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Nat'l Labor Relations Bd. v. Reynolds & Manley Lumber Co.

United States Court of Appeals, Fifth Circuit
Apr 15, 1954
212 F.2d 155 (5th Cir. 1954)


holding employee lawfully discharged for leaving a potentially explosive boiler unattended without even contacting relief or a supervisor

Summary of this case from Columbia Portland Cement Co. v. N.L.R.B


No. 14754.

April 15, 1954.

A. Norman Somers, Asst. Gen. Counsel, David P. Findling, Associate Gen. Counsel, Frederick U. Reel, Atty., George J. Bott, Gen. Counsel, Sonja Goldstein, Atty., National Labor Relations Board, Washington, D.C., for petitioner.

Robert M. Hitch, Savannah, Ga., Hitch Harrison, Savannah, Ga., of counsel, for respondent.

Before BORAH and RUSSELL, Circuit Judges, and DAWKINS, District Judge.

The National Labor Relations Board seeks enforcement of its order of November 30, 1951, as amended May 22, 1953, 61 Stat. 136, 29 U.S.C.A. § 141 et seq. in proceeding No. 10-CA-1125 against respondent, Reynolds Manley Lumber Company, Inc., called Company, under Section 10(e) of the National Labor Relations Act. The charge was unfair labor practices committed in Savannah, Georgia, in this Circuit.

The Board held (1) respondent guilty of violating Section 8(a)(1) because its Vice President, Fred Shearouse, interrogated Isaac Jackson, Jr., as to how he felt about an impending strike, and requested that he persuade his fellow employees not to strike; and, also (2) of violating Section 8(a)(1) and (3) in refusing to reinstate striker Joe Brown after the strike had ended.

On August 22, 1950, the Board had certified the International Union of Mine, Mill and Smelter Workers, called Union, as exclusive bargaining agent for respondent's employees. Respondent refused to recognize the union on the ground that the Board had no jurisdiction to certify it, because at that time the parent, CIO, with which Union was affilated, had not complied with Section 9(h) of the Act by having its officers file affidavits of Non-Communism.

Pursuant to vote, members of the Union struck on October 5, 1950, but on January 9, 1951, the strike was called off and all employees returned to work unconditionally.

Respondent's position throughout has been to deny any violation of the Act.

CIO complied with the Act on December 22, 1949, and on September 15, 1950, expelled the Union, some 20 days before the strike began on October 5th.

There is little dispute as to the facts in either charge.

1. Learning that those of its employees who had joined the union were about to strike, Fred Shearouse, Vice President of the Company, approached Isaac Jackson, Jr., and asked what he thought about it. The latter's reply was that he did not know. He was then asked if he would talk to the other employees and arrangements were made that he should do so and urge them not to strike. Pertinent parts of the testimony of both Jackson and Shearouse appear in footnotes.,

Isaac Jackson, Jr., testified (p. 15 Appendix to Petitioner's Brief):
"Q. Who started this conversation that you were talking about? A. Well, the fact about the conversation — when he started, he asked me, he said, `What do you think about the strike?'
"Q. And Mr. Shearouse started the conversation with that question? Was that the first thing that was said? A. Yes, sir.
"Q. All right. What was the next thing that was said, and by whom? A. Well, he asked me first, he asked me, what did I think about the strike. I didn't know at present —
"Q. Did you tell him you didn't know, what did you say? A. I didn't know.
"Q. Is that what you told him? A. That is right.
"Q. All right. What is the next thing that was said? A. Well, he said, don't I think it would be foolish for the men to vote for a strike like that, but still I didn't know.
"Q. What did you tell him, if anything? A. `I didn't know; I couldn't answer for the other men'.
"Q. Did you tell him that? A. I didn't tell him that personally.
"Q. Go on and tell us just what was said by Mr. Shearouse and by you. A. He told me, he said, `Isaac, I'd like for you to tell them that you think it would be very foolish to vote for the strike coming off later in a few days' or something like that. So I told him I would, I didn't think it would be no harm to walk around and tell them that.
"Q. That is something you told him or is that something you are telling us now? A. I told him, `All right, I would.'
"Q. You told him, `All right, you would'? A. Yes.
"Q. Was that all of that conversation at that time? A. At that time.
"Q. And about what time of day was that? A. It was in the morning.
"Q. In the morning? A. Yes, sir.
"Q. Did you have any further conference with Mr. Shearouse that day? A. Well, I told him I was doing pretty good."

Fred Shearouse testified (p. 87 Appendix to Petitioner's Brief):
"Q. (By Mr. Hitch) There has been a little discussion about your talks with Jackson. What did you tell Jackson? A. You mean that morning?
"Q. I am talking about Jackson and the the strike. A. Jackson — Isaac Jackson?
"Q. Yes, sir. A. I told Isaac that I thought it was going to be a mistake for them to strike out there, that the matter was up before the National Labor Relation Board to get a decision, and that that would be time enough to think about doing something like that and if the men strike out there I thought they would be making a mistake, and that I thought it would be well for him to talk to some of the boys and tell them that I said that I thought it was a mistake for them to strike.
"Q. You feel you have got a right to do that? A. I thought I had a right to do that.
"Q. You weren't discussing any strike vote? A. I didn't think that mattered at all, because —
"Q. Why not? A. I had no control over the union strike. I didn't care about them voting.
"Q. It was simply a discussion about the strike; is that right? A. The strike."

Under the Wagner Act, as interpreted by the Board an employer was not allowed to do anything that might influence the action of his employees in union matters. However, the present statute provides:

"The expressing of any views, arguments, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit." 61 Stat. 136, 29 U.S.C.A. § 158(c).

No "threats, coercion or promise of benefits" can be deduced from the testimony of either Jackson or Shearouse, and there is no other evidence to support that conclusion. It is true that Jackson was given a full day's pay, notwithstanding he consumed about two hours in visiting and talking with his fellow employees at the suggestion of Shearouse, but it requires a strained and unreasonable interpretation to say that on this ground alone he received the extra or special benefits contemplated by the section of the Act quoted. It does not appear that he held any position of any great influence with his fellow workers. What was done certainly could not have been any worse than the expression by respondent "of any views, arguments, or opinions, or dissemination thereof * * * in written, printed, graphic, or visual form * * *". The burden "was upon the Board to prove its charges by competent and credible evidence and not upon the Respondent to disprove them." National Labor Relations Board v. Ray Smith Transport Co., 5 Cir., 193 F.2d 142, 144.

2. As to the second charge under section 8(a)(1) and (3), that Joe Brown was refused reinstatement because of his union activities, here, again, the facts are largely undisputed. He was a head fireman in charge of the boilers that provided steam power for the entire plant, who worked from one to 7 o'clock, a.m., or six hours. On the day of the strike he was visited about 6:00 a.m. at his post of duty by two strikers and informed that it had started. Without consulting anyone in authority, he immediately began cooling the boilers down, putting cold water in them and pulling the fires. This had the effect of stopping and preventing the operation of all machinery, thus making it impossible to resume operations at the usual hour of 7:30 a.m.

While it is true that Brown testified he sent his helper to request his foreman, Lehman Jackson, to send someone to relieve him, none came and he walked off his job, leaving the boilers unattended. This undoubtedly created a very dangerous situation and was a violation of positive instructions that it should never be done. He must have known, since he had worked for the company many years at different times, that in 1945 a fire had broken out under similar conditions, resulting in a loss of some $200,000, and at that the time the plant had to be shut down for some six months while the sawmill was rebuilt.

Brown had also claimed that he did not leave his job until about 7:45 a.m., whereas the time clock showed that he checked out at 7:12 a.m., after walking some 250 yards from the boiler room to the office for that purpose, indicating that he must have left his post of duty at approximately 7:00 o'clock a.m., or about the end of his regular period.

Pertinent portions of his testimony are quoted in footnote.

Testimony of Joe Brown — Direct Examination.
"Q. Now, the record shows that the strike started on the 5th of October. Now, do you remember the morning of the 5th, that is, the day the strike started, from one o'clock till seven o'clock that morning? A. Yes, sir, I do.
"Q. Did you work that morning? A. Yes, sir.
"Q. Did Kittles (his helper) work that morning? A. Yes, sir.
"Q. When you went on your shift, at 1 o'clock that morning, did you know that there was going to be a strike? A. I didn't know special, no, sir. "Q. Tell us what do you mean when you say you didn't know special. A. I didn't know — I knew the strike was coming on but I didn't know just exactly when.
"Q. Did you know there was going to be a strike on October the fifth? A. Yes, sir.
"Q. When you started that shift, that the strike was going to start on October 5th? A. I knew it was going to be in that period of time, sometime, but I didn't know whether it was going to be in the morning or afternoon, or what time.
"Q. You knew it would be during the day some time? A. Sometime during the day I was looking for it.
"Q. Tell us first how many boilers were located in the boiler room at the plant. A. Five boilers.
"Q. Can you tell us generally what your duties were when you were working there? A. Yes, sir. My duties was looking after the boilers, keeping accurate steam, taking care of the water system, seeing that we have plenty of fuel in the furnace to hold the steam, keeping boilers cleared out, blowed out from three to four times a night, and in other words, keep a, what you might call an anchor steam on the dry kiln."

He attempted to justify leaving his post of duty by the fact that he pulled the fires, cooled the boilers down and attempted to get word to his foreman, Jackson. Nevertheless he left without succeeding. Testimony of witness

Shearouse and Lehman Jackson is also quoted in the footnotes.,

Testimony of Fred Shearouse:
"Q. Have you ever had a fire in your mill? A. One in 1945.
"Q. Tell us a little about that. A. Well, the fire started in the sawmill. I believe it was in June. And it completely destroyed the sawmill.
"Q. How long were you out of operation? A. For about six or seven months.
"Q. How much did it cost you? A. Two hundred dollars, approximately. (Evidently meaning $200,000.)
"Q. Now, is your sawmill near your boiler? A. About a hundred feet.
"Q. Tell us a little about your operations, just as quickly as possible. A. Well, it is pretty hard to tell a layman — anyhow, we make our own fuel for the boiler — from the sawmill and the planer mill — it goes into a fuel house — all of the fuel from both places.
"The fuel house sits directly in between the sawmill and the boiler mill and it has light, fine, dry shavings as well as the green material and it is fed up against the boilers.
"And the fuel goes in there; then we take it out of there, and feed the boilers in the daytime. It is automatic and at night you have to put a man in there to shove it.
"Q. Tell us a little about the boiler room. A. We have two men. The head fireman is responsible for the water, which is the most hazardous part. If you try to fire a boiler with no water you will have an explosion, so we try to get pretty good men for the firemen. Then the helper is — he is just a man — you might say a common laborer to help him.
"Q. You have there two men on each shift? A. On each shift.
"Q. Each shift? A. That is right."

Lehman Jackson gave testimony as follows:
"Q. When did you first see Joe Brown out there? A. When I first saw Joe Brown that morning? I'd say it was approximately ten minutes after seven, whenever he walked in the picket line."

Of course, it is argued that Brown had the right to join the strike, even

though he had not gotten any responsible relief when he checked out. It would seem as logical to say that the cashier in a store and others responsible for the protection of its contents might walk out, leaving the employer's property unattended, in such a situation, as to attempt to justify what Brown did with his knowledge of the danger. It will hardly be contended that, without a strike, the employer could be blamed for discharging him for disregarding instructions and creating such a hazardous situation. So long as the employer is not actuated by a desire to impose punishment for union activities, he is free to use his own judgment in such circumstances.

"No order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any back pay, if such individual was suspended or discharged for cause. * * *". 61 Stat. 136, 29 U.S.C.A. § 160(c).

The only support for the examiner's conclusion that refusal to reinstate Brown was due to union activities, rests upon inferences and suspicion, and not upon evidence as to matters where the burden of proof was, as above stated, upon the Board to prove it. National Labor Relations Board v. Ray Smith Transport Co., supra; Rubin Bros. Footwear, Inc., v. National Labor Relations Board, 5 Cir., 203 F.2d 486. In the absence of such proof the employer still has the right to discharge for just cause.

Enforcement is


* * * * * * *

"Q. Did you have another conversation with him on that same day? A. That same day?
"Q. Yes. A. That is the only day we ever had any conversation.
"Q. Did you have another one that day? A. Well, later he asked me, `How are you doing' and I said `all right'.
"Q. When did that take place? A. About thirty minutes later, I guess.
"Q. Where were you at that time? A. I was walking around. I wasn't on my job then.
"Q. Had you left your job after your first conversation? A. That is right.
"Q. What did you do? A. I just walked around and talked to the men.
"Q. About what? A. About the strike. I asked how they felt about the strike.
"Q. About how many did you talk to? A. A great deal of them. I didn't count them.
"Q. Were they men that were working there at the plant? A. They was working.
"Q. Can you tell us approximately how many you talked with? A. That would be hard to answer, because a good many men work out there.
"Q. Would you say it was more or less than 25? A. It could be about 25.
"Q. About 25? A. Could be.
"Q. More or less? A. Could be, —"

* * * * * * *

"Q. Well, now, on the shift from 1 to 7, how many furnaces did you customarily keep burning at the beginning of that shift? A. Well, my job was keeping steam on the dry kiln more or less at all times but in case some nights whenever they have heavy orders, why, naturally they would leave, maybe from three — sometimes four — boilers running for certain periods of time in case of taking care of dry kiln and planer mill, and probably some nights during my period of work hours I'd come in and maybe have three, sometimes four, boilers fired up, and whenever I do, I would continue with those boilers and in case of the planer mill was going to run late enough, — in other words if the planer mill knocked off a little early, and the dust house was full of fuel and I had any orders, would have to keep those furnaces burning to get some fuel out the way where they could run the next day, would run them all night.
"Q. On the morning of October 5th, the day the strike began, how many boilers were, or how many furnaces were fired out when you came in to work? A. I had only two that night.
"Q. You only had two lit to fire that night? A. Yes.
"Q. Did those continue in operation through the rest of your shift? A. Yes, sir, they did, until around four o'clock.
"Q. What happened around four o'clock? A. I fired up the other three boilers at 4 o'clock.
"Q. Did you usually do that at four o'clock, all five boilers were fired up? A. Yes, sir.
"Q. When did you first hear or find out that morning that the strike was beginning on the morning of the fifth of October? A. Well, I guess it must have been around six o'clock or maybe 10 or 15 minutes after six —
"Q. How did you get the information? A. I was continuing my work carrying on my job as usual and I looked up and saw two mens coming down from toward the office. And they came, I reckon, maybe in forty or fifty feet of the boiler room and beckoned their hands to `come down out a minute'. So I told Kittles to look after everything up there for just a minute; let me see what these men wanted.
"Q. Yes; proceed. A. I walked downstairs and went to them.
"Q. How far were they away from the boiler room? A. I guess they may have been forty or fifty, 40 or 50 feet."

* * * * * * * *

"Q. What time did your relief usually arrive at the boiler room? A. Well, the release is always reported in the boiler room, maybe from five to ten minutes ahead of time, which the mill starting off at that time, around 7:30 every morning.
"Q. The mill was starting about 7:30? A. Yes, sir.
"Q. When you say your relief got there five or ten minutes ahead of time, you mean before 7:30 or before 7? A. Before 7:30.
"Q. Where were you working until 7:30? A. Well, I wasn't working entirely until 7:30 — my time was out at 7 o'clock.
"Q. Now, what time did the man that relieved you every morning to check the boiler arrive? A. Well, he released me at 7 o'clock.
"Q. Was he usually there before seven? A. About from five to ten minutes.
"Q. Were there ever any occasions when he was not there on time before October 5th, I mean. A. Well, seldom ever that would happen, but some mornings if he run, that is, if he was not there, his helper was there. "Q. Did you ever have any occasion when either one of them was not there; I mean when both of them were not there? A. Well, I have had it like probably on maybe some Sunday morning; seldom ever would that happen, though.
"Q. What would you do on those occasions? A. Well, the only thing I would do on those occasions, I let my helper go as usual, knock off time and I would hang around there and stick around there until the helper, his helper or him come, which is the head fireman.
"Q. You were just staying overtime then? A. Yes, sir.
"Q. Had you had any instructions from your foreman or from any of the people with the company as to what your were supposed to do in those situations? A. Well, the only instruction I had was through my foreman.
"Q. Who was he? A. From Mr. Jackson.
"Q. What instructions did he give? A. The only thing he ever told me was if any morning that I had to stay any overtime, before I go to punch out, was to report to him as to how much and how long I had stayed.
"Q. You mean before you stayed the overtime? Or after you worked the overtime. A. Just like if I was in the shift in the morning, and the head fireman and his helper was late coming in and I stayed half an hour, or hour, whenever my release come before I go to the punch office to punch out, I see Mr. Jackson and tell him, `Sir, my release was late coming in. I made an hour or half hour overtime.' I would have to report to him about that before I even went to the punch office."

* * * * * * *

"Q. Well now, at 7 o'clock that morning was there still fire in each one of the ovens? A. Yes, sir, a small bit of fire.
"Q. Well, had you done anything to cool them down about 7 o'clock? A. Yes, sir.
"Q. When did you start cooling them down? A. I started to cool them down about, I will say 20 or 25 minutes to 7.
"Q. Why did you start cooling down the furnaces at that time? A. After I had that report that the gate was clogged out with mens up there, I didn't know what time that I would have a release, and I said I would start a little ahead of time in order that I could get them cooled down before 8 o'clock anyway.
"Q. Did you start cooling down all the furnaces? A. Yes, sir, all five of them.
"Q. Will you tell us just what you did to each one to cool them down? A. Well, I went and speed my pump up a little bit.
"Q. What did the pump do? A. The pump put water into the boilers.
"Q. And you speeded up the pump? A. Speeded up the pump a little and fulled them up with water.
"Q. And filled the boilers with water? A. With water.
"Q. And then what did you do? A. And I blows all water in the boilers down to about a gauge of water, blows out hot water while cold water run in."

* * * * * * *

"Q. What time did you leave the boiler room that morning? A. On that particular morning, I left the boiler room about, I will say around 7:35."

* * * * * * *

"Q. Had you been relieved at that time? A. No, sir, I had not had any release at all at that time.
"Q. Had you seen Mr. Jackson at that time? A. I hadn't seen him at all.
"Q. Was anyone in the boiler room when you left? A. No, sir, there wasn't anyone in the boiler room. They was a millwright there. I don't know his name, but he was down to the mill that morning. He came down. If I don't make no mistake, he may full in a lubricating on the little engine that pulls the fuel down the boiler room."

* * * * * * *

Testimony of Brown — Cross Examination:
"Q. (By Mr. Hitch) Joe, have you got any specific knowledge why you haven't been reinstated? A. Why, no, sir, I don't have any ideas about that so much. The only thing I would say, that during my work period I have been a few times late getting to work at night. I think my boss man, Jackson, told me once or twice about that and I made that perfectly clear, that I'd always try to be on time in order that none of them would have to lay over and work none of my period of time."

* * * * * * *

"Q. Now, have you ever had express instructions from Lehman Jackson not to leave your post of duty till your replacement comes? A. Well, I don't remember having any question like that, with Mr. Jackson, no more than we did have a question about being late some time coming to work. We didn't have any question —
"Trial Examiner Ward: Will you fix the time of this matter?
"Mr. Hitch: I certainly will.
"Q. (By Mr. Hitch) Now, I want to follow that question up that he told you when some one was late, that you were to stay till they came. Is that right? A. Yes, sir.
"Q. In other words, there was somebody, some head fireman who was supposed to be there all the time; is that right? A. There are supposed to be, yes, sir. I have knowed helpers to stay there in place of head fireman.
"Q. You have known helpers to stay there? A. Absolutely.
"Q. That is a pretty dangerous operation, isn't it? A. Yes, sir, it takes a man knows what he is doing.
"Q. And it is dangerous from a fire standpoint, isn't it? A. It is when the mill is operating, when you got them steam blowers open."

* * * * * * *

"Q. And by now you have taken all of the strikers back except Joe? A. Yes, sir.
"Q. Now, did you lose any time in the operations on October fifth? A. Yes, we lost about two days, I believe, in the sawmill and about one day in the planer. Of course we lost that day the day of the strike.
"Q. Now, when Joe Brown asked for reinstatement did you thoroughly investigate Joe's activities? A. Yes, sir, I sure did.
"Q. Did Mr. Manley? A. Yes. We talked it over very carefully; went over it, all over it.
"Q. Over it all? A. That is right.
"Q. Will you explain for purposes of the record exactly why you didn't reinstate him, and won't reinstate him? A. Well, there was two main reasons that I didn't think we should take him back. One reason was that he didn't leave the boiler room secure, and the second reason is, he cooled them down without any authority to cool the boilers down.
"Trial Examiner Ward: Mr. Reporter, will you please read that last question and answer?
(Record read.)
"Q. (By Mr. Hitch) You were out there the morning of the strike, weren't you? A. Yes, sir.
"Q. When did it first become apparent to you that there wasn't anybody down the boiler house? A. He came to me, Joe Brown, and told me that he had cooled the boilers down and had left them down."

* * * * * * *

"Q. What did you do then? A. Well, presently I saw Mr. Jackson. Of course there was a lots of confusion around. I told him that he'd better send somebody down and see about the boilers.
"Q. Now, how far would you say it is from the boiler room, from where you talked with Joe Brown? A. It is two hundred fifty yards, I think.
"Q. About what time was this? A. A little after seven o'clock.
"Q. A little after seven o'clock? A. Yes, sir.
"Q. Had you had any conversation with Joe Brown after he requested reinstatement? A. Yes. He was — let's see — he talked to Mr. Manley the same day of the strike — some rigamarole talk out in front of the office — so when he came back, why, I told him that I didn't think we were going to put him back but I wanted to be fair about it, and I thought it might be a good idea, since he was the only one we weren't putting back, to talk to Mr. Manley about it.
"Trial Examiner Ward: Fix the time of this conversation.
"Q. (By Mr. Hitch) When was this? A. The day after the last man came back.
"Q. Now, when did the last man come back? A. He came back on the day I got notice from the union; on the tenth, I think it was. The Union called it off on the 9th and this conversation evidently was on the 10th, January the tenth.
"Q. Now, did you have a fireman shot during the strike? A. Yes, sir.
"Q. Who was it? A. I cannot think of his name. I don't believe I have his name.
Mr. Hitch: Roger Burke; is that who it was?
"The Witness: Yes, sir.
"Q. (By Mr. Hitch) Do you remember what time that was? A. About October tenth.
"Q. About October tenth? A. Yes, sir.
"Q. He was shot while on duty? A. Yes, sir.
"Q. Did you have any other violence during the strike? A. Yes, sir, three days after Burke was shot, we had a truck bring us a crew into the mill and they were ambushed and I believe it was about eighteen that were shot and had to go to the hospital.
"Q. Did you see them? A. Yes, sir, I saw them.
"Q. Then, was anybody seriously injured? A. Yes, some of them were shot pretty bad; there was two of them that lost the sight of an eye, and some of them were hospitalized for about one week to two weeks. Most of them did leave the same day, though.
"Q. Were those men coming in in the usual manner? A. Usual manner.
"Q. They weren't strikebreakers or anything like that? A. No, there was some, quite a few, of the others didn't ever enter into the strike and there was some that we had hired since the strike started." (Emphasis by the writer.)

* * * * * * *

"Q. Who was supposed to replace Brown that day? A. Frank Kelton.
"Q. What shift does he come on? A. Why, Frank comes on at seven o'clock and works till one.
"Q. He was supposed to come on at seven and work till one? A. He was there.
"Q. When you saw Joe Brown there, and Kittles, what did you do? A. What did I do?
"Q. Yes. A. When I saw Joe Brown and Kittles I went to Frank — Frank was there standing outside the gate, and I asked Frank did he want to go in to work, and he said he didn't know, that he was afraid.
"And I said, `I don't think there is going to be any harm to you if you want to go in and go to work'. I said, `I will go into the gate.' I said, `Come on, walk in with me,' so Frank started in with me, and some of them said something to Frank.
"Frank stopped. He didn't go in the gate at that time, so later on, I'd say about — it must have been around 20 minutes after seven or something like that, Mr. Shearouse said something to me about the boiler room, about seeing about the boiler room.
"So I sent Nix down. I told him to go down and see about the boiler room, so Nix went down to the boiler room and told me that the boilers had water in them and the fires was pulled, and during that; time it was about — I'd say around 8 o'clock, I asked Frank again did he want to go in, and Frank said, `Yes,' he wanted to go to work. I said, `Let's come on and better let's go to work', so Frank come in the gate with me.
"I sent Frank — I told Frank — I said, `You go to the boiler room, and just wait until you get further instructions from me.'
"In just a few minutes I was talking to Mr. Shearouse again and he asked me what I had done about the boiler room. I says, `Well, I hadn't done anything. I had Frank down there to watch after them.'
"And he says, `Well, go down there and tell — have a couple of them fired up. We will pull the kilns and we will unload some of those logs.'
"I went on down there, and when I got to the boiler room, Frank had the water hose, and a pile was out on the floor in front of the trough which comes into the boiler. It was piled up, I'd say, 12 inches of the boiler.
"Q. Within 12 inches of the boiler? A. Yes, the pile that feeds into the furnace, and it was on fire, and Frank had the hose out on the fire; he didn't have it completely out when I got down there.
"And I told Frank, I says, `Frank, when you finish out in this fire, go ahead and fire two boilers, because we are going to unload some logs and pull the kilns."
"Q. Let me ask you: You have been working in a sawmill a long time; is that right? A. Around eighteen years.
"Q. If Frank hadn't gotten down there when he did, what is your estimate of the time that fire would have got in the what you call the — A. Fuel house? From the looks of this boiler that they got on the stand — the fuel trough — this boiler was scorched —
"Q. Yes, go on. A. It would have been just a matter of minutes before that boiler would have caught on fire.
"Q. A matter of minutes? A. Yes, sir, before this boiler would have caught on fire.
"Q. How big is that fuel house? A. It is a big thing — about twenty feet by 30-something feet floor space.
"Q. It is closed in — your dust mill — A. That is right. We have shavings and dust, together, mixed.
"Q. As a matter of policy, what are your directions — your instructions to your firemen about leaving their post unattended? A. I have instructed all my firemens from way back, that — not to ever leave the boiler room if the man don't show up to relieve them except they notify me, and they always have a helper that they can send to look me up so that I can make arrangements to put another man up there without them leaving the boiler room themselves.
"Q. In other words, your instructions are that they are never to leave the boilers until they are replaced; is that right? A. That is right. I have them double up sometimes if a man don't show up. Lots of times if a man didn't show up at once they will be at my house waking me up at one o'clock in the morning, and I'd have to get another man — hunt a man up. I went and told them that I wanted them — well, if a man didn't show up, just to go ahead and make this extra time and double over.
"Q. Did you, long before this strike, tell Brown that? A. Oh, yes, sir.
"Q. If there hadn't been any strike, and he left his place unattended, what would you have done with him? A. I would have replaced him with another man.
"Q. How do you mean, `replace'? A. I would have fired him."

Summaries of

Nat'l Labor Relations Bd. v. Reynolds & Manley Lumber Co.

United States Court of Appeals, Fifth Circuit
Apr 15, 1954
212 F.2d 155 (5th Cir. 1954)

holding employee lawfully discharged for leaving a potentially explosive boiler unattended without even contacting relief or a supervisor

Summary of this case from Columbia Portland Cement Co. v. N.L.R.B
Case details for

Nat'l Labor Relations Bd. v. Reynolds & Manley Lumber Co.

Case Details


Court:United States Court of Appeals, Fifth Circuit

Date published: Apr 15, 1954


212 F.2d 155 (5th Cir. 1954)

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