# The Black Hawk Corporation v. National Labor Relations Board > Court of Appeals for the Fourth Circuit · September 10, 1970 · 431 F.2d 900 URL: https://www.frixlaw.com/law-library/cases/9456025 ## Case - **Full name:** The BLACK HAWK CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent - **Court:** Court of Appeals for the Fourth Circuit - **Decided:** September 10, 1970 - **Citations:** 431 F.2d 900 - **Precedential status:** Published - **Opinion:** Dissent by Winter - **Judges:** Winter, Boreman, Bryan - **Cited by:** 3 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9456025 ## Opinion text WINTER, Circuit Judge (dissenting): After reciting the established rule that the Board’s choice between two fairly conflicting views may not be displaced, Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 , 71 S.Ct. 456 , 95 L.Ed. 456 (1951), and after concluding that the evidence prima facie supports the Board’s conclusion that Black Hawk discriminatorily discharged 17 employees in violation of §§ 8(a)(3) and 8(a) (1), the majority, nevertheless, declines to enforce the Board’s order in part. I read the majority’s conclusion to rest in its appraisal that Black Hawk’s evidence of non-discriminatory motive so overbore the Board’s prima facie case that the latter is rendered without substantial support. I disagree. Admittedly, there was a marked change in shipping pattern, with the result that the services of 17 warehouse employees at Black Hawk were allegedly no longer required. The question is what motivated the change. Was it knowledge of impending unionization of warehouse employees on the part of one of the most anti-union employers in current judicial decisions and an intention to stifle the union? Or was it, as Black Hawk contends and the majority accepts, the legitimate business reason that Ste *904 vens had concentrations of cotton in warehouses other than Black Hawk sufficient to make possible grading in the other warehouses and shipment from them to points of manufacture, at greater economy, without resource to Black Hawk? For me, there is in this record ample evidence to support the finding that the former is what occurred. The Board well summarized the basis for its conclusion that Black Hawk violated §§ 8(a) (3) and 8(a) (1) in the following portion of its opinion: Respondent does not deny the unusual amount of cotton shipped directly from its outlying warehouses in the months surrounding the election, while activity at Black Hawk was low. We do not find its explanation for this change in method of operation a plausible one. Granted, the cotton had been consigned to those warehouses after Black Hawk had been filled quite high. However, it was not the placing of the cotton in those warehouses for storage that we find significant, it was rather that Respondent began shipping to its manufacturing plants directly from those warehouses, whereas in the past, when necessary to use outlying warehouses, the cotton was nevertheless shipped through Black Hawk and out to its plants. This practice was changed without plausible explanation at a time critical to the Union’s campaign, in close proximity to the election, and as found by the Trial Examiner, at considerable cost to Respondent. Black Hawk had already passed its usual “low” season, and although as pointed out above the usual slack never came in 1967, Respondent had experienced some slack and had already lost or laid off some 11 employees before those here involved were let go. Despite Respondent’s attempts to justify its direct shipments through arguments of economy, the fact remains that it changed an established practice, whether it had been an uneconomical one or not, thereby causing a layoff of 17 employees out of the approximately 50 on its payroll. We do not think a result different from the Trial Examiner’s is called for because Respondent laid off its employees in strict keeping with length of service, and in the absence of a showing that any of those chosen were more active supporters of the Union than those retained. The layoffs were from the warehouse, where admittedly the Union’s strength lay, at a time when Black Hawk would have remained busy if Respondent had continued its practice of prior years. We find that the layoffs were designed to dissipate the Union’s strength, and were made because the employees had demonstrated their support of the Union. A close reading of the foregoing discloses the key to the finding was the lack of plausible explanation for the change in practice. There was ample basis for a finding of lack of plausibility. Initially, Black Hawk sought to explain the reduction in the warehouse force as one which would normally occur during the summer months, except that in 1967 they occurred later in the year. The record established, however, that reductions in work force in the past had occurred during the summer only because Stevens normally did not have cotton on hand for shipment during that season of the year. For 1967 Stevens’ records showed that it had cotton available for shipment in the autumn of 1967 and was shipping cotton in record quantity into outlying independently owned warehouses in spite of the fact that the 1967 cotton harvest began late, and Stevens purchased less cotton than usual because of surplus purchasing in the preceding year. Stevens then attempted to show that it had used one of the independent warehouses — Gulfport—to assure space and that it had committed itself to give cotton to Gulfport during the 1967-1968 *905 season. That this explanation was specious was shown by records that only 5 carloads of cotton were shipped into Gulfport in the 1966-1967 season, and only 46 carloads in the six months before that, while 198 carloads of cotton were shipped to Gulfport in a mere two-month period in the early fall of 1967. Shipments on the latter scale would hardly have been made if Stevens’ real reason for using Gulfport in the fall of 1967 had been to assure future availability of space there in accordance with past needs. The explanation for the switch in the autumn of 1967 to the practice of shipping cotton directly from outlying warehouses to the consuming plants without passing through Black Hawk was no more satisfactory than the previous attempts to explain what had happened. Initially, Controller Woodside testified that there was no appreciable increase in direct shipments to the plants in the period beginning in August, 1967; but when general counsel proved otherwise, Woodside changed his testimony and admitted that in the first ten months of the 1967-1968 season Stevens nearly doubled the volume of its direct shipment, as compared with the entire preceding season. Woodside then sought to explain this increase on the ground that as a result of heavy purchases in the 1966-1967 season, Stevens had on hand an unusual amount of cotton stored in independent warehouses and thus was able to assemble and grade larger quantities of bales of cotton without shipping them through Black Hawk. In this connection, it is claimed that Stevens could save $1.-40 per bale — the charge for unloading, handling and reloading cotton at Black Hawk — on all cotton shipped directly. Even if the estimate of $1.40 per bale cost of handling at Black Hawk is accepted, the explanation overlooks the greater expense involved in storing cotton in independent warehouses for extended periods of time rather than at Black Hawk, a wholly-owned subsidiary, which was established and enlarged for this very purpose, and which had space, during the greater part of the period in question, to accommodate the cotton. Warehouse charges at an independent warehouse range from 40^ to 50^ per bale per month, and indirect expenses at Black Hawk continue whether it is used or not. Freight costs for shipping into Black Hawk and then to most of the manufacturing sites are no greater than direct shipment to plants from independent warehouses. The record shows that the majority of the cotton stored at independent warehouses was stored a sufficient period of time to incur storage charges of $1.40 per bale or greater at-a time when space was available at Black Hawk. Black Hawk’s argument that it was motivated by economics thus cannot withstand scrutiny. When the insubstantiality of this attempted explanation is coupled with the specious reasons previously advanced, I would conclude that the Board neither decided incorrectly nor that Black Hawk’s evidence overbore the permissible inference drawn by the Board. I would enforce the order in its entirety. * Since I differ from the majority in its main conclusion, I have no occasion to consider the subsidiary argument, advanced by the union, of whether the Board should have granted more stringent relief, --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9456025. Public record. Not legal advice.