Brief for the Respondent in Opposition — Fairmont Creamery Co. v. National Labor Relations Board

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No. 399

Inthe Supreme Court of the Wnited States

OoctoprR TERM, 1944

Tor FamMont OrEAMERY COMPANY, PETITIONER

v.

NationaL Lasor Revations Boarp

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS FOR THE TENTH

CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

Page

Opinions below. ------- Bel a lc ce a sb a Reena 1

Jurisdiction __ - es! : 1

Question presented P 2

Statute involved 2

Statement 2

Argument. 8

Conclusion 10

Appendix : ein ll

CITATIONS

Cases:

International Association of Machinists v. National Labor

Relations Board, 311 U.S. 72 A eae Smet 9

National Labor Relations Beard v. Link-Belt Co., 311 U.S.

584 , 9

National Labor Relations Board v. Nevada Consolidated

Copper Corporation, 316 U.S. 105 : 9

Virginia Electric and Power Co. v. National Labor Relations

Board, 319 U. 8. 533 é ae 9

Statute:

National Labor Relations Act of July 5, 1935, e¢. 372, 49

Stat. 449 (29 U.S. C., Supp. V, Sees. 151 et seq.):

Sec. 7_--.- : : ei ei wae k enn rn ees 11

pes. 8 Ul)... <.. r AAR Po a EAE pe 9,11

Sec. 8 (3) - - - 4 Patra altar SY tore eee tea ol ater Gel otal 9, 11

6O9T40-——44

ee ~

nthe Supreme Court of the United States

OctoBER TERM, 1944

No. 399

THE FAIRMONT CREAMERY COMPANY, PETITIONER

Vv.

NationaL Lasor RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS FOR THE TENTH

CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

OPINIONS BELOW

The opinion of the Circuit Court of Appeals

(R. 419-427) is not yet reported. The findings

of fact, conclusions of law, and order of the

National Labor Relations Board (R. 12-44,

48-51) are reported in 52 N. L. R. B. 75.

JURISDICTION »

The decree of the court below (R. 428-429)

was entered on July 17, 1944. The petition for

rehearing filed by petitioner was denied on July

29, 1944 (R. 452). The petition for a writ of

(1)

2

certiorari was filed on August 26, 1944. The

jurisdiction of this Court is invoked under See-

tion 240 (a) of the Judicial Code, as amended by

the Act of February 13, 1925, and under Section

10 (e) of the National Labor Relations Act.

QUESTION PRESENTED

Whether there is substantial evidence to sup-

port the Board’s finding that petitioner unlaw-

fully discharged employees Dye and McDaniel

because of their union membership and activities.

STATUTE INVOLVED

The pertinent provisions of the National Labor

Relations Act are set forth in the Appendix, infra,

p. 11.

STATEMENT

Upon the usual proceedings, the Board on

August 23, 1943, issued its findings of fact, con-

clusions of law, and order (R. 12-44, 48-51).

The relevant facts found by the Board may be

summarized as follows:'

A. The background of the discharges.—The un-

ionization of petitioner’s plant was begun shortly

before September 12, 1942 (R. 15, 49; 64). On

that day Leroy Black, one of petitioner’s employ-

ees who was a member of the Chauffeurs, Team-

sters, and Helpers Union, affiliated with the

1In the following statement, the references preceding the

semicolon are to the Board’s findings and the succeeding

references are to the supporting evidence.

3

American Federation of Labor, distributed Un-

ion pamphlets at petitioner’s garage (R. 15; 63-

65, 158). Shortly thereafter Evert, petitioner’s

plant manager (R. 15; 64), came into the garage

and, noting that employee Perley had Union lit-

erature in his hand, asked Perley where he had

obtained such literature (R. 15; 64-65, 158-159,

234-235, 285). Perley replied that Black had

given it to him (R. 15; 234-235), whereupon Evert

ealled Black and Perley ‘‘bolsheviks’’ and said,

“Tf you can’t kick them damn cusses out of here,

I ean” (R. 15; 65). Black and Perley then ex-

pressed dissatisfaction with the wages which they

were receiving (R. 15; 65, 64, 67, 236). Evert

told Perley he could get his time whenever

he wished (R. 15-16; 67). Black quit imme-

diately, and Perley left the next morning (R. 16,

236, 66-67). The following day Evert agreed to

increase the wages of two other employees, Rich-

ardson and Crane, who had witnessed the events of

the preceding day, and promised to give them a

bonus if they would remain in petitioner’s employ

(R. 16; 66-68). Evert by his actions succeeded in

ending further efforts of petitioner’s employees

to organize until the spring of 1943 (R. 16;

68-69).

On May 1, 1943, Richardson obtained some

Union applications from Ivan Hibbard, whose

father ran a local market (R. 16; 68-69, 122-123).

Richardson gave some of the blanks to Ardis Dye

nesta

4

and Lawrence Black* (R. 17; 68-69). Evert,

having heard of Hibbard’s activities, endeavored

to persuade Hibbard’s father to prevail upon his

son to stop his Union activities (R. 27; 124-125).

When the latter refused, petitioner terminated its

business relations with Hibbard’s father (R. 27;

122-128, 131). Thereafter, on May 8, Evert in-

jected himself into the employees’ organizational

efforts by asking employee Crane to find out the

employees’ attitude toward the Union (R. 17;

155-156), by interrogating employee Smalley

concerning Union activities, and by expressing

approval when Smalley advised him that he had

not joined the Union (R. 17-18; 184). Evert

questioned employee Barnes and endeavored to

have him withdraw from the Union, advising him

that most of the employees to whom he [Evert]

had talked were ready to resign (R. 18-19; 85).

Evert also sought to disparage the Union in the

eyes of Barnes by advising him that it could not

secure a wage increase because wages were frozen,

that if the men joined the Union their earnings

would suffer because the Union would insist on

shorter hours, and that the employees would have

to pay all their own truck expenses (R. 18-19;

Lawrence Black, one of petitioner’s truck drivers, was

discharged by Evert on May 15, 1943, under circumstances

which the Board found were violative of Section 8 (3) and

(1) of the Act (R. 37-40). The Board’s findings with rela-

tion to this discharge were upheld by the court below, and

petitioner raises no questions here with respect to Black’s

discharge.

5

85-86). On the same day Evert addressed similar

arguments to employee Mayfield and asserted that

if the Union were successful Mayfield would be

permanently assigned to an undesirable country

run (R. 19; 191-192).

On May 15, Evert called Barnes to his office,

interrogated him in the presence of several of the

petitioner’s department heads, accused him of

having engaged in Union activities while on duty,

and said, ‘‘You haven’t got sense enough to know

what you are trying to pull’? (R. 26; 89-91).

Evert then called Barnes an opprobrious name,

stating that it also applied to other members of

the Union (R. 26; 90), and threatened to dis-

charge him (R. 26; 89-91). Petitioner also en-

gaged in surveillance of a Union meeting held on

May 11, 1943 (R. 23-24; 72-73, 198-199, 209-210,

214-215, 341-342, 347-348) ; it withdrew from the

employees privileges previously accorded them by

forbidding them to leave the plant during ten-

minute rest periods in mid-morning and mid-

afternoon (R. 27-29; 261-262); and, having thus

confined the employees to its premises, petitioner

posted a notice which further hindered their or-

ganizing activities by restricting their conversa-

tions or activities on Company time or property

to those necessary to perform their regular work

(R. 27-29; 261-262, 411).

B. The discharges.—Petitioner discharged em-

ployees Victor McDaniel and Ardis Dye on May

8 and 10, respectively (R. 32, 34, 147, 58).

mye ’ RS Ge nS AGE TENN TE ER IY LEMS SIE © LEILA PIL Gi BORE LE LPT AI ONLY

2 DP PREP AE LEG PE TI BRD EAR bint RE LO So BO Det Bra i a BO ag Oe APR eli,

6

Victor McDaniel was a trained hatchery man,

admittedly a difficult employee to replace (R.

33-34; 327).° He joined the Union on April

23, 1943. and solicited members for it among

his fellow-employees (R. 34; 146). On the day

of his discharge his foreman, Harris, inquired of

employee Simmons “‘if McDaniel was pushing the

Union,” stating that he had heard that he was

(R. 34; 179). On May 6, 1943, McDaniel re-

quested and received permission from Foreman

Harris to be absent from his work on May 8 in

order to haul feed for his livestock on a small

farm which he owned (R. 32-33; 146-147). After

attending to the hauling of the feed McDaniel

went to petitioner’s plant at about one p. m. in

order to get some grain which he had purchased

(R. 33; 147). He was then called to Evert’s office

and discharged because, it was claimed, he was not

utilizing the time given him for the purpose in-

tended, and because of his excessive absences (R.

33; 147). Foreman Harris admitted, however,

that McDaniel had never been absent from work

without permission ; that he had not recommended

MeDaniel’s discharge; and that he had retained

McDaniel in spite of occasional absences because

it was difficult to replace a man of McDaniel’s

qualifications (R. 33-34; 335-336, 337).

* McDaniel was employed by petitioner intermittently for

four or five years prior to his discharge (R. 144).

LR Sd! DRADER BE HES,

we Leal

7

Ardis Dye was discharged on May 10, 1943, the

reasons given her at the time being that her work

was unsatisfactory, that she lacked interest in her

work, and was absent excessively. At the hearing,

however, petitioner introduced no evidence to

support the contention that her work had been

unsatisfactory (R. 34). She operated a bottling

machine in petitioner’s creamery department, a

position of admitted responsibility (R. 34; 163).

Mrs. Dye is the mother of two small children, and at

the time of her employment Foreman Carey

agreed to give her leave of absence to arrange for

the care of her children (R. 35; 160-163). In

March and April of the same year she was given

further time off for the same purpose (R. 35;

163-164-165). None of these absences was con-

sidered by petitioner when they occurred to have

been other than legitimate and justified (R. 35-

36; 162-165, 174). On May 8, 1943, Dye asked

her roommate, Olive Owston, to inform Foreman

Carey that she would not be in to work that day

until after the departure of the 12:45 p. m. train

(R. 36; 167, 175). Her roommate, however, de-

livered the message incorrectly and merely in-

formed Carey that Dye would not report for work

until noon (R. 36; 222). The departure of the

train was delayed for several hours, and Mrs. Dye

did not report for work that afternoon (R. 36;

167). She returned to work the following Mon-

8

day morning and, although she tried to explain

her absence to Foreman Carey, he refused to

listen (R. 36; 176). On the following Monday,

upon instructions from Evert, Carey discharged

Dye for the asserted reason that her absences

from work had been too frequent (R. 36; 169,

297, 303). Only a short time before her discharge

Assistant Foreman Briggs had praised her work

and asked her to assist in training new employees —

(R. 34-35; 166). Foreman Carey also commended

her work as well as her attitude (R. 35; 169-170,

304-305). On May 7, 1943, just three days prior

to her discharge, Carey had asked her to suggest

an employee best qualified to operate the bottling

machine (R. 166). Dye had joined the Union on

May 6, started soliciting memberships on May 7,

and within a few days had secured fifteen appli-

cations for the Union (R. 36; 166-168).

On the foregoing findings the Board concluded

(R. 42, 49) that petitioner had discriminated in

regard to the hire and tenure of employment of

McDaniel and Dye, in violation of Section 8 (3)

and (1) of the Act, and ordered their reinstate-

ment with back pay. The court below entered a

decree of enforcement (R. 428-429).

ARGUMENT

Th sole question presented is whether the

Board’s conclusion that petitioner had discharged

employees McDaniel and Dye because of their

9

union membership and activities, and in viola-

tion of Section 8 (3) and (1) of the Act, is sup-

ported by substantial evidence. No question of

general importance is involved, and the evidence \

summarized in the Statement, pp. 2-8, supra, af- ;

fords ample support for the challenged findings.

In eases such as this the Board must appraise |

the relevant facts in the light of their back-

ground as part of a ‘‘pattern of events,’’ and not

as isolated fragments. National Labor Relations

Board v. Link-Belt Co., 311 U. 8. 584, 588; Vir-

ginia Electric and Power Co. v. National Labor

Relations Board, 319 U. 8. 533, 539. The Board

was not required to consider only those events

immediately connected with the discharges of Dye

and McDaniel, ‘‘divorced from the events imme-

diately preceding and following” such discharges.

International Association of Machinists v. Na-

tional Labor Relations Board, 311 U. 8. 72, 78.

The court below properly concluded that the cred-

ibility of the witnesses, the weight of the evi-

dence, and the inferences to be drawn therefrom,

were for the Board to determine; and although

the evidence was conflicting and would have sup-

ported a contrary finding, there was clearly suffi-

cient support for the finding which was made. ‘Na-

tional Labor Relations Board v. Nevada Consoli-

dated Copper Corporation, 316 U. 8. 105, 107.

10

CONCLUSION

For the reasons stated the petition for a writ

of certiorari should be denied.

Respectfully submitted.

CHARLES Fay,

Solicitor General.

Atvin J. ROCKWELL,

General Counsel,

RutH WEYAND,

TxHomas B. SWEENEY,

Attorneys,

National Labor Relations Board.

SEPTEMBER 1944.