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National Labor Relations Board v. Perfect Circle Co.


June 19, 1947


Author: Evans

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 Life Ins. Co. v. N.L.R.B., CCA4, Jan. 7, 1947, and Matter of Mid-Continent Petroleum Corp., 54 N.L.R.B. 912.)

In N.L.R.B. v. Illinois Tool Works, supra, this Court said:

"In answer to these contentions it will be enough to say that this court * * * has recognized that the test of interference, restraint and coercion under Sec. 8(1) of the Act does not turn on employer's motive."

In Republic Aviation Corp. v. N.L.R.B., supra, the discharge of an employee for violation of a company rule against solicitation, which rule was invalid as applied to the union solicitation in which the employee engaged on his own time, was discriminatory within the meaning of Sec. 8(3) of the Act in that it discouraged membership in a labor union, notwithstanding that the rule was enforced impartially against all solicitors. In that case the Court said

"The discharges of the stewards * * * were found not to be motivated by opposition to the particular union or, we deduce, to unionism." "The Board determined that there was no union bias or discrimination by the company in enforcing the rule."

The Court added

"It seems clear, however, that if a rule against solicitation is invalid as to union solicitation on the employer's premises during the employee's own time, a discharge because of violation of that rule discriminates within the meaning of Sec. 8(3) in that it discourages membership in a labor organization."

Notwithstanding the language of these cases from which a rule of law may be deduced, the controversy remains a factual one. We therefore at the sacrifice of brevity, quote the evidence.*fn4

The cases which hold we are bound to accept the Board's findings when supported by substantial evidence are many. The reasons for these holdings may be found in the provisions of the statute (29 U.S.C.A. Sec. 160(e)) and so we are told, in the superior qualifications of the Examiners and the members of the Board to pass upon the factual questions arising out of labor disputes. In N.L.R.B. v. Waterman S.S. Co., 309 U.S. 206, 208, it is said

"* * * In that Act, Congress provided, 'The findings of the Board as to the facts, if supported by evidence, shall be conclusive.' It is of paramount importance that courts not encroach upon this exclusive power of the Board if effect is to be given the intention of Congress to apply an orderly, informed and specialized procedure to the complex administrative problems arising in the solution of industrial disputes. As it did is setting up other administrative bodies, Congress has left questions of law which arise before the Board - but not more - ultimately to the traditional review of the judiciary. Not by accident, but in line with a general policy, Congress has deemed it wise to entrust the finding of facts to these specialized agencies.It is essential that courts regard this division of responsibility which Congress as a matter of policy has embodied in the very statute from which the Court of Appeals derived its jurisdiction to act. * * *."

The Board in the instant case accepted the Examiner's report which so far as it dealt with the determinative issue in this controversy reads

"The undersigned finds that attempts to persuade others not to enter the struck plant when unaccompanied by violence or threats of violence, fall well within such limits. Since picketing is a normal and customary concerted action in support of a strike, it follows that picketing if lawfully conducted is a protected activity within the meaning of Section 7 of the Act."

He also found

"While an inference may be drawn that Lye proposed to prevent management personnel from entering the plant, it does not follow that he proposed to do so by other than peaceful and persuasive means."

We must accept this finding of fact, though contrary to what our finding would have been if the issue was one for our decision.

We are somewhat at a loss to understand how the Examiner or the Board could find that the four employees on a strike who stepped before the superintendent and barred his way into the plant did so with no intention of preventing the employer's entry into the plant. Nor can we see where the Examiner was better qualified to pass on the action which the four would have taken, had B. attempted to go through the gate, than we are now.

The less said about the policeman's action and his testimony is the most charitable course we can take.It could hardly be said that his testimony in the light of his previous action, was favorable to the side for which it was offered.

Could it be said the Examiner's greater familiarity with labor problems made his deductions more intelligent than ours? The Examiner thought the pickets were merely exercising their right to picket the premises peacefully.By peaceful picketing it was meant that they intended to present only oral argument but did not intend actually to resist the manager's entrance. In other words, when the striking employee, Emerson, ran to the gate, and placed himself between B. and the gate, he was merely presenting the striking employees' argument to the plant manager.

Our contrary view must give way to the Examiner's, in view of the statute, and the holdings of the Supreme Court.

In other words, we bow to the command of the statute and to the decisions of the Supreme Court. If the disposition of this appeal turned on the findings above-quoted, we would grant the Board's petition for an enforcement order.

We are satisfied, however, that such disposition can not be made. Our acceptance of the Examiner's findings leaves a question of controlling importance unmet and undisposed of.

It is not the disputed intention of the four men that is determinative. It was the obstruction of the entrance to the company's property to the manager which constituted the four discharged men's misconduct.

Whatever their motives or intentions may have been, they barred the management out of the place. The Board's counsel admits frankly, "when in the course of a strike or other collective action, individual employees or groups of them seize their employer's property, the Act provides them with no shield from a discharge based upon their unlawful activity." (Labor Board v. Fansteel Corp., etc., supra.)

We are holding that the forceable denial of the employer's right to go upon its property is the equivalent of a seizure of the employer's property. The seizure of the employer's property as stated in the Fansteel case, supra, is a bar to reinstatement, because it denied to the employer his right to occupy his own property. The same effect is accomplished when the employee prevents the employer from entering upon his property.

The discharged employees in this case prevented the entry upon the employer's property.The effect of such action does not turn on whether the employees intended to yield if the employer persisted. The legal effect of such action is not lessened even though employees intended to use only oral argument against the manager's entry. This is a case where the striking employees prevented the company's manager from entering the property. Such prevention may be accomplished by physical force or violence; "by beating the manager up," or it may be accomplished by the employees' so conducting themselves that the manager is unwilling to take the risk of being "beat up."

The evidence in this case conclusively establishes that the four men did actually prevent the company's manager from entering the property.To this action we must give the same legal effect as if they had used physical violence to prevent the entry.

It is inconceivable that the law should require the employer to take the chance of physical violence or even death in order to secure possession of its property. The right of the employer to the possession of its property was clear. The employees abridged that right. They kept the employer out of its property. The effect of their action must be judged by the results. Had the manager taken his chance of trying to force his way through the gate he might have suffered violence which in turn could have aroused heated blood on his part with the result there would have been blow for blow. Must the employer in order to get possession of his property take a chance with the life of the manager? We think not.

In short, the motive of the wrongdoer is not the controlling and determining factor in this and similar cases. The employer may not avoid the consequence of its interference, restraint and coercion, whatever may be its motive. (N.L.R.B. v. Illinois Tool Works, 153 F.2d 811; Republic Steel Corp. v. N.L.R.B., 107 F.2d 472). Nor may the employees avoid the consequences of their action in barring the employer from his plant even though they were engaged in picketing the plant. The employees' right peacefully to picket the plant is clear. This right may not be exercised, however, to the extent of excluding the employer from his property. Motives (or good intentions) of the employee, like motive of the employer, can not excuse unlawful conduct, either by employer or by the employees.

We conclude from the uncontradicted evidence in this case (and no adverse finding of the Examiner avoids this conclusion) that the employer sought possession of its property; it was denied that possession by the four discharged employees; the employer was justified in its belief from the words and acts of the discharged men, that it could not get possession save through a fight, that in a fight it was represented by one man and the striking pickets had four; that it was not required to take the chance of bloodshed before it could discharge those who unlawfully obstructed its entry into its own plant.

Finally, the order of the Board reinstating the four employees can not stand.

The petition of the Board to enforce its order is DENIED.

The petition of the employer to vacate the Board's order is GRANTED.

MINTON, C.J., dissenting: It seems to me that the majority opinion takes inconsistent positions. First, it is found in the opinion that the picketing was peaceful. The evidence before the Board was conflicting on this point, but the Board found that the picketing was peaceful, and there is an abundance of evidence to support this finding. It must have been with this in mind that the majority opinion of this Court found that the picketing was peaceful. The opinion then says: "We are holding that the forceable denial of the employer's right to go upon its property is the equivalent of a seizure of the employer's property" within the meaning of the Fansteel case. Assume that a forcible denial of entry to the property by the strikers would bring the case within the Fansteel doctrine. There is no finding of any such force. The Board found: "It is true that Lye stood partially between Bancroft and the gate but it is found that Bancroft was not thereby barred from entering and it is further found that the attitude of Lye, Emerson, and Thrasher was not hostile or threatening."

This finding is completely at variance with the Court's finding, and the Board's finding has ample support by substantial evidence in the record. I set forth in the margin evidence from the record which clearly supports the Board's view.*fn5

Bancroft gave a different version of the situation, which was in conflict with that of the strikers and the police. To support the Court's statement that the evidence conclusively establishes that the four strikers did actually prevent the company's manager from entering the property, the Court has to accept Bancroft's version. This version the Board rejected. It accepted the version of the strikers and the police.

Notwithstanding the fact that the Board's finding is supported by substantial evidence, the Court disagrees with the Board on a resolution of that conflict in the evidence.

We have no part in that conflict. We look only to the evidence which support the Board's finding, justas we would a jury's verdict. The Board accepted the version of the gate incident given by the strikers, who were corroborated by the police. There was no violence or threat of violence in this view of the evidence. The police saw no occasion for their interference and refused to intrude at Bancroft's request, and the latter turned on his heel and left hurriedly. My credulity as to the politeness and gentility of the picketing is stretched considerably, but I am not the trier of the facts. I have seen many verdicts of juries that seemed to me off the beam, but I have found no rule of law that permits an appellate tribunal to retry the facts. I submit that we are bound by the Board's finding, which is supported by substantial evidence, whether we like it or not.

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