National Labor Relations Board v. Leas & McVitty Incorporated

384 F.2d 165, 66 L.R.R.M. (BNA) 2353, 1967 U.S. App. LEXIS 4984

• Court: Court of Appeals for the Fourth Circuit
• Decided: October 2, 1967
• Docket: 11194
• Status: Published

Opinions

PER CURIAM:

The National Labor Relations Board found that Leas & McVitty, Incorporated, discharged Supervisor Luther Harrison from its Pearisburg, Virginia plant in violation of Section 8(a) (1) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1). The decision required that he be reinstated and also that the company reimburse him for any loss of earnings suffered by reason of his discharge. 155 NLRB 389 (October 28, 1965). The Board now petitions for enforcement of this order, Section 10(e), 29 U.S.C. § 160(e), which we deny.

The predicate of the order was that the company had discharged Harrison in November 1964 because he had just previously testified for the Board’s General Counsel in a representation proceeding involving his employer. The trial examiner, confirmed by the Board, held that the “effect of the discharge immediately after the conclusion of the representation hearing was to cause non-supervisory employees reasonably to fear that Respondent would take the same action against them if they testified against the Respondent in a Board proceeding to enforce their guaranteed rights under the Act.” It would also, he thought, deny employees the advantage of calling a supervisor, whenever needed and available, to give evidence of their grievances. Although supervisors are excluded from the Act’s protection, 29 U.S.C. § 152(3), as the discharge was considered an interference “with the employees’ rights to seek vindication of their own statutory rights in Board proceedings”, the discharge was declared an 8(a) (1) offense. See Oil City Brass Works v. N.L.R.B., 357 F.2d 466, 470 (5 Cir. 1966); N.L.R.B. v. Dal-Tex Optical Co., 310 F.2d 58 (5 Cir. 1962); N.L.R.B. v. Better Monkey Grip Co., 243 F.2d 836 (5 Cir. 1957), cert. den. 355 U.S. 864, 78 S.Ct. 96, 2 L.Ed.2d 69.

This reasoning is sound, we think, but we do not see substantial support in the record as a whole for the finding that the fact of Harrison’s testifying was a cause of his firing and this, of course, is the determinative question here. N.L.R.B. v. Dal-Tex Optical Co., supra, 310 F.2d at 61. On the contrary, the substantial evidence, we think, shows that Luther Harrison was discharged for the very reason given at the time by the company, i. e., for not performing “his supervisory duties satisfactorily”.

While a supervisor, after setting up an organizing committee in collaboration with the union representative, and on company time within the plant, Harrison solicited union memberships from the employees. On one day, September 18, 1964, he and his fellow committeemen “all went into the plant * * * with cards” and “we signed cards all during the day when there was anyone who would sign them”. Harrison himself “signed up” 23. He so testified before the examiner in this case. In addition, Harrison threatened non-supervisory employees with loss of certain perquisites if they did not join the union. In the canvass he went into departments not his own. This conduct was in violation of company rules which had been promulgated and in force for some time prior.

This behavior was not known by the company until after Harrison had gone to the hospital, September 24, 1964, where he remained until October 2. He was told by his doctor he could not go back to work until November 3, and then only for light work, with permission, however, to resume regular work on November 9. Meanwhile, the company was investigating the reports of Harrison’s breaches of the rules.

Beginning on October 7, he made trips to the plant from time to time to pick up his weekly benefit checks from the company. Complaints were received by management from foremen that while on sick leave Harrison was seeking union memberships within the plant and in this was interfering with the work of the men. The plant manager advised him to stay away from the plant, and to go home and rest.

As a witness for the General Counsel Harrison attended the Board’s representation hearings on October 15, 27 and 28 and November 16, 1964. He testified for the union on October 15 and was recalled to the stand by the company on October 28. The company rejected his continual requests, in October and early November, to come back to work, saying that it would not accept him until he was able to do full work and had been entirely released by his doctor. On November 11, Harrison transmitted to the company a letter from his doctor saying he could resume his old work on November 16, 1964.

He reported for work on that day but was told he could not check in, that the manager wanted to see him first. Nevertheless, he picked up his time card, “clocked in” and went to his regular place of work. There a company supervisor tolfl him “not to start to work,” that the manager had called instructing him to tell Harrison “to go home and he would let him [Harrison] know when to return to work.” Harrison then went again to the representation hearing, where he requested the union official to ask the manager why he was not allowed to work. The manager’s reply was that “he would have to look into the matter”. Harrison then procured another letter from the doctor stating his ability to work, took it to the plant the following day, and on the next wrote the company demanding his job back again effective November 19. On the latter day he received his termination notice.

These facts, almost undisputed, do not justify the conclusion that Harrison was discharged for testifying against the company. Nor is the requisite substantiality provided by the company’s notice, posted in January 1965 during the Board’s investigation of Harrison’s discharge, that though the employees need make no statement or swear to any made to the investigators, any statement made should be truthful as it might become available to the company for cross-examination in the coming Board hearing. The examiner himself declined to rule it illegally coercive, and we decline to find it revealing in any way of the reason for Harrison’s discharge some two months prior.

Petition for enforcement denied.