finding no evidence that a company discharged an employee because she engaged in activity for the purpose of collective bargaining and therefore denying the Board's request to enforce an order in her favor
How later courts described this case
- finding no evidence that a company discharged an employee because she engaged in activity for the purpose of collective bargaining and therefore denying the Board's request to enforce an order in her favor
- defamatory statements in radio interview during organizing campaign
Written by the judges who cited it.
The opinion
EDWARDS, Circuit Judge
(dissenting).
The company fired one Mrs. Montgomery for making a radio appeal for the union in which she said that an employee of Bowling Green had been fired for refusing to work on jobs which caused her to have a dermatitis condition on her hands. The company reacted by notifying Mrs. Montgomery that she had 48 hours in which to retract, because Mrs. Beach had in fact quit. Mrs. Montgomery declined to retract. She subsequently testified that her story and refusal to retract were based on what Mrs. Beach had told her. Respondent fired her. The Board found that this represented an 8(a) (1) violation and ordered reinstatement.
The record convinces me that at one point Mrs. Beach did throw her badge on the foreman’s desk with some force. On this record it would appear the respondent had reason to consider that Mrs. Beach had indeed quit. But this does not mean that Mrs. Montgomery knew that Mrs. Beach had lied to her or that as a reasonable person Mrs. Montgomery was compelled to be convinced that she (Mrs. Montgomery) had repeated a lie.
On the issue of Mrs. Montgomery’s good faith, the Trial Examiner found (and the Board affirmed):
“Viewing all the evidence, and appraising the demeanor of Mrs. Montgomery, whose testimony impressed me as being direct, forceful, and truthful, I find, as asserted, that she was told by Mrs. Beach what she related in her broadcast concerning the termination of Mrs. Beach’s employment, and that she in good faith believed it to be the truth. The only consequential evidence submitted by Respondent concerning Mrs. Montgomery’s knowledge of or good cause *377 to believe the falsity of the statements in her broadcast were her acquiesence in signing separation papers stating that she was discharged for publicly making false and malicious statements about the Company, and the alleged confession of Mrs. Beach to Jones 3 months after the discharge of Mrs. Montgomery, that the broadcast accusations against the Company were untrue and were instigated by the Union. I credit and find her explanation, as to why she signed the separation papers, adequately accounts for the signing and counteracts any inference that she thereby admitted the truth of the reason ascribed for her discharge. As for the effect of Mrs. Beach’s confession, even if credited as having been made, it is significant to note that the confession was made in an attempt to recover her job under very trying circumstances — the necessity to support her six children. Under such circumstances it would not be unreasonable to suspect its veracity and to question its motive. Moreover, the confession did not directly implicate Mrs. Montgomery as a knowledgeable participant in the plan. 7 Thus, even crediting Jones’ testimony that Mrs. Beach confessed as asserted, I would conclude that Mrs. Montgomery was duped into making her broadcast. 8
The enforcement of a company rule against union adherents prohibiting defamatory statements about the company in the course of protected activity in an organizing campaign is fraught with problems, including First Amendment ones. If discharge of union adherents under such a rule is to be approved under the NLRA, the proofs should show not only that the statement was false, but that it was maliciously made with knowledge of its falsity. Walls Mfg. Co. v. NLRB, 116 U.S.App.D.C. 140 , 321 F.2d 753 (1963), cert. denied, 375 U.S. 923 , 84 S.Ct. 265 , 11 L.Ed.2d 166 (1963), enforcing 137 N.L.R.B. 1317 (1962); Marlin Firearms Co., 116 N.L.R.B. 1834 (1956). See also Linn v. United Plant Guards Local 114, 383 U.S. 53 , 86 S.Ct. 657 , 15 L.Ed.2d 582 (1966); NLRB v. Illinois Tool Works, 153 F.2d 811 (7th Cir. 1946); NLRB v. Peter Cailler Kohler Co., 130 F.2d 503 (2d Cir. 1942). Here the Board found that Mrs. Montgomery’s statement was made in good faith and there is substantial evidence on the whole record to support that finding. •
The order of the Board should be enforced.
“7. It is significant to note in this regard that according to the uncontradicted testimony of Mrs. Montgomery, Jones told her at the time of her discharge, ‘We are awfully sorry that you got taken in hy this two-bit outfit.’
“8. No reason was advanced for either party’s failure to call Mrs. Beach as a witness.”