# J. A. Hackney & Sons, Inc. v. National Labor Relations Board > Court of Appeals for the Fourth Circuit · May 20, 1970 · 426 F.2d 943 URL: https://www.frixlaw.com/law-library/cases/9455665 ## Case - **Full name:** J. A. HACKNEY & SONS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent - **Court:** Court of Appeals for the Fourth Circuit - **Decided:** May 20, 1970 - **Citations:** 426 F.2d 943; 74 L.R.R.M. (BNA) 2247; 1970 U.S. App. LEXIS 9127 - **Precedential status:** Published - **Opinion:** Concurring in part by Winter - **Judges:** Haynsworth, Bryan, Winter - **Cited by:** 1 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9455665 ## Opinion text WINTER, Circuit Judge (concurring in part and dissenting in part). I agree that the Board’s finding that the company violated § 8(a) (1) has ample support in the record, but I think that the same is also true with regard to its conclusion that there was a § 8(a) (3) violation. The evidence of record supporting the latter follows: The union began its organization drive on May 21, 1968. Within days the company had recruited an employee, Chester Webb, and, by reminding him of past financial favors, persuaded him to attend union meetings, report what transpired and ascertain and report who attended and who signed union authorization cards. The downturn in the company’s business because of the glass industry strike had begun in February, 1968. By April, 1968, the company was aware that through August, 1968, production necessary to fill orders would be only 14.5 truck bodies per week, about half plant capacity. With this knowledge the company’s executive vice-president and general manager, James A. Hackney, III, addressed all employees. Hackney made this speech just after Webb had been recruited. He told employees that strikes brought on by unions in other industries had hurt the company’s business and that “we do not have a union here, and we hope we never will.” He assured them that if there was need for the company to reduce production “we will reduce the work week if necessary rather than lay off personnel. We feel that each employee is a valuable member of our production team, and we do not want to lose anyone.” Hackney also held out the prospect of a wage increase. Webb fulfilled his role as informer, even to the extent of proselytizing, at the company’s instigation, the union secretary, James Edwards, to aid him in informing the company about the union. Contemporaneously with Edwards’ first report to the company as union informer, Hackney again addressed the employees cautioning them against union activity, including the admonition that if they ever went on strike over contract demands they could and probably would be replaced so that their jobs would be lost forever. On June 5, shortly after Webb and Edwards had furnished the company with a list of those employees who had attended a union meeting, Hackney again delivered a speech to the assembled employees. He referred to a statement of a union representative that he [Hackney] could afford higher wages and told them that he was well enough off financially “to padlock the plant and hunt and fish the rest of my life * * On June 6, after another union meeting the previous night, Webb delivered to the company a list, compiled by Edwards, of the employees attending that meeting, and the production superintendent, Holmes Boyd, told Webb to tell employees, without revealing the source, that “if they want to keep working here, they had better get their [union] cards [back].” In accordance with Hackney’s earlier prediction, the company reduced its workweek from 50 to 45 hours on or about the workweek ending June 25, 1968. At about the same time Hackney asked Boyd and Boyd’s assistant to devise a plan to reduce each department to a level which would produce 14.5 bodies per week — the level of production which had been anticipated two months earlier. Boyd, whose anti-union statement has been noted, and his assistant formulated a discharge list from an average of the last two production ratings. *948 Notwithstanding his unannounced plan to discharge employees, Hackney made another speech on July 3 about a revised wage and job progression plan to become effective July 17. Because of a general upgrading of all jobs, wage increases of from 5 to 27 cents per hour were granted to all employees. As part of the announcement, Hackney assured all employees, according to the testimony of one of the employees present, “there was no cause for alarm, that the company had never had a layoff and they didn’t intend to have one now.” Then on July 11, Hackney made another speech, announcing the mass discharge of the 41 employees on Boyd’s list. Beginning with the opening comments that previously he had spoken “nice and gently” and “didn’t quite use language you understand,” Hackney asserted “today I don’t intend to make that mistake. You’re going to get the message loud and clear, in terms that even the thickest of you will understand.” Stripped of the vulgarities, obscenities and blasphemies with which it was liberally larded, Hackney’s speech accused employees of dissatisfaction with their working conditions, feeling that they were underpaid and believing a “line” about how badly off they were. Hackney referred to a former employee and head of the union in-plant organizing committee who believed “that line of crap” but who had found out that “the world outside was cold and hard” and within “one week he asked for his job back.” Hackney fully disclosed that the company’s motivation for the discharge was retaliation in the comment “We had a decision to make. Work is slack, and we were faced with the choice of whether to cut hours or to cut people. But, some of you made that decision for us.” (emphasis supplied.) He also answered the majority’s finding of the company’s purity of motive in discharging some 12 non-union employees by his statement “there’s no point in crying to me that you are really one of the good guys. When you play with fire, you get burned.” 1 To complete the picture and further drive his message home, the record contains testimony that Hackney confided to retained employees the next day that any discharges could have been avoided by reducing the workweek to 40 hours and by reducing salaries. To me this evidence provides a substantial basis for the Board's conclusion that the discharges were motivated by anti-union bias. I do not question that the company’s economic situation was deteriorating. But it was aware of this reality during the entire period that Hackney repeatedly assured employees that their employment was not in jeop *949 ardy. The company’s announced anti-union bias, its intimate knowledge from its spies of who was interested in joining a union, as well as who had actually signed a union card, its detailed knowledge of the attempts to organize notwithstanding its expressed disapproval, its grant of wage increases in spite of substantially reduced production, its use of discharges, rather than layoffs or further reductions in working hours, and Hackney’s speech of July 11 in announcing the discharges, all lead to the conclusion that, after its attempts to chill unionization had proved abortive, the company seized upon the economic situation to justify retaliatory massive discharge so as to forestall any exercise of employees’ § 7 rights for the foreseeable future. 2 To say, as does the majority, that the Board’s predicate that anti-union discrimination was a motivating factor in the discharges does not have substantial support in the record considered as a whole does violence to Universal Camera Corp. v. NLRB, 340 U.S. 474 , 71 S.Ct. 456 , 95 L.Ed. 456 (1951). Under our previous decisions if anti-unionism is a factor in a discharge, this is enough to render the discharges discriminatory and in violation of § 8(a) (3). NLRB v. Hanes Hosiery Division, Hanes Corp., 413 F.2d 457, 458 (4 Cir. 1969); Winchester Spinning Corp. v. NLRB, 402 F.2d 299, 304 (4 Cir. 1968); NLRB v. Dove Coal Company, 369 F.2d 849, 852 (4 Cir. 1966). We should not now reverse our course. I respectfully dissent, from the majority’s failure to sustain the Board in the § 8(a) (3) aspect of the case. . My brother Haynsworth asserts that the board found no discrimination in the selection of the 41 employees who were discharged. At most there was a non-finding. On compelling evidence, the trial examiner found that the June 1968 ratings, which when averaged with the December 1967 ratings were the purported basis of selection for those to be discharged, were not reliable. Because the board found that “the decision to reduce the work force was motivated by the recent union activities of his employees and not by Respondent’s economic straits,” it found “it unnecessary to rely on the Trial Examiner’s apparent further finding that there was a discriminatory selection of the employees discharged.” I would be cautious in rejecting the trial examiner’s apparent finding so as to conclude that there was non-discriminatory selection of those to be discharged. When the June 1968 ratings were made the unionization campaign was under way and the company had adopted a vigorous anti-union policy. The actual ratings were made by supervisory personnel who actively engaged in threats, coercion and other anti-union activity, and they well knew the names of employees who attended union meetings and who signed union cards. Of those discharged, 9 were not rated, 4 had a higher rating in June than in December, and one of these 4 had a rating above his departmental average. By contrast, 2 employees were retained whose June ratings were lower than their December ratings. If discharges were made on the basis of the December ratings, which were made before any union and anti-union activity had begun, 18 of the 41 would not have been discharged. . To avoid the substantial evidence of anti-union animus, the opinion of my brother Haynsworth asserts that the discharges were the only reasonable solution for the company’s diminished need for production. From that premise, his opinion concludes that the sole reason for the discharges must have been a permissible business judgment. I find this reasoning fallacious. The significant fact is that in Hackney’s view there were other alternatives. There is no warrant to disregard his views since the question before us is not what his actual motives should have been but what his actual motives were. My brother’s logic overlooks the timing of the discharges and is inconsistent with the anti-union statements accompanying their announcement, the post-discharge disclosure that they could have been avoided, the resort to discharges rather than layoffs, and the pay raise to retained employees ef- ■ fective one week after the discharges. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9455665. Public record. Not legal advice.