Smith Transfer Co. v. National Labor Relations Bd.

• Decision Date: 20 July 1953
• Docket Number: No. 14261.,14261.
• Citation: 204 F.2d 738
• Parties: SMITH TRANSFER CO., Inc. v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Fifth Circuit

204 F.2d 738 (1953)

SMITH TRANSFER CO., Inc. v. NATIONAL LABOR RELATIONS BOARD.

No. 14261.

United States Court of Appeals Fifth Circuit.

May 29, 1953.

Rehearing Denied July 20, 1953.

Jack Crenshaw, Montgomery, Ala., for appellant.

Samuel M. Singer, Nancy M. Sherman, Attys., A. Norman Somers, Asst. Gen. Counsel, David P. Findling, Associate Gen. Counsel, George J. Bott, Gen. Counsel, N. L. R. B., Washington, D. C., for appellee.

Before HUTCHESON, Chief Judge, and BORAH, and RUSSELL, Circuit Judges.

HUTCHESON, Chief Judge.

Found guilty of unfair labor practices, including: (1) in violation of section 8 (a) (5) refusing to bargain with a labor union as representative of its employees; (2) in violation of section 8(a) (3) discriminatorily discharging some of its employees and refusing to reinstate others; and (3) in violation of Section 8(a) (1) of the Act, 29 U.S.C.A. § 151 et seq., interfering with, restraining and coercing its employees; and ordered to cease and desist and to take affirmative action accordingly, respondent is here by petition to review, complaining of the board's order and seeking to vacate and set it aside.

In support of its claim for relief, petitioner, putting forward ten specifications of error, treats them under six heads.

The first of these presents as fundamental error, crying to high heaven for relief,¹ the action of the board in denying petitioner's request for an election and a determination by the board under section 9(c) (1) (B) whether the demanding union was the exclusive bargaining agent of its employees.

The second and third attack as erroneous, the finding of the board that the union actually represented a majority. One of the claims is, that this finding required the inclusion as an employee of one Arlin Harrison when, as respondent claims, the undisputed facts established that Harrison had ceased to work for petitioner and had obtained another regular and substantially equivalent position. Another is that Harrison had not, as the board found, been discriminatorily discharged, but had voluntarily left its employ, and he was therefore improperly counted by the board as still an employee.

Through its fourth and fifth grounds of error dealing with the finding of the board that Joiner A. Ray and four others were unfairly refused reinstatement after the strike, respondent presses upon us: that the evidence demanded contrary finding: that indeed, they were properly refused reinstatement for cause, because Ray had profanely and violently threatened in the presence of the other four that they would "shake petitioner's trucks to pieces" after they returned to work and the four had associated themselves with and acquiesced in the threat.

Finally, petitioner insists that the strike in question was not a protected, concerted activity, requiring the reinstatement of those who had gone out on strike but was a strike with the illegal objects: (1) of defeating their employer's right under section 9(c) (1) (B) to petition the board for an election and determination as to representation; and (2) of coercing the other employees into joining the union.

The board, answering the petition for review and, in its turn requesting enforcement of its order, insists: that its findings and order are amply supported by the record considered as a whole; and that the petition to set it aside should be denied, the petition to enforce it should be granted.

In support of this position, it insists that as to each of its findings and its order, most of the issues raised and presented on the two petitions are simply issues of fact arising solely because of the conflict between the testimony given by the general counsel's witnesses and those offered by the respondent petitioner. It insists in short that this is a typical fact case of the kind dealt with in N. L. R. B. v. Nabors, 5 Cir., 196 F.2d 272, and similar cases from this and other courts, in which the factual determinations of examiner and board, as to the real grounds of the refusal to reinstate and the question of representation are fully supported by the record considered as a whole.

Upon a careful consideration of the evidence as a whole, in the light of the background of anti-union bias and...