Russell-Newman Manufacturing Company v. NLRB

• Decision Date: 24 January 1969
• Docket Number: No. 25401,25491.,25401
• Citation: 407 F.2d 247
• Parties: RUSSELL-NEWMAN MANUFACTURING COMPANY, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. INTERNATIONAL LADIES' GARMENT WORKERS' UNION, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

407 F.2d 247 (1969)

RUSSELL-NEWMAN MANUFACTURING COMPANY, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

INTERNATIONAL LADIES' GARMENT WORKERS' UNION, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 25401, 25491.

United States Court of Appeals Fifth Circuit.

January 24, 1969.

Fritz L. Lyne, Lyne, Klein & French, Dallas, Tex., for Russell-Newman Mfg. Co., Inc.

David R. Richards, Mullinax, Wells, Mauzy, Levy & Richards, Dallas, Tex., for International Ladies' Garment Workers' Union, AFL-CIO.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Leonard Wagman, Atty., N.L.R. B., Washington, D. C., Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, for respondent.

Before JONES and COLEMAN, Circuit Judges, and CHOATE, District Judge.

COLEMAN, Circuit Judge:

On the first appearance of this case in this Court, 370 F.2d 980, we denied enforcement and remanded the case to the Board without prejudice to a further hearing to be conducted on two issues in keeping with the requirements of due process. These issues were:

(1). Whether a general wage increase granted to company employees at its non-union plant in Pilot Point, Texas, on January 28, 1965, while withholding an increase at another plant in Denton violated § 8(a) (1) of the National Labor Relations Act;

(2). Whether an advertisement to sell one of the company buildings in Denton, posted two days after the Union had won a representative election, was a similar violation.

The background of these issues may be found in our former opinion.

Upon remand, the record was reopened and another hearing was held.

Additionally, upon rehearing, the Examiner denied the request of the Union and the General Counsel that he include in the remedy an order that the respondent grant its employees in Denton the same wage increase granted at Pilot Point.

In the original proceedings, the Trial Examiner held that neither the failure to grant the increase at Denton nor the advertisement of the building constituted a violation. By a two to one vote, the Board reversed the Examiner and found that each of these items represented an unfair labor practice.

Agreeably to the remand, the Board returned the case to the Examiner who had originally heard it for the reception of further evidence as to the issues so remanded.

I

At the reopened hearing the Company challenged the jurisdiction of the Board on the ground that these items, constituting amendments to the complaint, were not supported by a "charge" and that consequently the Board was without jurisdiction. The "charge" which initiated the former proceedings had not alleged these particular violations. The events occurred considerably after the complaint had issued. The "charge" was never amended, but before the first hearing the complaint was amended specifically to include these items.

Section 10(b) of the Labor Relations Act states:

"Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the Board, or any agent or agency designated by the Board for such purposes, shall have the power to issue and cause to be served upon such person a complaint stating the charges in that respect * * *."

We hold that the jurisdictional attack is not well taken. We base this decision solely upon the particular facts and circumstances of this case. The purpose of the charge is to set in motion the Board's investigating machinery, after which the complaint is filed. It is the complaint, not the charge, which gives notice to the party of the exact nature of the charges, Texas Industries, Inc. v. N. L. R. B., 5 Cir., 1964, 336 F.2d 128, 132. Here, especially by virtue of the remand, the Company had complete notice of the violations alleged and adequate time in which to prepare its defense. See N. L. R. B. v. Kohler Company, 7 Cir., 1955, 220 F.2d 3.

II

As to the facts underlying the wage increase and the proposed sale of the buildings, the Trial Examiner found and concluded upon rehearing that there was nothing new in the evidence beyond that originally "offered" by the Company in the first proceedings which it had no opportunity to present in the form of actual proof so there was nothing to alter the Board's determination that these two acts did constitute violations. Thus the Examiner felt that he had no authority or function other than to find and conclude in keeping with the original findings and conclusions of the Board. It is now argued that since the Examiner made no new findings or conclusions of his own, he merely rubber stamped the original findings and conclusions of the Board reversing what he had first found and concluded, hence the terms of the remand were not complied with. We do not agree, however, because the case was reopened and the Company was given the opportunity to present and did present evidence in support of its position. Moreover, the Examiner, in the exercise of his function, did find and conclude that there was nothing new in the evidence beyond that contained in the original "offer of proof". This complied with the mandate and we must now decide the case on its merits.

III

In this regard, we have held that the credibility findings of a Trial Examiner are entitled to special weight and are not to be easily ignored, Pratt & Whitney Aircraft Division of United Aircraft Corporation, Florida Research and Development Center, v. N. L. R. B., 5 Cir., 1962, 310 F.2d 676. Although the Board may not overrule an examiner by ignoring credible evidence of a witness and drawing inferences from tenuous circumstances, it is not compelled to follow the examiner or his findings conflicting with well supported inferences drawn from other parts of the record. This is particularly true of testimony given by an interested witness, relating to his own motives, N. L. R. B. v. Pyne Molding Corp., 2 Cir., 1955, 226 F.2d 818. If the Trial Examiner and the Board reach different conclusions, the Board's findings must be sustained if they are supported by substantial evidence on the record as a whole, Universal Camera Corp. v. N. L. R. B., 340 U. S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); N.L.R.B. v. Akin Products Company, 5 Cir., 1953, 209 F.2d 109.

IV

As to the proposed sale of the building, we can do no better than to quote the findings of the Trial Examiner.

"(1) The `Masonic Building,\' the one where the controversial `For Sale\' signs were placed following the election in Denton, served as a main sewing room and is one of several building used there in the total operation.

"(2) While the title to the building involved was not vested in Respondent (and was in Newman Realty Company, a corporation) the relationship between the Respondent and the owner of the building is such that the decision to sell it is in legal effect the decision of Respondent, and is so regarded by Respondent itself.

"(3) As a part of a comprehensive plan to construct a one-story building that would house Respondent\'s entire Denton operation, conducted in several buildings, the decision to sell the Masonic Building was made as early as 1960. The sale as of that time was placed in the hands of a real estate agent; that periodically since then efforts of varying intensity had been made to sell the building, directly with prospective buyers and occupants, through the Chamber of Commerce of Denton, and through various real estate agents; that Z. L. McCart, realtor, sought to sell the building for several months, beginning in 1962 and advertised it in the Wall Street Journal, and still holds it for sale; that in January of 1965 Joe Barns, realtor, obtained an exclusive listing so that he would be authorized under local law to advertise it in the manner he desired; he placed the for sale signs, in question, in windows of the building on two adjoining streets on his own initiative and not at the request of any of Respondent\'s management personnel; that the first signs were standard `For Sale\' signs used by his Company, placed temporarily until signs especially prepared for this particular building could be obtained from sign painters; that the temporary signs went up 2 or 3 days after January 29, 1965 and probably on the Sunday following that date, the date the agreement listing the building with Barns was signed; that the language on the temporary or first signs read For Sale, Barns Realty Company, Jean & Joe Barns, and in addition the telephone number of the agents; the especially prepared signs went up to replace the first ones about a week after they had been placed and carried this sales message: `This 18,000 Sq. Ft. Air Conditioned Bldg. For Sale Barns Realty, Phone 382-2509\'; these permanent signs stayed in place as long as Barns exclusive listing was effective, approximately 7 months; that the building as of the date of the reopened hearing remained unsold, but the effort to sell continued.

"(4) That a new structure, large enough to house Respondent\'s entire operation at Denton has been built and is in use; that one of the older buildings formerly used at the Denton operation by Respondent, has been sold.

"(5) No evidence was offered in behalf of the General Counsel to establish that the signs posted in the building attracted the attention of any employees; nor was there any offered by Respondent to establish that employees had any knowledge of the earlier effort to sell the building."

In summary, the trial examiner found that the decision to sell the building, one of several buildings at the Denton plant, had been made several years earlier as a part of a comprehensive plan to construct a new building to house the entire Denton operation. At that time the plans for the sale were placed in the hands of a real estate agent and periodic attempts, through the local Chamber of Commerce and real estate agents, were made to complete the sale. In 1965, a realtor, Joe Barns, obtained an exclusive listing so that he could advertise it as he desired. He...