Petition — Rogers Bros. Wholesalers v. National Labor Relations Board

Susreme Court, . Se

FsiLER

APR 29 1916

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IN THE

Supreme Court of the United States

. OCTOBER TERM, 1975

No. @5-1586

ROGERS BROTHERS WHOLESALERS,

Petitioner,

versus

NATIONAL LABOR RELATIONS BOARD,

Respondent.

© ETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

GILBERT T. ADAMS

SUITE 1012-22

GOODHUE BUILDING

BEAUMONT, TEXAS

COUNSEL FOR PETITIONER

SCOFIFILOS QUALITY PRINTERS. P O BOX 53096.N 0. LA 70153 504/822 1611

a

TABLE OF CONTENTS

Page

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THE QUESTIONS PRESENTED ................... 2

CONSTITUTIONAL PROVISIONS,

STATUTES AND RULES INVOLVED .......... 3

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ADMINISTRATIVE LAW JUDGE'S FIN-

GE ENE ch ce snecdbadiedsnecsceveces 6

N.L.R.B.S OPINION AND JUDGMENT ........... 7

PROCEEDINGS IN THE UNITED STATES

COURT OF APPEALS, FIFTH CIRCUIT ....... 7

REASONS FOR GRANTING THE WRIT .......... 8

THE MARIE CASH INCIDENT .................. 13

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APPENDICES:

APPENDIX “A” — N.L.R.B. Opinion and

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APPENDIX “B” — Opinion of Court of

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APPENDIX “C” — Opinion of Court of

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APPENDIX “D” — Judgment of the Court of

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APPENDIX “E” — Petitioner’s Motion for

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ii

TABLE OF CONTENTS (Continued)

APPENDIX “F” — Denial of Motion for

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APPENDIX “G” — Stay of Mandate by

A MED ook cnecécccscecsesndé¥eese

AUTHORITIES

ADLER v BOARD OF EDUCATION, 342 U.S.

485, 72 S.Ct. 380, 96 L.Ed. 517,27 ALR(2) 472...

FOOT BROTHERS GEAR & MACHINE COR-

PORATION vN.L.R.B., 114 F(2) 611 (7th Cir.

1940) rev., 61S.Ct. 318, 311 U.S. 620, 857 L.Ed.

394, mandate conformed to 121 F(2) 802 .....

TEXTS

LABOR MANAGEMENT RELATIONS ACT,

Title 20, Section 160(e) ..........cccccccccees

MC CORMICK & RAY ON EVIDENCE, 2nd

Edition Vol. 1, Sec. 53, p. GR... cc ccc cece.

a CU, EE ccc cvcececeescenceeces

RULES

Rule 19 1(b) Supreme Court Rules ............

es

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

No.

ROGERS BROTHERS WHOLESALERS,

Petitioner,

versus

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioners pray that a writ of certiorari issue to

review the judgment of the United States Court of

Appeals for the Fifth Circuit entered on February 13,

1976.

CITATIONS TO OPINION BELOW

The decision and order of the National Labor

Relations Board adopting the decision of the Ad-

ministrative Law Judge of date June 2, 1975, is printed

as Appendix “A”, attached to which is an order

correcting the decision and order dated July 15, 1975.

The opinion of the Court of Appeals which affirmed

the decision of the Nationa! Labor Relations Board, is

printed as Appendix *‘B’ hereto.

2

The opinion of the Court of Appeals on rehearing is

printed as Appendix “C” hereto. It is dated March 29,

1976.

The judgment of the Court of Appeals is dated

February 13, 1976, and is printed as Appendix “D”.

Petitioner's petition for rehearing was filed in due and

legal time and is Appendix “E’’, and was denied on

March 15, 1976, see Appendix “‘F’’, affixed hereto. The

Court of Appeals’ stayed its mandate to and including

April 29, 1976, as shown by Appendix “G”’.

JURISDICTION

Jurisdiction of this Court is invoked under 28

U.S.C.A., Sec. 1254(1) and Rule 19, of this, the Supreme

Court, subd. 1(b), providing the Court will consider

“important question of Federal law which has not

been, but should be, settled by this Court; * * * or has

decided a Federal question in a way in conflict with

applicable decisions of this Court; or has so far

departed from the accepted and usual course of

judicial proceedings, or so far sanctioned such a

departure by a lower Court, as tocall for an exercise of

this Court’s power of supervision.”

THE QUESTIONS PRESENTED

1.

Did the Court of Appeals err in » cepting as sub-

stantial evidence, evidence whici. raised only a

presumption, and that evidence was denied and

thereby wiped out the presumption leaving no

evidence of violation.

3

2.

Did the Court of Appeals err in approving the

N.L.R.B.’s decision which approved the Law Judge’s

ruling allowing the General Counsel for the N.L.R.B.

to amend his petition on the day of trial adding

paragraphs 8, 9, 10, 11 and 12, which covered matters

which had been settled by settlement agreement and

then allowing the G.C. on date of trial to produce

evidence antedating the settlement agreement in

order to show company animus?

CONSTITUTIONAL PROVISIONS, STATUTES AND

RULES INVOLVED

The most pertinent constitutional provision in-

volved is the Fourteenth Amendment, due process of

law, which petitioner was denied.

The only Statute involved is that which is known as

the Labor Management Relations Act, Title 29, Section

160(e), which, in pertinent part, provides, “The find-

ings of the Board with respect to questions of fact if

supported by substantial evidence on the record con-

sidered as a whole shall be conclusive.”’, and whether a

presumption which has been rebutted and wiped out

constitutes “substantial evidence” to support the

N.L.R.B. judgment and the Circuit Court’s judgment.

STATEMENT

Union organization efforts were undertaken in

Rogers Brothers Wholesalers place of business which

was a business which manufactured expensive eye

glasses and eye wear, in Beaumont, Texas. Petitioner

4

first learned about these activities about March 5,

1974, and as usual some employees were for and some

were against the organization ofa union. Asaresult of

some of the activities a settlement agreement was

entered into on the 28th day of May, 1974, and

petitioner posted in accordance with the agreement,

the agreed upon poster and all matters complained of

were thereby put at rest and this settlement agreement

was under the direction of Judge Johnson who was

hearing the matter. Thereafter, the election was duly

had and the vote was approximately 33-1/3 for union

and 66-2/3 against the union.

On or about June 5, 1974, petitioner, because of the

obstreperous conduct of Aaron Cole, and his consis-

tent violation of the “No Talking” rule, which had been

invoked, and which was a rule of long standing, and so

found to be by the Administrative Law Judge, was

again reiterated but nevertheless, Cole disregarded it.

Cole had a very unfavorable record, he was tardy, he

was foul-mouthed, late in returning from coffee

breaks, talked with other employees while they were

working, and his performance as a workman was low

in production and high in breakage of expen-

sive eye-wear. Because of his production and attitude

it was thought retraining might help him, but he refus-

ed it. By Cole’s own testimony he was counseled with

nearly every other day. When he failed and refused to

comply with the “No Talking” rule he was discharged.

He brought proceedings of unfair labor practice,

which was one of the subjects of this proceeding.

Another employee, Marie Cash, while at a coffee

break, sitting at a table by herself, without having

5

been addressed by another employee, nevertheless,

called the other employee “coon-ass trash”. The other

employee left, and as she walked through the door,

without saying anything, Marie Cash called after her,

“Go tell, you bitch”.

Thereafter, some other employees accosted Marie

Cash and remonstrated with her vigorously, there was

general commotion, almost face-slapping and

hair-pulling, the supervisor was notified; he sum-

moned Marie Cash and the employee whom Marie

Cash had referred to as ‘“‘coon-ass trash” and at that

conference Marie Cash admitted that she had called

the other employee a “coon-ass.”’ The Supervisor told

Marie Cash that he would have to suspend her until he

could investigate and that he would call her.

Thereupon, Marie Cash turned on her heels and said

“Don’t bother”. This statement by Marie Cash was

accepted at face value, she was not called, and after the

election filed an unfair labor practice charge saying

that she was fired, as a result of an unfair labor prac-

tice.

The Administrative Law Judge's opinion and find-

ings clearly demonstrate Aaron Cole was, and was

found to be, an obstreperous employee, of low produc-

tion, high breakage, foul-mouthed, late, belligerent;

had refused retraining; but nevertheless, the Ad-

ministrative Law Judge found that his discharge was

the result of Cole’s violation of the ‘No Talking” rule

which he found to bea valid rule, but he also found that

the “No Talking rule” was discriminatorily enforced

because there was evidence of two (2) incidents oc-

curring near supervisors who tooF no corrective ac-

tion. The supervisors denied knowledge of the in-

cidents which allegedly occurred near them in the

midst of people and operating machines. Thus, the

presumption that the supervisor condoned the talking

was rebutted and the presumption was wiped out,

leaving no evidence of discriminatory enforcement.

The Law Judge also found that Marie Cash was unjust-

ly discharged, because, he held, she should have been

called by the supervisor after the investigation, and

that Marie Cash's statement “Don’t bother” tocall her,

was made by her in haste and anger, and she could not

be charged with the results of her own language, and

that she was entitled to be reinstated with back pay

and so was Aaron Cole.

More details are set out in the petitioner's motion for

rehearing attached hereto as Appendix “E”’.

ADMINISTRATIVE LAW JUDGE’S

FINDINGS AND OPINION

Judge Johnson heard the settlement agreement

proceedings and approved and entered the settlement

agreement, which was fully complied with, was mov-

ed by the general counsel to set it aside but Judge John-

son overruled the motion. On the day of trial G.C. mov-

ed to amend his complaint by adding paragraphs 8, 9,

10, 11 and 12, which paragraphs embraced all of the

items that had been covered by the settlement agree-

ment which Judge Jonnson had refused to set aside.

Objection was made but Judge Weil permitted the

amendments; however, he ruled that evidence in-

troduced thereunder would be considered only to show

company animus and would not be considered on the

7

question of whether the alleged unfair labor practice

violations had occurred.

The evidence regarding the unfair labor practice

and the discharge of Aaron Cole and Marie Cash isa

very small part of the record. Most of the record, hun-

dreds of pages of it, is taken up with the alleged

violations that were put at rest by the settlement

agreement approved by Judge Johnson.

N.L.R.B.’S OPINION AND JUDGMENT

The National Labor Reiations Board adopted Judge

Weil’s findings and opinions with only a very minor

variation from which ruling of the Board the National

Labor Relations Board then filed with the Court of

Appeals, application for enforcement to which

petitioner responded in full with brief and after the

judgment was entered with a motion for rehearing,

which was overruled.

PROCEEDINGS IN THE UNITED STATES

COURT OF APPEALS, FIFTH CIRCUIT

The Court of Appeals put the case on summary

docket and summarily affirmed the N.L.R.B.’s judg-

ment and findings, thereby holding that the presump-

tion of knowledge of other employees violation of the

“No Talking” rule constituted substantial evidence

even though this presumption was rebutted by denial

by the supervisors of knowledge of the only two (2) in-

cidents reflected by the record.

REASONS FOR GRANTING THE WRIT

The record is voluminous; comprising more than

five hundred (500) pages of testimony. However, the

testimony with reference to the alleged violations is

comparatively minimal. The violation was arrived at

by Judge Weil in his findings and opinion by finding as

a fact, that there was a ‘No Talking Rule”, that it was

of long standing, and that it had recently been

reiterated and to this point therefore, petitioners had

just cause for discharging Aaron Cole for violating it.

Judge Weil found Cole violated the rule. However,

Judge Weil further found that the “No Talking Rule”’

was discriminatorily enforced in that. he said, it was

not enforced as against other employees.

The only evidence about other employees talking is

that which is set forth by the general counsel in his

brief in the Court of Appeals, page 4, thereof, in one (1)

paragraph which paragraph reads as follows:

“On June 4, Rogers made a speech to the

employees, in which he advised them to con-

centrate on their work, build up production

and cut down on errors and breakage (A. 13; Tr.

30-31, 305-307, 311). Rogers announced that the

employees would not be permitted to talk dur-

ing working hours (ibid).4 Despite this an-

nouncement several anti-union employees

carried on conversation during work time

without supervisory interference (A. 13; Tr.

307-308, 311-312.) Employees Billy Ashworth

and Julia Stewart, both of whom were wearing

‘non-union badges’, discussed the union while

standing less than two (2) feet from supervisor

9

Blackie Boutte (Tr. 312-313); and Ernestine

Alfaro conversed with Pat Crews and gave her

a badge while in the presence of supervisor

Fredieu (Tr. 307-308).”

That same statement quoted above was reiterated in

a littie different language in the first paragraph on

page 9 of G.C.’s brief.

Note that the only evidence the G.C. could bring

forth was evidence that Billy Ashworth and Julia

Stewart discussed union while standing less than two

(2°) feet from supervisor Blackie Boutte, and Ernestine

Alfaro conversed with Pat Crews and gave her a badge

while in the presence of supervisor Fredieu.

The witness who testified regarding the Ashworth-

Stewart alleged conversation stated that she heard

only one (1) word — that is, the word “union”, she

heard no further conversation, (Tr. 312, L. 21-22) she

could not testify as to what was said and did not know

what was said, but said that the alleged conversation

was near supervisor Boutte. He denied hearing the

conversation. (Tr. 527, L. 21 to L. 1, p. 528).

The witness who testified about the Alfaro-Crews

instance testified that Alfaro gave Crews a badge, she

did not know what was on the badge, (Tr. 307, L. 20-21)

and therefore, did not know whether it was a union

badge or a non-union badge, or whether it was the

regular badge that all employees were required to

wear for identification purposes. This conversation is

supposed to have been near supervisor Fredieu who

denied knowledge of it (Tr. 532, L. 18-23) and denied the

girls exchanged badges. (Tr. 532, L. 25 to L. 1, p. 533).

10

The fact that these two (2) instances are supposed to

have taken place near these supervisors is not prooi of

anything in view of the fact that each supervisor

testified that they were not aware of such instances,

nor what was said nor of any transferring of badges.

Since the two instances are alleged to have taken

place near the supervisors, there is a presumption at

most, only a presumption, that the supervisors were

aware of the instances. These presumptions, like all

presumptions, however, went out of the case when the

supervisors denied any knowledge of the instances,

and therefore, there is no evidence of discriminatory

enforcement of the “No Talking” rule.

It is not a question of whether there is substantial

evidence; there is just no evidence, and the Circuit

Court by its summary affirmance has affirmed the re-

instatement of Cole with back pay, on no evidence and

this constitutes a denial of due process of law to these

petitioners, and a complete reversal of all law on the

effectiveness of a presumption which has been

rebutted.

Substantial evidence means nothing more than it

“must be enough to justify, if the trial were toa jury,a

refusal to direct the verdict when the conclusion

sought to be drawn from it is one of fact for the jury.”

FOO'T BROTHERS GEAR & MACHINE CORPORA-

TION v N.L.R.B., 114 F(2) 611 (7th Cir. 1940) rev., 61

S.Ct. 318, 311 U.S. 620, 857 L.Ed. 394, mandate con-

formed to 121 F(2) 802, in which the Circuit Court af-

firmed its previous holdings. The Court cited many

cases in support of this statement of the Rule.

11

A presumption may carry a case to the jury, if un-

rebutted, but when it is rebutted, then it is wiped out

and it is the same as if the presumption had never been

raised. There literally is no evidence.

The rule is stated in MC CORMICK & RAY ON

EVIDENCE, 2nd Edition, Vol. 1, Sec. 53, page 62, in dis-

cussing the various views of the effect of presump-

tions, as follows:

“However, the most widely accepted is the one

advocated by Thayer — namely, that when fact

‘A’ is established the jury must find fact ‘B’ un-

less the opponent introduces evidence from

which a jury could reasonably find that ‘B’ did

not exist. Or to put it as most Courts do, the

presumption places upon the party against

whom it operates the burden of producing

evidence sufficient to justify finding of the

non-existence of the presumed fact. This view

was adopted by the American Law Institute in

its model Code of Evidence, and is the es-

tablished rule in Texas. It has the distinct

merit of being easily understood and easily

applied during the trial of the case. Under this

rule where the opponent produces sufficient

evidence to justify a finding against the

presumed fact, the presumption vanishes and

the situation is the same as it would have been

had no presumption been created.”

Thus, when the two supervisors denied any

knowledge of the alleged conversations or incidents,

the presumption was wiped out and it was then the

12

burden of G.C. to proceed with further evidence which

he did not do.

Thus, there is no evidence of discriminatory

application of the “No Talking” rule. Thus, there is no

evidence of a violation. There being no evidence of a

violation, there is no basis for a finding of dis-

criminatory enforcement of the “No Talking” rule.

The hundreds of pages of testimony having to do with

the settlement agreement become immaterial and

should not have ever been allowed in the case in the

first place because Judge Weil should not have per-

mitted the general counsel to amend his complaint and

add paragraphs 8, 9, 10, 11 and 12, on the day of trial

which only burdened the record with immaterial

evidence.

Thus, petitioner was denied due process of law

because they have been cast in judgment on a ruling

that has no basis in fact tosupport it, and the statutory

requirement that the judgment be supported by sub-

stantial evidence has been construed to be satisfied by

a presumption which has been wiped out by con-

troverted evidence.

Thus, the alleged conversation where the one word

“union”, was allegedly heard by the witness, but no

other part of the conversation was heard, and the inci-

dent where one employee gave another employee a

badge with noone knowing what was on the badge, has

been accepted by the Circuit Court as sufficient

evidence of discriminatory enforcement of the “No

Talking” rule, even though the supervisors denied

having heard or seen the incidents. The denial under

the Rule of Law above stated, destroyed the presump-

13

tion and “The presumption vanishes and the situation

is the same as it would have been had no presumption

been created.” Therefore, there was no evidence upon

which the Circuit Court could affirm the Board's find-

ings and judgment.

THE MARIE CASH INCIDENT

Marie Cash was suspended because without

provocation she called another female employee a

“coon-ass” and a “coon-ass trash’. When summoned

by the supervisor she admitted her misconduct which

was complete violation of clear and specific printed

rules of conduct by which the employees should con-

duct themselves as “ladies and gentlemen”, page 7 of

the Rules, and when she was informed that she would

be suspended until there could be an investigation,

and she would be called, she turned on her heels and

said “Don’t bother”.

To wipe out this clear and explicit instruction by the

employee to not bother to ‘call her’, the Board adopted

the findings of Judge Weil which were that this state-

ment by the employee was made in her “anger and dis-

may” and that she ought to be reinstated with back

pay. Petitioners respectfully submit that the reason-

ing by Judge Weil, adopted by the N.L.R.B. and atf-

firmed by the Circuit Court is nothing more than

Judge Weil thinking up an excuse for the employee's

failure to call her employer and inquire as to the out-

come of the investigation and whether she could

return to work. In her anger and dismay, she still had

several weeks of time to calm down and call her

employer, but instead of doing that, several weeks

14

later went to Houston and filed a charge of unfair labor

practice. This is wholly unjustified. and there is no

evidence of unfair labor practice in this incident and

the employer should not be saddled with a foul-

mouthed employee's “anger and dismay’’, as excusing

her conduct and refusing to make an inquiry even if

she were upset. She could have called her employer.

This finding by the Court and by the Board is no

evidence and should be set aside.

The United States Supreme Court in ADLER v

BOARD OF EDUCATION, 342 U.S. 485, 72 S.Ct. 380, 96

L.Ed. 517, 27 ALR(2) 472, in discussing presumptions

and their effect at page 478 of its opinion, ruled:

“The presumption growing out of a prima

facie case * * * remains only so longas there is

no substantial evidence to the contrary. When

that is offered the presumption disappears

and unless met by further proof there is

nothing to justify a finding based solely upon

ig

This holding by the Supreme Court is in line withthe

rule quoted from MC CORMICK & RAY ON

EVIDENCE, supra, and is the general rule. The

presumption arising from the supervisors being near

or in the vicinity of the persons who are supposed to

have violated the “No Talking Rule” without being

reprimanded by the supervisors completely dis-

appeared when the supervisors testified that they had

no knowledge of such conversation and that the girls

did not exchange badges.

15

Thus, there was no evidence upon which to base the

judgment of the N.L.R.B., nor the judgment of the

Court of Appeals, in affirming the judgment of the

Board and to cast these petitioners in judgment ona

rebutted presumption, is to deny them due process of

law.

Such construction of the statute that requires the

N.L.R.B.’s findings be based upon substantial

evidence is made a mockery when the substantial

evidence consists of nothing but a rebutted presump-

tion. In this case there is no substantial evidence —

there is no evidence.

The Court of Appeals completely misinterpreted the

statutory requirement of “substantial evidence” and

has interpreted that statute and that requirement to be

satisfied by a rebutted presumption. The Circuit Court

not only misconstrued the meaning of “substantial

evidence” but also misapplies it and has actually

destroyed the Statute and the proper and legal inter-

pretation of “substantial evidence.”

CONCLUSION

Petitioners respectfully submit that this petition for

writ of certiorari should be granted to review the judg-

ment of the United States Court of Appeals for the

Fifth Circuit, that the Circuit Court's judgment

be reversed, that enforcement be denied, and in the

alternative that the judgment be reversed and this

cause remanded for such further proceedings as are

proper, that these petitioners not be required to

reinstate Aaron Cole, with back pay, nor to reinstate

Marie Cash with back pay and for such other and

16

further relief to which petitioners may be justly en-

titled, either in law or equity, special or general.

Respectfully submitted,

GILBERT T. ADAMS

GOODHUE BUILDING

BEAUMONT, TEXAS 77701

COUNSEL FOR PETITIONERS

CERTIFICATE

Petitioners certify that the requisite number of

copies of this petition (40) have been this day forward-

ed by United States Mail to the Clerk of the Supreme

Court of the United States, Supreme Court Building,

Washington, D.C.; and three (3) copies thereof have

been mailed to Acting General Counsel, ATTENTION:

Allen D. Cirker and Jane P. Schlaifer, National Labor

Relations Board, Washington, D.C., 20570; and one (1)

copy to the Honorable Louis V. Baldovin, Director,

Region 23, N.L.R.B., Dallas-Brazos Building, Fourth

Floor, 1125 Brazos Street, Houston, Texas, and a copy

has been mailed to the Oil, Chemical & Atomic

Workers Union and its Local 4-243, 2490 South

Eleventh Street, Beaumont, Texas, 77701, ATTEN-

TION: Mr. Ray West, all having been mailed in the

United States mail with proper and adequate postage

paid and properly sealed on this the ____ day of April.

A.D., 1976.

GILBERT T. ADAMS

Attorney for Petitioner

la

APPENDIX A

JKP

D-9841

218 NLRB No. 19 Beaumont, Tex.

-UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

ROGERS BROTHERS WHOLESALERS

and Cases 23-CA-5143 and

23-CA-5143-2

OIL, CHEMICAL AND ATOMIC WORKERS INTER-

NATIONAL UNION AND ITS LOCAL 4-243, AFL-CIO

DECISION AND ORDER

On January 17, 1975, Administrative Law Judge

Paul E. Weil issued the attached Decision in this pro-

ceeding. Thereafter, the Respondent filed exceptions

and a supporting brief and the General Counsel filed

exceptions with a brief in support thereof and an

answering brief.

Pursuant to the provisions of Section 3(b) of the

National Labor Relations Act. as amended, the

National Labor Relations Board has delegated its

authority in this proceeding toa three-member panel.

2a

The Board has considered the record and the at-

tached Decision! in light of the exceptions and briefs?

and has decided to affirm the rulings, findings,’ and

conclusions‘ of the Administrative Law Judge and to

adopt his recommended Order as modified herein.5

1 We note the following inadvertent errors in the attached Deci-

sion which. however, do not affect the conclusions reached: In sec.

III, third paragraph, the consent election was to be held on June 25,

1974, not 1975. and in the portion of sec. III captioned “The Dis-

charge of Aaron Cole,” seventh paragraph, fourth sentence, the

date of the “Individual Personnel Record” was 6/5/74, not 6/5/71.

2 Respondent, in its exceptions to the attached Decision, cited the

Texas Penal Code and included a newspaper clipping which it

claims supports its position that Marie Cash used improper

language calculated to disturb the other employees. The General

Counsel argues that neither of these was entered into evidence

during the hearing and they should be disregarded by the Board.

These matters are not properly made a part of the record herein,

and, furthermore, they would add nothing to the record which

would assist us in reaching our decision.

3 The Respondent has excepted to certain credibility findings

made by the Administrative Law Judge. It is the Board's estab-

lished policy not to overrule an Administrative Law Judge's

resolutions with respect to credibility unless the clear preponder-

ance of all of the relevant evidence convinces us that the

resolutions are incorrect. Standard Dry Wall Products, Inc., 91

NLRB 544 (1950), enfd. 188 F.2d 362(C.A. 3, 1951). We have carefully

examined the record and find no basis for reversing his findings.

We do not adoptor rely upon sec. III, fourth paragraph, of the Ad-

ministrative Law Judge's Decision insofar as it refers to “the

customary ‘spontaneous’ formation” of an antiunion employee

committee, thus implying that its origins were of doubtful validi-

ty. There is no evidence to support this possibility and no issue as

to the legality of the committee or its activities.

4 In the absence of exceptions thereto. we adopt. pro forma, the

Administrative Law Judge's recommendation to dismiss the com-

plaint insofar as it alleged that the Respondent violated the Act by

discharging Kejenia Cagle.

5 The Administrative Law Judge found. and we agree. that the

Respondent discriminatorily enforced a no-solicitation rule,

thereby violating Sec. 8(a)(1) of the Act, and we find merit in the

Genera! Counsel's exception to the failure to provide a specific

and adequate remedy for this violation. Accordingly, we shall

modify the Order as requested. Further, in the absence of excep-

tions thereto, we adopt pro forma the Administrative Law Judge's

failure to find that the rule against employees’ talking during

3a

ORDER

Pursuant to Section 10(c) of the National Labor

Relations Act, as amended, the National Labor

Relations Board adopts as its Order the recommended

Order of the Administrative Law Judge, as modified

below, arid hereby orders that the Respondent, Rogers

Brothers Wholesalers, Beaumont, Texas, its officers,

agents, successors, and assigns, shall take the action

set forth in the said recommended Order, as herein

modified:

1. Delete paragraph i(b) and add the following

paragraphs 1(b) and (c):

‘‘(b) Discriminatorily enforcing any no-

solicitation rule by prohibiting union solicitations on

working time while permitting employees to solicit

and talk against a union on working time.

“(c) In any other manner interfering with,

restraining, or coercing their employees in the exer-

cise of their rights to self-organization, to form, join,

or assist any labor organization, to bargain collective-

ly through representatives of their own choosing, to

engage in any other concerted activities for the pur-

pose of collective bargaining or other mutual aid orto

refrain from any or all such activities.”

2. Substitute the attached notice for the Ad-

ministrative Law Judge's notice.

working hours was an unlawfully broad no-solicitation rule. In

addition, we find that a broad order is appropriate in view of tue

serious nature of the violations found herein. Therefore, we shall

also modify the Order in this respect.

4a 5a

To act together for collective bargaining or

other mutual aid or protection

To refrain from any and all these things.

Dated, Washington, D.C. JUN. 2, 1975

Howard Jenkins, Jr.. Member

WE WILL NOT do anything that interferes

Ralph E. Kennedy, M

p ennedy, Member with these rights.

John A. Penello, '

‘a aE, SoINeE WE WILL NOT discourage membership in

Oil, Chemical and Atomic Workers Inter-

national Union and its Local 4-243, AFL-CIO,

or any other labor organization, by discrim-

inatorily discharging or suspending any

employee because of his activities on behalf of

D-9841 said labor organization.

NATIONAL LABOR

RELATIONS BOARD

(SEAL)

WE WILL NOT discriminatorily enforce any

no-solicitation rule by prohibiting union

solicitations on working time while permit-

ting employees to solicit and talk against a un-

ion on working time.

APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the

Nationa] Labor Relations Board

An Agency of the United States Government

WE WILL reinstate Aaron Cole and Marie

Cash to the jobs they formerly held or, if these

jobs no longer exist, to substantially

equivalent jobs and WE WILL make them

whole for any loss of pay they may have suf-

fered as a result of our discrimination against

them by payment to them of the amount of

money they lost as a result of our action.

After a trial at which all sides had the opportunity to

present their evidence, the National Labor Relations

Board has found that we violated the National Labor

Relations Act, and has ordered us to post this notice

and to keep our word about what we say in this notice.

The Act gives all employees these rights: ROGERS BROTHERS

To engage in self-organization cod oss emma

To form, join, or help unions | (Employer)

To bargain collectively through a represen- | Dated By

tative of their own choosing (Representative) (Title)

ne

6a

This is an official notice and must not be defaced by

anyone.

This notice must remain posted for 60 consecutive

days from the date of posting and must not be altered,

defaced, or covered by any other material.

Any questions concerning this notice or compliance

with its provisions may be directed to the Board's Of-

fice, One Allen Center, 500 Dallas Avenue, Suite 920,

Houston, Texas 77002, Telephone 713-226-4296.

JD-17-75

Beaumont, Tex.

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

DIVISION OF JUDGES

WASHINGTON, D. C.

ROGERS BROTHERS WHOLESALERS

and Cases No. 23-CA-5143

23-CA-5143-2

OIL, CHEMICAL AND ATOMIC WORKERS INTER-

NATIONAL UNION ANDITS LOCAL 4-243, AFL-CIO

Frank L. Carrabba, Esq., of Houston,

Tex., for the General Counsel.

Mr. Ray T. West, of Beaumont, Tex.,

for the Charging Party.

Gilbert T. Adams, Esq., and Raymond W.

Brassard, Esq.; Adams and Brown, of

Beaumont, Tex., and C. M. Bradford, Esgq..,

of Beaumont, Tex., for the Respondent.

ee

7a

DECISION

Statement of the Case

PAULE. WEIL, Administrative Law Judge: On June

11, 1974, Oil, Chemical and Atomic Workers Inter-

national Union and its Local 4-243, AFL-CIO, herein-

after called the Union, filed a charge alleging that

Rogers Brothers Wholesalers, hereinafter called

Respondent, violated Section 8(a)(3) and (4) by the ter-

mination of four named employees and by that and by

other acts and conduct violated Section 8(a)(1) of the

Act. On June 17, 1974, the Union filed a second charge

alleging an additional violation of 8(a)(3) by the dis-

charge of a fifth employee. On August 22, 1974, the

Regional Director for Region 23 of the National Labor

Relations Board, hereinafter called the Board, on

behalf of the General Counsel issued an order

consolidating the two cases and a complaint and

notice of hearing which alleges the discriminatory

discharge of three employees, Aaron Cole, Rejenia

Cagle and Marie Cash as well as four incidents of

alleged violation of Section 8(a)(1) of the Act. At the

same time counsel for the General Counsel moved Ad-

ministrative Law Judge Thomas D. Johnston to set

aside a settlement agreement entered into on May 28,

197% in Cases No. 23-CA-5009 and 23-CA-5059 and

represented therein that upon the granting of the mo-

tion the complaints in those cases would be con-

solidated with the complaint in the instant cases.

Judge Johnston denied the General Counsel's motion

to set the settlement agreement aside and the General

Counsel issued an amended complaint alleging as

background the allegations in the earlier complaint

which gave rise to the settlement before Judge

8a

Johnston. Respondent duly answered the amended

complaint, as it had duly answered the original com-

plaint. In its answer Respondent denied the

allegations of postsettlement activity and raised the

settlement agreement as a bar to litigation of the mat-

ters covered by the settlement agreement. On the

issues thus joined the matter came on for hearing

before me on October 15, 1974, at Beaumont, Texas. At

the opening of the hearing Respondent moved to strike

the allegations of past conduct which had been resolv-

ed by the settlement agreement; this motion was de-

nied. The General Counsel thereupon moved to amend

the complaint by the addition of certain allegations of

independent violations of Section 8(a)(1) which mo-

tion was granted. The hearing proceeded through Oc-

tober 18, 1974, on which date it was closed. All parties

were present, Respondent and the General Counsel

were represented by counsel, all parties had an oppor-

tunity to call and examine witnesses and to adduce

relevant and material evidence. At the close of the

hearing all parties waived oral argument, briefs have

been received from the General Counsel and Respon-

dent.

Upon the entire record herein and in consideration

of the briefs, I make the following:

Findings of Fact

I. The Business of Respondent

Respondent is a partnership composed of Victor J.

Rogers, N. J. Rogers, S. J. Rogers and Ben J. Rogers,

doing business as Rogers Brothers Wholesalers at

Beaumont, Texas, where it is engaged in the manu-

- ene ee se Gk | eee « ae il.

OP Oe Ae ets te

~~

9a

facture of prescription lenses and related eyeware

items at its wholesale optical laboratory. Respondent

annually purchases and receives goods valued in ex-

cess of $50,000 directly from points located outside the

State of Texas and is engaged in commerce within the

meaning of Section 2(6) and (7) of the National Labor

Relations Act.

II. The Labor Organization Involved

The Union is a labor organization within the mean-

ing of Section 2(5) of the National Labor Relations Act.

III. The Unfair Labor Practices

Background

Respondent operates its optical laboratory in

several buildings located in downtown Beaumont,

Texas, where it employs approximately 350 men and

women manufacturing and assembling eye glasses

and shipping them to their customers around the

country. The enterprise is directed by Victor Rogers,

apparently the only one of the partners immediately

engaged in the business.

In early February! the Union commenced a cam-

paign to organize the employees with a meeting for

employees. Organizing then proceeded by the usual

channels, handbilling the employees at the entrance to

the buildings in which they worked, passing out but-

tons and other advertising paraphernalia and

1 All dates hereinafter are in the year 1974 unless otherwise

specified.

10a

soliciting employees to sign cards designating the

Union as their collective-bargaining representative.

Respondent became aware of the union organization

in early March and commenced an antiunion cam-

paign of its own, again following the normal course of

speeches and personal interviews with employees as

well as written material in the form of a letter.

The Union filed charges alleging violations of Sec-

tion 8(a)(1) by the Employer which came on for hear-

ing and on May 28, 1974, before Judge Johnston, the

parties entered into an informal settlement agree-

ment. On May 31 a petition for an election filed by the

Union came on for hearing and the parties agreed toa

stipulation providing for a consent election to be held

on June 25, 1975.

During the 2 weeks immediately preceding the elec-

tion the customary “spontaneous” formation of an

antiunion employee committee took place replete

with badges, handbills and plastic straw hats.

During the campaign three overtly prounion

employees, Aaron Cole, Rejenia Cagle and Marie Cash

were discharged by the Employer. The General

Counsel contends that these employees were dis-

charged at least in part because of their union ac-

tivities. The Respondent contends that each of them

was discharged for cause. In addition the General

Counsel contends that a no-solicitation rule was

promulgated on May 27 and enforced thereafter in a

discriminatory fashion in violation of Section 8(a)(1),

that certain statements of partner Victor Rogers ad-

dressed to employees violated Section 8(a)(1) and that

Respondent's supervisors “authorized, ratified, con-

8 Sar

lla

doned and participated in distribution of” leaflets

which threatened employees with loss of existing

benefits and equated union organization with strikes,

violence and loss of present income, all in violation of

Section 8(a)(1) of the Act.

The Discharge of Aaron Cole

Aaron Cole commenced his employment with

Respondent on June 23, 1969. He was trained to operate

a generator which was one of the machines used for

grinding lenses. Apparently from the inception of his

employment, Mr. Cole was an erratic employee. While

he missed very few days of work he was occasionally

tardy both in reporting to work in the morning and af-

ter coffeebreaks and luncheon breaks. His production

was never completely satisfactory and his breakage

was high. In addition Mr. Cole was talkative, flippant

and occasionally argumentative, none of them

qualities particularly prized by Respondent's

hierarchy.

Cole was one of the early union adherents and in that

capacity early came tothe attention of Respondent. He

described an occasion on March 11 on which he was

called into the office of Supervisor Wiebusch where he

was confronted by Victor Rogers in the presence of

Foreman Pete Boutte and George Wiebusch. Accord-

ing to Cole’s testimony Rogers asked him what he

thought of what was going on on the sidewalk. At that

time three employees were on the sidewalk in front of

the shop getting cards signed for the Union. Cole an-

swered that he guessed that it was okay. Rogers asked

why people would want to join the Union and Cole said

that it was for more benefits, wages and job security.

12a

Rogers pointed out that the employees had job securi-

ty. good wage increases and did not need a union and

said that he did not think that people wanted a union,

Cole answered that they must want the Union because

they were signing cards. At this point, according to

Cole, Rogers suggested that Cole should try to lead the

people back toward the Company instead of against

the Union. Cole refused, saying that he was not mak-

ing enough money. At this point Rogers was called out

of the room and Wiebusch pointed out that the Com-

pany had been very good to Cole and asked him why he

would not lead the people toward the Company in-

stead of against the Company. Cole again answered

that he needed more money and better benefits and

more job security. At this point Boutte said that he

could not understand why Cole had refused to take

some job training that the Company had offered him,

and Cole stated that he was not paid enough money to

warrant his learning another job. Rogers returned to

the room and asked Cole again why he would be on the

Union's side instead of the Company's side. Cole again

answered that he did not make enough money. Rogers

pointed out that he was spending a lot of money for

employee benefits and if the Union came in he would

see whether the Union would pay the benefits, give

them security and sick leave. Rogers then asked Cole

if he could get the peoples’ union cards back for him

and Cole answered that he could not, that the people

had signed for the Union and that only the people could

get them back. Rogers mentioned that a union had

tried to get in in 1952 and again in 1973 and failed both

times; he pointed out that he expected they would fail

again.

Se ae

a

13a

Rogers admitted having aconversation with Cole on

March 11 but stated that there was no mention of the

Union except by Cole and that he, Rogers had told him

that Cole was not there to talk about the Ur on.

According to Rogers the sole purpose of the meeting

was to “counsel” Cole because he had teased a fellow

about his wrinkled clothing, which Rogers con-

sidered ungentlemanly conduct. Wiebusch testified

that he had very little recollection of the conversation

but that nothing was said about the Union and that

Rogers called Cole in because he had acomplaint from

one of his fellow employees that Cole was making fun

of him about his clothing being wrinkled. Wiebusch

testified to the question “Did anybody initiate a con-

versation or attempt to initiate a conversation about

union activity at that meeting?” with the answer

“None that I know of,” and denied that he had “on

March 11, 1974, instructed the employees to abandon

their support of the Union and seek to have their fellow

employees do likewise.” Pete Boutte testified that he

was present at this meeting on Murch 11. In response

to a leading question he said that the matter of the Un-

ion was not brought up, that Mr. Cole did try to bring in

the Union and Mr. Rogers said ‘‘that is not what we are

talking about, we are talking about you making fun of

fellow employees and it is a shame that you are doing

that.” Boutte further denied that he, Wiebusch or

Rogers went in to the subject of the Union or dis-

cussed union activities or organization in any par-

ticular.

Respondent produced and placed in evidence Cole’s

entire personnel file which included 44 pages of

written notes by the various supervisors who dealt

with Cole, all taken between January 1, 1974 and Cole's

l4a

discharge on June 5, 1974. These notes range from

comments about Cole’s work habits to almost ver-

batim accounts of “counseling” sessions conducted by

various supervisory personnel and in some cases con-

tain two or three notes written by different super-

visors about the same incident. It is noteworthy that

among the 44 pages of notes, all of which are dated, no

mention whatsoever is to be found of the March 11 inci-

dent nor is there any mention of a reprimand being

given to Cole resulting from his alleged ungentleman-

ly conduct in remarking about a fellow employee's un-

pressed clothing. The entries that appear in the many

pages of notes are of both lesser and greater triviality

than this incident. No explanation was offered as to

why no note was made by any of the three members of

the hierarchy that confronted Cole on this occasion.

Having this factor in mind, considering the fact that

the interrogation of Boutte and Wiebusch was largely

by excessively leading questions and neither of them

purported to give an account of what was said in the

meeting and considering also that Cole’s account,

which was in considerable detail, attributed to Rogers

many of the same points and positions made by

Rogers in his testimony in other regards and in his

letter to the employees, I credit Cole’s version.2

Cole also testified that about April 17 he had a con-

versation with C. M. Bradford, Respondent’s house

counsel, again in the office of Supervisor Wiebusch.

Neither Cole’s nor Bradford's account of this conver-

sation are very satisfactory. The General Counsel

specifically contends that Bradford in this conversa-

2 The General Counsel does not seek any order based on the

above conversation but adduced the evidence only to show

. Respondent's antiunion animus.

OT Met IR OUD.

15a

tion stated to Cole that if the Union won the election the

Company would not bargain. However on cross-

examination Cole indicated that in this part of the con-

versation what Bradford said or obviously meant was

that in the event the Union won the election he, Brad-

ford would not do the bargai::ing for the Company

because he was not a labor lawyer. This is consistent

with the fact that Bradford did not represent the Com-

pany in the instant proceeding or in the prior

representation case or unfair labor practice charge

proceeding. Similarly the General Counsel contends

that a statement allegedly made by Bradford “You

can't pick corn in a cotton patch” indicated a warning

that the Union could not achieve a raise in pay if they

won the election. However on cross-examination Cole

testified that Bradford said that he was a different type

of lawyer from the lawyer who represented Farah and

was not going to negotiate with the Union even if the

people would win the election. Cole testified “he was

not going to do it, because you can’t pick corn in a cot-

ton patch.” Clearly Bradford’s use of the quoted ter-

minology was expressive of the distinction he was

drawing between his own specialty and that of a labor

lawyer. Cole also testified that in this conversation

Bradford asked on two occasions how many cards the

Union had gotten signed. Bradford denies this com-

pletely. I make no findings either wy. Cole's

testimony concerning the interview was too confused

to warrant crediting him in this regard over the denia]

of Bradford.

On June 5, Cole stopped to talk to three of his fellow

employees arranging to go bowling after work and

then ‘vent to the water fountain where Clifford

Richard, the foreman over the employees to whom he

16a

had been talking met him and said “Aaron didn't

anyone talk to you about going to the back and talking

to Marks and help on the job, Cole answered that he

had been talked to. Richard then said “well we don’t

want you back there talking to nobody, you know we

just don’t want you back there.” Cole pointed out to

Clifford that he was not a supervisor and had no right

to tell him what to do, stating that at the representation

proceeding a few days before Rogers had taken the

position that Clifford Richard was not a supervisor.

Cole went back to his working area and was sent to

Wiebusch’s office where he was asked what had

happened by the water fountain. He told Wiebusch

what had happened and Wiebusch, pointing out that he

had been talked to before about talking to people on the

job, discharged him. An argument ensued and Cole left

the plant. Cole’s testimony regarding this incident is

substantially the same as that of Wiebusch, Richard

and Pete Boutte who was present except that Boutte

and Wiebusch both testified that Wiebusch mentioned

that in the discharge interview that Cole was being

discharged among other things for his poor produc-

tion and high breakage as well as his general attitude.

Various company documents are in evidence

relating to Cole's discharge. In his personnel file is a

copy of a termination notice addressed to the per-

sonnel department seeking a replacement for Cole.

The reason for leaving was stated: “Discharged for

leaving his work and talking to other employees

interrupting their work.’ On another document en-

titled “Individual Personnel Record, under date of

6/5/71, is the statement” discharged for going in

another work area and talking to other employees

while he was supposed to be working.” The personnel

17a

file contains a memorandum from Wiebusch, undated,

and the only memorandum typed in the personnel file,

stating the story substantially as Cole testified but ad-

ding that he reminded Cole that he had been talked to

several times about disrupting work in other areas, in

his own area, and about his low production. “and I told

him that since it looked like he just would not

cooperate he was being discharged for misconduct.”

There is no testimony as to when this document was

written. Pete Boutte, in his initial affidavit, stated that

during the discharge conversation neither Wiebusch

nor Boutte mentioned his low production, however he

changed his testimony on the witness stand and then,

asked to explain, said “In thinking it over later, there

is a possibility Mr. Wiebusch may have mentioned

production, like I say, I am almost sure he did.”

Wiebusch testified consistently with his written

memorandum that he mentioned production when the

discharge was consummated. I do not believe him nor

do I believe Boutte’s afterthought at the hearing. I con-

clude and find that Cole was discharged because he

was talking to employees during his working time.

After the May 28 abortive hearing at which Respon-

dent signed a settlement agreement Rogers took it on

himself to make a speech to the employees explaining

that Respondent had not been found guilty of doing

anything wrong. It was apparently during this speech

that Rogers announced that employees would not be

permitted to talk during working hours and told them

that they should concentrate on their work, build up

production and cut down on errors and breakage. The

next day Cole was spoken to by his supervisors for

talking to other employees, something he had always

done and had frequently been reprimanded for. The

18a

Genera! Counsel contends that the rule is violative in

its inception and is further violative in that it was en-

forced in a discriminatory manner. I find nothing

violative about the promulgation ofthe rule. Itis clear

that there had been a rule in effect, if not strictly en-

forced, requiring employees to be attentive to their

work and Rogers’ announcement was no more than a

reiteration of it in contemplation of the union organiz-

ing campaien.

The General Counsel adduced evidence that antiun-

ion employees including Ernestine Alfaro, Pat Cruz,

Billie Ashworth and Julius Stewart all carried on con-

versations away from their work stations and in the

presence of Supervisors Huey Fredieu in the first in-

stance and Blackie Boutte in the second instance

without comment from the supervisors. Indeed

Respondent produced no evidence to the contrary

other than the testimony of the supervisors that they

recalled no such incident.

I find that Cole's discharge was discriminatory and

violative of Section 8(a)(3) of the Act. Clearly he wasa

difficult employee, arrogant and outspoken on occa-

sion and quick to defend what he conceived to be his

rights. Equally clearly he was not discharged because

of his low production or high breakage. This had been

a continuing situation for all of the 5 years for which

he worked for Respondent and obviously had not been

sufficient to cause Respondent to discharge him until

he evidenced interest in the union organizational

movement. The sole occasion of his discharge was his

conversation with other employees and his challenge

to Foreman Richard that Richard was nota supervisor

in the eyes of Respondent.

19a

I find that although nonunion employees were per-

mitted to circulate and converse without hindrance or

reprimand from supervisors who had to be aware of

their activities, similar activities on the part of Cole

led to his immediate discharge within a few days of

partner Victor Rogers’ announcement that the rule

would be enforced. A no-solicitation rule of this nature

can remain valid only if it is enforced without dis-

crimination. Here in the face of discriminatory en-

forcement the rule is rendered invalid and Cole's dis-

charge for the breach thereof violates Section 8(a)(3)

and (1) of the Act

The Discharge of Rejenia Cagle

Rejenia Cagle had been denied a raise because of

poor production.‘ Miss Cagle was informed that if she

improved her production she would be considered

again for a raise; she worked hard and improved her

production and the raise was not immediately

forthcoming so she contacted Victor Rogers and com-

plained that although she was doing her work she had

not received the raise whereas other employees were

not making sufficient production and had been givena

3 The General Counsel moved to strike Respondent's Exh. No. 4

on the ground that acondition subsequent to its receipt i.e., perusal

of the original record by the General Counsel was not fulfilled. In

the light of the discussion above it appears that the Exhibit, an ac-

cumulation of production and breakage records of Aaron Cole, is

immaterial to the issue of his discharge. Accordingly and for this

reason the General Counsel's motion to withdraw my receipt of the

Exhibit is granted.

4 It is noteworthy that although Aaron Cole was allegedly dis-

charged for poor production going back over a period of 4 years

there is no evidence that he was ever denied a raise because of that

and indeed he had been given a raise within a few months of his dis-

charge.

20a

raise. Rogers intervened on her behalf and she was

given a raise.

The day after Aaron Cole’s discharge Victor Rogers

held a meeting at which he made a speech to the

employees stating among other things that Aaron

Cole had been discharged because he was not doing his

work. Rogers then addressed Miss Cagle during the

meeting stating “isn’t that right Miss Cagle,” she did

not reply. He again called for a reply and a third time

and Miss Cagle said she had no comment. Cagle then

asked Rogers why he was calling her name in a speech

in front of all the other employees and Rogers explain-

ed that he had received a telephone call from her in

which she asked why she had not received her raise.

Cagle pointed out this was none of the others

employees’ business and he should not tell them about

this matter in his speech. After Rogers concluded his

speech Cagle confronted him in the employee

lunchroom and demanded to know why he had em-

barrassed her. He told her that he had expected her to

support him in what he was saying about Aaron Cole.

She told him that she considered that what he was say-

ing about Aaron Cole was a lie and an argument en-

sued in which she apparently told him that everything

he said in his speech was a lie. She was immediately

discharged. The General Counsel contends that the

discharge of Cagle violated Section 8(a)(3) of the Act.

The General Counsel argues c.ily that in light of

Respondent's history of antipathy toward the Union it

is obvious that Cagle was discriminatorily terminated

because of her union activity. It is obvious to me that

she was terminated because she challenged the

statements made by Rogers in his speech to the

employees and offended him by letting him and ap-

2la

parently other employees know that she did not

believe him. This is not acase as in Prescott Industrial

Products Company,® or Leece-Neville Company,® in

which employees interrupted an employer's antiun-

ion meeting to debate assertions made by the

Employer. The speech was not in the first place shown

to be antiunion in character other than Rogers’ self-

serving declaration that Aaron Cole was discharged

for cause. Miss Cagle’s objection was to her being

singled out and what she reasonably considered to be

her personal business being aired before the

employees by Rogers. I know of no law that requires

an emplover to extend to the employees the same level

of gentility that the Employer attempts to exact from

his employees. It is not an unfair labor practice for an

employer to embarrass an employee before his fellow

employees except with regard to the employee's union

activities. There is no showing that Rogers’ em-

barrassment of Rejenia Cagle on this occasion had

anything to do with her union agfivities or his antiun-

ion campaign. I find no violation implicit in this

rather unpleasant episode and I shall recommend that

the complaint be dismissed insofar as it is alleged to

be a violation.

The Discharge of Marie Cash

Marie Cash was a strong union adherent. She was

the first employee of Respondent to wear T-shirts dis-

tributed by the Union bearing in large letters the cap-

tion, VOTE UNION. She was seated in the lunchroom

on June 13 during the morning coffeebreak wearing

5 205 NLRB No. 15.

6 159 NLRB No. 293.

22a

her union T-shirt facing, at the next table, three

employees, Beverly Deculus, Alice Horne and Gwen-

dolyn Reeves. According to Miss Cash’s testimony

she saw Deculus look at her and heard her say “Why

don’t you send that damn Frenchman back to France,”

Cash replied “What about you, coon ass.” Deculus left

the room and Cash called after her “coon ass trash.”

Another employee, Nettie Stanford then told Cash as

she was leaving the room that she objected to her us-

ing the term “coon ass trash” and did not want to hear

her use it again because she, Nettie Stanford was a

coon ass too.” According to the testimony of Deculus

what Cash said was “you better shut your mouth, you

damn coon ass.’ Horne and Reeves testified in exactly

the same words as Deculus. Stanford who appears to

have been the only neutral person in the party, other

than having objection to the use of the word trash in

connection with the expression coon ass, testified in

agreement with Cash that that was the expression

used. Although Deculus, Horne and Reeves all agreed

in testifying that Cash said “you better shut your

mouth,” they also agreed that Deculus had said

nothing. I do not credit them. I do credit Cash.

There is no question that Respondent had a strong

policy against “ungentlemanly” and “unladylike”

language in the plant. The policy was obviously

designed to reduce toa minimum the possible bad feel-

ing among employees. However, evidence adduced by

the General Counsel reveals that in the past warnings

7 It appears that coon ass is a term used among the Cajuns in

Louisiana from which each of these employees came. The term

itself is not considered approbrious, Stanford testified that it was

the addition of the word “trash” that made it approbrious because

trash was like garbage, something that you threw away.

23a

were given to employees and discharge was not the

immediate outcome. For example Cash had in the re-

cent past been called a bitch by another employee,

identified only as Olive, and no steps had been taken

against Olive. Another employee, Shirley Strother.

testified that when a fellow employee, Sharon Watson,

called her a “pimple faced bitch” Sharon Watson was

not discharged but was warned and moved to a

different part of the plant to separate her from

Strother, she was neither suspended nor terminated.

Shortly after the incident in the lunchroom, Cash

was called into Wiebusch’s office where she explained

what had happened. During the course of the meeting

Stanford came into the office and repeated her in-

dignation at the fact that Cash had used the expression

‘coon ass trash.” Stanford told Wiebusch at this time

that as she was descended from a Fre=chman and she

was herself a coon ass but objected co being called

trash. Wiebusch asked Cash if she thought the term

was dirty and Cash said that it was not, whereupon

Wiebusch said he was going to suspend Cash. Cash

asked Freddie Fredieu, her supervisor who was pres-

ent why nothing had been done about Olive when she

called Cash a bitch. Wiebusch intervened and told

Cash that she was suspended to give her time to think

about it and they would call her. Cash left the room

crying, pausing at the door and said “don't bother.’ No

one ever called her; Respondent contends that she

quit.

It is clear that Cash was a strong union adherent and

everybody knew it. It is equally clear that Beverly

Deculus was strongly antiunion, indeed she and her

two friends Reeves and Horne at the time of the con-

24a

versation in the lunchroom were planning the

purchase of the plastic straw hats which they propos-

ed to wear with “Vote No” or “Support Rogers

Brothers” signs on them. Respondent offers no ex-

planation for the difference in its reaction to Cash’s

unladylike conduct and its reaction to the conduct of

Olive and Sharon Watson. The only inference to be

drawn therefore is that the difference in treatment

resulted from the union status of Cash and

Respondent's demonstrated antiunion animus. I con-

clude and find that Respondent's action in suspending

Marie Cash was discriminatorily motivated and

violated Section 8(a)(3) and (1) of the Act. Under the

circumstances I do not believe that Respondent should

be entitled to escape the consequences of its unlawful

act by withholding further employment from Cash,

who testified that she wants to go back to work for

Respondent, because in her anger and dismay at her

discriminatory suspension she told Respondent not to

bother to call her. Accordingly, I shall recommend

that Respondent offer her reinstatement with

backpay.

The Handbilling Incidents

On two occasions within a week before the election,

antiunion handbills were distributed at the door by an

informally organized group of antiunion employees.

Respondent's laboratory fronts on a main business

street in Beaumont, Texas, and physically abuts the

sidewalk. Pictures of the site reveal that a bus stop is

located a few feet to the right of Respondent's building

as one faces the door. It appears that on occasion hand-

bills were being distributed both by prounion and the

antiunion employees. During the distribution which

took place at the noon hour, various members of

—_

Respondent’s supervisory force came out on the

sidewalk and stood among the handbilling employees,

either leaning against the building or standing around

reading handbills and watching the proceedings. With

one exception there is no evidence that any of the

supervisors actually distributed any handbills. The

one exception is found in the testimony of Aaron Cole

that Supervisor Kennette handed him a handbill on

one occasion as Cole was entering Respondent's

laboratory.

A number of pictures were taken of the handbilling,

they disclose the presence of various supervisors.®

There is no evidence that any of the supervisory

employees had anything to do with drafting the hand-

bills or having them printed, nor that they exercised

any control, advisory or otherwise, over the

employees who distributed them. The only color to the

General Counsel's argument is that by their presence

among the employees distributing the handbills, they

8 Respondent contends that its foremen are not supervisors

arguing that the foremen have no authority independently to hire

or fire or to grant raises. However the foremen have the actual day

to day supervision of the employees working under them. They do

not punch timeclocks, they attend supervisory meetings, they,

together with the higher echelons of supervisors, were present at

the meeting at which Respondent's counsel! advised supervisors

concerning their rights and duties during the organizing cam-

paign and it is to them that the employees report in cases of

absence, tardiness, etc. The foremen apparently do no production

work, they assign employees and reassign them when the occa-

sion arises, they warn and discipline employees and at least as far

as the record herein shows their threats of disciplinary action are

normally carried out. I find that they are supervisors within the

meaning of the Act.

26a

tacitly indicated their approval of the nonunion

employees activities.®

I find nothing in the evidence suggesting that the

handbilling had a tendency to interfere with, restrain

or coerce employees in the exercise of their protected

rights. To the extent that the presence of the super-

visors lent an aura of approval to the activities of the

nonunion employees, this could scarcely have been a

surprise to any viewer who had taken the time to read

Victor Rogers’ 11 page campaign letter which clearly

disclosed Respondent's antiunion stature. I recom-

mend that the complaint be dismissed insofar as it

alleges that the supervisors “authorized, ratified, con-

doned and participated in the distribution” of the

leaflets.

The General Counsel also alleges that the incident

where Victor Rogers singled out Rejenia Cagle during

his speech to the employees violated Section 8(a)(1).

As I pointed out in my discussion of the discharge of

Miss Cagle I iird nothing in the incident that has a

tendency to interfere with any employee rights.

Similarly the General Counsel contends that im-

mediately prior to the Board ccnducted election Victor

Rogers addressed himself to the employee who was

acting as observer for the Union and stated “don’t you

think you would be doing a better job making lenses

than being here as an observer — well you do a good

job.” Again I find nothing coercive or calc, ‘ated to in-

terfere with, or restrain employees in Victor Rogers’

9 One of the pictures shows Foreman Foreman holding a white

hatin front of his face. There is no identification of the white hatas

hbeing identical to those worn by the handbill distributing

employees or containing any legend as did the others.

a

27a

language, I recommend that these allegations of in-

dependent violations of Section 8(a)(1) te dismissed.

IV. The Effect of the Unfair Labor

Practices upon Commerce

The activities of Respondent set forth in section III,

above, occurring in connection with its operations

described in section I, above, have a close, intimate

and substantial relationship to trade, traffic, and com-

merce among the several states and tend to lead to

labor disputes burdening and obstructing commerce

and the free flow thereof.

Conclusions of Law

1. Rogers Brothers Wholesalers is an employer

engaged in commerce within the meaning of Section

2(6) and (7) of the Act.

2. Oil, Chemical and Atomic Workers Inter-

national Union and its Local 4-243, AFL-CIO, is a labor

organization within the meaning of Section 2(5) of the

Act.

3. By discharging Aaron Cole and by suspending

Marie Cash, Respondent discriminated with regard to

the hire and tenure and terms and conditions of

employment of its employees, thereby discouraging

membership in a labor organization, thereby engag-

ing in unfair labor practices affecting commerce

within the meaning of Section 8(a)(3) and by the same

acts and conduct, interfered with, restrained and

coerced its employees in the exercise of the rights

28a

guaranteed them by Section 7 of the Act in violation of

Section 8(a)(1) of the Act. a

4. The aforesaid unfair labor practices affect com-

merce within the meaning of Section 2(2), (6) and (7) of

the Act.

The Remedy

Having found that Respondent has engaged in cer-

tain unfair labor practices, I shall recommend that it

cease and desist therefrom and take certain affir-

mative action designed to effectuate the policies of the

Act. Having found that Respondent has discriminated

with regard to the hire and tenure of Aaron Cole and

Marie Cash, I shall recommend that Respondent offer

them reinstatement to their former jobs, or if those

jobs no longer exist to substantially equivalent jobs

and make them whole for any loss of earnings they

may have suffered as a result of the discrimination

against them by payment to them of sums of money

equal to those which they normally would have earned

from the date on which they were discriminated

against until the date of the valid offer of reinstate-

ment less net earnings during such period to be com-

puted in the manner prescribed in F. W. Woolworth

Company, 90 NLRB 2839, and with interest as described

in Isis Plumbing and Heating Co., 138 NLRB 716.

Upon the basis of the foregoing findings _f fact, con-

clusions of law and the entire record in this

proceeding and pursuant to Section 10(c) of the Act, I

hereby issue the following recommended:!°

ORDER

The Respondent Rogers Brothers Wholesalers, its

officers, agents, successors and assigns shall:

1. Cease and desist from:

(a) Discouraging membership and activities on

behalf of Oil, Chemical and Atomic Workers Inter-

national Union and its Local 4-243, AFL-CIO, or any

other labor organization by discriminating in regard

to the wages, hours and working conditions of their

employees because of their activities on behalf of said

labor organization.

(b) In any like or related manner interfering

with, restraining or coercing their employees in the

exercise of their rights to self-organization, to form,

join or assist any labor organization, to bargain

collectively through representatives of their own

choosing, to engage in any other concerted activities

for the purpose of collective bargaining or other

mutual aid or to refrain from any or all such activities.

2. Take the following affirmative action which is

designed to effectuate the policies of the Act:

10 In the event no exceptions are filed as provided by Section

102.46 of the Rules and Regulations of the National Labor Rela-

tions Board, the findings, conclusions, and recommended Order

herein shall, as provided in Section 102.48 of the Rules and Reg-

ulations, be adopted by the Board and become its findings, con-

clusions, and Order, and all objections thereto shall be deemed

waived for all purposes.

30a

(a) Offer to Aaron Cole and Marie Cash im-

mediate and full reinstatement to their former jobs or

if such jobs no longer exists to substantially

equivalent jobs and make them whole in the manner

set forth in the section of this Decision entitled “The

Remedy.”

(b) Preserve and upon request, make available to

the Board or its agents for examination and copying

all payroll records, social security payment records,

timecards, personnel records and reports and all other

records necessary to analyze the amount of backpay

due under the terms of this recommended Order.

(c) Post at its laboratory in Beaumont, Texas,

copies of the attached notice marked “Appendix.”’!!

Copies of said notice on forms provided by the

Regional Director for Region 23, after being duly

signed by its representative, shall be posted by

Respondent immediately upon receipt thereof and be

maintained by it for 60 consecutive days thereafter in

conspicuous places, including all places where

notices to employees are customarily posted. Rea-

sonable steps s)all be taken by Respondent to ensure

that said notices are not altered, defaced or covered by

any other material.

(d) Notify the Regional Director for Region 23, in

writing, within 10 days from the date of this Order

what steps Respondent has taken tocomply herewith.

11 In the event that the Board's Order is enforced by a Judgment

of a United States Court of Appeals, the words in the notice read-

ing “POSTED BY ORDER OF THE NATIONAL LABOR

RELATIONS BOARD” shall be changed to read “POSTED PUR-

SUANT TO A JUDGMENT OF THE UNITED STATES COURT OF

APPEALS ENFORCING AN ORDER OF THE NATIONAL

LABOR RELATIONS BOARD.”

A I oe Os ae A CER

3la

With regard to those allegations in the complaint

that I found no violation proven, I recommend that

they be dismissed.

Dated at Washington, D.C.

/s/ PAUL E. WEIL

Paul E. Weil

Administrative Law Judge

APPENDIX

NOTICE TO

EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency Of The United States Government

After a trial at which all sides had the opportunity to

present their evidence, an Administrative Law Judge

of the National Labor Relations Board has found that

we violated the Nationa! Labor Relations Act, and has

ordered us to post this notice and to keep our word

about what we say in this notice.

The Act gives all employees these rights:

To engage in self-organization;

To form, join or help unions;

To bargain collectively through a represen-

tative of their own choosing:

Dated By

(Representative) (Title)

32a

To act together for collective bargaining or

other mutual aid or protection; and

To refrain from any and all these things.

WE WILL NOT do anything that interferes

with these rights.

More specifically,

WE WILL NOT discourage membership in Oil,

Chemical and Atomic Workers International

Union and its Local 4-423, AFL-CIO, or any

other labor organization by discriminatorily

discharging or suspending any employee

because of his activities on behalf of said labor

organization.

WE WILL reinstate Aaron, Cole and Marie

Cash, to the jobs they formerly held or if these

jobs no longer exist, to substantially

equivalent jobs and WE WILL make them

whole for any loss of pay they may have suf-

fered as a result of our discrimination against

them by payment to them of the amount of

money they lost as a result of our action.

ROGERS BROTHERS

WHOLESALERS

(Employer)

ee Ne ee ne ~

33a

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE

DEFACED BY ANYONE

This notice must remain posted for 60 consecutive

days from the date of posting and must not be altered,

defaced, or covered by any other material. Any

questions concerning this notice or compliance with

its provisions may be directed to the Board's Office,

One Allen Center, 500 Dallas Avenue, Suite 920,

Houston, Texas 77002. Telephone (713) 226-4296.

Beaumont, Texas

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

ROGERS BROTHERS WHOLESALERS

and Cases 23-CA-5143

23-CA-5143-2

OIL, CHEMICAL AND ATOMIC WORKERS

INTERNATIONAL UNION AND ITS

LOCAL 4-243, AFL-CIO

ORDER CORRECTING DECISION AND ORDER

On June 2. 1975, the Nationa! Labor Relations Board

issued a Decision and Order in the above-entitled

proceeding.!

1 218 NLRB No. 19.

34a

I'l IS HEREBY ORDERED that said Decision and

Order be, and it hereby is, corrected by striking the

phrase ‘and to keep our word about what we say inthis

notice” from the first paragraph of the “Appendix”

and substituting therefor the following phrase: ‘and

we intend to carry out the Order of the Board and abide

by the following:”’

IT IS FURTHER ORDERED that the Decision and

Order, as printed, shall appear as hereby corrected.

Dated, Washington, D.C., July 15, 1975.

By direction of the Board:

George A. Leet

Associate Executive Secretary

35a

APPENDIX “B”

NATIONAL LABOR RELATIONS

BOARD, Petitioner-Cross

Respondent,

versus

ROGERS BROTHERS WHOLESALERS,

Respondent-Cross Petitioner.

No. 75-2956

Summary Calendar.”

United States Court of Appeals,

Fifth Circuit.

Jan. 22, 1976.

Application for Enforcement and Cross Application

for Review of an Order of the National Labor Relations

Board (Texas Case).

Before GEWIN. GOLDBERG and DYER, Circuit

Judges.

PER CURIAM:

This case arises upon the petition of the National

Labor Relations Board seeking enforcement of the

* Rule 18, 5th Cir.: see Isbel] Enterprises, Inc. v. Citizens Casual-

ty Co. of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I.

36a

decision and order of tne Board, which, among other

things,' ordered the reinstatement with back pay of

two suspended employees of respondent. Respondent

contends that there is no substantial evidence to sup-

port the findings and conclusions of the NLRB.2

The administrative law judge found, among other

things, that respondent's discharge of Aaron Cole and

its indefinite suspension of Marie Cash? were dis-

criminatory and unfair labor practices within the

meaning of § 8(a)(3)* of the National Labor Relations

Act and interfered with § 7 rights of its employees, in

violation of § 8(a)(1)° of the act. The law judge’s order

that Cole and Cash be reinstated with back pay and

that respondent terminate its anti-union activities

was adopted® by the Board.

1 The Board ordered respondent to cease and desist from dis-

couraging union membership, discriminatorily enforcing its no-

solicitation rule and from interfering with the right of self-

organization in any manner. Certain policing measures were also

ordered. The Board's order substantially adopted that entered

earlier by the administrative law judge. except that it added the

paragraph forbidding discriminatory enforcement.

2 Respondent devotes less than two pages of its 56 page brief to

an assertion that the administrative law judge erred in overruling

its motion to strike an order of consolidation and in allowing the

complaint to be amended. This contention is based on reasoning

that an earlier informal settlement for a consent election was,

effectively, res judicata with respect to the Board's claims. This

argument is devoid of merit; the unlawful activities here involved

occurred after the settlement agreement.

3 The judge also concluded that the termination of one Rejenia

Cagle was not violative of the act and dismissed the complaint as

to this alleged violation. This dismissal has not been challenged

by the NLRB.

4 29 U.S.C. § 158(a)(3).

5 Id. at (a)(1).

6 With a minor change not here relevant. see note 1, supra.

a ee ee

37a

It is our conclusion that, although the evidence is in

sharp conflict, this case involves credibility

judgments that are best resolved by the trier of fact

and the agency that possesses expertise in this area.

Accordingly, since there is substantial evidence to

support the findings, conclusions and order of the

Board, and no other reasons having been shown to dis-

establish the validity of these actions, the order is due

to be enforced. See, e. g., Bowman Transportation, Inc.

v. Arkansas Best Freight System, Inc., 419 U.S. 281, 95

S.Ct. 438, 42 L.Ed.2d 447, 454-55 (1974); Universal

Camera Corp. v. NLRB, 340 U.S. 474, 485-86, 71 S.Ct.

456, 463, 95 L.Ed. 456, 466-67 (1951); NLRB v. Pear!

Bookbinding Co., 517 F.2d 1108, 1112 (1st Cir. 1975);

NLRB v. R. L. Sweet Lumber Co., 515 F.2d 785, oe

Cir. 1975). Since responder AOL 6 ROME ak

mitigate damages by either Cole or Casb-Tein-

statement with back pay, until the date alid offers

to reinstate less net earnings, was - aeasar Com-

pare J. H. Rutter Rex Ma ficturing Co. v. NLRB, 473

F.2d 223, 230-31, 241-42 (5th Cir.), cert. denied, 414 U.S.

822, 94 S.C 0, 38 L.Ed.2d 55 (1973), with NLRB v.

Soutberfi Greyhound Lines, 426 F.2d 1299, 1303-04 (Sth

as s o

C7 ; v *

Enforced. ‘

38a

APPENDIX “C”’

NATIONAL LABOR RELATIONS

BOARD, Petitioner-Cross

Respondent,

Vv.

ROGERS BROTHERS WHOLESALERS,

Respondent-Cross Petitioner.

No. 75-2956

Summary Calendar.*

United States Court of Appeals,

Fifth Circuit.

March 29, 1976.

Applications for Enforcement of an Order of the

National Labor Relations Board.

4

(Opinion January 22, 1976, 5th Cir. 1976, 526 F.2d 354)

Before GEWIN, GOLDBERG and DYER, Circuit

Judges.

PER CURIAM:

Upon consideration of the motion of petitioner-cross

respondent for modification of the opinion rendered

January 22, 1976, the following on page 1321 of the slip

opinion [page 355 of 526 F.2d] is deleted:

Since respondent did not show any failure to

mitigate damages by either Cole or Cash, rein-

statement with back pay, until the date of valid of-

fers to reinstate less net earnings, was ap-

Rule 18,5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty

Co. of New York et al.. 5 Cir., 1970, 431 F.2d 409, Part I.

ee

39a

propriate. Compare J. H. Rutter Rex Manufactur-

ing Co. v. NLRB, 473 F.2d 223, 230-31, 241-42 (Sth

Cir.), cert. denied, 414 U.S. 822, 94 S.Ct. 120, 38

L.Ed.2d 55 (1973), with NLRB v. Southern Grey-

hound Lines, 425 F.2d 1299, 1303-04 (5th Cir. 1970).

The issue addressed by that statement was not square-

ly before the court in this proceeding, which involved

enforcement of the Board's order. The opinion in all

other respects remains unchanged.

APPENDIX “D”’

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

Vv. No. 75-2956

ROGERS BROTHERS WHOLESALERS,

Respondent.

JUDGMENT

Before: GEWIN, GOLDBERG and DYER, Circuit

Judges.

THIS CAUSE was submitted upon an application of

the National Labor Relations Board for enforcement of

a certain order issued by it against Respondent,

Rogers Brothers Wholesalers, Beaumont, Texas, its

officers, agents, successors, and assigns on June 2,

40a

1975, as corrected, July 15, 1975 and upon a petition

filed by the above-named Respondent to review the

Board's said order, as corrected. The Court, having

carefully considered the briefs and transcript of

record filed in this cause, and being fully advised in

the premises, and having determined the case ap-

propriate for summary disposition without oral argu-

ment, on January 22, 1976, handed down its decision

granting enforcement of the Board's order, as cor-

rected. In conformity therewith it is hereby

ORDERED AND ADJUDGED by the United States

Court of Appeals for the Fifth Circuit that the said

order, as corrected, of the National Labor Relations

Board in said proceeding be enforced, and that the

Respondent, Rogers Brothers Wholesalers, Beau-

mont. Texas, its officers, agents. successors, and

assigns, abide by and perform the directions of the

Board in said order, as corrected. contained.

ENTERED: FEB. 13, 1976

ee ee

es

4la

APPENDIX “E”’

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 75-2956

NATIONAL LABOR RELATIONS BOARD.

Petitioner,

versus

ROGERS BROTHERS WHOLESALERS,

Respondent.

On Application for Enforcement of an Order of the

National Labor Relations Board

MOTION FOR REHEARING BY

ROGERS BROTHERS WHOLESALERS

ADAMS & BROWNE

GOODHUE BUILDING

BEAUMONT. TEXAS

BY: GILBERT T. ADAMS

ATTORNEYS FOR

RESPONDENT

42a

INDEX OF SUBJECT MATTER

GROUNDS FOR REHEARING ..............

DISCHARGE OF AARON COLE ............

SUSPENSION OF MARIE CASH ...........

DISREGARD OF PRE-SETTLEMENT

TT

TTT

gt TT rere

INDEX OF AUTHORITIES

NATIONAL LABOR RELATIONS BOARD v

BIRMINGHAM PUBLISHING COMPANY,

262 F(2) 2, (Fifth Cir., 1959) ................

NATIONAL LABOR RELATIONS BOARD v

RUSSELL MANUFACTURING CO., 191

F(2) 358 (Fifth Cir. 1951) ...................

PEYTON PACKING COMPANY, 49 NLRB,

828, 843 (1943, enforced, 142 F(2) 1009(C.A.5,

1944) Cert. denied, 323 U.S. 730

TEXT

MC CORMICK AND RAY ON EVIDENCE,

Second Edition Vol. 1, Sec. 53

ee © © ee ee ee oe

~

43a

MOTION FOR REHEARING BY

ROGERS BROTHERS WHOLESALERS

TO THE HONORABLE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT:

Within the time prescribed this motion for rehearing

by Rogers Brothers Wholesalers is presented to the

Court.

GROUNDS FOR REHEARING

1.

THIS HONORABLE COURT ERRED IN FINDING

AND HOLDING THAT RESPONDENT'S DIS-

CHARGE OF AARON COLE AND ITS SUSPENSION

OF MARIE CASH WERE DISCRIMINATORY AND

UNFAIR LABOR PRACTICES WITHIN THE MEAN-

ING OF SECTION 8(a) (3) OF THE ACT, AND IN-

TERFERRED WITH SECTION 7, RIGHTS OF ITS

EMPLOYEES IN VIOLATION OF SECTION 8&(a) (1),

OF THE ACT.

2.

THIS HONORABLE COURT ERRED IN AFFIRM-

ING THE BOARD AND SUSTAINING THE AD-

MINISTRATIVE LAW JUDGE WEIL’S PERMISSION

OVER OBJECTION, TO ALLOW GENERAL

COUNSEL’S AMENDED COMPLAINT ADDING

PARAGRAPHS 8, 9, 10, 11 and 12, ON THE DAY OF

THE TRIAL, THUS PERMITTING THE GENERAL

COUNSEL TO LITIGATE MATTERS WHICH HAD

t4a

BEEN SETTLED AND WHICH SETTLEMENT WAS

APPROVED BY ADMINISTRATIVE LAW JUDGE

JOHNSON AND WHICH JUDGE JOHNSON REFUS-

ED TO SET ASIDE, AND THEREBY. THE AD-

MINISTRATIVE LAW JUDGE WEIL PERMITTED

EVIDENCE OF PRE-SETTLEMENT ALLEGED

WRONGDOINGS, WHICH JUDGE WEIL RULED

WAS PERMITTED SOLELY TO SHOW ANIMUS.

THEREBY DISREGARDING VALIDLY ENTERED

AND AGREED TO PRIOR SETTLEMENT AGREE-

MENT ON THE VERY CHARGES EMBRACED IN

THE AMENDMENT, WHICH IS A VIOLATION OF

PUBLIC POLICY OF ENCOURAGING

SETTLEMENTS.

STATEMENT AND ARGUMENT

DISCHARGE OF AARON COLE

This Court in its opinion stated: “It is our conclusion

that, although the evidence is in sharp conflict, this

case involves credibility judgments that are best

resolved by the tryer of facts, and the agency that

possesses expertise in this area. Accordingly, since

there is substantial evidence to support the findings,

conclusions and order of the Board, and no other

reasons having been shown to dis-establish the validi-

ty of these actions, the order is due to be enforced.”

There may be “sharp conflict” as to the evidence

regarding the items embraced in the settle: ent agree-

ment, which was entered into long prior to the acts

complained of in the charge presently before the

Court, there is, for all practical purposes, no conflict

in the evidence as to what was the occasion for the dis-

charge of Cole and the suspension of Marie Cash.

ied

45a

The discharge of Aaron Cole was because he was,

and persisted in being, and continuing in the conduct

and attitude that the Law Judge found him guilty of

and expressly so stated. Not only is the evidence on

this question undisputed, but the Administrative Law

Judge Weil found him guilty of it.

Judge Weil found, after hearing the employee Cole

testify that:

“Apparently, from the inception of his

employment, Mr. Cole was an erratic

employee. While he missed very few days of

work, he was occasionally tardy, both in

reporting to work in the mornings and after

coffee breaks and luncheon breaks. His

production was never completely satisfac-

tory, and his breakage (of expensive eyewear)

was high. (Parenthesis added.) In addition, Mr.

Cole was talkative, flippant and occasionally

argumentative, none of them qualities par-

ticularly prized by respondent's hierarchy.”

Then the opinion by Judge Weil sets forth various

conversations; particularly the one of March 11th,

which occurred before the settlement agreement and

was settled by the settlement agreement and then con-

cludes on page 17a, lines 20-22 as follows:

‘‘] conclude and find that Cole was discharged

because he was talking to employees during

his work time.”

46a

There was a rule against talking during work time.

As held by the Board long, long ago, ‘working time is

for work.” PEYTON PACKING COMPANY, 49 NLRB

828, 843 (1943), enforced, 142 F(2) 1009 (C.A. 5, 1944),

Cert. denied, 323 U.S. 730.

There was a rule against talking during work time,

which rule had been in force fora long time and recent-

ly reiterated and re-emphasized.

Judge Weil found, page 18a of his opinion, line 3

through 9, as follows:

“I find nothing violative about the promulga-

tion of the rule. It is clear there had been arule

in effect, if not strictly enforced, requiring

employees to be attentive to their work and

Rogers’ announcement was no more than a

reiteration of it in contemplation of the un-

ion’s organizing campaign.’

Therefore, to this point we have a finding that Cole

was talking during work time’in violation of the rule:

so we then come to the question of whether or not this

rule was discriminatorily enforced in violation of Sec-

tion 8(a) (3) of the act.

Administrative Law Judge Weil found, page 18a of

this opinion, line 23, that:

“Clearly he was a difficult employee, arrogant

and outspoken on occasions and quick to de-

fend what he conceived to be his rights.”

47a

And then at line 32, page 18a, of Judge Weil’s opin-

ion he finds:

“The sole occasion of his discharge was his

conversation with other employees and his

challenge to Richard Foreman that Richard

was ‘not a supervisor in the eyes of respon-

dent.”

After the above, then Law Judge Weil found, page

19a, line 1, as follows:

“I find that although non-union employees

were permitted to circulate and converse

without hinderance or reprimand from super-

visors, who had to be aware of their activities,

similar activities on the part of Cole led to his

immediate discharge within a few days of

partner Victor Rogers’ announcement that the

rule would be enforced.”

This is the crux of this case. WAS THERE ANY

EVIDENCE OF DISCRIMINATORY ENFORCE-

MENT OF THE “NO TALKING” RULE?

Respondent, Rogers Brothers, urges this Court to

carefully consider that the only evidence in this case

of such alleged non-union employees being permitted

to converse without hinderance or reprimand from

supervisors is that evidence set forth by general

counsel, page 4, of his brief, first paragraph begin-

ning line 8, as follows:

48a

“Employees Billy Ashworth and Julia

Stewart, both of whom were wearing ‘non-

union badges’, discussed the union while

standing less than 2 feet from supervisor

Blackie Boutte (Tr. 312-313); and Ernestine

Alfaro conversed with Pat Crews and gave her

a badge while in the presence of supervisor

Fredieu.” (Tr. 307-308).

Bear in mind that the immediately above quoted por-

tion of general counsel's brief is all of the evidence.

Now, let us analyze this witness’ testimony.

First, it is not shown that there is any evidence that

supervisor Boutte was aware that Ashworth and

Stewart even had any kind of conversation. General

counsel's witness testified “I heard them mention

something about the union, but I don’t know exactly

what they said. Tr. 312, L. 21-22. Supervisor Boutte

testified, he “did not hear such conversation”. Tr. 527.

L. 21 to L. 1, p. 528. This occurred, if it did occur, in the

shop where employees were working and machines

running.

The fact that a witness testifies that she heard two

other employees in conversation, is not proof that

a supervisor heard any conversation or permitted a

violation of the “No Talking” rule. Genera! counsel's

witness, herself, could not hear the conversation and

the best she could come up with was that sh« heard just

the one word “union” mentioned by these two

employees.

Second, the other evidence that the general counsel

referred to in that one paragraph of page 4, contend-

49a

ing that the “no talking” rule was discriminatorily en-

forced is the incident when Ernestine Alfaro was sup-

posed to have conversed with Pat Crews and is sup-

posed to have given her a badge. The witness testified

she did not know what was on the badge — she said in

response to “Do you know what the badge had on it?”

“No, I don't.”” Tr. 307, L. 20-21.

The supervisor Fredieu was two or three feet away.

Tr. 308, L. 1-3. Fredieu testified, when asked if he re-

called (what else can a witness testify about except

what he recalls) such conversation, and he testified,

“No, sir, not to my knowledge.” Tr. 532, L. 18-23. Then,

he was asked if either of the girls exchanged badges,

he replied “No.” Tr. 532, L. 25 to L. 1, Tr. 533.

At this point, the Law Judge was moved to strike the

witnesses’ testimony because “obviously, her state-

ment was just an opinion and a conclusion, because

she testified she did not know what was on the badge

and therefore, she could not know what was on it.” Tr.

309, L. 6-10.

The evidence was undisputed that each employee, as

he or she reported for work had to pick up his or her

name plate and affix it to clothing in a prominent place

to wear during work hours. Tr. 408, L. 11-18.

The Law Judge in response to the motion to strike

the testimony recited above, stated:

“I won't exclude her testimony, counsel, but I

will certainly consider that, the fact that she

did not know what was on the badge. For all we

know, it might have been a name tag, right?”

50a

Tr. 308, L. 11-14.

Certainly, it might have been a name tag. The ladies

might have erroneously picked up each others name

tags that morning and after discovering the error ex-

changed the name badges. Or, it may have been some

other kind of badge that they had because no one

knows what was on the badge.

It is respectfully submitted that these two (2) in-

stances, and they are the only instances, of an alleged

discriminatory enfcrcement of the “No Talking” rule,

cannot, and do not constitute any evidence that

respondent discriminatorily enforced the “No Talk-

ing” rule.

The only evidence that respondent's supervisors

were aware Of either of these two isolated, momentary

incidents is that they were “near by” in the shop of

many employees and many operating machines.

Being nearby might be sufficient to raise a presump-

tion that the supervisor heard the incident or saw it but

this is not a irrebuttable presumption. This presump-

tion, if it reaches that status in the law of evidence, was

positively denied by each of the supervisors. This

denial wipes out the presumption, and general

counsel was obligated to come forward with proba-

tive evidence, and having failed to produce such

probative evidence there is no basis for a finding of

discriminatory enforcement of the “No Talking” rule

by respondents or its supervisors.

The rule governing this question, is stated in MC-

CORMICK AND RAY ON EVIDENCE, Second Edi-

Sla

tion, Vol. 1, Sec. 53, page 62, in discussing the various

views of the effect of presumptions, as follows:

‘However, the most widely accepted is the one

advocated by Thayer — namely that when fact

“A” is established the jury must find fact “B”

unless the opponent introduces evidence from

which a jury could reasonably find that “B”

did not exist. Or to put itas most Courts do, the

presumption places upon the party against

whom it operates the burden of producing

evidence sufficient to justify a finding of the

non-existence of the presumed fact. This view

was adopted by the American Law Institute in

its Model Code of Evidence, and is the estab-

lished rule in Texas. It has the distinct merit of

being easily understood and easily applied

during the trial of a case. Under this rule

. where the opponent produces sufficient

evidence to justify a finding against the pre-

sumed fact, the presumption vanishes and the

situation is the same as it would have been had

no presumption been created.”

Thus, in view of the facts that the alleged conversa-

tions, which, no one heard or was able to even give a

gist of, occurred in the midst of numerous people and

operating machines, the supervisors positively de-

nied knowledge of, destroyed this presumption that

respondent's supervisors permitted violation of the

“No Talking” rule, and discriminatorily enforced it.

The general counsel and the Board simply do not

have evidence of discriminatory enforcement of the

“No Talking” rule, and since this alleged dis-

52a

criminatory enforcement of the “No Talking” rule is

the sole basis for the Board's enforcement order, the

order should be overturned and should not be en-

forced and the discharge of Aaron Cole should be

sustained.

Thus, there is no evidence to sustain the finding of

discriminatory enforcement of the “No Talking” rule.

This Court has held in NATIONAL LABOR

RELATIONS BOARD v RUSSELL MANUFAC-

TURING CO., 191 F(2) 358 (Fifth Cir. 1951), and in

reversing the National Labor Relations Board at page

539, lower left hand corner of the page ruled as follows:

“An employee may resign, be discharged, be

promoted, or refuse reinstatement, for any

cause or no Cause at all, so long as it is not for

union activities. The Board has not shown that

the discharge in this case was for such union

activities. Its findings and conclusions

thereon are based on suspicion, not on sub-

stantial facts and legal evidence.”

Then, this Court in concluding its opinion on page

360. ruled as follows:

“It is apparent that the Board refused to accept

the positive, unimpeached and uncontradict-

ed testimony of the employer as to the real

reason for the demotions or resignations in-

volved. Such sworn testimony cannot be ar-

bitrarily disregarded on the assumption that

he was lying.”

53a

Bearing in mind that Cole refused training for another

position which was offered by the company, that he

was late, that he hai low production, high breakage in

expensive eye wear, that he was foul mouthed, that

according to his own testimony he was in for counsel-

ing nearly every other day, it is apparent thet he was

discharged because he should have been discharged.

There is'a limit on how long an employer should

attempt to bring around a recalcitrant, foul mouthed,

low production, high breakage employee who refuses

retraining and respondents had simply come to the

end of their rope.

Even the Good Book says God will not always wres-

tle with a man’s soul.

This Court also in NATIONAL LABOR

RELATIONS BOARD v BIRMINGHAM

PUBLISHING COMPANY, 262 F(2) 2, at page 8, (Fifth

Cir., 1959) headnotes 9 and 10 passed on a very similar

situation and reversed the holding of the Board.

This Court is not a Court to rubber stamp the Board's

findings, but to search out and determine whether

there is substantial evidence, and in this case there is

no substantial evidence; as a matter of fact, there is no

evidence and the instances given by the general

counsel do not constitute evidence of discr)minatory

enforcement of the “No Talking” rule.

SUSPENSION OF MARIE CASH

Again, adverting to the Court's statement that the

evidence is in sharp conflict we refer to Marie Cash's

situation. There is practically no dispute as to what

54a

happened. Marie Cash testified that she called the

other employee a coon-ass. The record shows and re-

spondent’s brief beginning page 37 sets forth the

detailed testimony of the conversation among the

girls and the first person to speak was Marie Cash who

referred to another gir] at another table as a coon-ass.

Other employees testified, employees who were no

way involved, that when the witness Deculus who was

referred to as a coon-ass left the room, Marie Cash

called out, “Go tell, you bitch”’.

Cash admitted she called Deculus “‘coon-ass trash”

Tr. 255, L. 20 to L 4, p. 256, Tr. 257, L. 20.

The testimony is clear that one of the employees was

in tears and remonstrating with another and it was

about to reach a hair-pulling and face slapping stage >

and something had to be done. The supervisor called

them in, talked to them about it. Cash admitted that she

had used this unbecoming and unladylike language in

violation of the printed rules of the company. In order

to keep the employees from coming to blows, and to

calm down the situation, the supervisor told Marie

Cash that he would have to investigate it and in the

meanwhile suspend her and would call her. There-

upon, she arose, turned on her heels and said “Don’t

bother”.

Obviously, Cash meant when she said “Don't

bother” not to bother to call her, that she was not inter-

ested in hearing from him.

The Administrative Law Judge Weil seems to want

to excuse and pass off this statement by Miss Cash,

55a

“Don't bother” as having been made because she was

upset.

Cash was not upset the next day, nor the next, nor the

next week, nor the next several weeks to the extent

that she could not pick up the telephone and call and

inquire as to whether or not the investigation had been

complete and whether she was to return. She took time

off to go to Houston from Beaumont, Texas, to file a

charge. She could have called the office.

Cash’s sworn testimony is shown, transcript 268,

line 1, through line 13, where she testified that she had

no word with Deculus prior to the calling of Deculus a

coon-ass trash. See Respondent's Brief pages 44 and

45.

If Cash would amend her language a little bit and not

voluntarily without provocation call otheremployees

sitting at another table a “coon-ass trash” the difficul-

ty would have never arisen. Her act was in direct

violation of the rules of conduct set forth in the print-

ed rule book referred to in the briefs and whatever oc-

curred was brought about by her own conduct, and she

certainly is not entitled to reinstatement with back

pay when all she had to do was to call and inquire

whether or not she had been suspended or make a sim-

ple apology and say I would like to know what the

situation is, can I come back to work? Just anything.

It is respectfully submitted that Marie Cash brought

about the situation about which she now complains

and now wants to make the employer pay for a couple

of years of work while she laid off, seeking and hoping

56a

for unearned income, while too indifferent to make in-

quiry as to whether she could be reinstated.

It is respectfully submitted that the Board's order

should not be enforced and Marie Cash should not be

ordered back to work with back pay.

DISREGARD OF PRE-SETTLEMENT AGREEMENT

At the beginning of the trial before Judge Weil,

general counsel asked to amend his complaint by ad-

ding paragraphs 8, 9, 10, 11 and 12 to litigate matters

. settled by the pre-settlement agreement.

This same request had been made of Judge Johnson

who heard the pre-settlement agreement and ap-

proved it, and ordered it entered, it was carried out

satisfactorily and when he was asked to permit the

amendment by the addition of said paragraphs, he re-

fused. Yet Judge Weil having been assigned to the case

allowed the amendment and then allowed volumes of

evidence regarding the pre-settlement agreement.

This is not only highly prejudicial but it was unfair

and permitted the litigation of matters that were not to

be litigated until Judge Weil permitted it on the day of

trial.

Either the pre-settlement agreement was worth the

paper it was written on or it was not worth the paper it

was written on. As a matter of fact, the whole con-

troversy here results from permitting the pre-

settlement agreement to be disregarded and these

various paragraphs added and volumes of testimony

57a

permitted. It has clouded the entire issue and has

prevented a clear concept of the complete inadequacy

of any evidence showing any violations in this case.

It is the testimony regarding the activities closed by

the pre-settlement agreement and it is those activities

that are supposed to be the basis for showing company

animus.

First, it was unfair to permit on the day of trial ad-

ding paragraphs of allegations that Judge Johnson

had refused to permit and which had been settled by

the pre-settlement agreement and next it has brought

about confusion and difficulty in analysis of the

testimony and extended the testimony by several

volumes, and fails to uphold the settlement agreement

and for all practical purposes discourages settlement

agreements because if they are going to be permitted

on the day of trial, as in this case, the employer will, of

necessity, have to refuse to enter into any pre-

settlement agreements knowing that he will be

clubbed on the day of trial and he just as well litigate

everything.

This is bad public policy and bad Law and it should

be denounced in this case and respondents so pray the

Court.

CONCLUSION

IN CONCLUSION, respondent respectfully prays

the Court to grant this motion for rehearing and refuse

to order the enforcement of the Board's award, for ei-

ther Aaron Cole or Marie Cash and in the alternative,

58a

that these employees be denied any back pay, just

because of simple justice that they brought about by

their recalcitrant conduct, the very circumstances

about which they now complain, and for such other

and further relief to which respondent may be justly

entitled, either in law or equity. special or general.

Respectfully submitted,

ADAMS & BROWNE

GILBERT T. ADAMS

GOODHUE BUILDING

BEAUMONT, TEXAS

ATTORNEYS FOR

RESPONDENTS

CERTIFICATE

Respondent certifies that twenty five (25) copies of

this brief are this day mailed by regular mail to the

Clerk of the United States, Circuit Court of Appeals,

Room 102, 600 Camp Street, New Orleans, Louisiana.

70130, and two (2) copies thereof have been mailed to

Acting General Counsel, ATTENTION: Alan D. Cirker

and Jane P. Schlaifer, National Labor Relations

Board, Washington, D.C., 20570. and one (1) copy tothe

Honorable Louis V. Baldovin, Director, itegion 23,

N.L.R.B., Dallas-Brazos Building, 4th Floor, 1125

Brazos Street, Dallas, Texas, and a copy has been fur-

nished the Oil, Chemical & Atomic Workers Union.

and its Local 4-243, 2490 South 11th Street, Beaumont,

Texas, 77701, ATTENTION: Mr. Ray West, all having

59a

been mailed on this the 24th day of February. A.D..

1976.

GILBERT T. ADAMS

APPENDIX “F”

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

Edward W. Wadsworth 600 Camp Street

Clerk New Orleans, La. 70130

Telephone 504-589-6514

OFFICE OF THE CLERK

March 15, 1976

TO ALL COUNSEL OF RECORD

No. 75-2956 — N.L.R.B. v. Rogers Brothers

Wholesalers

Dear Counsel:

This is to advise that an order has this day been en-

tered denying the petition ( ) for rehearing, and no

member of the panel nor Judge in regular active serv-

ice on the Court having requested that the Court be

polled on rehearing en banc (Rule 35, Federal Rules of

. Appellate Procedure; Local Fifth Circuit Rule 12) the

petition ( ) for rehearing en banc has also been

denied.

60a

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH

Clerk

/s/ SUSAN M. GRAVOIS

Deputy Clerk

/smg

cc: Mr. Elliott Moore

Mr. Gilbert T. Adams

APPENDIX “G”

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

Edward W. Wadsworth 600 Camp Street

Clerk New Orleans, La. 70130

OFFICE OF THE CLERK

March 30. 1976

Messrs. Gilbert T. Adams.

Raymond M. Brassard

Attorneys at Law

1021 Goodhue Bldg., Suite 1012

Beaumont, TX 77704

No. 75-2956 — N.L.R.B. v. Rogers Brothers

Wholesalers

6la

MANDATE STAYED TO AND INCLUDING

April 29, 1976

Dear Counsel:

The court has this day granted a stay of the issuance of

the mandate to the date as shown above. If during the

period of. the stay there is filed with the clerk of this

court a notice from the clerk of the Supreme Court that

the party who has obtained the stay has filed a petition

for the writ in that court, the stay shall continue until

final disposition by the Supreme Court. Upon the fil-

ing of a copy of an order of the Supreme Court denying

the petition for writ of certiorari the mandate shall

issue immediately under Rule 41, FRAP.

Under revised Rule 21(1) of the Supreme Court effec-

tive July 1, 1970, a record is no longer required in con-

nection with an application for writ of certiorari, and

therefore will not be routinely prepared by this office

(38LW 3502).

A copy of the opinions, judgment and denial of rehear-

ing are still required by the Supreme Court to be incor-

porated as an appendix to your petition. Enclosed are

copies of the said documents which have been entered

in this cause.

Very truly yours,

EDWARD W. WADSWORTH

Clerk

enc. /s/ MARY BETH BREAUX

ce: Mr. Elliott Moore Deputy Clerk

Mr. Alan Cirker

Mr. Louis V. Baldovin, Jr.

Ms. Jane Schlaifer

Mr. C. M. Bradford