Poultry Enterprises v. National Labor Relations Bd., 14892.
| Decision Date | 24 November 1954 |
| Docket Number | No. 14892.,14892. |
| Citation | 216 F.2d 798 |
| Parties | POULTRY ENTERPRISES, Inc., v. NATIONAL LABOR RELATIONS BOARD. |
| Court | U.S. Court of Appeals — Fifth Circuit |
A. C. Wheeler, C. J. Thurmond, Wheeler, Robinson & Thurmond, Emory F. Robinson, C. D. Stewart, Gainesville, Ga., for petitioner.
Frank E. Hamilton, Jr., N.L.R.B., Atlanta, Ga., A. Norman Somers, Asst. Gen. Counsel, David P. Findling, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D. C., George J. Bott, Fannie M. Boyls, John Francis Lawless, Attys., National Labor Relations Board, Washington, D. C., for respondent.
Before HUTCHESON, Chief Judge, and RIVES and TUTTLE, Circuit Judges.
This case is before the Court upon a petition by Poultry Enterprises, Inc., to review an order of the National Labor Relations Board issued against the petitioner July 13, 1953. The principal issue raised is whether there is substantial evidence on the record considered as a whole to support the Board's finding that James Farmer was a supervisor employed by petitioner, so as to make petitioner responsible for his acts in soliciting other employees' withdrawals from a union in violation of Sec. 8(a) (1) of the Labor-Management Relations Act of 1947, 29 U.S.C.A. § 158(a) (1), 29 U.S.C.A. § 160(e, f).
The evidence on the record is undisputed that during working hours Farmer openly solicited certain employees to sign an anti-union petition revoking the union's authority to represent them; that he explained to some of the employees that the purpose of the petition was "to kill the union"; and that he took a number of employees to the office of a lawyer, who was not counsel for nor connected with the petitioner, in order that they might sign the petition there. Relative to Farmer's capacity in petitioner's plant, the evidence showed that his primary duty was to maintain the petitioner's trucks and machinery. He performed other manual work whereever needed in the plant, such as loading trucks and packing chickens. Farmer's rate of pay was 80 cents an hour, the same as that of rank and file employees. There was no evidence, nor indeed any contention, that he had the power to hire and fire or effectively to recommend such action. There was evidence that he did transfer workers from place to place on the production line, told workers "what to do" (judging from context, this evidently meant only that he assigned them to positions on the line, and not that he directed their activities otherwise), on one occasion excused a worker's absence, and on one occasion reprimanded an employee for poor performance. There was also testimony by petitioner's foreman who testified he spent 99% of his own time supervising the operation, and its manager that Farmer had none of the supervisory powers set out in the statutory definition of "Supervisor."1 The testimony indicated that assigning workers to places on the line was routine, the workers usually taking their places automatically. The Board's conclusion that Farmer exercised independent judgment in making such assignments is contrary to Nix's and Stewart's testimony, is not supported by any direct evidence, and necessarily rests upon an inference from (1) the circumstance that the plant had 140-odd production employees and only one person (Nix) hired as foreman; and (2) the statement by Witness Hulsey that Nix told her once that Farmer would make a good boss and that Nix would stand behind him in anything he said. Nix denied making such a statement, and it is clear that the majority of the Board, in finding petitioner guilty of an unfair labor practice, relied mainly on the ratio between supervisors and production employees to infer that Farmer's duties involved independent judgment and were not simply routine. See CCH Labor Law Reporter ¶12633, and the dissenting opinion of Member Peterson of the Board, where he said:
"* * * while I agree that the ratio between supervisory and nonsupervisory employees may be some evidence as to whether or not an individual is a supervisor, I am not entirely convinced that this factor is sufficient * * * to establish that Farmer was a supervisor within the meaning of the Act."
It is difficult to understand the basis of the Trial Examiner's different treatment of two types of evidence which were introduced on behalf of the General Counsel, relating to Farmer and relating to Flossie Howard. He found that Farmer was a supervisory employee but found that Howard was not.
The only affirmative evidence of any recognition by the management of Farmer's supervisory status was in the testimony of Louise Hulsey, in which she testified that Mr. Nix had told her that "James Farmer was going to make a good boss and that he would stand behind him in anything he did."
The following testimony was then adduced:
This witness had worked for petitioner on two different occasions and there was no evidence which purported to connect the alleged conversation with the time of Farmer's activity in 1952. Although there was no other evidence as to when this purported conversation took place (Nix denied it) the Trial Examiner referred to the evidence in his tentative findings as being of probative value.
On the other hand, on the issue of whether Mrs. Howard was a supervisory employee, the Examiner stated: "Though Betty L. Dean (Talton) testified that Howard frequently placed employees at work and shifted them from job to job, her testimony related to a period outside that covered by the present complaint, since Dean had left respondent's employ in July, 1951."
The sum of it is that the Trial Examiner relied on evidence lacking the essential element of connection in point of time with the acts complained of (July 15th to August 15, 1952) in the case of Farmer; whereas in the case of Howard the Examiner rejected positive testimony of her alleged supervisory activities because the testimony lacked the element of connection with the time of the acts complained of.
The other type of evidence which was treated with equal inconsistency by the Examiner was the matter of rank and file membership in the union. It was a matter of record that Farmer was a rank and file employee member of the bargaining unit. This fact was ignored by the Examiner. In dealing with Howard's status, however, the Examiner said:
"It is also of significance that Howard testified as a witness for the General Counsel at the earlier hearing in April, 1952, and that her testimony then indicated that she was only a rank and file employee."
The utter inconsistency of the treatment of these facts by the Examiner is a circumstance for this Court to consider when it seeks to find whether there is substantial evidence on the record as a whole to support the findings of the Board.
In applying the statutory definition of supervisor to Farmer's activities to determine...
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