Ward v. NLRB

• Decision Date: 09 June 1972
• Docket Number: No. 71-2837 Summary Calendar.,71-2837 Summary Calendar.
• Citation: 462 F.2d 8
• Parties: Bobby Nick WARD, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Everett Construction Company, Inc., et al., Intervenors.
• Court: U.S. Court of Appeals — Fifth Circuit

462 F.2d 8 (1972)

Bobby Nick WARD, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Everett Construction Company, Inc., et al., Intervenors.

No. 71-2837 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

June 9, 1972.

George M. Bishop, Tipton, Bishop & Company, Houston, Tex., attorney for appellant.

Peter G. Nash, General Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Paul J. Spielberg, R. Bruce McLean, N.L.R.B., Washington, D.C., Charles M. Paschal, Jr., Director, N.L.R.B., Region 15, New Orleans, La., for N.L.R.B.

William D. Deakins, Jr., John Smither, Houston, Tex., Vinson, Elkins, Searls & Smith, Houston, Tex., of counsel, for Everett.

Jerry L. Gardner, Jr., Dodd, Hirsch, Barker, Meunier, Boudreaux & Lamy, New Orleans, La., for Local and Gilco.

Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.

JOHN R. BROWN, Chief Judge.

Petitioner Bobby Nick Ward filed unfair labor practice charges against Everett Construction Company, Gilco Construction Company, and Plumbers and Pipefitters Local 198, alleging that both companies and the union had violated § 8 of the National Labor Relations Act, 29 U.S.C.A. § 158, by terminating or causing the termination of his employment because he was not a union member. Following a hearing on a consolidated complaint the Trial Examiner found that Ward had been illegally discharged because of his non-membership in Local 198 and not, as contended by the respondents, because he was not a resident of the locality in which he was employed. The Board rejected this finding and dismissed the complaint, holding that the evidence "creates no more than a suspicion that the Union would not have sought Ward's discharge, despite his out-of-town status, if he had been a union member." 186 NLRB No. 40 (1970).

Only in the most rare and unusual cases will an appellate court conclude that a finding of fact made by the National Labor Relations Board is not supported by substantial evidence. This is one of them. We vacate and remand for entry of an order consistent with the original findings and decision of the Trial Examiner.

The facts are relatively uncomplicated. During the last week in October, 1969 Everett began work under a contract with United Gas Pipeline Company for the construction of a compressor and meter station several miles north of Opelousas, Louisiana. Gilco, a local contracting firm, provided heavy equipment and operators for the preliminary clearing and grading of the site. Because Everett was an out-of-state, Houston-based company it was not a signatory to a master working agreement between area contractors and Local 198, by the terms of which all job vacancies requiring welders and other allied craftsmen within the union's trade jurisdiction would be filled by exclusive referral through the union's hiring hall.¹ As a result Ward and several other nonresident, nonunion welders were hired directly by Thomas Haynie, Everett's job supervisor, sometime in early November.

At some time during the first week in November three unemployed local workers passed the construction site and learned that Ward and the other welders had been imported for the job from out-of-state. One of these men then notified local union representatives, which resulted in a visit to the project by John Trotti, assistant business manager for Local 198, and Bill West, business manager for Ironworkers Local 623. Trotti first asked Haynie whether the work had been bid in as a union job and received a negative answer, after which the three men held a short meeting in Haynie's office. Following the meeting Haynie asked Ward whether he and the other men had a union book. Ward replied that he was not certain about the others but that he did not.

On November 10 Haynie met with union officials at the office of the local sheriff for the purpose of negotiating a settlement of the dispute. During this meeting Haynie told Albert Durbin, Local 198's business manager, that he would hire all unemployed local welders who were qualifed for the job. Durbin replied that no workers could be referred through the union unless an agreement were signed. Haynie stated that he had no authority to sign such an agreement but that he would contact Claude Everett, the president of the company.

On the following Friday, November 14, after employees of Everett and Gilco had started work, between eight and ten men (including Local 198's Trotti) established a picket line at the gate entrance to the site, but they dispersed before quitting time, and there were no incidents. However, on Monday morning approximately 50 to 60 pickets arrived early and blocked the gate. Haynie sought the assistance of the sheriff, who went out and talked to the pickets, afterward informing Haynie that they were not going to interfere with the progress of the work. When the sheriff left Trotti told Haynie that nothing had changed, and the picketing continued. None of Everett's employees were permitted to pass.

Haynie then telephoned Claude Everett in Houston and explained the situation to him. Everett flew to Opelousas that night and arranged for Gil Cortez, Gilco's president, to act as "management and personnel consultant" for Everett in its dealing with the union. Cortez was a long-time resident of the area, knew most of the disputants, and was intimately concerned inasmuch as his equipment operators on the United Gas job were not union members. On Tuesday night, November 18, during an informal meeting at the sheriff's office between Everett, Cortez, Trotti and another union official, the union stated that its primary concern was with two crafts, welders and pipefitters, and that if the dispute could be settled there would be no further picketing or work stoppages because of the non-union status of Gilco's employees. A second meeting the next morning resulted in an oral agreement between Everett, Gilco and the union which provided that all welders and pipefitters for the United Gas job would be hired through the union's referral system and that all Everett welders who did not reside in the locality (within Local 198's territorial jurisdiction) would be fired. Cortez was told that the non-resident employees would not be given work permits by the union because there were already too many unemployed local people. Haynie discharged Ward on the following day, telling him that Everett was "going to hire Union personnel, and they won't let us let you stay on the job, so we got to fire you." Two other nonunion welders were discharged at about the same time.

Cortez testified that he "thought" the three men thereafter referred by the union to fill the vacancies were union members, although he was not absolutely certain. However, there is no dispute that one of the welders whose employment was terminated at the behest of the union was replaced by a man who lived in the same town—Eunice, Louisiana.

The only issue raised by Ward's petition for review involves purely and simply a question of fact: was he discharged for the purpose of replacing him with a union member, as found by the Trial Examiner, or for the purpose of replacing him with an area resident, as found by the Board? Of course we are neither required nor authorized to resolve de novo this perplexing and frequently evasive question of subject motive or intention, a determination that lies exclusively within the competence of the Board and its fact-finding, experienced-oriented expertise. Our sole function is to decide whether the Board's conclusion regarding the critical issue is supported by substantial evidence in the entire record. Universal Camera Corp. v. N.L.R.B., 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456.

Obviously, however, on these facts a rejection of the Board's finding regarding the reason for the discharge virtually compels a finding that the discharge was unlawful. None of the respondents could have seriously contended before the Board that some factor other than nonresidence or non-membership in the union might have precipitated the termination of Ward's employment,² nor could they have successfully argued (without challenging the Examiner's findings of fact) that their conduct did not amount to a § 8 violation. Thus the only problem facing the Board resolved itself into a simple choice between two competing inferences, one of which had to be true. If the Board's choice satisfies the substantial evidence criterion, we must uphold it. On the other hand, "where there is insubstantial support in the record for the Board's inference regarding the motivation underlying a discharge, we may accord respect for a contrary inference, particularly where, as here such contrary inference was drawn by the Trial Examiner." Southwest Latex Corp. v. N.L.R.B., 5 Cir., 1970, 426 F.2d 50, 57; N.L.R.B. v. Neuhoff Bros. Packers, Inc., 5 Cir., 1968, 398 F.2d 640, 647. In short, in these circumstances we must hold that if the Board was wrong the Examiner must necessarily have been right.³ It is then a sort of process by reverse osmosis.

The crux of the Board's disagreement with the Examiner lies in its determination that the evidence of a discriminatory, unlawful purpose was insufficient "to rebut the substantial evidence that the Union was very much concerned with the unemployment status of local residents." But the only evidence, substantial or otherwise, regarding the union's beneficent interest in the economic well-being of the community's unemployed welders consisted of testimony by interested parties—Everett, Haynie and Cortez. While the Examiner did not explicitly refuse to credit this testimony and the explanation it offered,⁴ he obviously regarded it as inherently improbable, finding that "the Union was interested in jobs for local people only to the extent that such local people were members of the Union within its territorial jurisdiction." This conclusion is simply inconsistent with any suggestion that the Examiner believed the...