Brief for the Respondent in Opposition — North Carolina Finishing Co. v. National Labor Relations Board

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CITATIONS

Cases:

Consumers Power Co. v. National Labor Relations Board,

113 F. (2d) SS SEEM Pipe RIP os ee MCR AY BS AOR TOE eae 9, 10

International Association of Machinists v. National Labor

melelens Beord, 313 U. 8. 78.2 oo ccc 9

National Labor Relations Board vy. Newport News Ship-

building & Dry Dock Co., 308 U. 8. 241___.___-________ 9

sae Process Co. v. Notional Labor Relations Board, ing

cr F. (2d) 83, certiorari denied, 313 U. S. 596_________:_- 9, 10

Statute:

National Labor Relations Act (Act of July 5, 1935, c. 372,

49 Stat. 449, 29 U. S. C. 151, et seq.)

on ORE EE RRS CE OLR SPN BP SER DUAL BRL ie 11

588885—48

athe Sugreme Gourtof the Waited Sates

OcToBER TERM, 1943

No. 102

NortH CAROLINA FINISHING COMPANY, PETITIONER

v.

WatronaL Lasorn Revations Boarp

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES OIROUIT COURT OF APPEALS FOR THE FOURTH

CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD IN

OPPOSITION

OPINIONS BELOW

The opinion of the court below (R. 136-143)

is reported in 133 F. (2d) 714. The findings of

fact, conclusions of law, and order of the National

Labor Relations Board (R. 12-33) are reported in

44 N. L. R. B, 184. —

JURISDICTION

The decree of the court below (R. 144) was

entered on February 17, 1943. An order ex-

tending the time within which to file a petition

(1)

2

for certiorari for thirty days was entered by a —

Justice of this Court on May 15, 1943 (R. 145).

The petition for a writ of certiorari was filed:on

June 14, 1943. The jurisdiction of this Court is - ;

invoked under Section 240 (a) of the Judicial }

Code, as amended by the Act of February 13,

1925, and under Section 10 (e) and (f) of the

N ational Labor Relations Act.

QUESTION PRESENTED

The sole question presented is whether there

is substantial evidence to support the Board’s

findings that petitioner interfered with, re-

strained, and coerced its employees, in. violation

of Section 8 (1) of the Act, and discriminatorily

discharged one Annie Mae Evington in violation

of Section 8 (3) and (1) of the Act.

STATUTE INVOLVED )

The pertinent provisions of the National Labor

Relations Act are set out in the ial cen

STATEMENT

_ Upon the usua! proceedings the Board, on Sep-

tember 19, 1942, issued its findings of faet, con-

clusions of law, and order (R. 12-33). The

pertinent facts, as found by the Board and shown

by the evidence, may be summarized as follows:*

1In the following statement the references preceding the

. semicolon are to the Board’s findings, and the succeeding ref-

erences are to the supporting evidence. Occasional references

to the original transcript of the record are designated “Tr.”

Exhibits are referred to by number.

Bical eecreniiateeee ee

3

When petitioner became aware of the incipient

organizational activities of its employees, W. F.

Robertson, Jr., its vice president and general

manager, called a meeting of the overseers on

July 28, 1941, instructed them not to interfere

with the organizing compaign, and ordered them

to inform the second hands’ accordingly (R. 16;

Tr. 565-566, 615-616, 673-674). These instructions

were never communicated to the ordinary em-

ployees, and were repeatedly and openly disre-

garded by the supervisors themselves. Thus, that

same afternoon second hand Boston told one of

his subordinates that ‘‘Mr. Robertson said he

hoped the boys would forget about the Union now

and not pay someone to dictate to them’’ (R. 16;

52). A few days later second hand Walser, who

had charge of approximately 150 employees in the

sewing room (R. 16; 81, 46),° stated to a group of

10 or 12 of his subordinates, ‘‘ Your Union is noth-

ing but run by a bunch of Germans to make you |

go out on strike for two or three weeks and to

hamper defense work’? (R. 16-17; 100-101),

Walser repeatedly made statements of a compa-

rable nature, both during and after formal organi-

zation of the Union (R. 17-18; 101-102, 103-107).

He also questioned several employees about their

union affiliations (R. 18; 101-102, 103-104, 106-

* Second hands are supervisory employees who rank imme-

diately below the overseers (R. 16; 116).

* There were only about 900 employees in the entire plant

(Tr. 12-13).

4

107), and on one occasion asked an employee

whether she had been solicited by Annie Mae

Evington (R. 18; 106), who was found by the

Board to have been discriminatorily discharged

(infra, pp. 4-8). Furthermore, Walser warned

one of his subordinates that ‘‘the Company has

sense enough to give a good: reason”’ for discharg-

ing a union member (R. 17; 104-105).

The Board found that the widespread anti-

union activities of Walser and Boston discour-

aged petitioner’s employees from membership in

the Union because they indicated petitioner’s op-

position to such membership (R. 18-19). By the

acts of these supervisors, the Board concluded,

petitioner restrained and coerced its employees in

the exercise of the rights guaranteed in Section 7 _—

of the Act (tbid.).*

Annie Mae Evington was first employed by pe-

titioner in 1938 as an inspector and folder of

sheets in the sewing room. After December 1940

she worked under the supervision of second hand

Walser and overseer Grubb inspecting sheets and

performing other duties (R. 22; 109-110). She

joined the Union on August 1, 1941, and became

the most active female employee in its behalf (R.

22; 110, 97-98, 105, Bd. Exh. 12). She attended

399

*“As a part of the ‘totality of the company’s activities’,

the court below noted (R. 140) that other-supervisors also

engaged in anti-union conduct (Adams, R. 107-109, 124,

Union Exhs. 1, 2; Brinkley, R. 102-103, 114-115).

ae §

union meetings regularly, solicited and signed up

members, wore her union button to work, and

acted on various union committees (R. 22; 98-99,

110-111, Bd. Exh. 6). On August 17 she was

elected recording secretary and was the only

female employee ever to hold office in the Union

(R. 22; 99, Bd. Exh. 3). Second hand Walser

was aware of her prominent union activities. He

saw her wearing her union button at work,

learned from questioning other employees that

she had solicited them for membership in the

Union, and on September 15 read in a union

paper distributed at the plant that she had been

elected recording secretary (R. 22; 83-85, 99-100,

106). On September 25 Walser discharged

Evington at the request of overseer Grubb (R.

24; 81, 109).

As an inspector Evington had the duty of

detecting and removing defective sheets, classified

as ‘‘seconds”’ or ‘‘thirds’”’ (R. 22; Tr. 20). When

Walser discharged Evington he informed her that

she was being fired because ‘‘her percentage on

her ‘thirds’ was higher than any of the other

girls’? (R. 21-22; 90-91, 81). In support of its

contention at the Board bearing that Evington

was discharged for passing more “‘thirds’’ than

any other inspector (R. 22-23; 64, 81, 90-91),

petitioner relied upon certain records it had kept

(R. 22-23 ; 81-82, 90-91, 121, Tr. 28-32, Bd. Exhs.

4,5). These records, however, show that during a

the period covered by them the largest number of

“thirds” was passed by a nonunion inspector,

Mary Doby, and the second largest number by

Evington and one other girl (R. 23, 25; Bd. Exhs,

4, 5). Furthermore, 2 of the 11 “thirds” |

charged against Evington were placed upon the

records subsequent to her discharge, so an exam-

ination of the records on September 25, 1941,

would have shown 7 inspectors with totals as

great as, or greater than, Evington’s (R. 24-25;

93, Bd. Exhs. 4, 5), :

Tn any event, as the Board found, “the records

do not inspire confidence in their accuracy’’ (R,

28). Thus, about 50 percent of the times Walser

charged the inspectors with *‘thirds,’’ he did so

without showing them the defective sheets or the

records (R. 27-28; 81-82, 38-39). Indeed, the

last time Evington was shown the records, there

were only five ‘thirds’? marked against her (R.

28; 111-112). In addition, there were unex-

plained erasures of certain notations on the

records (R. 25; 92-93,.Bd. Exh. 5). Further-

more, there were inconsistencies in the testimony

of Walser and Grubb as to when and how the

totals on ‘‘thirds’’ were ascertained and entered

on the record sheet (R. 24-25, 28; 93, 122-123).

There were also discrepancies in the testimony of

Walser and Grubb as to when and how they had

gathered the statistics on the number of days

7

inspectors had worked during the record period

(R. 25-26, 28-29; 87-93, 118-119, 123-124).*

This unreliable method of keeping the records

of “‘thirds,’’ and Walser’s and Grubb’s conflict-

ing accounts of the techniques by which they con-

cluded that Evington had passed the most

“thirds”? (R, 24-26, 28-29; 87-93, 64, 118-119,

122-124), persuaded the Board that petitioner

“did not make a good faith effort to determine

which of the inspectors had passed the greatest

number of ‘thirds’ ”’ (R. 28-29).°

Other facts found by the Board equally support

its conclusion that “the real reason for Eving-

ton’s dismissal was the [petitioner’s] opposition

to her known union activity” (R. 29). Thus,

second hand Walser had previously stated that

the Company would have “sense enough to give

a good reason”’ for discharging a union member

(R. 17, 27; 104-105), had inquired about Eving-

ton’s solicitation of union memberships (R. 18, 27;

106), and had learned a few days before her

dismissal that Evington had been elected to union

office (R. 22, 27; 83-85, 99-100). Moreover, the

* There was also evidence that about a month before Eving-

ton’s dismissal Walser charged her with two “thirds” which

had in fact been passed by another inspector (R. 113), and

that other inspectors complained of similar errors (R. 74,

ef. 38-39). ;

* The Board also noted that on October 1, 1941, three work-

ing days after Evington’s discharge, there were a number of

girls who had passed as many “thirds” as she (R. 28 ;

120-122), :

customary punishment for passing too many

“thirds” was merely a disciplinary 2-week lay-

off; Evington was the first inspector ever to be

discharged for this offense (R. 23, 27; 83, 84-85,

‘86-87, 119-120). Also, other inspectors were given _

individual warnings to improve their inspection,

but no such personal notice was given Evington

(R. 23-24, 27; 113, 117-118, 61, 73). Finally,

Doby, the nonunion employee who had the high-

est number and greatest percentage of “thirds”

according to petitioner’s records, was not dis-

charged until a day after Evington’s dismissal

(R. 25-26; 86, Tr. 357-358, Bd. Exhs. 4, 5, 15).

Doby was generally known as a poor worker, had

been absent on many occasions without notifying

petitioner, and had previously been laid off for

passing too many “‘thirds’’ (R. 26, 29; 85-86, 113-

114, 119-120). There was, furthermore, a con-

flict in Walser’s and Grubb’s explanations of

petitioner’s failure to discharge Doby until after

Evington was dismissed (R. 25-26, 28-29; 90-91,

49-50, 64, 122).

The Board found that petitioner discouraged

membership in the Union by its discriminatory

‘discharge of Evington, thereby violating Section

8 (3) and (1) of the Act (R. 29). The Board’s

order directed petitioner to cease and desist from

the unfair labor practices found, to offer rein-

statement with back pay to Evington, and to post

appropriate notices (R. 31-33).

Thereafter petitioner filed a petition to review

in the court below (R. 125-131), and the Board

answered requesting enforcement (R. 132-135).

On February 17, 1943, the court handed down its

opinion (R, 136-143) and entered its decree (R.

144) enforcing the Board’s order in full.

Petitioner’s contention (Pet. 7-23) that the

Board’s findings of unfair labor practices are not

supported by substantial evidence presents no

question of general importance. In any event,

the evidence summarized in the Statement (supra,

pp. 3-9) affords full support for the challenged

findings.’ Contrary to petitioner’s contention

(Pet. 7-12), it is clearly responsible for the anti-

union conduct of its supervisors.’ The Company’s

unenforced instructions of impartiality were not

communicated to the employees and therefore did

* While petitioner criticizes (Pet. 16, 19-20) two subsidiary

findings in the Board’s decision as contrary to uncontradicted

testimony, the Court need “not stop to consider these con-

tentions, since, without such findings, there would still be a

basis in the record for the Board’s conclusions.” National

Labor Relations Board v. Newport News Shipbuilding & Dry

Dock Co., 308 U. S. 241, 247.

*H. J. Heinz Co. v. National Labor Relations Board, 311

U. S. 514, 519-520; International Association of Machinists

v. National Labor Relations Board, 311 U. 8. 72, 79-80;

Solvay. Process Co. v. National Labor Relations Board, 117

F. (2d) 83, 85 (C. C. A. 5), certiorari denied 313 U. S. 596;

Consumers Power Co. v. National Labor Relations Board,

113 F, (2d) 38,44 (C.C. A. 6).

10

not neutralize the normally coercive effects ¢ :

such conduct upon the employees.’

CONCLUSION

Tho decision below, sustaining tho Board's hak”

ings and order, is correct and presents no conflict

of decisions or question of general importance, -

se er ve 9A a Aaa oul a

fore be denied. ;

Respectfully submitted.

m Oscar Coy,

Acting Solicitor General, — a

Rosert B. Warts,

General Counsel,

Ernest A. Gross,

Associate General Counsel,

Rurh WeYanp,

MiLarp Cass,

Attorneys, National Labor Relations Board. |

JvuLY 1943.

* See Heinz, Solvay and Consumers Power cases cited supra, —

note 8. es