Trailmobile Division, Pullman Incorporated v. National Labor Relations Board

BELL, Circuit Judge

(concurring in part and dissenting in part):

I respectfully dissent from that part of the majority decision which refuses to enforce the board’s order as to the discharge of Felts, Gray, and Colley and the postponed reinstatement of Green. The majority has accorded respondent a de novo proceeding on the record made before the trial examiner. This approach differs from the traditional de novo proceeding only in the respect that the court took no further testimony. It may be said, in fact, that in the annals of this court there can be found no more classic example of a de novo proceeding in a labor case.

The role of the court is clear. The Act provides that the findings of the board with respect to questions of fact, if supported by substantial evidence on ■ the record considered as a whole, shall be conclusive. 29 U.S.C.A. § 160(e), (f). This is the rule of Universal Camera Corp. v. NLRB, 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456.

It is settled also that the resolution of conflicting testimony concerning the discharge of employees and the drawing of inferences from facts established on the hearing before the trial examiner falls within the province of the board. This court is not to pass on the. credibility of the witnesses nor are we to reweigh the evidence. NLRB v. Universal Packing & Gasket Company, 5 Cir., 1957, 379 F.2d 269, 270; NLRB v. Longhorn Transfer Service, Inc., 5 Cir., 1965, 346 F.2d 1003, 1005; NLRB v. Transport Clearings, Inc., 5 Cir., 1962, 311 F.2d 519, 523. In the Longhorn Transfer case the court said: “* * * We, however, are not the fact-finder whose function it is to accept or reject, credit or discredit, conflicting versions of factual events and the inferences to be drawn from them * * * ” 346 F.2d at p. 1005. Moreover, “* * * we are not free to deny enforcement [of the board order] simply because the evidence may also reasonably support other inferences or because we might well have reached a different result had the matter come before us de novo.” NLRB v. Universal Packing & Gasket Company, supra, 379 F.2d at p. 270; NLRB v. O. A. Fuller Super Markets, Inc., 5 Cir., 1967, 374 F.2d 197, 200; NLRB v. Cameo, Inc., 5 Cir., 1966, 369 F.2d 125, 127; Oil City Brass Works v. NLRB, 1966, 5 Cir., 357 F.2d 466, 469. This is the teaching of Universal Camera Corp. v. NLRB, supra, 340 U.S. at p. 488, 71 S.Ct. 456.

We must examine the facts as found by the trial examiner and adopted by the board in the frame of reference of these authorities. In doing so, it becomes quite clear that the majority has erred. There were seven participants in the altercation at the Horse Shoe Lounge. Green, Gray, Felts, and Colley were officials of the union on strike. Higginbotham, Clark, and Cox were non-union employees who were continuing to work during the strike. The entire group had been engaged in drinking beer for sometime prior to the fight, although in separate convocations. The trial examiner heard the testimony of each of the seven. He expressly credited the testimony of Green, Felts, and Colley and rejected *1020the testimony of Higginbotham and Clark with respect to the series of events which began in the Horse Shoe Lounge. This leaves the testimony of Gray and Cox and their testimony adds nothing substantive either way.

Only Higginbotham, a non-union man, fought inside the lounge. He struck Felts and knocked out some of his teeth. Some might have the view that Felts provoked the fight by the use of language directed at Higginbotham and his colleagues which was calculated to insult them. Others may be of a different view. The trial examiner was. He found and the board agreed that Higginbotham started the fight. In any event, only one blow was passed inside the lounge and the fighting resumed on the outside. The fight was brought under control by the group without outside interference.

One of the union officials was restraining Felts after the group got outside the lounge but Higginbotham, by his own testimony, requested that Felts be turned loose so that he could fight him. Higginbotham then lost the fight and left. Clark was mixed into the group and his claim was that Gray and Colley administered a beating to him. The examiner discredited Clark. The testimony of Colley, which was credited, was that he and Gray were attempting to persuade Clark to leave so that they would not all get into trouble when Clark started kicking them. He then hit Clark one time and Colley and Gray assisted Clark to his car. Colley testified that Gray did not hit Clark. Cox testified that he was not hit at all. The net was a fight between Higginbotham and Felts and some damage to Clark. Neither Higginbotham nor Clark missed work or received medical treatment. Clark’s upper denture was cracked.

A short time after the fight, as the majority states, the four union officials drove some five miles into the country just beyond the home of Clark for the purpose, as they contended, of relieving themselves along side the road. Clark testified that his dog gave an alarm and that he backed his car into a driveway so as to shine the lights of the car on the group. This is undisputed. The testimony of Green bolsters this testimony. Clark testified that the four union men then drove away and that Felts shouted an obscenity to him relative to his non-union status and that the fact that they would return the next night. The proof of Felt’s remark came only from Clark. Clark was not credited as a witness. Felts had no recollection of 'what happened on the road because he was drunk. Green, Gray, and Colley all testified, in effect, that Felts made no such statement.

The majority opinion, in essence and inexplicably, restores credibility status to Clark and rejects the testimony of the other three witnesses. It is, of course, possible that these union officials went into Clark’s neighborhood as a part of a terroristic or night rider tactic but the record simply will not sustain a holding, absent a de novo review, that a contrary finding was incorrect.

We come then to the question of the discharges and yet another reason why the majority decision is incorrect. The strike started in September, 1965. The Horse Shoe Lounge altercation took place on November 26, 1965. The strike was terminated on January 19, 1966. Most of the workers returned to work immediately. Felts, Colley, Gray, and Green were instructed to report to the personnel office on January 21, 1966. Upon reporting, personnel director Bellatti attempted to question them concerning the Horse Shoe Lounge incident. They were called in separately. Each declined to discuss the subject without having an employee witness present. Their requests in this regard were refused. Bellatti made it clear that he had statements concerning the incident from the non-union men, Higginbotham, Clark and Cox. The refusal to permit the dischargees to have a witness present was unusual in that this accommodation had been afforded another employee involved in an altercation at about the same time and a fair reading of the company policy statement indi*1021cates that such was contemplated. Footnote 3, majority opinion, § 8.03.

Green was reinstated on January 27, Felts, Gray, and Colley were notified by telegram on January 24 of their discharges. Bellatti testified that he discharged Gray because he struck Clark, and because he was involved with the other participants (Felts, Colley, and Green) in assaulting a supervisor, i. e., foreman Higginbotham, and for trying to prevent Clark from pursuing gainful employment. Bellatti testified that Colley was discharged for participating in the Horse Shoe Lounge activity and for kicking Clark in the side when he was down and for pursuing Clark to his home. He testified that Felts was discharged for assaulting foreman Higginbotham.

Bellatti stated that the discharged group refused to tell him anything. His memory was hazy about what Clark told him although he had obtained statements from Clark, Higginbotham, and Cox. At this point general counsel sought the statements which Bellatti had obtained from Clark, Higginbotham, and Cox. Counsel for respondent stated that he had the statements but refused to make them available because they were part of his trial file. Clark, Higginbotham, and Cox all testified that they had given statements to Bellatti but they had lost or destroyed their copies.

Bellatti testified that he did not know that Green had gone with the others to Clark’s home and that he did not learn of it until a hearing involving unemployment compensation for Gray which was held by a state board the following March. He had earlier testified that Green was not discharged because he did not participate in the Horse Shoe Lounge incident. Bellatti gave no testimony whatever that he knew of the trip to Clark’s home at the time of the discharges, nor was there other proof to demonstrate this fact.

It appears that the company made no effort to show that it had any knowledge of the trip to Clark’s home at the time of these discharges. It had the statements of Higginbotham, Cox, and Clark but these statements were not made available at the hearing. These three employees did not testify that they told Bellatti of the trip to Clark’s home. The company did not obtain the version of the four union officials; rather it chose to impose a condition upon them of not having a witness available when they gave their version and it is undisputed that this departed from the current policy and the past practice of management. These circumstances must be measured against the indisputable fact that there is not one shred of evidence that respondent knew, contemporaneous with the discharges, of the incident involving the trip to Clark’s home. The fact that respondent did not know is buttressed by Bellatti’s testimony that he did not learn in his investigation of the Horse Shoe Lounge fight that Green had gone to Clark’s home. There is a total absence of proof that he learned in his investigation of any of the four going there. Indeed, Bellatti did not purport, even at the hearing, to claim that anyone other than Colley was discharged because of the Clark home incident.

The board adopted the findings and conclusions of the trial examiner. One conclusion was that the fight was started by Higginbotham. As stated, the discharged union employees were credited in their version of the altercation and the testimony of Higginbotham and Clark was rejected. The examiner also drew an inference from the failure of respondent to produce the statements of Higginbotham, Clark, and Cox that the statements would contradict respondent’s contentions concerning responsibility for the incident in question and its reasons for discharging the employees. This was a fair inference and went to the heart of the responsibility for the fight and whether respondent knew at the time of the discharges of the trip to the vicinity of Clark’s home. See Interstate Circuit v. United States, 1939, 306 U.S. 208, 226, 59 S.Ct. 467, 83 L.Ed. 610; United States v. Johnson, 5 *1022Cir., 1961, 288 F.2d 40, 45; 2 Wigmore, Evidence, 3rd ed., § 285. The examiner drew on another fact to support his conclusion : that the participants in another fight at another lounge at about the same time were not disciplined although the fight was between a striker and a non-striker and was triggered by the same type of epithet. Coupling this with the failure to hear from the prospective dischargees unless they waived having a witness present, the examiner concluded that respondent had no justification for discharging the men but merely used the altercation as a pretext for getting rid of three union officials.

This conclusion and the factual findings on which it rests are amply supported on the whole record before the court if the court gives way to credibility findings. It follows, I regret to say, that the majority has committed an egregious error in failing to enforce the board’s order.1

. The 1968 annual report of the Director of the Administrative Office of the United States Courts shows a sharp rise in labor board enforcement proceedings in the Fifth Circuit. The number of such cases in this circuit varied from a low of 60 to a high of 65 between the years 1963-67. The number increased in 1968 to 121. A de novo proceeding sncli as the majority has here invoked will be a powerful stimulus to the trend. The NLRB cases in the Fifth Circuit in 1968 constituted 8.8 per cent of the entire docket and this is to be compared with 6.4 per cent for the year 1967.