Abbott Laboratories, Ross Laboratories Division v. National Labor Relations Board

ALBERT V. BRYAN, Senior Circuit Judge

(dissenting):

The election resulted in so close a tally— 22 to 20 — in favor of the Union that the misconduct of the Union’s electioneering deserves uncommon scrutiny. The fair thing, of course, would be for the Board to order a new election — a solution not to be feared by the Union or the Company — but the Board * refused.

*668 Predominantly suspect is the behavior of employee Cecil Hall, a Union contact man and organizer, in his incessant strong arm threats of physical reprisal directed particularly to two co-employees, Frederick Tubbs and Gerald Doss, if they did not vote for the Union. Notably, had either of them been allowed to express his preference in the election, a privilege granted by law, the result would have been a tie and defeat for the Union.

That there was a denial of this right is squarely proved by the following colloquy of the Hearing Officer and Tubbs, who was browbeaten by Hall to vote for the Union and thus gave victory to the Union:

“HEARING OFFICER: Did Mr. Hall’s comments affect the way you voted?

WITNESS: I believe so.

HEARING OFFICER: How would it affect?

WITNESS: It could have. Because I did not know — I could not make my mind up. I was scared.

******

“HEARING OFFICER: Let me return to the point that I was trying to establish. Did the comments that Mr. Hall made to you affect the way you voted? Did you vote the way you intended to vote when you went into the voting place, the polling area?

WITNESS: No, sir, I did not. HEARING OFFICER: You did not vote the way you wanted to?

WITNESS: No, sir. I thought about it. He done told me three times before the election that he was going to do something to me and so I started not to vote either way. I started not to vote either way and then I figured that I had to vote one way so I went in the booth and I came out and then I went back in again and made my mark.

“HEARING OFFICER: Did Mr. Hall’s comments to you threatening to throw you in the lake and threatening to kick your ass, did that affect the way you voted. Were you persuaded to vote for his position?

WITNESS: Yes, I would say so.”

The majority opinion quite justly notes that the second threat of Hall gave Tubbs pause and the third convinced him of Hall’s intentions.

I dissent from the insistence of the Board to approve the election in the face of this proof. The evidence quite starkly discloses that Hall just before the election doggedly hounded and bullied these two employees into a state of intimidation lest they oppose his wishes. This insufferable intrusion upon the privileges of the participants in a secret balloting, however, occasioned the Board no serious reflection. It consoles itself in the conviction that what Hall did was all in good fun. Without even a hint of the unlawfulness of the acts imputable to Hall, his testimony is accepted, theirs rejected, all because Hall “favorably impressed me [the Hearing Officer] on his demeanor as a generally credible witness” in testifying. Decision is rested upon the overworked refuge of the Board: that it is the final judge of credibility.

Now the Court, too, dismisses the issue as merely a matter of credibility. But exploration is demandable, I think, to ascertain whether “substantial evidence” gives the Board’s pronouncement such stature. The search is not satisfied by the Board’s ipse dixit; the answer is for the Court; indeed, the Court must press the inquisition. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 491 , 71 S.Ct. 456 , 95 L.Ed. 456 (1951). This quest will reveal the Board’s amazing determinations.

Beyond peradventure Hall represented the Union. It looked to him as one of the leaders of the organization campaign in the plant and as its conduit for reports and directives. His voice was the Union’s, as the employees generally recognized. Later he was to be the Union observer at the ballot box.

Not only did he speak with the authority of the Union but he spoke with the force of the bearer of two felony convictions — one in 1950 for breaking and entering a store in *669 the nighttime, with the theft of $50.00 worth of cigarettes, and another for grand larceny of an automobile. Presently, the Hearing Officer casually shrugged off this record, commenting that “such offenses do not relate to crimes involving physical violence”; the Court now treats it as insubstantial since the crimes were committed 20 years before.

Actually Hall served 12 years, not being released until December 1961. Furthermore, it is significant that even his prison record was not exemplary and bears recall when his bent for crime surfaces again. Hall escaped from the five-year imprisonment on the breaking and entering sentence; while a fugitive he stole the automobile; on two occasions his parole was revoked, once in 1954 and then in 1957; and he was returned to prison each time. I put down Hall’s criminality as something more than a peccadillo; I call it downright vicious violence. Also, he would seem to be a somewhat menacing fellow employee. The majority quite candidly can only say, with faint mitigation for him, that his record “did not require that he be disbelieved”. On the other hand, it says, a recent conviction of Tubbs for assault and battery “could be deemed to undermine [the] persuasiveness” of him as Hall’s accuser. This contrast in weight given the two records will not survive the facts.

The felony convictions were played down by the Hearing Officer, in redemption of Hall, while the conviction of Tubbs for assault and battery was played up, to impair Tubbs’ truthfulness. It is clarifying to find that his assault and battery must have been quite slight for the sentence was 18 days. Moreover, he was allowed to serve it during six weekends. Verily, the difference in treatment of Hall’s felonies and Tubbs’ offense is to “strain at a gnat and swallow a camel.”

Hall, in the weeks immediately preceding the election on July 20, 1973, as the majority opinion fully recites, repeatedly threatened employee Frederick Tubbs to “kick [his] ass” if he did not vote for the Union. This meant in plant language, Tubbs explained under oath, “to get to you and work you over and things. They would beat you up”. About the same time, as he watched employee Gerald Doss act counter-union, Hall said, “I would like to kill the son of a bitch” and continuing said, “No he wouldn’t want to kill him, I would just like to beat the hell out of him”. This remark was repeated to Doss through employee Crews.

The Company complained to the Regional Director to set aside the election for Hall’s duress of the voters and other unlawful tactics at the polls. Before Tubbs was interviewed by the Director’s agent, Tubbs was admonished by Brumfield, another contact man of the Union’s regional vice-president, not to relate Hall’s threats since it would “mess up” Hall. Thereafter, Tubbs resigned his job in the plant to take a janitorial job with the Company. On meeting him later, Hall shook his fist at Tubbs, telling him that he was now without protection, and “kept coming around” and “calling me [Tubbs] a rat and a two-timer”.

Great stress is laid by the Hearing Officer — to impair Tubbs’ veracity — upon two affidavits he filed with the investigating agent on August 8, 1973. In one he stated that he was never threatened by Hall and a supplementary affidavit of September 13, 1973 said that he had not told Doss that Hall had threatened Tubbs. Unfortunately the inducement of these affidavits is not mentioned. They were prompted by the statement of Hall to him a week after the election, in substance, that if anybody said that Hall had threatened somebody and could not prove it, they could be sued for slander. This obviously frightened Tubbs and generated his denials in the affidavits just mentioned.

Moreover, on November 9, 1973, prior .to the hearing before the Hearing Officer, Tubbs went to his employer and explained the falsity of his affidavits, the reason why he had made them and gave a full statement in affidavit form on November 9,1973 reciting the entire story. He even went to Washington, D. C. to correct these earlier denials of Hall’s threats.

*670 On his return, Tubbs was faced by this same Brumfield, the Union’s contact man who had learned of his trip, with a Earning that the “boys” were mad at Tubbs and more so at Crews, the latter also having been noticed giving testimony against Hall. Furthermore, Hall asked him at the plant, “Why did you [correct your statement] because I ain’t bothering you but I could. I could do it mighty quick”. All of this indicates Hall’s unrelenting pursuit of him and why his first two affidavits cannot be taken as affecting his credibility before the Hearing Officer.

Hall did not deny before the Hearing Officer that he had made these remarks to Tubbs. He makes the point that he never “threatened” Tubbs. His is a confession and avoidance, lightly tossing it off as something not to be taken at all seriously— just jesting. As the majority now quite accurately frames it: “Hall denied that his statements to Tubbs were threats or were more than jokes not intended to be taken seriously.” Astonishingly, this is seized upon by the Board as expiation cleansing him of any wrongdoing. Feeble indeed is another excuse for him: there was no physical violence. Did there have to be body blows in order to constitute coercion? To cap it all, before the hearing, Hall had sworn to a Board representative in an affidavit that he did not tell Tubbs he would kick him if he did not support the TWUA [the Union].” Yet he is accorded unqualified belief by the Board.

Tubb’s accusations were “corroborated by other witnesses”, the majority observes, but then it presses against him, as inconsistencies, the circumstances of his continuance in attendance at Union meetings and his failure to avoid Hall. To me these incidents indicate, rather, the depth of Tubb’s conviction of the gravity of Hall’s threats, and his fear of the consequences should he cross Hall. The fact that he borrowed $11.00 from some of the Union members to pay a fine is also adduced as an inconsistency, but I miss the point of it. A loan while in such straits would be readily accepted by anybody.

Complete freedom to express their preference in an election of this kind is guaranteed by law to all the employees. This privilege is entrusted to the Board for assurance of its protection, but here the Board tolerates a gross deprivation of the right. As a minimum restoration, a new election should be ordered.

ADDENDUM

After the opinions in this case were prepared and circulated within the court, but before they were filed, a suggestion for rehearing in banc and a request for a poll was made sua sponte within the court. A majority of the judges eligible to vote voted to deny rehearing in banc.

Since the Board adopted all of the findings of the Hearing Officer, the latter’s rulings are frequently spoken of infra as the Board’s.