Schwob Manufacturing Company v. NLRB

• Decision Date: 02 January 1962
• Docket Number: No. 18819.,18819.
• Citation: 297 F.2d 864
• Parties: SCHWOB MANUFACTURING COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

297 F.2d 864 (1962)

SCHWOB MANUFACTURING COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 18819.

United States Court of Appeals Fifth Circuit.

January 2, 1962.

J. Madden Hatcher, Lee H. Henkel, Jr., Swift, Pease, Davidson & Chapman, Columbus, Ga., for petitioner. Tom B. Slade, Hatcher, Smith, Stubbs & Rothschild, Columbus, Ga., of counsel.

Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Melvin Pollack, Atty., Stuart Rothman, Gen. Counsel, Judith Bleich Kahn, Attys., N. L. R. B., Washington, D. C., for respondent.

Before BROWN, GEWIN and BELL, Circuit Judges.

GEWIN, Circuit Judge.

This case arises out of a petition by Schwob Manufacturing Company to review and set aside an order of the National Labor Relations Board issued against petitioner on November 30, 1960, and the answer of the Board requesting enforcement of its order.¹

The petitioner is and has been a Georgia corporation with its principal place of business in Columbus, Georgia. It is engaged in the manufacture of men's clothing. The building in which the petitioner is located includes a pants department located on the first floor and a coat department located primarily on the second floor with some operations on the first floor. There are approximately 100 production employees in the pants department and 174 in the coat department. Organizational activity among petitioner's factory employees began in March and continued through November 1959.

The trial examiner found Schwob Manufacturing guilty of unfair labor practices in violation of Section 8(a) (1) and (a) (3) of the National Labor Relations Act as amended, 29 U.S.C.A. § 158(a) (1) (3). As pointed out by the trial examiner, support for the allegations of independent violations of Sec. 8(a) (1) depends wholly on evidence relative to the activities of section girls and payroll clerk Margie Thompson.²

He found that section girls are supervisors, "Since one of the factors in the definition of supervisors under the act is present * * *." He also found that Mrs. Margie Thompson is a supervisor.³

As a conclusion of law he states that Schwob violated Sec. 8(a) (1) because of the activities of the section girls and the activities of Mrs. Margie Thompson.

The trial examiner further found that employee Jean Armstead was discharged because of her membership and activity in the union, and not because of defective work done by Armstead as claimed by Schwob, asserting that the defective work was very minor and rare and was used by the employer as a pretext. He therefore concludes as a matter of law that there was discrimination in regard to the hire and tenure of employment of Armstead, in violation of Sec. 8(a) (3). The alleged discriminatory discharges related to only two employees, Betty Lou Anderson and Jean Armstead. It was determined that Anderson quit her employment and was not discharged.

The petitioner claims that Armstead had a record of bad work, had been warned several times, and that other employees had been discharged for the same reason. The petitioner produced records which it claimed to have kept of such prior warnings or reprimands directed to Armstead.

The findings of fact and the conclusions of law set forth by the trial examiner are anchored in large measure to the activity of the section girls; although he also supports them by the activities of Mrs. Margie Thompson and of Foreman Henry Bernhard.⁴

Having determined that there was interference, restraint and coercion in violation of Sec. 8 (a) (1); and that the one employee, Armstead, was discharged in violation of Sec. 8(a) (3) because of her membership and activity in the union; the trial examiner concludes that such activities on the part of Schwob "have a close, intimate and substantial relation to trade, traffic and commerce among the several states" and "tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce."

Schwob, the General Counsel and the charging Union all filed exceptions to the intermediate report with supporting briefs. By stipulation, the exceptions of General Counsel and the charging Union were omitted from the printed record.

In its order and decision, the Board found no prejudicial error and affirmed the rulings of the trial examiner, but did modify, amend and make additions to the intermediate report.⁵

After noting the modifications, amendments and additions mentioned, the Board based its order, "upon the entire record in this proceeding."

To the disagreement and dissatisfaction of all concerned with the various findings, conclusions and orders reflected by the record, we must add our own complete dissatisfaction with them. Apparently, all who have dealt with this case have been unhappy with the results at various stages. No one, including the Board, could fully agree with the trial examiner. Neither can we; and further, we cannot fully agree with the Board.

We do agree with the Board that the section girls are not supervisors. We further conclude that Mrs. Thompson was supervisor of the payroll employees, but she was not a supervisor over employees in the shop and she was not held out to be such by the employer. She was a supervisor within the meaning of the Act.

It is our task to determine whether the Board's findings are supported by substantial evidence. As noted in Martel Mills Corp. v. N. L. R. B., 4 Cir., 114 F. 2d 624, and in numerous other cases, the rules by which we are to be guided in making this determination have been clearly stated. The rules are simple but their application is complex. We must carefully analyze and review the evidence in order to determine its sufficiency; and to decide whether it is evidence which "a reasonable mind might accept as adequate to support a conclusion;"⁶ and which affords a "substantial basis of fact from which the fact in issue can be reasonably inferred."⁷

Evidence which does no more than create suspicion or gives rise to inconsistent inferences is not sufficient, Appalachian Electric Power Co. v. N. L. R. B., 4 Cir., 93 F.2d 985. Matters of credibility form no proper basis for attacking the Board's findings, N. L. R. B. v. West Point Mfg. Co., 245 F.2d 783. Whether or not there is a background of antiunion attitude and a wide spread pattern of antiunion conduct; or whether the petitioner has no background of antiunion animus are proper matters for our consideration, Martel Mills Corp. v. N. L. R. B., supra, 114 F.2d 624; N. L. R. B. v. West Mfg. Co., supra, 245 F.2d 783.

In this case, the record fails to disclose any labor difficulties between the petitioner and its employees prior to the occurrences under consideration in this case. On the other hand, the record establishes that all officials of the company had carefully instructed the entire line of supervisory authority in petitioner's plant to take a "hands off attitude" and to remain absolutely neutral. These instructions were carefully followed with the exception of Mrs. Margie Thompson.

In cases of this nature the burden of proof is upon the General Counsel. As stated in N. L. R. B. v. Wintergarden Citrus Production Co., 260 F.2d 913:

"It is not and never has been the law that the board may recover upon failure of the respondent to make proof. The burden is on the board throughout to prove its allegations, and this burden never shifts. It is, of course, true that if the board offers sufficient evidence to support a finding against it, a respondent, as stated in the quotation first above, stands in danger of having such a finding made unless he refutes the evidence which supports it. But it is wholly incorrect to say or suggest that the burden of showing compliance with the act ever shifts to the respondent. The burden of showing no compliance is always on the board. Even in cases of actual discharges, cases in short in which the respondent has taken affirmative action against an employee, this is true, as this court has many times held."

Sec. 8(a) (1) Violation

Since the activity of the section girls has been eliminated by the findings of the Board (with which we agree), we have only to consider the activities of Mrs. Margie Thompson. The dealings of Mrs. Thompson related chiefly to two employees only, Averritt and Vinson. In view of the finding of the Board that the record does not support a finding of a violation by Mrs. Thompson's interrogation of Averritt, our chief concern as to this violation relates to the activity of Mrs. Thompson with employee Vinson.⁸

According to Vinson, some fellow employee suggested that she talk with Margie Thompson about the union. At first Vinson decided she would not do so, but later in the day when she and Mrs. Thompson met, Vinson stopped Thompson and asked for permission to discuss the subject. Mrs. Thompson stated that she was not supposed to discuss the matter, but Vinson insisted that she do so. In this conversation, according to Vinson, Mrs. Thompson told her that, "It was up to the girls if they wanted a union * * *." Vinson claims that Mrs. Thompson stated that she had discussed the matter with certain of the officials and the pension plan and free insurance were mentioned. In this conversation, it is also claimed by Vinson that Thompson commented, that during Mr. Schwob's lifetime he said he would close the shop before he would "have the union in". It is also claimed that some mention was made about "our welfare association" and how other employees felt about the union. This witness admitted that she sought out Thompson for the purpose of talking to her "about several things," and reiterated that Mrs. Thompson said she was not supposed "to talk about it at all". Vinson is no longer employed by Schwob.

In some respects Vinson's version of the conversation was supported by Thompson. Both agreed that Vinson made the approach and insisted on talking to Thompson; that Thompson insisted that she "did not have anything to do with what she did...