National Labor Relations Board v. Evans Packing Company , 463 F.2d 193 ( 1972 )

McCREE, Circuit Judge.

The National Labor Relations Board petitions for enforcement of its order requiring respondent to offer to reinstate, with backpay, Roger Bush, who was discharged on January 30, 1970. The order also requires respondent to cease and desist from committing an unfair labor practice found by the Board and to take certain affirmative remedial action. The Board determined that Bush’s discharge violated section 8(a) (1) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1), because respondent was motivated by Bush’s participation in concerted activity protected by section 7 of the Act, 29 U.S.C. § 157.¹ The Board’s decision and order are reported at 190 N.L.R.B. No. 70 (1971). Respondent contends that the evidence is not sufficient to support the Board’s determinations that Bush was engaged in protected concerted activity and that he was discharged because of the allegedly protected activity. We conclude that the Board’s order should be enforced.

The underpinning of the Board’s case is the timing of the discharge. Bush was employed in July 1968 and discharged on January 30, 1970. During the fall and early winter of 1969-70, Bush and other employees engaged in several discussions regarding payment rates for overtime work. They apparently concluded that the company should pay a daily overtime rate for any hours worked after eight hours in one day, whether or not the total hours worked in that week averaged more than eight for each working day or exceeded forty. On January 22, 1970, Bush and several other employees were discussing the subject in the company lunchroom when a foreman, Carl Hood, entered. Bush spoke up and asked what Hood “could do about getting us paid overtime for anything over eight hours a day.” Hood responded, in effect, that he could not help, and that Bush would have to speak to higher management about it.

On January 29, Bush spoke to another foreman, William Frazee, about the same subject and received a similar answer. On January 30, foreman Hood informed Bush that Merle Evans, respondent’s vice-president, secretary and plant manager, wanted to speak to him. Evans then discharged Bush and gave him a cheek for his wages. According to Bush, no explanation was offered, except that Evans “mumbled something about staying in the locker room too long.”

We have no doubt that the described employee discussions about overtime pay and Bush’s ensuing overtures to the foremen were protected concerted activities within section 7. NLRB v. Washington Aluminum Co., 370 U.S. 9, 14, 82 S.Ct. 1099, 8 L.Ed.2d 298 (1962); NLRB v. Halsey W. Taylor Co., 342 F.2d 406, 408 (6th Cir. 1965). Accordingly, the discharge violated section 8(a) (1) of the Act if it was on account of these activities, as the temporal relationship between the incidents and the discharge suggests. E. g., NLRB v. Tennessee Packers, Inc., 390 F.2d 782, 784 (6th Cir. 1968).

The Board additionally relies upon a history of company opposition to unionization, and a specific incident involving Bush, as indications that the company sought to suppress collective activity. The Trial Examiner credited Bush’s testimony that he had been specifically rebuked in October 1969 for discussing with another employee the possible benefits of unionization, and discredited Evans’ contrary testimony. Bush testified that he and Charlie Kinder sat in a bar and discussed unionization of the company:

Well I asked Charlie about, what did he think of a union, and Charlie said that he wasn’t for a union; and I told him, I said, “Well, Charlie, what’s wrong?” . . . and he said “We’ll . . . never get a union in here.” And I asked him what he meant and he said — he said something about a 1960 election .... The union never went in, and Charlie had got a bawling out over this election so . [wjell he said that it — there wasn’t enough men out there, real men, that a union would ever go any place. .

The next day, Merle Evans and his brother Tim, the company president, called Bush into their office and chastised him for “talking union.” According to Bush, “Merle Evans said that they never wanted to hear me or . . . that I’d ever talked about a union again.”

Finally, the Board emphasizes on appeal, as did the Trial Examiner and the Board majority in their opinions, that the company has not been consistent in its explanation of the discharge. We have reviewed the record and noted the several inconsistent explanations proffered by company representatives. They are discussed in some detail in the Trial Examiner’s opinion and in the Board’s Decision and Order, and we need not describe them here. Although Bush was apparently an energetic person and capable of being a good worker, it is clear that he was far from a model employee. Testimony indicated that he had been involved in a fight on company premises approximately 15 months before his discharge; that, 2 or 3 months before his discharge, he had been reprimanded for spending too much time in the locker room; that he was repeatedly tardy; that he had been absent without a valid excuse on several occasions; and that his attendance problems apparently resulted from a hyperactive social life offensive to local morality and from excessive consumption of alcohol.

However, despite this pattern of behavior almost from the time he was hired, Bush was given eight merit wage increases during his 18 months employment. These increased his wage rate from $1.95 per hour to $3.15 per hour. Merle Evans testified that Bush, “as far as work is concerned, when he wanted to work he could be an excellent employee, and when he didn’t want to, he could aggravate you to death.” There was uncontradicted testimony from other witnesses that Bush worked hard, that he helped other employees when they needed help, and that he was occasionally assigned to train new employees.

We conclude that there is substantial evidence on the record considered as a whole to support the Board’s conclusions. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951); NLRB v. Cavalier Olds, Inc., 421 F.2d 1234 (6th Cir. 1970). In reaching this conclusion, we observe that the Board majority rejected its Trial Examiner’s recommendation that reinstatement be denied. The Supreme Court has provided the following direction to be followed in these circumstances :

We do not require that the examiner’s findings be given more weight than in reason and in the light of judicial experience they deserve. The “substantial evidence” standard is not modified in any way when the Board and its examiner disagree. We intend only to recognize that evidence supporting a conclusion may be less substantial when an impartial, experienced examiner who has observed the witnesses and lived with the case has drawn conclusions different from the Board’s than when he has reached the same conclusion. The findings of the examiner are to be considered along with the consistency and inherent probability of testimony. The significance of his report, of course, depends largely on the importance of credibility in the particular case. To give it this significance does not seem to us materially more difficult than to heed the other factors which in sum determine whether evidence is “substantial.”

Universal Camera, supra, 340 U.S. at 496-497, 71 S.Ct. at 469. Here, the Trial Examiner made credibility resolutions adverse to both parties. In at least one instance he credited a material part of Bush’s testimony which was directly contradictory of Merle Evans’ later testimony. And it further appears that the Trial Examiner decided the case upon a technicality and did not resolve the difficult factual issues. At the conclusion of his factual analysis, he stated:

This brings us to a critical issue in this case: What about the timecards which Evans says are kept for 5 or 10 years ? These records would establish whether in fact Bush’s record in January was as inferior to that of the other employees as Evans declared. To be sure, the cards are in the Company’s possession, and it could have produced them. However, it produced definitive testimony from Evans as to his motivation, and it is under no legal duty to produce substantiating documentation. General Counsel could have subpoenaed the records if he chose to challenge the bona fides of Evans’ representation. In my view the timecards hold the key to the case, for, if they do not support Evans in this regard, I would view the scales as tipping in Bush’s favor. To be sure, the Trial Examiner also has power to call witnesses and to require the production of evidence. Yet a Trial Examiner’s function is to judge the case, not to prosecute it or defend it. After brief hesitation, not reflected on the record, I decided not to call for the timecards. This is an area in which, I am sure, other Trial Examiners as well as I would welcome the guidance of the Board. If in the Board’s judgment the Trial Examiner in a case of his nature should himself call for the production of the documents, this case should be remanded. In its present posture, however, while I am by no means free of doubt, I would dismiss the complaint for failure of General Counsel to sustain his burden of proof.

In a footnote, the Trial Examiner also stated that:

I am left with a nagging doubt as to why Evans stressed “tardiness” rather then “absenteeism” in his letter to the state authorities only a few weeks after Bush’s discharge. Apparently Bush was guilty of both offenses, but tardiness was a matter of which others were also guilty. Both matters go to reliability in attendance, but Evans’ letter is most specific as to “lateness.”

The Board declined to provide the procedural direction which the Trial Examiner apparently sought. Instead it relied upon testimony in addition to that discussed by the Trial Examiner, and stated that:

[t]he evidence is clear that Respondent tolerated among other employees a considerable amount of tardiness and absenteeism. It has failed to show that, in comparison with other employees, Bush’s absenteeism and tardiness record was greater than other employees’. [Footnote omitted.] Further, Respondent has failed to document the extent of the tardiness. We know not the reasons for the absences or whether the alleged tardiness was only a few minutes or several hours.

We, too, find it unnecessary to discuss the evidentiary issue raised by the Trial Examiner, although we observe that, when it would be natural under the circumstances for a party to introduce documents in his possession and he fails to do so, his failure may invoke an adverse inference. C. McCormick, Evidence § 249 (1954); II J. Wigmore, Evidence §§ 285, 291 (3d ed. 1940).

Enforcement granted.

1 . The applicable sections of the Act provide :

[Sec. 157.] Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a) (3).

[Sec. 158.] (a) It shall be an unfair labor practice for an employer—

(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157