharged employees with the statement that such complaints lack substance and give the impression of animus toward the discharged employees. We find no evidence which indicates bias or prejudice on the part of the fellow employees and consider the deficiencies concerning which they testified to be substantial. We pursue this extensive line of evidence no further as the examiner in his report concedes that there was adequate basis for the discharge, stating:

"In sum, while Haren and Loetscher may not always have reported to work promptly and did not uniformly wear the white attire required by the Respondent of its employees, although Loetscher may occasionally have stopped his work to `shoot the breeze\' and to skylark,

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