Before MAJOR, LINDLEY and SWAIM, Circuit Judges.
MAJOR, C.J.: This matter is before the Court upon petition of the National Labor Relations Board, pursuant to Sec. 10(e) of the National Labor Relations Act, as amended (29 U.S.C.A. Sec. 151, et seq.), for enforcement of its order issued against respondent on October 29, 1954, following the usual proceedings under Sec. 10 of the Act. 112 N.L.R.B. No. 69. Respondent requests that the order be set aside.
The complaint alleges that respondent on March 8, 1954, through its agent, Edward W. Camp, discharged Lynn E. Boyd "for his membership in and effort on behalf of the Union and has at all times refused to reinstate him," and that such discharge constituted unfair labor practices within the meaning of Sec. 8(a)(3) and (1) of the Act. Respondent concedes the discharge of Boyd and its refusal to reinstate but denies that such acts constituted unfair labor practices. No question is raised but that respondent was engaged in interstate commerce. The proceeding took the usual course, with a hearing before a trial examiner who in an intermediate report found a violation of Sec. 8(a)(1) but no violation of Sec. 8(a)(3).
The Board found a violation both of Secs. 8(a)(3) and (1), and in doing so stated:
"In view of the circumstances surrounding Boyd's discharge which, in our opinion, were directly related to his activities as active union adherent and later president of the Local, we find that the discrimination in regard to his tenure of employment had the effect of discouraging membership in a labor organization in violation of Section 8(a)(3) of the Act. Unlike the Trial Examiner, we cannot, in the face of these facts which unquestionably stem out of Boyd's union activities, limit our finding solely on a violation of Section 8(a)(1). The situation here under consideration is uniquenly illustrative of discrimination in violation of Section 8(a)(3) which discourages membership and activity in a labor organization."
The sole contested issue here is whether the evidence substantially supports the Board's finding that respondent discharged Boyd for union and concerted activities protected by the Act.
In the beginning it appears desirable to identify the parties and persons who in one way or another are connected with the circumstances attending the controversy. Respondent, an Indiana corporation, publishes the local newspapers and operates an FM radio station in Marion, Indiana. Lynn E. Boyd, the discharged employee, was employed by respondent in its composing or press room as a linotype operator until his discharge on March 8, 1954. On that date, he was president of the Marion Typographical Union No. 286, affiliated with International Typographical Union (AFL) (hereinafter referred to as I.T.U.). He was reelected president on March 7, 1954 (the day previous to his discharge). Boyd had served in such capacity for some six years prior thereto, for one period of four consecutive terms and for another of two terms. He had also been vice president, member of the executive board, member of the scale committee and chapel chairman during the course of his employment. The union is a labor organization, the membership of which is confined to those employed in respondent's composing room. It is not and never has been in compliance with Sec. 9(f), (g) and (h) of the Act. Edward W. Camp, who alone was responsible for the discharge of Boyd, was respondent's general manager (sometimes referred to as the vice president). He had a long and friendly relationship with the I.T.U. and had been a member for ten or twelve years. His father, brother and sister had also been members. At one time his membership was terminated for non-payment of dues, due to inadvertence. In 1943, a committee of the I.T.U. invited him to reapply for membership, which he did, was registered and remained in good standing until he was subsequently given an honorable withdrawal card. Gardner Thomas was respondent's president; Paul Bell, a member of the union, was superintendent or general foreman from July 26, 1953 until a date subsequent to Boyd's discharge, and during the same period Harold Winchell, also a member and secretary of the union, was night foreman or assistant superintendent.
On the evening of March 8, 1954, Boyd and other employees on the night shift commenced work at 5 p.m. About two hours later the employees ordered refreshments. Boyd ordered and received a paper carton of ice cream which was delivered to him at his linotype machine. The circumstances which shortly followed give rise to the unfortunate episode around which the controversy revolves. A number of witnesses testified as to the happenings on that occasion, including Camp and Boyd. As the trial examiner pointed out, there was no substantial difference in their testimony. The examiner set forth in some detail Camp's version of the affair, with the statement that the testimony of Boyd "was not substantially different or in conflict with that of vice president Camp." The Board has adopted the findings of the examiner relative to the testimony of Camp and we shall do likewise.
"According to Camp's own testimony, he saw Lynn E. Boyd sitting at his linotype machine with the cup of ice cream in his hand, and gave him a dirty look in passing. Upon return from the mail room, Camp approached Boyd, who was standing up at his machine No. 5 with the cup of ice cream in hand talking to an adjacent linotype operator (Moore). Camp, said to Boyd: 'Are you working here?" Boyd said: 'Yes, I like to work here.' Camp said, 'Well, get down and get to work then.' Thereupon, Boyd sat down at his linotype machine, and Camp stood there watching him. Boyd then turned around and said: 'You get away from here, I can't work with you looking over my shoulder.' Camp continued: 'I don't think you want to work here. Why don't you get out? You don't act like you like it here. I noticed that there are a couple of situations up there posted on your bulletin board, so if you don't like the work here, you won't be without a job very long.' Boyd inquired: 'Are you firing me?' - stood up and said: 'I know why you're firing me, it's for my union activities.' Camp became incensed at this accusation, got madder and madder, and loudly said: 'If you say that again to me, I'll knock you on your ass; get out, get out;' and may have also said: 'you are just leading these men into a bunch of trouble.' Boyd said: 'Give me a little time to get my coat or jacket;' and proceeded to the locker room followed by Camp. At the locker room, Boyd said to Camp: 'If you were ten years younger, I'd knock your block off,' or words to that effect."
Further, as the examiner notes, Boyd testified that when he mentioned the fact that other employees were also eating ice cream, Camp said, "I don't care what any other man does, you're the guy I'm after, you are the trouble maker here," and that Camp called him vile names. Also, Boyd denied saying to Camp, "If you were ten years younger, I'd knock your block off," but admitted that he said, "Ed, if you were ten years younger, I'd give you an invitation." There is no disagreement but that Camp during the controversy was in a highly nervous and agitated state of mind, got "madder and madder," and became infuriated when Boyd made the accusation that he was being fired for his "union activities."
While we adopt the examiner's appraisement of Camp's testimony, we think fairness requires that it be supplemented as to one incident in particular which is not mentioned either by the examiner or the Board. Camp testified that when he visited the composing room shortly after the night shift had commenced its work, he noticed that Boyd was not at his machine and that he was not there a few minutes later. He gave the matter no particular attention, however, as he thought perhaps it was Boyd's night off. Boyd testified that he was at his machine at all times from 5 to 7 o'clock, except perhaps for a five minute period when he went to a wash bowl to wash his hands and that he immediately returned to his work. Marvin R. Lewis, foreman of the press room and a member of the Pressmen's Union, testified that he went to the locker room about 15 minutes after 5, to wash and change his clothes, as he did every day at the end of his shift. He stated that he was in the locker room for a period of fifteen minutes and that Boyd was there when he entered and when he left, doing nothing but looking out of the window and smoking. This testimony was not denied. There is no evidence that Camp had knowledge of this incident as testified to by Lewis but it does corroborate Camp's testimony that Boyd was not at his place of work when Camp visited the room shortly after 5 p.m., and by the same token it contradicts Boyd's testimony that he was on the job at all times.
Camp testified that when he again went through the composing room at about 7 p.m., Boyd was seated and eating ice cream from a cup, and a few minutes later when he returned, Boyd was standing up eating ice cream, looking directly at Camp in an insolent manner as if daring Camp to assert his authority, and that when Boyd finally sat down at his machine, he did not start to work but said to Camp in a belligerent manner, "You get away from here, I can't work with you looking over my shoulder." At about that time foreman Winchell entered the room and, Boyd, at his request, left. On the following day Boyd requested a written explanation of his discharge. Accordingly, Camp drafted a letter addressed to Boyd which stated that he was "discharged for neglect of duty at this and other times," and requested that night foreman Winchell sign it. (This was in conformity with a union rule.) Winchell revised the letter to read, "neglect of duty at this specified time" and, as revised, the letter was mailed to Boyd.While it is agreed on all hands that Boyd was discharged by Camp, it is uncertain at what point in the episode the discharge took place. It is to be noted that the most that was said by Camp during the main controversy was, "I don't think you want to work here. "Why don't you get out?" It was Boyd who stated, "Are you firing me?" ...