Before BAZELON, Chief Judge, and FAHY and McGOWAN, Circuit Judges.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT. 1965.CDC.5
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FAHY
FAHY, C. J.: In No. 18682 the Union petitions this court to review and set aside that part of a decision and order of the Board which dismissed the Board's complaint that the Company, in discharging employee Robert Baker, had violated Sections 8(a)(1) and (3) of the Act. In No. 18734 the Board petitions for enforcement of its decision and order against the Company for violating Section 8(a)(1) and (3) in other respects, and also Section 8(a)(5). I. As to the discharge of employee Baker, the following appears:
The Board's complaint alleged:
6. On or about July 23, 1963, the Respondent (the Company) discriminatorily discharged its employee Robert Baker and has since said date refused to reemploy him all because of his sympathies for and activities on behalf of the Union.
The Trial Examiner found, inter alia :
On the entire record, while my sympathies are with Baker because of his forthright manner and because of his long service, I cannot find that the Company had knowledge of his union activity or that his discharge on July 24 was related thereto. I must therefore recommend dismissal of the complaint as to him.
The context of this finding and recommendation of the Trial Examiner clearly indicates that the "union activity" referred to was the fact that on the evening before his discharge Baker had signed a union card but that the Company had no knowledge of this.
The General Counsel excepted:
1. To the failure of the Trial Examiner to find, as alleged in Allegation 6 of the Complaint, that the Respondent discharged its employee, Robert Baker, because of his sympathy for and activity on behalf of the Union.
The Board adopted the findings, conclusions and recommendation of the Trial Examiner with respect to Baker.
Thus it is seen that the Board dismissed the complaint based on the discharge of Baker because the evidence did not sufficiently establish that the Company knew Baker had joined the Union. This does not meet the problem, for the issue was not simply whether the company discharged Baker because he had joined the Union. The reason assigned by the Company for the discharge, namely, that Baker had failed to turn off certain valves on his equipment, thus possibly causing a dangerous loss of gas, may have been supported by evidence that the valves were not in fact turned off. But, assuming such support, the question remains whether the reason assigned was the sole reason for Baker's discharge or whether the Company was motivated even in part by what it thought was Baker's knowledge of and favorable attitude toward the Union. The record is replete with evidence from which it could be concluded that Baker was discharged because the Company believed, or feared, he was sympathetic to the Union, though the Company was without knowledge he had signed a union card the evening before the discharge. The Company's hostility to the Union is clear, as is also its concern about Baker's possible sympathy for the Union. The complaint included this theory that the discharge constituted a violation of the Act.
We do not decide, however, that the Board should have found that Baker's discharge was an unfair labor practice.We conclude only that the basis the Board assigned for not so finding does not meet the issue posed by the complaint and by the General Counsel's exception to the Trial Examiner's decision. We accordingly will set aside that part of the order of the Board which dismissed the complaint as to Baker and remand this phase of the case to the Board for its further consideration. See NLRB v. Capital Transit ...