National Labor Relations Board v. Burnup & Sims, Inc.

PETITIONER: National Labor Relations Board
RESPONDENT: Burnup & Sims, Inc.
LOCATION: Criminal District Court, Parish of New Orleans

DOCKET NO.: 15
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 379 US 21 (1964)
ARGUED: Oct 15, 1964
DECIDED: Nov 09, 1964

Facts of the case

Question

Media for National Labor Relations Board v. Burnup & Sims, Inc.

Audio Transcription for Oral Argument - October 15, 1964 in National Labor Relations Board v. Burnup & Sims, Inc.

Earl Warren:

Number 15, National Labor Relations Board versus Burnup & Sims.

Arnold Ordman:

May it please the Court.

Earl Warren:

Mr. Ordman.

Arnold Ordman:

May it please the Court.

This case is here on a writ of certiorari to the United States Court of Appeals for the Fifth Circuit.

That court denied enforcement to a Board order which directed reinstatement with back pay of two employees who have been discharged.

The question presented for resolution by this Court is whether an employer may lawfully discharge employees who are engaging in activities protected by the National Labor Relations Act.

In this case, the activity was soliciting employees for membership in the union, whether you may discharge such employees lawfully, merely because he has a mistaken belief that in the course of that protected activity, the employees engaged in certain misconduct which would have justified the discharge.

The Board held that the mistaken belief did not exonerate the employer and the court below held that it did.

The facts are simple and undisputed.

The company was a Florida corporation engaged in business in Melbourne, Florida where it manufactured and sold concrete products.

The employees of the company were not organized but in September of 1961, the employees engaged in a walkout in support of a demand for wage increase.

Among the leaders of this walkout were the two employees who was discharged and we're concerned about here named Harmon and Davis and a third employee named McKnight.

The walkout and the wage dispute were soon resolved.

The employees went back to work but not long thereafter, Davis, Harmon and McKnight were discharged allegedly for lack of work with the understanding that if that be recalled as soon as the volume of work resumed.

Now, the Board found in this case that this layoff, that the alleged lack of work was a pretext and actually the three employees were laid off because they engaged in union activity and the court below accepted that finding and that part of the court case is not before this Court but it serves to explain the events which immediately followed.

McKnight, the third employee was put back to work in normal force but Davis and Harmon were never brought back to work.

It seems that right after the wage dispute, Davis went to a local union affiliated with the Teamsters and an organizational campaign started in attempt to organize a campaign.

But Davis and Harmon were very active in the organizational campaign and solicited employees at their homes for membership in the union.

Now, one of the employees solicited was a fellow named Pate.

He orally reported to the superintendent of the company and in turn reported to the manager that Davis and Harmon had come to his home and had solicited his membership in the union.

But in the course of that solicitation, he said, one of them threatened that he was going to -- that if the union did not get in -- get into the plant, one of them was going to dynamite the gravel bins in the plant and make it impossible for anybody to work.

Now, when the company got this information, it was understandably disturbed.

There was consultation with counsel and about 12 days later in the presence of company counsel, the company got a statement under oath, an affidavit from this employee named Pate in which in substance he repeated what he had stated in the oral report.

But with the discrepancy about whether Davis or Harmon had made the threat but I do not think that is material here.

Again, the company took no further action thereafter for two weeks.

They got the sworn affidavit on October 25th.

Two weeks later on November 8th, the company manager sent letters of discharge to the two employees, Davis and Harmon saying in essence, we had laid you off last September with the understanding that once business picked up, we'd put you back to work.

But business has picked up but we are not going to put you back to work because in the words of the manager in the letter, says, “It has come to my attention that you made or condoned serious threats to damage property of the company should the union fail to win the election.”

Now, from the company's point of view, if the Court please, this threat was a very serious threat.