Contract Battery Manufacturing Company v. National Labor Relations Board

229 F.2d 354, 37 L.R.R.M. (BNA) 2459, 1956 U.S. App. LEXIS 4468

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 2, 1956
• Docket: 15639
• Status: Published

Opinions

HUTCHESON, Chief Judge.

The board having affirmed the examiner’s ruling, adopted his findings, conclusions, and recommendations, and entered its decision and order¹ accordingly, petitioner, seeking to vacate and set it aside, is here insisting that the order is without support in the record considered as a whole, while the board joins issue with petitioner and seeks enforcement of its order.

Urging upon us generally that examiner and board “reached their conclusions by the simple expedient of declaring all of the petitioner's witnesses to be liars, while clothing the union’s witnesses with a virtue which no doubt would surprise their friends and associates”, the petitioner insists that “The numerous instances in which the trial examiner made questionable findings and drew doubtful conclusions concerning the credibility of the witnesses and misinterpreted or misunderstood the testimony, should lead the court to especially scrutinize those decisions and findings on review”.

Specifically as to Dry’s discharge, upon which its attack is most vigorous, petitioner urges upon us that it was for cause and, therefore, protected, and that a proper consideration and analysis of the evidence will show that the conclusion of examiner and board, that it was because of his membership in, or activities on behalf of the union, is without support in the record.

As to the findings that petitioner engaged in unlawful surveillance and interrogation, interference with, and threats against, its employees, petitioner takes the firm position that the evidence as to the incidents relied on taken as a whole will not support the findings that they occurred, and, if it does, will not support the conclusion that they amounted to prohibited activity.

The board, on its part, points to evidence, particularly that of Bernard Wallace, which it insists is credible and if believed fully supports the findings and conclusions of the examiner as to surveillance, interrogation, interference and threats, and that Dry’s union affiliation was known to his employer, and that it was this and not any other dissatisfaction with him or his work which was the moving cause of his discharge.

It will be of no advantage to set the evidence out. It will suffice to say that a careful examination of the record and the pertinent portions of the appendices of petitioner and respondent leads to the inescapable conclusion that the petitioner’s question, “Are the findings of the board with respect to questions of fact supported by substantial evidence on the record considered as a whole?”, should be answered in the affirmative, indeed can not be properly answered any other way. This is not to say that petitioner did not present evidence to the contrary of that offered by the general counsel or that if the examiner had discredited Wallace and some of the other witnesses he could not, and ought not, to have found differently. It is to say, though: that the record does not support petitioner’s conclusion; and that its petition to set the order aside should be denied and the board’s petition to enforce it should be granted and enforced.

1 . Commanding petitioner: to cease and desist from engaging in surveillance and interrogation of, and threats against, its employees and from illegally discouraging or otherwise interfering with their right to join or form labor organizations; and to offer reinstatement to and make whole Price Dry, an illegally discharged employee. 112 N.L.R.B. 109.