DAWKINS, District Judge.
The National Labor Relations Board seeks enforcement of its order of November 30, 1951, as amended May 22, 1953, 61 Stat. 136, 29 U.S.C.A. § 141 et seq. in proceeding No. 10-CA-1125 against respondent, Reynolds Manley Lumber Company, Inc., called Company, under Section 10(e) of the National Labor Relations Act. The charge was unfair labor practices committed in Savannah, Georgia, in this Circuit.
The Board held (1) respondent guilty of violating Section 8(a)(1) because its Vice President, Fred Shearouse, interrogated Isaac Jackson, Jr., as to how he felt about an impending strike, and requested that he persuade his fellow employees not to strike; and, also (2) of violating Section 8(a)(1) and (3) in refusing to reinstate striker Joe Brown after the strike had ended.
On August 22, 1950, the Board had certified the International Union of Mine, Mill and Smelter Workers, called Union, as exclusive bargaining agent for respondent's employees. Respondent refused to recognize the union on the ground that the Board had no jurisdiction to certify it, because at that time the parent, CIO, with which Union was affilated, had not complied with Section 9(h) of the Act by having its officers file affidavits of Non-Communism.
Pursuant to vote, members of the Union struck on October 5, 1950, but on January 9, 1951, the strike was called off and all employees returned to work unconditionally.
Respondent's position throughout has been to deny any violation of the Act.
CIO complied with the Act on December 22, 1949, and on September 15, 1950, expelled the Union, some 20 days before the strike began on October 5th.
There is little dispute as to the facts in either charge.
1. Learning that those of its employees who had joined the union were about to strike, Fred Shearouse, Vice President of the Company, approached Isaac Jackson, Jr., and asked what he thought about it. The latter's reply was that he did not know. He was then asked if he would talk to the other employees and arrangements were made that he should do so and urge them not to strike. Pertinent parts of the testimony of both Jackson and Shearouse appear in footnotes.,
Isaac Jackson, Jr., testified (p. 15 Appendix to Petitioner's Brief):
"Q. Who started this conversation that you were talking about? A. Well, the fact about the conversation — when he started, he asked me, he said, `What do you think about the strike?'
"Q. And Mr. Shearouse started the conversation with that question? Was that the first thing that was said? A. Yes, sir.
"Q. All right. What was the next thing that was said, and by whom? A. Well, he asked me first, he asked me, what did I think about the strike. I didn't know at present —
"Q. Did you tell him you didn't know, what did you say? A. I didn't know.
"Q. Is that what you told him? A. That is right.
"Q. All right. What is the next thing that was said? A. Well, he said, don't I think it would be foolish for the men to vote for a strike like that, but still I didn't know.
"Q. What did you tell him, if anything? A. `I didn't know; I couldn't answer for the other men'.
"Q. Did you tell him that? A. I didn't tell him that personally.
"Q. Go on and tell us just what was said by Mr. Shearouse and by you. A. He told me, he said, `Isaac, I'd like for you to tell them that you think it would be very foolish to vote for the strike coming off later in a few days' or something like that. So I told him I would, I didn't think it would be no harm to walk around and tell them that.
"Q. That is something you told him or is that something you are telling us now? A. I told him, `All right, I would.'
"Q. You told him, `All right, you would'? A. Yes.
"Q. Was that all of that conversation at that time? A. At that time.
"Q. And about what time of day was that? A. It was in the morning.
"Q. In the morning? A. Yes, sir.
"Q. Did you have any further conference with Mr. Shearouse that day? A. Well, I told him I was doing pretty good."
Fred Shearouse testified (p. 87 Appendix to Petitioner's Brief):
"Q. (By Mr. Hitch) There has been a little discussion about your talks with Jackson. What did you tell Jackson? A. You mean that morning?
"Q. I am talking about Jackson and the the strike. A. Jackson — Isaac Jackson?
"Q. Yes, sir. A. I told Isaac that I thought it was going to be a mistake for them to strike out there, that the matter was up before the National Labor Relation Board to get a decision, and that that would be time enough to think about doing something like that and if the men strike out there I thought they would be making a mistake, and that I thought it would be well for him to talk to some of the boys and tell them that I said that I thought it was a mistake for them to strike.
"Q. You feel you have got a right to do that? A. I thought I had a right to do that.
"Q. You weren't discussing any strike vote? A. I didn't think that mattered at all, because —
"Q. Why not? A. I had no control over the union strike. I didn't care about them voting.
"Q. It was simply a discussion about the strike; is that right? A. The strike."
Under the Wagner Act, as interpreted by the Board an employer was not allowed to do anything that might influence the action of his employees in union matters. However, the present statute provides:
"The expressing of any views, arguments, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit." 61 Stat. 136,
29 U.S.C.A. § 158(c).
No "threats, coercion or promise of benefits" can be deduced from the testimony of either Jackson or Shearouse, and there is no other evidence to support that conclusion. It is true that Jackson was given a full day's pay, notwithstanding he consumed about two hours in visiting and talking with his fellow employees at the suggestion of Shearouse, but it requires a strained and unreasonable interpretation to say that on this ground alone he received the extra or special benefits contemplated by the section of the Act quoted. It does not appear that he held any position of any great influence with his fellow workers. What was done certainly could not have been any worse than the expression by respondent "of any views, arguments, or opinions, or dissemination thereof * * * in written, printed, graphic, or visual form * * *". The burden "was upon the Board to prove its charges by competent and credible evidence and not upon the Respondent to disprove them." National Labor Relations Board v. Ray Smith Transport Co., 5 Cir., 193 F.2d 142, 144.
2. As to the second charge under section 8(a)(1) and (3), that Joe Brown was refused reinstatement because of his union activities, here, again, the facts are largely undisputed. He was a head fireman in charge of the boilers that provided steam power for the entire plant, who worked from one to 7 o'clock, a.m., or six hours. On the day of the strike he was visited about 6:00 a.m. at his post of duty by two strikers and informed that it had started. Without consulting anyone in authority, he immediately began cooling the boilers down, putting cold water in them and pulling the fires. This had the effect of stopping and preventing the operation of all machinery, thus making it impossible to resume operations at the usual hour of 7:30 a.m.
While it is true that Brown testified he sent his helper to request his foreman, Lehman Jackson, to send someone to relieve him, none came and he walked off his job, leaving the boilers unattended. This undoubtedly created a very dangerous situation and was a violation of positive instructions that it should never be done. He must have known, since he had worked for the company many years at different times, that in 1945 a fire had broken out under similar conditions, resulting in a loss of some $200,000, and at that the time the plant had to be shut down for some six months while the sawmill was rebuilt.
Brown had also claimed that he did not leave his job until about 7:45 a.m., whereas the time clock showed that he checked out at 7:12 a.m., after walking some 250 yards from the boiler room to the office for that purpose, indicating that he must have left his post of duty at approximately 7:00 o'clock a.m., or about the end of his regular period.
Pertinent portions of his testimony are quoted in footnote.
Testimony of Joe Brown — Direct Examination.
"Q. Now, the record shows that the strike started on the 5th of October. Now, do you remember the morning of the 5th, that is, the day the strike started, from one o'clock till seven o'clock that morning? A. Yes, sir, I do.
"Q. Did you work that morning? A. Yes, sir.
"Q. Did Kittles (his helper) work that morning? A. Yes, sir.
"Q. When you went on your shift, at 1 o'clock that morning, did you know that there was going to be a strike? A. I didn't know special, no, sir. "Q. Tell us what do you mean when you say you didn't know special. A. I didn't know — I knew the strike was coming on but I didn't know just exactly when.
"Q. Did you know there was going to be a strike on October the fifth? A. Yes, sir.
"Q. When you started that shift, that the strike was going to start on October 5th? A. I knew it was going to be in that period of time, sometime, but I didn't know whether it was going to be in the morning or afternoon, or what time.
"Q. You knew it would be during the day some time? A. Sometime during the day I was looking for it.
"Q. Tell us first how many boilers were located in the boiler room at the plant. A. Five boilers.
"Q. Can you tell us generally what your duties were when you were working there? A. Yes, sir. My duties was looking after the boilers, keeping accurate steam, taking care of the water system, seeing that we have plenty of fuel in the furnace to hold the steam, keeping boilers cleared out, blowed out from three to four times a night, and in other words, keep a, what you might call an anchor steam on the dry kiln."
He attempted to justify leaving his post of duty by the fact that he pulled the fires, cooled the boilers down and attempted to get word to his foreman, Jackson. Nevertheless he left without succeeding. Testimony of witness Shearouse and Lehman Jackson is also quoted in the footnotes.,
Testimony of Fred Shearouse:
"Q. Have you ever had a fire in your mill? A. One in 1945.
"Q. Tell us a little about that. A. Well, the fire started in the sawmill. I believe it was in June. And it completely destroyed the sawmill.
"Q. How long were you out of operation? A. For about six or seven months.
"Q. How much did it cost you? A. Two hundred dollars, approximately. (Evidently meaning $200,000.)
"Q. Now, is your sawmill near your boiler? A. About a hundred feet.
"Q. Tell us a little about your operations, just as quickly as possible. A. Well, it is pretty hard to tell a layman — anyhow, we make our own fuel for the boiler — from the sawmill and the planer mill — it goes into a fuel house — all of the fuel from both places.
"The fuel house sits directly in between the sawmill and the boiler mill and it has light, fine, dry shavings as well as the green material and it is fed up against the boilers.
"And the fuel goes in there; then we take it out of there, and feed the boilers in the daytime. It is automatic and at night you have to put a man in there to shove it.
"Q. Tell us a little about the boiler room. A. We have two men. The head fireman is responsible for the water, which is the most hazardous part. If you try to fire a boiler with no water you will have an explosion, so we try to get pretty good men for the firemen. Then the helper is — he is just a man — you might say a common laborer to help him.
"Q. You have there two men on each shift? A. On each shift.
"Q. Each shift? A. That is right."
Lehman Jackson gave testimony as follows:
"Q. When did you first see Joe Brown out there? A. When I first saw Joe Brown that morning? I'd say it was approximately ten minutes after seven, whenever he walked in the picket line."
Of course, it is argued that Brown had the right to join the strike, even though he had not gotten any responsible relief when he checked out. It would seem as logical to say that the cashier in a store and others responsible for the protection of its contents might walk out, leaving the employer's property unattended, in such a situation, as to attempt to justify what Brown did with his knowledge of the danger. It will hardly be contended that, without a strike, the employer could be blamed for discharging him for disregarding instructions and creating such a hazardous situation. So long as the employer is not actuated by a desire to impose punishment for union activities, he is free to use his own judgment in such circumstances.
"No order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any back pay, if such individual was suspended or discharged for cause. * * *". 61 Stat. 136,
29 U.S.C.A. § 160(c).
The only support for the examiner's conclusion that refusal to reinstate Brown was due to union activities, rests upon inferences and suspicion, and not upon evidence as to matters where the burden of proof was, as above stated, upon the Board to prove it. National Labor Relations Board v. Ray Smith Transport Co., supra; Rubin Bros. Footwear, Inc., v. National Labor Relations Board, 5 Cir., 203 F.2d 486. In the absence of such proof the employer still has the right to discharge for just cause.
Enforcement is
Denied.