Portable Electric Tools, Inc. v. NLRB

• Decision Date: 24 October 1962
• Docket Number: No. 13591.,13591.
• Citation: 309 F.2d 423
• Parties: PORTABLE ELECTRIC TOOLS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

309 F.2d 423 (1962)

PORTABLE ELECTRIC TOOLS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 13591.

United States Court of Appeals Seventh Circuit.

October 24, 1962.

John F. Cusack, James J. Cusack, Jr., and Robert E. Cusack, Chicago, Ill., for petitioner.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Paul J. Spielberg, Attorney, N. L. R. B., Stuart Rothman, General Counsel, Dominick L. Manoli, Associate General Counsel, Samuel M. Singer, Attorney, N. L. R. B., for respondent.

Before HASTINGS, Chief Judge, and KILEY and SWYGERT, Circuit Judges.

SWYGERT, Circuit Judge.

This is a petition to review and set aside an order of the National Labor Relations Board pursuant to Section 10(f) of the Labor Management Relations Act of 1947, as amended, 29 U.S.C. § 160 (f). The order directs petitioner, Portable Electric Tools, Inc., to cease discouraging membership in labor unions or interfering with its employees' right to organize and bargain collectively as proscribed by Sections 8(a) (1) and (3) of the Act, 29 U.S.C. §§ 158(a) (1), and (3). Affirmatively, the order directs petitioner to offer full reinstatement to one Yvonne Ballard, the charging party and its former employee, to make her financially whole for the period of time since her discharge, and to post the usual notices. The Board in its answer asked for enforcement of the order.

The contested issues arise from petitioner's contentions that the Board's findings are not supported by substantial evidence and that it was denied a fair hearing by the Trial Examiner.

Petitioner is engaged in the manufacture of electric tools and electronic devices, and sells them in interstate commerce. On November 1, 1960 it moved its plant from Chicago to Geneva, Illinois. Yvonne Ballard was hired as a drill press operator on November 8, 1960. She was discharged on December 15, 1960. The Trial Examiner concluded that she was discharged because of union activity. Petitioner contends that it had no knowledge of any union activity on Mrs. Ballard's part and that it discharged her for good cause — among other reasons because she was absent too often, frequently tardy, and away from her machine too much.

The record shows that during the twenty-seven full working days and five part-time Saturdays, which span her entire employment period, Yvonne Ballard was less than an "ideal" employee. In the first four days she was late once. In the second five and a fraction days she was absent twice. In the third four and a fraction days she was late once and absent two full days and the fraction day. Also, during this period, she was frequently admonished about excessive absences from her machine, allegedly for visits to the washroom. In addition, petitioner received several calls from creditors of Yvonne Ballard and a collection agency which raised the prospect of garnishment proceedings. The charging party was receiving Aid to Dependent Children from the local welfare agency in the form of grocery orders, each valued at $28.22 a week, during at least some of the weeks of her employment. Although the evidence is not clear on this, it appears that her family was only entitled to this aid if Mrs. Ballard was employed for less than a full workweek. Petitioner had received at least one call from the agency inquiring as to the work status of Mrs. Ballard. Since her daily wage was considerably less than $28.22, it is reasonable to infer that at least some of her absences were due to a desire not to be removed from the welfare agency rolls.

Petitioner introduced testimony at the hearing that the average output or efficiency of employees, other than Yvonne Ballard (and one other employee who was discharged), was approximately 90 percent, and that the efficiency of Yvonne Ballard was 70 percent. While the accuracy of the records from which this "efficiency" was evaluated was questioned by the Trial Examiner, the record bears out petitioner's claim that Mrs. Ballard was below average in efficiency even in view of her short time with the company.

Although there was no evidence that Yvonne Ballard was a union member, she testified that she had passed out union cards commencing some two weeks prior to her discharge — a total of nine cards in all. Mrs. Ballard stated that she passed these cards out at coffee breaks and during the lunch hours. She further testified that she did this when no one else was around or only when others that she was sure she could trust were around. She was fairly certain that no one else observed these exchanges. Other than a conversation that took place between Mrs. Ballard and Mr. Lundman, the personnel director of petitioner, on the day of discharge, there was no evidence offered that tended to show that the company had any knowledge that union activity was going on in the plant. On the contrary, petitioner called several witnesses, including several fellow employees of Mrs. Ballard, who testified that they were unaware of any union activity.

The Trial Examiner, in finding a violation of the Act, relied exclusively on the testimony of the charging party herself, quoting the personnel director, Mr. Lundman. She said she was called to his office and told she was fired. He gave her several reasons for her discharge, including unsatisfactory production. She said she told him she had never been warned. She then added:

"After that, he handed me my checks and he said, `well\', he says, `that isn\'t the only reason either, but\', he says, `that is the only reason that I am going to give you right now.\'

"I said, `I know that isn\'t the only reason I was fired. I know better than that, and you know I was given no warning.\'

"He said, `Allright, between you and I\', and he closed the door; he said, `you are a union organizer.\'

"I took the checks and said, `if you think you\'re going to stop the union snowballing in this shop you are mistaken.\'"

Mr. Lundman emphatically denied that he made any statement regarding union activity. In his intermediate report, the Trial Examiner said:

"Other than the foregoing testimony of Mrs. Ballard, there is no other evidence in the record, either of union animus on the part of Respondent, or of company knowledge of Mrs. Ballard\'s union activities. Essentially, therefore, the issue which must be resolved in this case is one of credibility, since it is quite obvious that if I credit Mrs. Ballard\'s testimony and conclude therefrom that she was discharged because she was a `union organizer,\' a fortiori, Respondent would thereby have committed an unfair labor practice within the meaning of Section 8(a) (3) and (1) of the Act. To resolve this question of credibility, it becomes necessary to examine and analyze the record in respect to the alleged deficiencies of Mrs. Ballard which are asserted by Respondent as the reasons for her discharge, and the Company\'s rules in respect thereto."

The Trial...