National Labor Relations Board v. Robbins Tire & Rubber Co.

161 F.2d 798, 20 L.R.R.M. (BNA) 2161, 1947 U.S. App. LEXIS 3030

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 21, 1947
• Docket: 11841
• Status: Published

Opinions

HUTCHESON, Circuit Judge.

This is another in that long list of enforcement proceedings, in which, galled by the appearance of unfairness¹ made by a record in which the Board acts as both accuser and judge,² the employer rebels against the findings of Examiner and Board as arrived at to accomplish the board’s “pre-determined purpose of punishing this respondent.”

While from a human standpoint, such an approach is understandable, it is calculated on the record before us to generate more heat than light, and not to be very helpful in the discharge of our part in the administro-judicial process the statute prescribes.³ This, as the statute lays it down, is to determine whether the Board’s finding's are supported by evidence and the order is in accordance with law. Of course, even though the findings were supported by evidence, we could not find the order in accordance with law if it appeared that the hearings were conducted unfairly, that is with favoritism to the Union or a determination to sustain the Board in the charges it has filed at the Union’s request. Neither could we so find if the findings were without support in the evidence. The fact alone, however, of which Respondent makes so much, that Examiner and Board uniformly credited the Board’s witnesses and as uniformly discredited those of the Respondent, though the Board’s witnesses were few and the Respondent’s witnesses were many, would not furnish a basis for a finding by us that such a bias or partiality. existed and therefore the hearings were unfair. Unless the credited evidence, as it does not here, carries its own death wound, that is, is incredible and therefore, cannot in law be credited, and the discredited evidence, as it does not here, carries its own irrefutable truth, that is, is of such nature that it cannot in law be discredited, we cannot determine that to credit the one and discredit the other is an evidence of bias. We put aside then crimination and recrimination and address ourselves to the case Petitioner presents,⁴ the defense Respondent puts forward.⁵

Arguing that the record amply supports its findings that unfair labor practices were engaged in, the Board points with confidence to the record of what was said and done, while the matters under review were transpiring. Respondent insist that the hearings were entered upon and the findings made with a predetermined purpose on the part of Examiner and Board to convict and punish it on trumped up and unsupported charges of unfair labor practices. In support of its position, Respondent insists that in every instance of conflict the Examiner and the Board discredited Respondent’s witnesses in favor of those for the Board, though the Respondent’s were disinterested and many, and the Board’s witnesses were greatly interested and few. In further support of its position, Respondent points to the fact that the two employees whose discharges are complained of did do the things they were charged with doing, i. e., talking and loafing during work hours and disturb-in the other employees. It insists that in the face of this proof, the Board could not find that the discharges were on account of union membership of the discharged employees and for the purpose of discouraging union activities, and, therefore, the findings and order may not stand.

It may be taken as settled that the right of an employer to discharge an employee, for cause or without cause, is the same whether the employee is or is not a member of a union. An employer may not, however, discharge or discriminate between employees, whether or not members of a union, for the purpose of discouraging membership in, or action on behalf of, a union. Here there is evidence that the employer was biased against unionization, and the ground of the discharges seems not greatly serious, for though the employees had been cautioned to desist, they had not been threatened with discharge if they did not. Here, too, the discharged persons are union members who have been active in, or sympathetic toward, union affairs. When then the employer discharged them, he did so at the peril of a finding by the Board that since the cause assigned was not one for which discharges were ordinarily made, or even threatened, the employer’s antipathy to union membership, interest, or activity had tipped the balance in the scales of causation and had become the causa causans, the real cause of the discharge. It is the law, too, that when, as here, evidence is susceptible of two inferences, one that the discharges were not, the other that they were, for union activities, it is for the Board and not the Court to make the determination whether the cause assigned was the real cause or whether the real cause was antipathy to unions and unionizing activities.

Unfortunately for Respondent’s cause, while the record does contain a great deal 'of evidence in support of its position that its attitude was correct throughout and that the discharges were for the cause assigned and not to discourage union membership, the record also contains evidence from which it could be found that Respondent was biased against unionization and that the discharges were because of this. It is settled law that when the record shows such a bias and also shows that men were discharged after their union membership had been brought into question in a manner showing dissatisfaction with and disapproval of it, the findings of the Board that their discharge was for union activities and not for the reason assigned may not be successfully challenged here. On the record the Board’s petition should be granted. An enforcement decree may be presented for entry.

1 An appearance which the Administrative Procedure Act, 5 U.S.C.A. §§ 1001-1011, “An Act to improve the administration of justice by prescribing fair administrative procedure,” should go far to do away with, if its purpose is given effect.

2 This court has many times pointed out the anomalous position of the Board, first, as accuser appearing before itself as judge, second, as judge judging its own accusations, and, third, as prosecutor before us insisting that its determinations as judge must be enforced and the difficulties in tile way of the Board’s reaching results which are just, both in fact and appearance. Magnolia Petroleum Co. v. N.L.R.B., 112 F.2d 515 at 547-550; N.L.R.B. v. Riverside Mfg. Co., 119 F.2d at 302, 304, 305.

3 « * * * in construing a statute setting up an administrative agency and providing for judicial review of its action, court and agency are not to be regarded as wholly independent and unrelated in-strumentalities of justice, each acting in the performance of its prescribed statutory duty without regard to the appropriate function of the other in securing the plainly indicated objects of the statute. Court and agency are the means adopted to attain the prescribed end, and so far as their duties are defined by the words of the statute, those words should be construed so as to attain that end through co-ordinated action. Neither body should repeat in this day the mistake made by the courts of law when equity was struggling for recognition as an ameliorating system of justice; neither can rightly be regarded by the other as an alien intruder, to be tolerated if must be, but never to be encouraged or aided by the other in the attainment of the common aim.” United States v. Morgan, 307 U.S. 183, 191, 59 S.Ct. 795, 799, 83 L.Ed. 1211. Cf. Leebern v. United States, 5 Cir., 124 F.2d 505.

4 There were findings in some detail as to incidents connected with a unionization campaign which began about July 1, 1945, and in which Robert H. Crittenden, Jr. was quite active. There were, too, conclusions that immediately upon the commencement of the Union’s activities in the plant, the Respondent launched a campaign to forestall the Union’s efforts, that this took various forms, including the discriminatory discharge of Crittenden and Johnson, both union members, because of their union membership and union activities. Finally, there was an order requiring Respondent to cease and desist from discouraging membership in, or interfering with its employees in the exercise of their right to join the particular union involved in the controversy or any other, to reinstate Crittenden and Johnson and to make the usual posting of notices.

5 This, supported by a careful marshal-ling of the testimony in its favor, was a denial that any unfair labor practices had occurred and particularly that Crittenden and Johnson had been discharged for union activities rather than the cause assigned. In addition, claiming that the case had not been fairly tried, Respondent in his brief has this to say of the trial examiner’s report:

“Judicial in theory, the report is a brief for petitioner and nothing more. From the four corners of the report (and without regard to the evidence disclosed by the Record, or to any other extraneous fact), it is a completely studious and labored effort to freeze into a court judgment the prosecuting aims of the Teamsters Union and the Board’s attorneys. Every issue of fact and every conclusion of law is decided ' in favor of the Union and against the respondent. Neither the respondent nor its officers or supervisory employees (in considerable number) are credited with the willingness or ability to tell the truth about anything. Every prosecuting agent is, in the view of the examiner, an angel of light, with whiteness on his wings and truth speaking from his mouth”.

As to both petitioner and trial examiner, ■Respondent after summing up undisputed evidence as he sees it, has this to say:

“The Petitioner and its Trial Examiner seek to brush this undisputed evidence aside and accomplish its predetermined purpose of punishing this Respondent by saying that the evidence shows that this rule was frequently violated by other employees and that it is not shown that such other employees were discharged; thus, by expert finesse the burden of proof is shifted to Respondent.”