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Bros. v. National Labor Relations Board.

February 3, 1941

BURK BROS.
v.
NATIONAL LABOR RELATIONS BOARD.



Petition to Review and Set Aside Order of National Labor Relations Board.

Author: Maris

Before BIGGS, MARIS, and CLARK, Circuit Judges.

MARIS, Circuit Judge.

Burk Brothers, a corporation engaged in the tanning and sale of leather in Philadelphia, has petitioned for the review of an order entered by the National Labor Relations Board against it. The Board in its answer requests the enforcement of its order. The Board found that the petitioner was engaged in interstate commerce, that it had interfered with, restrained and coerced its employees in the exercise of their right to join a labor organization, the National Leather Workers' Association, and that it had discharged four employees, Joseph Zalot, Kosta Kula, Charles Majerick and Frank Majerick because of their union membership and activity. The Board ordered the petitioner to cease and desist from its unfair labor practices, to offer reinstatement to Chrles and Frank Majerick and to give back pay to them and to Zalot and Kula, whom it had previously reinstated.

The interstate character of the petitioner's business was clearly shown by the evidence and is not disputed here. Likewise there was sufficient evidence to support the Board's finding that the petitioner, through certain of its foremen, by threats of lay-off and other actions, had restrained some of its employees from joining the union and coerced others into withdrawing from it. The evidlence shows that in June or July 1937 approximately 125 of petitioner's 285 employees had joined the union but that by December, 1938, when the Board's trial examiner held his hearing, its membership had fallen to about seven. The Board was entitled to infer that this came about, at least to some extent, as a result of the activities of petitioner's foremen which the evidence desclosed.

We also think that there was substantial evidence to support the Board's finding that Zalot, Kula and Charles and Frank Majerick were laid off because of their union membership and activities. The evidence discloses taht these four employees were leading figures in the union activity at the petitioner's plant. While of course this fact in itself is no bar to the discharge of an employee for legitimate reasons, it may well disclose the real motive actuating an anti-union employer in discharging such an employee when the reasons given for the action do not ring true.

Zalot was first employed in 1926 and had been continusly employed since June 1935 at the time of his discharge on June 28, 1937. He had been warned by his father, an assistant foreman, to stop talking about the union or he would be discharged. Shortly before the discharge his father let it be known that Zalot would be laid off "on account of talking too much about the C. I. O. in the place." The petitioner contends that he was merely laid off in his turn for lack of work. It appears, however, that he was paid off at the time his services were dispensed with, as was customary only in cases of discharge, rather than at the next succeeding pay day when employees who were laid off were ordinarily paid. It also appears that he had seniority over a number of employees who were retained. The petitioner's further contention that Zalot was an unsatisfactory worker is hardly convincing in the light of his foreman's admission that he had not done anything to warrant dismissal in the last two years of continuous service.

Kula was first employed in 1915 and, except for occasional lay-offs due to seasonal fluctuations, continued in the petitioner's employ until his discharge on December 14, 1937. At that time he had been employed without a break since november 5, 1935. He testified that when he was discharged his foreman told him: "I didn't lay you off; * * * the office is laying you off on account of the Union." In his case also it is contended that he was laid off in accordance with his seniority because of lack of work and that he was not discharged. Here again, however, it appeared that he was paid off immediately rather than at the next pay day and there was evidence that he had seniority over Drobonik, a fellow employee who was retained.

Charles Majerick commenced work in Februry 1934 and with the exception of one lay-off in 1934 worked steadily until his discharge August 2, 1937. He was the union's most successful organizer. The petitioner seeks to justify his discharge on two grounds. The first is a quarrel with an assistant foreman, over an operation in the suede department, to which he had recently been transferred, which took place on June 22, 1937, and which was described by another employee who was present as a "verbal argument." Although Majerick used some disgusting profanity, it was testified that he did comply with the assistant foreman's directions. The testimony of Miller, Majerick's foreman, supports the conclusion that he did not regard the incident as important; although the superintendent told him to discharge Majerick he did not do so, but merely transferred him back to his old department. Miller stated categorically that Majerick was laid off solely for the second reason advanced by the petitioner, curtailment of work, and in order of his seniority. But the evidence indicates that he also was paid off at once - an indication of discharge rather than temporary lay-off - and that at least nine men junior to him were retained. This fact the petitioner made no effort to refute by producing its employment records.

Frank Majerick, the father of Charles Majerick, was employed by the petitioner from 1907 to 1911 and from 1928 until January 28, 1938, when he was discharged.It is contended that he was laid off because of curtailment of work and in accordance with seniority. But there was evidence that he had seniority over two retained employees, Miller and mitas, and the attempt of the petitioner to controvert this evidence is far from convincing. The petitioner urges that the Board's trial examiner in his intermediate report found that Charles and Frank Majerick had not been discriminatorily discharged. But the National Labor Relations Act, 29 U.S.C.A. ยง 160(c), imposes upon the Board itself the duty of making the findings of fact, which duty it may not delegate to a trial examiner. National Labor Relations Board v. Elkland Leather Co., 3 Cir., 114 F.2d 221, 225, certiorari denied 61 S. Ct. 170, 85 L. Ed. . Where, as here, there is substantial evidence to support the Board's findings we may not set them aside merely because the Board's view of the weight and credibility of the testimony differed from that of its trial examiner.

Upon the facts found by the Board its order to cease and desist from its unfair labor practices, to offer Charles and Frank Majerick reinstatement, and to make them and Zalot and Kula whole for loss of pay, was clearly proper. Indeed, the petitioner does not contend otherwise. The Board's order directed the petitioner to post notices "stating that the respondent [the petitioner here] will cease and desist as provided in paragraphs 1(a) and (b) and will take the affirmative action set forth in paragraphs 2(a) and (b) of this Order; * * * " The Board now requests and consents that our decree enforcing its order shall modify this provision, in accordance with its present practice, so as to require the petitioner to post notices "stating that it will not engage in the conduct from which it is ordered to cease and desist and that it will take the affirmative action set forth in paragraphs 2(a) and (b) of this Order; * * * " We think that the requested modification is proper and it will be made.

The order of the National Labor Relations Board is affirmed and a decree enforcing it with the modification requested by the Board will be entered.

CLARK, Circuit Judge (dissenting in part).

This dissenting opinion illustrates (perhaps) the judicial shrinking from the difficulties of fact review. It is much easier to abdicate than to analyze. The writer calls that to the attention of the numerous critics of the jury system,*fn1 a body charged with a duty of deciding in a few hours matters that trouble judges for a few months. To avoid that trouble, the judges speaking first for themselves and then through legislative bodies have adopted what might be described as a protective coloring. They have refused to interfere with, or as they gracefully put it, substitute their judgment for that of, the primary fact triers. This refusal cannot, of course, go too far in avoidance ...


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