Before EVANS, SPARKS, and MINTON, Circuit Judges.
EVANS, C.J.: These two petitions challenge and defend the propriety of an order of the National Labor Relations Board, which was entered in a dispute over the discharge of four employees of the Perfect Circle Company. The dispute is highly factual and while not complicated, is apparently incapable of amicable settlement, desirable as such a disposition would be.
The Board has ordered the Company to reinstate four employees who the Company contends were discharged for having illegally barred the plant manager from the plant during a strike.
The Board found the four employees were engaged in peaceful picketing, and employed no threat of violence, and therefore were not guilty of unlawful acts such as might be the legitimate basis of a discharge.*fn1 The Company, on the other hand, earnestly contends that the picketing was not peaceful, and that its manager was barred from the plant by threat of violence and intimidating action on the part of the four discharged employees.
The Company has petitioned us to review the Board's order, and the Board has petitioned us for the enforcement of its order. The order of the Board was made upon the Board's adoption of the trial examiner's intermediate report, and his findings.*fn2
The Company is engaged in the manufacture of piston rings and gray iron castings. The New Castle plant of the Company employed about five hundred employees. Its sales for the plant for the year exceeded a million dollars.
The Examiner stated that "there is no suggestion that other than a harmonious and stable relationship" existed prior to the strike. The strike was "spontaneous" and "about 3:30 in the afternoon of August 27, a picket line formed before the plant entrance." Two draftsmen who had left the plant that afternoon on business were not permitted to re-enter the plant upon returning.
On the next morning, the 28th, the incident occurred which supplies the factual basis for these proceedings. The plant manager, Richard Bancroft, accompanied by the plant engineer, came to work. As he approached the gate to pass into the plant, employee Emerson hurriedly walked to the gate and placed himself between Bancroft and the gate, Emerson's body covering part of the gate. His arm was somewhat, but not fully extended. It is probable that at least two other employees also hurried to the site and stood either immediately before or behind Bancroft. There then followed conversation between Bancroft and the employees, and Bancroft and the Chief of Police, regarding Bancroft's entering the plant. These statements are in some dispute. At least there is not complete accord as to the exact words spoken. We quote several of them in the margin (of page 5). The employees in substance state they asked Bancroft "Please, Dick, don't go in." Bancroft insists there was no "please" in their statement to him.
Rather, he was directed not to go in.Bancroft then turned to the Chief of Police and asked him to open the gate, but the Chief refused to do so, stating he could not do so.
There was no actual violence. Whether there was threat of violence is a point upon which the parties differ. The plant manager probably believed there would be violence and he therefore desisted in his attempt to enter the plant. He had, of course, the clear legal right to enter the plant. Any forceable obstruction to his exercise of his right was unlawful.If the employees unlawfully resisted Bancroft's right to enter the plant, the company was within its right in discharging the obstructing employees. If lawfully discharged, the Board erred in ordering their re-employment. The determinative issue, it will thus be seen, becomes an extremely narrow one.
The pickets, the four discharged employees, on the other hand testified to positive instructions that no violence was to be used*fn3; also that no threat of violence was made. In fact, they were merely exercising their right to use persuasion to support their cause.
The Company places strong reliance upon the fact that though its discharge was predicated upon unlawful picketing and the Board found the picketing to have been lawful, the Company's bona fide action exonerates it from any charge of discrimination against unionism in violation of Sec. 8(3) of the Act. Its position is stated in the Martel Mills Corporation v. National Labor Relations Board, 114 F.2d 624, as follows, -
"We do not lose sight of the fact that our inquiry is centered upon the motivating cause of the employer's action. The task is a difficult one. It involves an inquiry into the state of mind of the employer * * *. We do not find substantial evidence to support any illegal motive such as is proscribed by Section 8(3) of the Act."
The Board counters with the contention that "Good faith belief by the employer that employee conduct is not protected under the Act does not relieve the employer of responsibility for the discriminatory discharge of employees engaged in such protected conduct." (Republic Aviation Corp. v. N.L.R.B. N.L.R.B. v. LeTourneau Company of Georgia, 324 U.S. 793; N.L.R.B. v. Illinois Tool Works, 153 F.2d 811; Home Beneficial ...