National Labor Relations Board v. Walton Manufacturing Company

PETITIONER:Labor Board
RESPONDENT:Walton Manufacturing Company
LOCATION:Allen-Bradley Clock Tower

DOCKET NO.: 77
DECIDED BY: Warren Court (1962)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 369 US 404 (1962)
ARGUED: Mar 19, 1962 / Mar 20, 1962
DECIDED: Apr 09, 1962

Facts of the case

Question

  • Oral Argument, Part 1: NLRB v. Florida Citrus Canners – March 19, 1962 (94)
  • Oral Argument, Part 2: NLRB v. Florida Citrus Canners – March 20, 1962 (94)
  • Audio Transcription for Oral Argument, Part 1: NLRB v. Florida Citrus Canners – March 19, 1962 (94) in National Labor Relations Board v. Walton Manufacturing Company
    Audio Transcription for Oral Argument, Part 2: NLRB v. Florida Citrus Canners – March 20, 1962 (94) in National Labor Relations Board v. Walton Manufacturing Company

    Audio Transcription for Oral Argument, NLRB v. Walton Manufacturing Company – March 19, 1962 (77) in National Labor Relations Board v. Walton Manufacturing Company

    Earl Warren:

    Number 77, N.L.R.B, Petitioner, versus Walton Manufacturing Company.

    Mr. Come.

    Norton J. Come:

    May it please the Court.

    This case is here on certiorari to the Court of Appeals for the Fifth Circuit to review the judgement of that court denying enforcement of a Board order requiring the respondent, Walton Manufacturing Company, to reinstate with back pay 13 employees who the Board found were discriminated against because of their union activity.

    The basic question is whether the Fifth Circuit in concluding that the Board’s findings were not supported by substantial evidence on the record as a whole, grossly misapplied the standard of review enunciated by this Court in the Universal Camera case.

    Now, in Universal Camera, which was decided by this Court 11 years ago, the Court held that a reviewing court in determining whether there is substantial evidence as a whole to support the Board’s findings of fact.

    And incidentally, Section 10 (e) of the National Labor Relations Act provides that if there is substantial evidence on the record as a whole to support the Board’s findings of fact, those findings shall be conclusive on review.

    Universal Camera, this Court held that in determining this question, the reviewing court is entitled to look not only at the evidence which supports the Board’s view but also at that which attracts from it.

    And it may set aside, I’m quoting now, “A Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial when viewed in the light of the record in its entirely furnishes.”

    However, at the same time, the Court pointed out that this does not mean and I’m quoting again, “That a court may displace a Board’s choice between two fairly conflicting views even though the court would justifiably have made a different choice, had the matter had been before it de novo.”

    In other words as we read Universal Camera and has all of the other Courts of Appeals have been reading it.

    It recognizes that the task of making determinations of credibility and of weighing the conflicting inferences to be drawn from credited testimony, a task which Congress entrusted primarily to the Board.

    The function of the reviewing court is not to redetermine these questions de novo but merely to determine whether the choice made by the Board was a reasonable one and the like of the entire record.

    Now, the Fifth Circuit, as I shall attempt to show, has had difficulty in adhering to this standard particularly in discriminatory discharged cases.

    In those cases in particular, its practice is to set aside the Board’s finding of unlawful motivation where the employer can point the some incident or shortcoming on the part of the employee that might have been the cause of the discharge.

    The Board cannot draw the contrary inference unless there is evidence that directly contradicts the cost assigned by the employer.

    Now, this practice, we submit, in effect denies the Board the power to choose between two fairly conflicting views and it’s contrary to our reading of the standard of review as enunciated in Universal Camera.

    Felix Frankfurter:

    I thought you said that the Fifth Circuit has had difficulty.

    Norton J. Come:

    Yes —

    Felix Frankfurter:

    Are you suggesting, however, privilege this — let’s put it, that the Fifth Circuit have an stigma on this subject, there’s a particular of the 0551.

    You’re not suggesting about a series of cases that this Court — the Fifth Circuit, it gets throughout line from all the other circuits that there must be something, something that matters, some ingredient let’s say infuses to their judgment or some ingredient to be found either appropriate, is that what you’re saying?

    What are you saying?

    Or are you suggesting that in this case —

    Norton J. Come:

    I’m —

    Felix Frankfurter:

    — court will practice under good faith.

    The Department has examind, the Board has examined that (Inaudible).

    But to me, it takes a lot of efforts but I should direct myself to the general asset (Inaudible) one thing or another (Inaudible) by this Board or in the particular case, the Board’s view that they have (Inaudible) this is the record.

    Norton J. Come:

    Well, Your Honor, we feel that they have misevaluated the record in this particular case.

    However, we would not be here if it were limited to this particular case.

    This is a problem that has been going on since the Universal Camera decision.

    Norton J. Come:

    In many cases —

    Felix Frankfurter:

    You mean in the Fifth Circuit?

    Norton J. Come:

    In the Fifth Circuit, Your Honor.

    Felix Frankfurter:

    But I’ve been looking for and that is on the, I think, on the outset for (Inaudible) a decision which demonstrate from which one can fairly draw as an inquiry.

    I get to find that the Board in nature that every once in a while they refer from other case.

    It goes on to hold that this follow the Universal Camera that merely because of the problem of the Board of the different abuse from the conclusion reach by Court of Appeals has no justification for coming here because that’s draw the Courts of Appeal under our common law.

    Norton J. Come:

    That is correct, Your Honor.

    We thought that we had made such a showing in our petition for certiorari in this case.

    We also have some statistics there, which I was going to allude to a little later on to show how far out of line the Fifth Circuit is with the — with the other Courts of Appeals.

    Felix Frankfurter:

    (Voice Overlap) we did on to your courts.

    Norton J. Come:

    Yes, Your Honor —

    Felix Frankfurter:

    Because you have — in order to get certificate, you must show (Voice Overlap) that come before the court, one would might get the impression that many come before that court as compared with First Circuit, the one I am thinking about or some other circuit, so (Inaudible) significance.

    Norton J. Come:

    That is correct, Your Honor.

    I should like to first address myself to the facts of this case to show what we think the Court did wrong and then try to indicate that the error is a more deep-seated one than as presented by this particular case.

    Felix Frankfurter:

    Is this (Inaudible)?

    Norton J. Come:

    Yes.

    Felix Frankfurter:

    Is this — how many judges are there in the Fifth Circuit?

    Norton J. Come:

    I don’t think there are — about seven.

    Felix Frankfurter:

    It’s what you’re saying the tendency that you imply or is it to abolish Camera, was there a difference?

    Do your — do your legislation show the difference as to who is (Inaudible) or is this a — was this an

    Norton J. Come:

    My research indicates that it does not make much of a difference who — it’s — it’s a problem that seems to be present throughout the — throughout the Circuit —

    Potter Stewart:

    As I proceed it —

    Felix Frankfurter:

    That surely is phenomenal, isn’t it?

    Potter Stewart:

    The interesting thing about this case is the two of the judges were District Court Judges.

    Norton J. Come:

    That is correct Your Honor, and for that reason, I — among other things, I was very careful in reviewing the past histories to see whether it can be attributed simply to that —

    Potter Stewart:

    I can tell you from personal experience if District Judges is sitting by designation to the Court of Appeals at particular problems with the Universal Camera doctrine because it’s unfamiliar to their particular experience.

    Norton J. Come:

    I can appreciate that.

    But first of all, my study of the cases indicates that it’s not limit to that.

    Secondly, as I will hope to develop, I think that the problem stems from the Tex-O-Kan decision of the Fifth Circuit which was handed down in 1941 before the Universal Camera and it is the fact that the Court continues to — to adhere to the principles enunciated in Tex-O-Kan which we submit are erroneous that we get the problem that — that we do.

    Well, let me tell you a little something about the facts of this case.

    Norton J. Come:

    In November of 1957, the Amalgamated Clothing Workers embarked on a campaign to organize respondent’s employees.

    Respondent was opposed to the union and sought to defeat it not merely by expressing opposition to it but by such coercive nature as surveillance of union organizers, interrogation of employees and threats of job loss.

    These are not mere isolated acts.

    The Board found that this added up to restraint and coercion in violation of Section 8 (a) (1), and the court below agreed except in one or two minor respects and enforce a cease-and-desist order against this pattern of restraint and coercion.

    Now, in the midst of this 8 (a) (1) activity, four employees are discharged and shortly thereafter, nine more are laid off.

    Now, the Board found that these employes were so affected because of their union activity and that the respondent does discriminate it in violation of Section 8 (a) (3).

    The respondent on the other hand contended that the 13 employees were selected because they were poor workers or less efficient than other employees.

    And the court below accepted the — the reasons assigned by the respondent and set aside the Board’s order — the Board’s findings of illegal motivation, even though as I will show in a moment, they were not without rational support.

    Let me just start with one of the — the first employee that was — the Board found with discriminatorily discharge.

    Her name is Lucille Yancey and she was discharged in December 4, shortly after she had joined the union and let the union organizers used her home.

    Plant Superintendent Forstermann told her there was not enough work for her.That’s the reason he gave her when he was discharged.

    She insisted on seeing Maura Sharp was the principle operating official and according to Yancey’s testimony which the Trial Examiner and the Board credited, Sharp first repeated the reason given by Forstermann, there wasn’t enough to work.

    And — then he added in any event or work was unsatisfactory.

    Yancey asserted that there was another reason because she had never been criticized according to her credited testimony for her work, and this is credited testimony, Sharp handed her a Union paper and said, “Well, Lucille, I tell you.

    I’ve heard that you and your husband have been working with the union organizers.

    She further testified that she told Sharp that her job meant more to her than the union and that she voted against the union if she could have her job back.

    Sharp says no that you might be able to put her back if the union drive fail.

    Now here, you have — if you accept the credited testimony, even direct evidence of a discriminatory motive and yet the Board’s finding of illegal motivation was upset, because respondent’s witnesses testified that Yancey’s work was poor that she was uncooperative.

    And to be sure, these are reasons that might justify a discharge.

    The Board, however, on — on this record was certainly entitled to weigh the cause that was assigned against these other factors and was certainly not unreasonable in concluding that it was more likely that against she was discharged because of her union activity.

    Now, I don’t want to go into all 13 of the discriminatory discharges and layoffs.

    But the pattern in all of them is about the same.

    You have evidence which could have afforded cause with the layoffs.

    As against that, you have the fact that the layoffs or the discharges occurred on the hills of this extensive campaign of restraint and coercion as the Board found to violate Section 8 (a) (1) and which the — which the Court agreed.

    You have the further fact that on analysis some of the reasons the respondent assigned did not even stand up under scrutiny.

    So in the light of all those circumstances, we submit that the Board was clearly not unreasonable in concluding that the evidence of discriminatory motivation preponderated as against the other co — the other factors that respondent assigned.

    And in some of these cases, as I have indicated, you had actually direct evidence of a discriminatory motive if you accept the credited testimony, the Board and the Trial Examiner.

    Now, what is the reason for the Court’s error because as I have indicated at the outset, we feel that it goes beyond the particular facts of this case.

    And I mentioned the Tex-O-Kan case which was decided by the Fifth Circuit in 1941.

    In that case, the Fifth Circuit in an opinion by Judge Sibley, pointed out that since a discriminatory discharge case entails a back pay remedy which may — “The Court may impoverish or break an employer” and not a mere or cease-and-desist order a higher standard of proof is required.

    Norton J. Come:

    And what is that standard?

    And here, I’m quoting the Court in Tex-O-Kan, “If the employer were to testify and the discharge was for cause, his oath cannot be disregarded because of suspicion that he may be lying.”

    There must be impeachment of him or substantial contradiction or of circumstances raise doubts.

    They must be inconsistent with the positive sworn evidence on the exact point.

    Now, the Tex-O-Kan principle has continued to be cited and quoted by the Fifth Circuit in these 8 (a) (3) cases, the Court here ended up on page 733 of the record with the precise quote that I’ve just read to the Court.

    Now, apart from the fact that the standard of proof in an 8 (a) (3) case under the statute is no different from what it is in an 8 (a) (1) case or any other unfair labor practice case, the statute says that the Board’s finding of fact that supported by substantial evidence on the record of the whole shall be conclusive.

    The required direct contradiction of the employer’s testimony is to the reason for a discharge is virtually the equivalent of requiring something which is rarely obtainable in these cases, and direct evidence of a purpose to violate the Act in most of these cases as this illustrated by the record in this case.

    You have a set of circumstances which point to a discriminatory motive with the discharge.

    You have a set of circumstances which might have afforded could cost for the discharge.

    The problem that the Board has is to assess both sets of factors and to make a judgment as to which inference is the stronger under the circumstances.

    Now, if the Board’s inference is a reasonable one, taking into account the entire record, we submit that the reviewing court under the standard of Universal Camera should sustain the Board’s findings.

    Now, to require that you have to have direct contradiction of the reason assigned by the employer imposes a more astringent reviewing standard in 8 (a) (3) cases because it overlooks the fact that sometimes the employer’s demeanor may along be a sufficient reason for rejecting the ground that he has assigned.

    Secondly, it overlooks the fact that the Board is empowered to draw inferences and that even though you may not have direct contradiction of the employer, a set of circumstances may be so strong in the direction of discriminatory motivation that the Board would be quite reasonable in drawing an inference on discriminatory motivation.

    Felix Frankfurter:

    Mr. Come, I notice you rely on regard of (Inaudible)?

    Norton J. Come:

    Yes, Your Honor.

    Felix Frankfurter:

    Have you taken into account that the Universal Camera (Inaudible)?

    Norton J. Come:

    Yes Your Honor, I have and I like to address —

    Felix Frankfurter:

    (Inaudible) that was not to be cited (Inaudible).

    Norton J. Come:

    Yes, Your Honor.

    And it is quite true that Nevada Consolidated was cited in the House Conference report as an instance of the type of review that Congress wanted to change in amending Taft-Hartley.

    However, there are two parts about Nevada Consolidated.

    It can be looked at broadly as merely an instance where the Court is looking to see whether there is any evidence that supports the Board’s conclusion and not looking at the rest of the record and resting —

    Felix Frankfurter:

    That’s what Universal Camera put out of business.

    Norton J. Come:

    That’s what Universal put out of business but Universal Camera did not put out of business and indeed, it indicated that it definitely was leaving into business.

    The actual situation in Nevada Consolidated namely that if you look at all of the evidence in Nevada Consolidated, you have a set of circumstances that would permit conflicting inferences.

    One in favor of union motivation, one in favor of cause and the fact that the inferences — that the circumstances were susceptible of opposing inferences did not preclude the Board from concluding that the inference in favor of union activity was the basis for — or was the stronger one.

    In other words, Nevada Consolidated dealt with the power of the Board to draw inference, as Universal Camera indicates that Congress could not have met to deprive the Board of that power.

    And in the Radio Officers case subsequent to Universal Camera, this Court 347 U.S. 49-50 again dealt with the argument that Nevada Consolidated was overruled by the amendments of the Act and it concluded that whatever Congress said about Nevada Consolidated, it could not have intended to overrule that part of Nevada Consolidated which says that the power to draw inferences is primarily entrusted to the Board and that the Board is in — is in — that where the inferences are susceptible of either interpretation if the Board were to conclude that the inference in favor of union of membership or activity was the stronger, the Court was not to step in and redetermine it because otherwise, you would get the Court weighing the evidence and this —

    Felix Frankfurter:

    The same day that Universal Camera was decided (Inaudible) was the Pittsburgh Steamship Company was decided and that sustained or concluded that the Court — Court of Appeals for the Fifth Circuit opinion really indicates that if one were to view this independently, one would have reached the ultimate conclusion that it should not qualify what is found in Universal Camera and that did not preclude the Court of Appeals on the examination of the whole record from drawing an inference that we may not draw that drawing inference is different from which the Board, the Labor Board’s ruling.

    And I notice throughout the Government in its brief, all it comes about Universal Camera never talks about the necessary incompetence of Universal Camera and Pittsburgh Steamship Company.

    Norton J. Come:

    Well, Your Honor, I — we’re quite aware —

    Felix Frankfurter:

    That was at the same time.

    Norton J. Come:

    Yes, Your Honor.

    We think —

    Felix Frankfurter:

    In other words, there is the largest of leeway given to the Courts of Appeals and on the whole cases ought to come here.

    That was the burden of Pittsburgh Steamship Company.

    If on all of these records, the reviewing board couldn’t say on the whole, we think, the rest of the record or the totality of the record overbears the (Inaudible) of the Board which is a very different thing from saying, they could — that’s de novo.

    Norton J. Come:

    That is correct Your Honor but however, in Universal Camera, this Court did leave itself power to review in that rare instance where the standard had been grossly misapplied.

    And we submit that this is such a case because the Court is imposing this subsidiary test of requiring that you have direct contradiction of the reason assigned by the employer before the Board’s contrary evaluation of the evidence is entitled to stand.

    Felix Frankfurter:

    That’s why the case — the case like this could come here on the — on the decision of the Government, not that this particular case or that particular case is brought.

    It’s brought on specific judgment, upon those judgments to the Court of Appeals or to come here in and prepare to show that the conduct being shown that in fact the Fifth Circuit or the Ninth Circuit has a wrong sense of mind in these cases.

    It’s not just making a judgment which the Board could defense in this Court its decree.

    Now, that’s the the burden of Pittsburgh Steamship.

    Norton J. Come:

    Well Your Honor, I realize my time is up.

    I just like to indicate that I think that in our petition and in our brief here, we have gone beyond the facts of this case and I’ve cited Fifth Circuit cases where over the period of years which we think reflect the erroneous standard which we think was very clearly shown in — in this case.

    Felix Frankfurter:

    That’s according to the Board must — ought to be (Inaudible) things are not one of those (Inaudible) judicial questions decided by (Inaudible) of the various Courts of Appeals which have numerated reviewed Labor Board cases over period of five years, (Inaudible) ought to be reversals or affirmances or possible affirmances or possible reversal in relation to the quality of cases.

    Norton J. Come:

    Well, Your Honor I’ll just refer you to pages 16 and 17 of our petition for certiorari which set forth statistics along the line that Your Honor has indicated.

    If I can just intrude for a moment more, I like to — thank you, Your Honor.

    Felix Frankfurter:

    (Inaudible) the Fifth Circuit.

    Norton J. Come:

    No Your Honor, I think that —

    Felix Frankfurter:

    (Inaudible)

    Norton J. Come:

    — we said that — we refer to a survey published in the American Bar Journal by Frank Cooper at — at Michigan which covered substantial evidence cases over a five-year period and he finds that in the Fifth Circuit, this covers all the Government agencies.

    Of course the Board had the lion share, sustained administrative findings in only 45% of the cases while the other Ten Circuits did so in 72% of the cases that.

    Felix Frankfurter:

    Well, that doesn’t — unless you break that down and tell me how many cases there are in the Fourth — First Circuit.

    There may be three cases in the First Circuit that might get a 100% affirmance.

    That doesn’t show anything.

    Norton J. Come:

    Well, if Your — if Your Honor will permit and the Court will, I will try to present some statistics along that line.

    I have some.

    I’ll just indicate that in the fiscal year in 1960 for example.

    In circuits other than the Fifth Circuit, our records, the Board’s record show that we had 31 cases substantial — these are 8, 3 substantial evidence, fact cases circuits other than the Fifth Circuit.

    Norton J. Come:

    27% or 87% were enforced in the Fifth Circuit in the same time we had eight cases and two were enforced, are only 25%.

    Hugo L. Black:

    (Inaudible)

    Norton J. Come:

    347 U.S. was the Radio Officers case, 347 U.S. at 49 to 50.

    Earl Warren:

    Mr. Thompson.

    Robert T. Thompson:

    It’s indeed a privilege for me to stand before this Court and defend the good name of the Fifth Circuit because I think that’s exactly the issue which has been raised by the Board in this case.

    And I — I say that with these factors in mind.

    They not only say that the Fifth Circuit has misapplied the law, but they say that the Fifth Circuit in this very case has misapplied by the law and the Fifth Circuit in this very case has stated precisely what they say the law is.

    Now, the only conclusion that can be drawn from an argument along that line is that the Court is saying it’s doing one thing but it’s actually doing another.

    There is suggestion of bad faith.

    I will not go into that but it’s certainly is the position of the Board that the Court is talking one game and playing another.

    Now, as I understand, the Board’s argument on the law in this case, they are stating that the Fifth Circuit has rejected the Board’s choice of unreasonable or reasonably conflicting inferences which they contend that this Court has said the Fifth Circuit or any circuit cannot do.

    In the decision itself, the Court took cognizance of the decisions, the opinions of this Court in stating that it was aware of the fact that it did not have the right to displace the inferences which have been drawn by the Board where they are fairly conflict — conflicting and reasonably drawn.

    The Court of Appeals went on to find and state that from a tedious examination of this record, it had come to the firm conviction that the Board’s opinion was not supported by substantial evidence in the record as they hold.

    Secondly, as I understand the Board’s contention, they say that the Fifth Circuit requires a higher degree of proof in — in discharge cases such as this as opposed to routine cease-and-desist order cases such as 8 (a) (1) matters, citing in support of that, Tex-O-Kan — the Tex-O-Kan case which was decided some 20 years ago and as far as I’ve been able to determine was not questioned by the Board at that time, certainly was not reviewed by this Court.

    I respectfully submit that a fair reading of the Tex-O-Kan case does not support the contention which is here made by the Board.

    In the Tex-O-Kan case, if you read the precise language and Judge — Judge Sibley was one of our great jurors from my State.

    He said that in a cease-and-desist case, we require less than a demonstration.

    Those are his words because the remedy which is proposed imposes no great burden on the employer.

    But in a discharge case where there is a remedy of back pay, reinstatement and so forth, the burden is upon the employer and it could possibly impoverish him or break him to use his words.

    And in those cases and here again, these are his exact words, “We will require substantial evidence.”

    Now, the National Labor Relations Act at that time did not read as it does now on this scope of review question.

    Perhaps, the Tex-O-Kan case was subject to question in 1940 or 1941 when it was decided.

    But in 1947, Congress enacted the Taft-Hartley Act and inserted into the law governing this scope of review the requirement that the Board’s findings of fact be supported by the — by substantial evidence upon consideration of the record as they hold.

    Now, what Judge Sibley said was exactly what the statute now requires and his further statement concerning the Board’s treatment of a respondent’s or an employer’s testimony likewise is a proper statement of the law.

    Before I left home, I glanced that Shepherd cited on this Tex-O-Kan case and it must have been cited 50 or 60 times since 1940.

    So far as I know, it’s never been questioned until now.

    If you read the language concerning which the Board complains and which he cited in the — in the opinion in this very case, either the Board has misread the language or I misread the language.

    Judge Sibley said that when an employer testifies that union membership was not the reason for the discharge.

    His oath cannot be disregarded because of suspicion that he may be lying.

    Well now, there are dozens and dozens of cases from all over the Circuits which hold and the statute itself says in requiring substantial evidence that the Board cannot decide these cases on suspicion and surmise but that the Board must have substantial evidence, evidence which it may credit and rely upon.

    Robert T. Thompson:

    True, the Board may draw — draw inferences.

    We do not condemn that the Consolidated Copper case, Nevada Consolidated Copper case is completely out of date in that regard.

    We concede that the Board as in effect finds to must have the right to draw inferences.

    But those inferences must be reasonable and they must be supported by some facts in the record.

    By the same token, simply because the Board can draw an inference, that does not enable the Board to state its entire case on an inference which from a review of the record as a whole does not hold up or is not considered substantial.

    But to go back to the Tex-O-Kan case, Judge Sibley stated, “There must be impeachment of him or substantial contradiction or if circumstances raised doubts.

    They must be inconsistent with the positive sworn testimony on the exact point.”

    Now, what he was saying there was, not that the Board has got to have positive sworn testimony on the exact thought but that if the Board relies upon circumstances which raised doubt, they must be inconsistent with the positive sworn testimony of the employer, therein lies the misconstruction of that decision.

    If you read it in that regard, certainly it cannot be said to be a misconstruction of the law.

    Certainly, if the Board is going to rely upon circumstances, they should be inconsistent the positive testimony of the employer in that regard and should not be some completely unrelated set of circumstances which throw no light upon that.

    Felix Frankfurter:

    Would you be good enough to state as you recall a testimony of the worker as to whom Mr. Come referred the evidence of the basis, this the findings the Board with reference here, (Inaudible)?

    Robert T. Thompson:

    Yes sir.

    Felix Frankfurter:

    The findings.

    Certainly, the evidence on which the Board based concerning the reason given, the considerations of evidence by both (Inaudible).

    Robert T. Thompson:

    It certainly was sir.

    First, the finding of the Board was that — this Mrs. Yancey was discharged because of union activities.

    The basis for that finding as I read the record —

    Felix Frankfurter:

    The Examiner reported.

    Robert T. Thompson:

    The Examiner reported on that in great detail.

    Felix Frankfurter:

    What does he examine?

    Robert T. Thompson:

    The Examiner reported that he found that this lady, Mrs. Yancey had joined the union some time prior to her being discharged.

    He did — there was no evidence that the employer had knowledge of hers having sign with the union.

    The Examiner found that she has signed roughly ten days before her discharge.

    The — there is evidence in the record.

    The record is not clear on that point.

    The Court was of the impression.

    Felix Frankfurter:

    (Inaudible)

    Robert T. Thompson:

    Alright sir.

    Felix Frankfurter:

    (Inaudible)

    Robert T. Thompson:

    She was — she was discharged.

    Robert T. Thompson:

    She came in and complained about being discharged.

    She was first told, the Examiner found, that she was being discharged for lack of work.

    She went in and complained to the manager and she was told by the manager that she was being discharged because her work was not satisfactory.

    The additional element which the Board found and I — I sincerely believe is the reason that they made this finding was that the following day and in this regard, I’m sure counsel overlooked this fact.

    But in this regard, I think it should be pointed out.

    The following day after she was discharged, after her conversation with the manager in which he told she was discharge for unsatisfactory work.

    She returned to the plant and — and demanded an interview with the same manager and she sat down with him and she testified that during the course of the conversation, she stated that she thought she was being discharge for union activities and that he then stated to her that he understood that she and her husband had been doing work with the union organizers, now, that’s — as I read the record, the basis for the Board’s decision.

    And on the other hand, the testimony which was put in by the employer can —

    Felix Frankfurter:

    (Inaudible)

    Robert T. Thompson:

    That’s my understanding of, yes sir.

    (Inaudible)

    Robert T. Thompson:

    I beg your pardon sir?

    (Inaudible)

    Robert T. Thompson:

    The testimony of the lady.

    (Inaudible)

    Robert T. Thompson:

    Well, her testimony is found at page 521 of the record.

    Let’s see.

    Also at — actually, I’m looking at indexes.

    Also at page 331 of the record, her testimony is found.

    Earl Warren:

    I understand Mr. Come to say also that (Inaudible)

    Robert T. Thompson:

    I did overlook that, not intentionally.

    I’ll show you a further part of that conversation on the second day after she was discharged was her statement to the manager that my job means more to me than this union.

    Now, our contention was that she told them that I’ll go out and spy for you on the union and report back to you.

    She admitted at least on the stand that she told them she would be against the union if he would give her job back.

    Earl Warren:

    (Inaudible)

    Robert T. Thompson:

    Yes sir.

    I don’t question that.

    And I think certainly, these are important matters which — which are under consideration.

    I don’t mean to make light of any of these things.

    I think it’s also an important matter for — for an employer to — to have the problem or the liability which is — which is contained in the case such as this.

    Robert T. Thompson:

    Certainly, in many of these circuits, I think you find the employers less litigious over these points for that very reason.

    That — that element, I — I concede was also contained in the conversation and it was an oversight on my part.

    The —

    Earl Warren:

    (Inaudible)

    Robert T. Thompson:

    The —

    Earl Warren:

    (Inaudible)

    Robert T. Thompson:

    Well, that’s not my reading of the record.

    And I — it’s possible that —

    Earl Warren:

    (Inaudible)

    Robert T. Thompson:

    There is — yes sir, there is — there is that conversation in her testimony.

    Earl Warren:

    Where is it in the record?

    Robert T. Thompson:

    I can’t call your attention to — at this — this very moment.

    I’m informed that it’s at page 332.

    Earl Warren:

    Page 332. (Inaudible)

    Robert T. Thompson:

    Yes sir.

    331

    Hugo L. Black:

    331

    Felix Frankfurter:

    (Inaudible)

    Robert T. Thompson:

    She — I think she —

    Felix Frankfurter:

    (Inaudible)

    Robert T. Thompson:

    Yes sir.

    I think you find that the reason you get two sections of testimony is that, when this thing was printed, they printed the Board’s specification of the record and they printed out specifications separately so you actually have to go one of those in order to get the entire testimony.

    Earl Warren:

    (Inaudible) is it found in the page?

    The bottom of that page?

    Robert T. Thompson:

    The bottom I believe sir.

    And his testimony on page 332 is this.

    He said that he didn’t know whether I signed the union card or not.

    I told him, I said, “Well, Morris, my job means more than being a member of the union if you would give it back — give my job back, I won’t vote for the union.

    I definitely told him I would not vote for the union.

    After he didn’t give me my job back of course I had no other choice, I went on with the union.”

    Robert T. Thompson:

    “What did he say when you said to him?

    What did he say?

    “Well, he couldn’t put me back to work.”

    Now, I don’t know frankly what to —

    Felix Frankfurter:

    Would you mind telling me because I have another volume?

    Robert T. Thompson:

    This is volume —

    Felix Frankfurter:

    (Inaudible)

    Robert T. Thompson:

    As I say, I think you’ll find that the part I’m reading from is the Board’s specification of it.

    It’s — it’s the same witness but it’s different — different testimony.

    It all took place in one time.

    And we just specified different sections of it.

    William J. Brennan, Jr.:

    But Mr. Thompson, does this help us any — I noticed that over volume 3 is used for the Board’s.

    There are brackets, there are numerals, 310, 311 and so forth and then in Volume II, when we go over there, we’ll find brackets 321, 322, 323.

    So one has — this was continuing — continuous testimony but excerpts from within one volume and then —

    Robert T. Thompson:

    That’s correct sir.

    William J. Brennan, Jr.:

    Different excerpts in another volume?

    Robert T. Thompson:

    That — it was printed in the large type as what the Board specified and that which is printed the small type is what I specified.

    William J. Brennan, Jr.:

    This opposed to assist the court, isn’t it?

    Robert T. Thompson:

    It all came out of the — when I — I — I must state in my own defense, I didn’t arrange for the printing of this record.

    I simply specified that portion that I thought should go in addition what they specify.

    On the next page, they are — don’t want to appear —

    William J. Brennan, Jr.:

    Now, which volume you’re in now?

    Robert T. Thompson:

    Well, I’m in Volume II at the bottom of the pages — page 333.

    She stated upon questioning by the Trial Examiner.

    At the top of the page there, he said that if the union didn’t go in, he put me back to work.

    I assume that’s the testimony that the — that the Board was relying upon.

    Of course Mr. —

    Felix Frankfurter:

    Now, who’s the he?

    Robert T. Thompson:

    That’s Mr. Sharp who was the manager —

    Felix Frankfurter:

    Who?

    Robert T. Thompson:

    Mr. Sharp.

    Felix Frankfurter:

    That he was a witness?

    Robert T. Thompson:

    He was a witness, yes sir, in the several days.

    Felix Frankfurter:

    (Inaudible)

    Robert T. Thompson:

    I beg your pardon sir?

    Felix Frankfurter:

    Was he examined?

    Robert T. Thompson:

    Yes sir, he certainly was.

    Felix Frankfurter:

    What did he tell you?

    Robert T. Thompson:

    He denied that he told her that.

    And of course that’s a — that’s a question of who you’re going to believe but —

    Earl Warren:

    Well, may I ask what is the — her testimony to the fact when you say something about the (Inaudible).

    Robert T. Thompson:

    On page 333.

    Earl Warren:

    333

    Robert T. Thompson:

    This is the — the numbering is at the bottom.

    The statement is at the top of the page.

    (Inaudible) put you back.

    Robert T. Thompson:

    Yes sir.

    Now, that was on questioning by the Trial Examiner.

    He asked it two or three times and finally she came out with that but she said it nevertheless, so I suppose —

    Felix Frankfurter:

    What evidence you say, you said (Inaudible) that there’s no evidence that the — there’s no evidence that the management suppose that any of the employers — any employers (Inaudible).

    Robert T. Thompson:

    That’s correct sir, she —

    Felix Frankfurter:

    (Inaudible) in examination.

    Robert T. Thompson:

    Yes sir.

    She testified that she had signed a union card because there was no testimony of anybody connected with management who’s present at the time or the — there’s no testimony then above the management saw it or heard about it or anything else until this conversation a day after she was discharged when she and the manager were discussing unions.

    He stated that I understand you’ve been working with the union organizers.

    Felix Frankfurter:

    Wasn’t she discharge then?

    Robert T. Thompson:

    Yes sir, she was discharged the day before.

    Felix Frankfurter:

    Another one, there’s a different question, testimony he gave is what — what testimony there was, (Inaudible), all the testimony —

    Robert T. Thompson:

    Now —

    Felix Frankfurter:

    It was before the Examiner on the day (Inaudible) because of her union activities.

    Robert T. Thompson:

    Well I think — I think it would be more appropriate to tell you at this point what the employer’s testimony was concerning the discharge of this woman and then I’ll have to come back to her testimony because she denied some of it.

    The employer’s evidence concerning this woman was that first she was not producing in accordance with the production quotas and that she had been employed by this company for some six months or so and rather than showing improvement, the last six works — last six weeks that she worked, she actually had make up where she had previously made her production quotas.

    I think you have to bear in mind that this was a brand new little company that employed a hundred or so people and that they were going through a training period and that this was at — the end of about five or six months of the training period.

    Felix Frankfurter:

    That line of evidence is not in what the employer said or were there worksheets?

    Robert T. Thompson:

    There were worksheets in the record which showed her make up faith.

    It showed that the first several weeks she was employed, she made exactly the pay for 40 hours which indicated in the testimony was that she was on an hourly rate at that time because she was just beginning.

    And she was put on piece rate.

    For several weeks she had a — she had what they called “make up pay” which means she didn’t make her production quotas.

    And then for few weeks, she made her quotas and then for six weeks, she did not make her production quotas.

    That’s one factor which is in this record and there’s no way you can get around.

    The — her production record established that.

    Another fact there was that the work which she did was not satisfactory and in that regard, we had six witnesses who attempted to testify that her work — the work she did was shoddy, that a great deal of it had to be returned and redone.

    Three of those witnesses were management people.

    The other three were just ordinary employees, fellow employees of hers who had presumably no extra ground and who — who backed up what the management said.

    In addition to that, we had testimony that she was an employee who was constantly causing agitation with the supervisor that she would not take instructions, that she would not follow orders, that she rambled and complaining.

    And there is a statement in the — in the record that she complained about the skimpy cut of the cloth and from that statement, it was inferred by the Trial Examiner and the Board that the reason her work was not satisfactory was because the — of the skimpy cut of the cloth implying I suppose that this was a marginal operator who was cutting his cloth too skimpy.

    However, there is no other testimony concerning that.

    No one else seemed to have trouble with this skimpy cut of the cloth.

    Felix Frankfurter:

    Has there any suggestion, you used the word adaption?

    (Inaudible)?

    Robert T. Thompson:

    None whatsoever, none whatsoever.

    Now, bear in mind that this discharge was right at the very outset of the union campaign.

    There was no campaigning, at least the record shows.

    It doesn’t show that there was any campaigning in the plant or — or even open campaigning.

    The best the record shows is that the organizers were going around to these peoples’ homes attempting to sign them up.

    Earl Warren:

    Mr. Thompson, is there anything in the record to show that she was taken the test (Inaudible) or anything at that time?

    Robert T. Thompson:

    There is testimony in record, yes sir, whether the testimony was credit, there was not a little proposition but —

    Earl Warren:

    (Inaudible)

    Robert T. Thompson:

    I think if you look at the testimony, I can’t point to the page because I’m not prepared to point.

    Mr. Frostermann and also her supervisor which would be —

    Earl Warren:

    (Inaudible)

    Robert T. Thompson:

    Yes sir.

    Her supervisor, I believe was Mrs. Hewing also testified that she had so much trouble with her that she, herself Mrs. Hewing was put to tears on several occasions.

    Now, Mrs. Yancey denied these things, denied that she had been criticized.

    Our contention of course was that her work — she rather than showing improvement was showing a decline and it was not seemed logical as somebody would not have spoken to her and our testimony was that they had.

    Now, I realize that my time is drawn —

    Felix Frankfurter:

    (Inaudible) must be generally reported, was the Board found and then to what the Court (Inaudible)

    Robert T. Thompson:

    The Board, this particular — this particular case, the Board sustained.

    They examined those findings in every respect.

    As a matter of fact, the Board sustained, they examined practically everything.

    I think they dis — throughout of couple of this 8 (1) findings but added about five or more that he had made the finding.

    Felix Frankfurter:

    On the basis of records that came to Court.

    Robert T. Thompson:

    Yes.

    Felix Frankfurter:

    (Inaudible)

    Robert T. Thompson:

    That’s correct sir.

    Felix Frankfurter:

    (Inaudible) Court.

    Robert T. Thompson:

    The Court, this particular case, I assume that this one was singled out because it — it did bring about more testimony and was more hotly contested.

    The Court went into a great deal of details concerning this Mrs. Yancey.

    The Court was not impressed that she was in ardent or active union worker and incidentally, she admitted herself that she didn’t sign anybody to go out and try to sign people up for the union which is usually the case in one of these people.

    The Court went into — as I say a detail concerning Mrs. Yancey’s case more so than — than any of the others.

    The Court was not impressed with the findings of the Board in any respect.

    The Court as I read it came to the impression this was simply a woman who had signed up with the union but who also had a bad production record, who had been — who had done shoddy work.

    And the Board simply had not provided substantial evidence in the record to support his findings.

    Now, he stated that specifically.

    And he says at the outset of his — of his opinion he states that I have made a tedious appraisal of this record going from one of these books to the others, we’ve done here a few minutes ago and no question it.

    It’s a tedious proposition.

    This trial lasted six or seven days and there were well over thousand pages of testimony.

    Now, we come to the point that this Court has asked — I assume that they did the same thing which is right into the teeth of the Pittsburgh Steamship case, right in to the teeth of the very case that they cite as being an implication that this Court has been critical of this Circuit before.

    I’m referring to the Fant Milling case, but the Fant Milling case is an — is an illustration of what this Court is done up to now with these cases and that is that they review the record is the function of the Court of Appeals.

    Congress offered to put that responsibility upon the Court of Appeals and in 1947, they attempted to put added responsibility upon them in order to ensure the families in reasonableness of their orders.

    Robert T. Thompson:

    This Court in Fant Milling suggested to the Fifth Circuit first rule in Footnote 10 that this is not the place to review the records, cited Pittsburgh Steamship and then stated that we will remand the case back to the Fifth Circuit but if the facts which were brought out in the dissenting opinion are true then possibly the thing should be enforced.

    Well, the case went back to the Fifth Circuit and they enforced it per curiam without a dissent or anything else.

    Prior to the time Fant Milling came here, there had been no decision on the merits.

    There was merely a dissenting opinion or a special concurring opinion by Judge Hutchenson which suggested and he didn’t think that there was substantial evidence in that record.

    Now in closing, I would like to suggest to this Court what I consider the real issue in this case and what I — I think is the possible result if the Board’s contention is followed and that is this.

    If you take that contention to its logical conclusion, it will mean that anytime the Board makes out a prima facie case and in this case, a prima facie case would be union membership or activities, competent knowledge, and some anti-union animus on the part of the company, that there would be no circumstances under which the Court of Appeals could reverse them and that’s what they are in effect saying.

    And they criticized the Fifth Circuit in the Frosty Morn case which came out in November for taking issue with them there.

    The Fifth Circuit said that it’s true if the evidence on the Board’s side is reasonably equal to the evidence on the employer’s side, we can’t upset it.

    But if there’s evidence to prove that an employee has given just cause for his discharge, then just because there’s evidence to support the Board there, does not mean we can’t upset it because if there is just cause for discharge and the man is discharged, there can be no discrimination because anyone who committed those acts would have been discharged.

    Discrimination is treating one person differently than you would treat another.

    The second —

    Felix Frankfurter:

    Mr. Thompson, was there any evidence on this record — was there any evidence by the Board that (Inaudible)?

    Robert T. Thompson:

    There was about 200 exhibits and I suppose they would contend from those without any testimony explaining them.

    Felix Frankfurter:

    Talk about that.

    Robert T. Thompson:

    There’s no direct evidence, no.

    Felix Frankfurter:

    Was there any — was there intention for the specific instances that (Inaudible).

    Robert T. Thompson:

    No sir.

    The Board put in 90 somewhat worksheets.

    Some of the Mrs. Yancey’s and then in their brief, they attempted to draw analogy but there was no testimony that you could compare this one with that one and there was testimony that you — you had to deal with these different jobs on a specific basis.

    The other issue which I think is in this case —

    Felix Frankfurter:

    What do you mean show?

    Worksheets really don’t show anything (Inaudible)

    Robert T. Thompson:

    That’s right sir and they wouldn’t show the — the relative difficulty of the job that was in question which is a big factor.

    The other issue in this case is this.

    This union wrote a letter to this employer in which it stated the following people of the members of our organizing committee.

    The Court found and we here contend that this letter was not only designed but did have the effect of blinding the Board to any logical and reasonable consideration of the — of true evidence in the case.

    And the true test for that is if you turn these layoffs around, if you say what the Board has said to us, you got to keep this particular employee Nelly Hood or Nelly Wood or what have you.

    Then you’ve got to layoff somebody else because it must be remembered that the layoff itself was stipulated to be economically necessary.

    So you’ve got a layoff which is necessary.

    Somebody’s got to be laid off.

    Robert T. Thompson:

    Now, what the Board has told us is that in every one of these cases, nine of them, that’s all we were charged with on the layoff.

    You’ve got to keep all nine of them although there is no evidence in this record which would justify at least seven of them being kept under any circumstances except that they found an anti-union motive.

    That’s not what the law was designed to do.

    It was not designed to promote discrimination in favor of union members anymore than it was designed to promote discrimination against them.

    I appreciate your attention, thank you.