Ohio Power Company v. National Labor Relations Board

EDWARDS, Circuit Judge,

concurring in part and dissenting in part.

In the course of an apparently quite bitter six months long strike at the Ohio Power Company in 1973, a number of strikers were discharged. We are informed that the Board has affirmed the discharges in seven out of nine litigated cases.

This case originally pertained to three such discharges, one of which the Board treated as a valid discharge, and as to two of which it ordered reinstatement and back pay for the discharged employees, Campbell and Greene. The company has petitioned to review the order of the Board and the Board has petitioned for enforcement as to these two employees. The Board’s opinion is reported at 215 N.L.R.B. No. 13.

I concur in Judge Engel’s opinion granting enforcement of the Board’s order as to Greene.

Campbell’s discharge presents the question as to whether the Board was right in finding that the altercation which led to the discharge occurred in a situation similar to a picket line and, hence, was protected activity. A review of the record convinces me that it was.

Secondly, the case presents the question as to whether or not there is substantial evidence on the whole record to support the version of the events which the administrative law judge and the Board accepted. Among other findings by the administrative law judge and the Board are the following:

In any event, I am not satisfied that Respondent has demonstrated that Campbell’s conduct was sufficiently serious to justify the discharge in question. Even accepting, arguendo, Dawson and Mayer’s version of the critical encounter, Campbell’s conduct was obviously limited to a spontaneous outburst which did not interfere with the work of the two foremen, did not result in mentionable injury to Mayer, 6 was not shown to have occurred

6 Mayer testified that he scraped his elbow and left middle finger as a result of falling to the roadway. No treatment was necessary and his ability to work was not impaired, in a context of violence, and was an isolated incident not likely to trigger misconduct on the part of fellow strikers. Against this background, considering the combined testimony of Dawson and Mayer, that Campbell’s activities were neither fear inspiring, nor violent, and undertaken without apparent anger, I find that the alleged misconduct of Joseph Campbell falls within that category of trivial and inconsequential scuffles which do not deprive an employee of the protective mantle of the act. 7

Finally, and also in the alternative, I find on the basis of the credited testimony of Joseph Campbell, as corroborated by fellow striker Larry Campbell, and Bellaire police officer, Glen Warnoek, that Joseph Campbell did not assault *581 Mayer and that Mayer’s falling to the ground was attributable to other causes. 8

I do so because not persuaded as to truthfulness of the accounts related by Mayer and Dawson. They would have me believe that Campbell who impressed me as mild-mannered and of temperate, stable disposition, without provocation, and in the presence of witnesses, including law enforcement officers, after a conversation in which Campbell reflected no temperament, grabbed Mayer from the rear and shook him, throwing him to the ground with Mayer landing some 10 feet away from the point of confrontation on the birm of the road. Mayer and Dawson impressed me as uneasy in their role as witnesses against Campbell and the testimony of both shifts from what appears to be an exaggeration of Campbell’s misconduct to what in other respects seems a mitigation of Campbell’s role in the incident. The inability to assess which part of their testimony is truthful renders the entirety of their story both improbable and unreliable. 9 Although certain aspects of the accounts given by the General Counsel’s witnesses are not entirely free from doubt, I find, as the more probable, considering the entire setting of the incident, [that Mayer went to the ground after having lost his footing, following a collision with Campbell, of a type which hardly could be described as a deliberate act of aggression.] In crediting Joseph Campbell and Larry Campbell in this regard, I was particularly impressed with the corroborating testimony of Police Officer Warnock. It is true that, like the Campbells, he was a native of Bellaire, and knew Larry Campbell and Gasbarre and had known of Joseph Campbell. I do not believe he officiously would have lied in Joseph Campbell’s behalf. Accordingly I find that Joseph Campbell did not engage in the misconduct attributed to him. 10

For all of the above reasons I find that Respondent discharged economic striker Joseph Campbell in violation of Section 8(a)(3) and (1) of the Act. 11

I believe there is substantial evidence upon the whole record to support the findings quoted above and I would also grant enforcement as to the Board’s order as to Campbell.

Buitoni Food Corp., 126 NLRB 767 , 783; Huss & Schlieper Co., 194 NLRB 572 , 577; Beaver Bros. Baking Co., Inc., d/b/a American Beauty Baking Co., 171 NLRB 700 , 719.

Much of the record herein is devoted to efforts by various counsel to elicit testimony as to contradicted minor matters such as distances and the location of various witnesses in relation to the Mayer-Campbell confrontation. These matters are subsidiary to the critical question herein; i.e. the cause of Mayer’s falling to the ground; they too may be resolved only through an assessment of conflicting testimony. As such, they raise purely collateral credibility issues which are of no aid in assessing the conflicting testimony on the critical issue presented. Their resolution would serve no purpose other than to prolong the analysis and discussion of this phase of the case.

As indicated heretofore I am persuaded that the District was interested in making an object lesson out of Campbell. This may lend some explanation for the shifting nature of the testimony of Mayer and Dawson. My observation of Mayer and Dawson as well as the specifics__of their testimony suggest that, having initially reported the incident to the Company, they subsequently may well have been tom to conflict by virtue of their sense of loyalty to the Company, yet on the other hand their displeasure with the severe discipline ultimately meted out in Campbell’s case.

In assessing credibility, I have considered evidence adduced by Respondent in an attempt to show that Joseph Campbell on the evening of October 21, was subject to pressures which, perhaps, rendered him prone to a loss of self control. From my observation of Joseph Campbell, and from the description related by Dawson and Mayer of his composure both before and after his collision with Mayer, I am not persuaded that, in the circumstance, these “pressures” would have triggered the type of impulsive assault attributed to him by Respondent’s witnesses.

See N.L.R.B. v. Bumup and Sims, Inc. 379 U.S. 21, 23 , 85 S.Ct. 171 , 13 L.Ed.2d 1 (1964).