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National Labor Relations Board v. Air Flow Sheet Metal Inc.

May 20, 1968


Castle, Kiley and Cummings, Circuit Judges.

Author: Kiley


The National Labor Relations Board found that respondent Union*fn1 violated Secs. 8(b)(2) and (1)(A) of the National Labor Relations Act by causing Air Flow Sheet Metal, Inc., to discharge its employee Milligan for a reason other than non-payment of dues or initiation fees; and that Air Flow violated Secs. 8(a)(3) and (1) of the Act by discharging Milligan. The Board ordered, inter alia, that the Union cease and desist from its unlawful conduct and that Air Flow offer Milligan reemployment and make him whole for loss of pay. We agree with the Board that its order should be enforced.

Air Flow, of Fort Wayne, Indiana, is in the business of installing sheet metal products in building construction. As a member of a contractor's association, it is party to a collective bargaining agreement with the Union. The security clause of the agreement requires as a condition of employment that an employee join the Union within eight days after employment.

Milligan was employed by Air Flow on September 1, 1965, and began work in Kokomo, Indiana. He applied for Union membership about September 15 and made a down payment on the initiation fee. On November 1 he was transferred to "the RCA job" at Marion, Indiana. On January 19, 1966, he was transferred to "the Corning Glass Works job" at Bluffton, Indiana. His work on behalf of Air Flow terminated "on or about" January 20, 1966, and four days later he filed the unfair labor practice charges in this record.

The complaint alleges that the Union "on or about January 19 and 20, 1966," caused Air Flow to discharge Milligan at Air Flow's Marion and Bluffton, Indiana, job sites and that the Union continues to prevent Air Flow from reinstating Milligan in his job. It is further alleged that the Union's conduct was based on Milligan's non-membership in the Union, his criticism of the Union, his failure to take a Union examination and his failure to obtain Union clearance for his employment. Air Flow and the Union denied substantially all the charges.

The Board adopted, in substance, the decision*fn2 and recommendation of the Trial Examiner, in entering the order. The Examiner found that the Union caused Air Flow to discharge Milligan because he was not a Union member, and had not taken and passed an examination for journeymen sheet metal workers.

The issues raised by the Union and Air Flow are: whether the record supports the finding that there was a discharge; whether, if there was a discharge, it was for good cause; whether in suspending Milligan on January 20, 1966, the Union was within its right to enforce its Union rules; whether the Examiner's credibility findings, favoring Milligan, are justified on the record; and whether the Union and Air Flow were denied a fair hearing because of the Examiner's conduct.

The respondents contend they were denied a fair adversary hearing because the Examiner assumed the role of Board advocate. We have read the Trial Examiner's questioning of General Counsel witnesses Ehrman, Krock and Milligan, and of respondents' witnesses Quarles, Shaw and Ehrman. We think that the Trial Examiner went beyond his function of Examiner in certain instances by taking over the questioning of witnesses of both parties.

An examiner is not required to assume a wholly passive role and should participate in the proceeding whenever necessary to the end that the hearing proceed in an orderly, expeditious fashion to question the witnesses in their own way to develop their own cases. We do not find, as the court did in Tele-Trip Co. v. NLRB, 4 Cir., 340 F.2d 575, that the Examiner's questioning was "argumentative" or displayed "a critical approach, obvious disbelief," or an attitude "closely bordering on partisanship or even hostility." The court in Tele-Trip, although it did make the above findings and although it was highly critical of the examiner, p. 581, did not order a new hearing.

The record here merely shows an impatience on the Examiner's part to allow the attorneys to evoke the testimony their own way. We disapprove, because we think this practice if approved might lead to implications of partiality and might lessen respect for the administrative process under the NLRA. We conclude, however, that the Examiner's conduct here did not deny respondents a fair hearing, and did not lead to a distorted result.

We see no merit in the contention of respondents that the Examiner contributed to an unfair hearing because he permitted testimony outside the issues. The Examiner did make findings, not adopted by the Board, with respect to violations which had not been put in issue by the unfair labor practice charges. The testimony which related to these findings was introduced by respondents, as well as the General Counsel, and related to events the day before the January 20 discharge as well as events subsequent to the discharge. The testimony is not unrelated to the charges actually made since the allegation of the charge was that the discharge took place on or about January 19 and 20 and since the testimony was relevant to the issue of the employer's reason for discharging Milligan. We cannot find any prejudice to respondents because of the testimony on which the findings of additional violations were based.

We hold the testimony amply supports the Board's conclusion that the Union violated Secs. 8(b)(1)(A) and 8(b)(2)*fn3 by causing Air Flow to discharge Milligan because he had not taken the Union examination; and that Air Flow violated 8(a)(1) and (3) by discharging Milligan and refusing to reinstate him for reasons other than non-payment of initiation fees and dues.

The Examiner could, with substantial support, find the following: Union Steward Beatty at a Union meeting January 17 reported that Milligan had stated to Union members on the RCA job that he did not have to, and would not, join the Union; that Union business agent Krock was informed the men would walk off the job unless the matter was straightened out and that Krock promised to go to the RCA job and straighten "it" out. On the morning of January 19, 1966, Krock and Beatty and Air Flow's Project Manager Thomas and Superintendent Quarles met with Milligan. Thomas and Quarles heard Krock tell Milligan he could not work until he took the Union examination. Krock "suggested" Thomas and Quarles lay Milligan off until he took the examination. Thomas and ...

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