Brief for the Respondent in Opposition — Dollar General Corp. v. National Labor Relations Board

Te Se

In the Supreme Court of the United States

OcyYOBER TERM, 1974

No. 73-1905

DOLLAR GENERAL CORPORATION, PETITIONER

Vv.

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD

OPINIONS BELOW

The court of appeals did not issue an opinion. The de-

cision and order of the National Labor Relations Board

(Pet. App. 19-36) are reported at 204 NLRB No. 106.

JURISDICTION

The judgment of the court of appeals was entered on

April 5, 1974 (Pet. App. 36-37). The company’s petition for

rehearing was denied on May 2, 1974 (Pet. App. 38). The pe-

tition for a writ of certiorari was filed on June 20, 1974.

The jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

QUESTION PRESENTED

Whether substantial evidence on the record as a whole

supports the Board’s finding that the company violated

(1)

2

Section 8(a)(3) and (1) of the National Labor Relations

Act by discharging three employees because of their

union activities.

STATUTE INVOLVED

The relevant portions of the National Labor Relations

Act, as amended (61 Stat. 136, 73 Stat. 519, 29 U.S.C. 151,

et seq.), are set forth at Pet. App. 39-40.

STATEMENT

A. The Board’s Findings of Fact

Petitioner Company employs approximately 20 truck

drivers at its warehouse-distribution facility in Scotts-

ville, Kentucky (Pet. App. 20-21, 26, n. 6; A. 3, 6, 39, 54).' In

June 1969, the Company discharged office employee

Barbara Mayes because she was observed in a Scottsville

restaurant complaining to a union representative about

working conditions.? In September 1969, the Company’s

drivers launched a union campaign and the Company re-

sponded with employee interrogations and threats. On

November 30, 1969, 9 or 10 drivers held a meeting at a

local church known as the “Tabernacle” to discuss em-

ployee response to the discharge, the previous day, of an

employee active in the union campaign. This meeting was

under surveillance by a supervisor who was the son-in-law

of the Company president. Shortly thereafter, the Com-

pany discharged four other employees who attended the

November 30 meeting. On March 25, 1971, the Board

found that the Company's interrogations, threats, surveil-

lance, and discharges during the September-November

1969 campaign violated Section 8(a)(3) and (1) of the Act.

A.” refers to the appendix to the briefs in the court below.

?On March 3, 1970, the Board found that this ‘discharge violated

Section 8(aX(3) and (1) of the Act. See 189 NLRB at 302.

189 NLRB 301, 305, 311-312.

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The present case arises from a union campaign which

was initiated in November 1971.4 During that month,

driver Otis J. Hurt, Jr., began soliciting for Local 89,

International Brotherhood of Teamsters, in drivers’ homes,

Scottsville restaurants, and on Company property. (Pet.

App. 22; A. 53-54, 56). Pursuant to this solicitation, drivers

Marvin Billingsley and Kenneth C. Isenberg signed union

authorization cards (Pet. App. 22; A. 43, 62). Both

Billingsley and Isenberg had attended the November 30,

1969 meeting which was the subject of the Company's

illegal surveillance (Pet. App. 22; A. 41-42, 47, 61-62).

On December 20, 1971, Hurt, Billingsley, and Isenberg

were temporarily laid off for lack of work, but were recalled

by February 24, 1972 (Pet. App. 22; A. 50-51). After recall,

Hurt, Billingsley, and Isenberg continued openly to urge

other drivers to join the Union, soliciting them at the shop

and at restaurants frequented by the drivers (Pet. App. 22;

A. 45-46, 56, 62-63).

On June 1, 1972, the court of appeals issued its judg-

ment enforcing the Board’s order requiring reinstatement

of the 5 employees who had been fired because of their ac-

tivities in the September-November 1969 union campaign.°

Thereupon, the Company offered the 1969 discriminatees

reinstatement and, on July 3, 1972, this offer was accepted

by three of them (Pet. App. 23; A. 70-71). On July 7, 1972,

Personnel Director Tim Turner called Hurt, Billingsley,

and Isenberg into his office and handed each a letter that

noted the reinstatement order and stated, “Because of

this action by the Labor Board, the company is now termi-

‘The Board in the present case took official notice of the two

prior Board proceedings against the Company.

SNational Labor Relations Board v. Dollar General Corpora-

tion, 489 F. 2d 733 (C.A. 6).

_—

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nating your job” (Pet. App. 24; A. 77-79). Turner added

orally that their work was satisfactory and that he would

give them favorable job recommendations if they desired

(Pet. App. 23-24; A. 38, 57, 64).

According to Company Vice President Cal Turner, Jr.,

since the reinstatement order left the Company with more

drivers than trucks, he decided to terminate three other

drivers to make room for the 1969 discriminatees. After

discussion with Warehouse Manager Polston and Person-

nel Director Tim Turner, Cal Turner, Jr., allegedly con-

cluded that Hurt, Billingsley, and isenberg had exhibited

a “negative attitude” since their recall and therefore they

would be discharged (Pet. App. 23; A. 70-71). Tim Turner

testified, however, that he had no knowledge of this alleged

bad attitude; Polston did not testify at the Board hearing

(Pet. App. 28; A. 36). Moreover, on June 19, 1972, after the

Company had received notice of the court’s reinstatement

order, it hired a new driver, Morris (Pet. App. 29; A. 49).

And, by September 1, 1972, the Company had lost three

drivers and hired another new driver (Pet. App. 27; A. 49-51),

but it never sought to recall Hurt, Billingsley, or Isenberg

(Pet. App. 24).

B. The Decisions Below

The Administrative Law Judge found that the Company's

background of anti-union animus, coupled with its pre-

cipitate discharge of three known union activists shortly

after its receipt of the reinstatement order, provided

prima facie evidence that this discharge was discrimina-

torily motivated (Pet. App. 25-26). He also found that the

record failed to support the Company’s contention that eco-

nomic necessity required the discharge of three drivers to

make room for the employees reinstated on July 3, 1972, and

that the only evidence concerning the “negative attitude”

of Hurt, Billingsley, and Isenberg after their recall was

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that they were openly and actively pro-union during that

period (Pet. App. 26-31). Accordingly, based on the entire

record, the Administrative Law Judge concluded that these

employees were discharged in violation of Section 8(a)(3)

and (1) of the Act (Pet. App. 31).

The Board adopted the decision of the Administrative

Law Judge. It ordered the Company to cease and desist

from the unfair labor practices found, to reinstate the

three discriminatees and make them whole for losses suf-

fered, and to post appropriate notices. (Pet. App. 33-35.)

The court of appeals found that the Board’s decision was

supported by substantial evidence and enforced its order

(Pet. App. 36-37).

ARGUMENT

The only issue presented by this petition is whether

substantial evidence supports the Board’s finding, sus-

tained by the court below, that Hurt, Billingsley, and

Isenberg were discharged because of their union activ-

ities. Such an evidentiary issue does not warrant further

review. Universal Camera Corp. v. National Labor Rela-

tions Board, 340 U.S. 474, 487-488; National Labor Rela-

tions Board v. Pittsburgh Steamship Co., 340 U.S. 498, 502.

In any event, there is no substance to the Company’s

claim (Pet. 11, 14) that the Board based its findings in

the instant case solely on the discriminatory discharges

found in the previous cases. The Administrative Law

Judge, whose findings were adopted by the Board, care-

fully considered all the evidence presented, including the

Company's defenses, which did not withstand scrutiny

and indeed served only to buttress the strong prima facie

evidence of discrimination adduced by the General

Counsel (Pet. App. 25-31). Nor did he err in viewing the

facts in the instant case against the background of peti-

~ epee aie ors ‘* Ss, SON

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tioner’s previous, similar unfair labor practices. It is well

settled that prior unfair labor practices are relevant in

determining the motivation underlying subsequent conduct.

See National Labor Relations Board vy. Monroe Auto

Equipment Co., Hartwell Division, 420 F. 2d 861, 862-863

(C.A. 5), certiorari denied, 399 U.S. 927; Maphis Chapman

Corp. v. National Labor Relations Board, 368 F. 2d 298,

300, 303-304 (C.A. 4).®

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

RosBerT H. Bork,

Solicitor General.

PeTeR G. NASH,

General Counsel,

JOHN S. IRVING,

Deputy General Counsel,

PATRICK HARDIN,

Associate General Counsel,

Norton J. COME,

Deputy Associate General Counsel,

ROGER T. BRICE,

Attorney,

National Labor Relations Board.

SEPTEMBER 1974.

‘The Company’s contention that the court below confused the

facts of this case with the prior cases involving it (Pet. 9-10) was

presented to the court below in a petition for rehearing. The court

denied the petition as lacking in merit (Pet. App. 38).

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