389 F2d 386 National Labor Relations Board v. Kem Distributing Company

389 F.2d 386


No. 24465.

United States Court of Appeals Fifth Circuit.

Oct. 6, 1967.

Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Allen J. Berk, Atty., N.L.R.B., Washington, D.C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Gary Green, Atty., N.L.R.B., for petitioner.

John W. Wilcox, Jr., Wilson, Branch & Wilcox, Atlanta, Ga., for respondent.

Before TUTTLE, GEWIN and AINSWORTH, Circuit Judges.


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The issue presented on this petition of the National Labor Relations Board for enforcement of a cease and desist order and an order requiring the rehiring of an employee allegedly discharged on account of his union activities presents only the question whether there was substantial evidence on the record as a whole to support the findings by the Board that Thomann had been discharged on account of such activities rather than the alleged ground given by the employer upon terminating his employment. Like many other cases involving motivation, the finder of fact must draw inferences from the evidence before it. Here we conclude that there is ample evidence to support the findings by the trial examiner, and affirmed by the Board, that the no drinking rule by this beer salesman was not intended to be applied literally and in fact had not been applied literally even as against this employee. The record also contains sufficient evidence to warrant the inference drawn by the examiner and the Board that it is only when Thomann's active union conduct came to the attention of his employer that the matter of his having drunk 'two beers' with a customer, when coupled with earlier occasions of drinking which had not been considered by the company as adequate for discharge, became the convenient handle to eliminate a troublesome employee.


The order of the Board will be enforced.