National Labor Relations Bd. v. Quest-Shon Mark B. Co., 17

• Decision Date: 09 November 1950
• Docket Number: No. 17,Docket 21624.,17
• Citation: 185 F.2d 285
• Parties: NATIONAL LABOR RELATIONS BOARD v. QUEST-SHON MARK BRASSIERE CO., Inc.
• Court: U.S. Court of Appeals — Second Circuit

185 F.2d 285 (1950)

NATIONAL LABOR RELATIONS BOARD v. QUEST-SHON MARK BRASSIERE CO., Inc.

No. 17, Docket 21624.

United States Court of Appeals Second Circuit.

Argued October 4, 1950.

Decided November 9, 1950.

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Owsley Vose, Washington, D. C., Atty., National Labor Relations Board (David P. Findling, Asso. Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, and George H. Plaut, Atty., National Labor Relations Board, all of Washington, D. C., on the brief), for petitioner.

Adolph I. King, Brooklyn, N. Y. (Leonard P. Walsh, Washington, D. C., and Angelo A. Tumminelli, Brooklyn, N. Y., on the brief), for respondent.

Before LEARNED HAND, Chief Judge, and SWAN and CLARK, Circuit Judges.

CLARK, Circuit Judge.

On June 27, 1947, the Corset and Brassiere Workers of New York, Local 32, ILGWU, AFL, filed with the National Labor Relations Board charges that Quest-Shon Mark Brassiere Co., Inc., a corporation engaged in the manufacture, sale, and distribution of brassieres and related products, had committed unfair labor practices by attempting to prevent the unionization of its plants located in Brooklyn, New York. 29 U.S.C.A. §§ 157, 158(a) (1) and (3). A complaint was issued on July 2, 1947, and from August 18 to September 18 a hearing was held before a trial examiner duly appointed by the Board's Chief Trial Examiner. The examiner's report, dated December 31, 1947, found respondent substantially guilty of the charges set out in the complaint, and recommended the usual remedy, i. e., an order directing respondent to stop the unfair practices, offer reinstatement and back pay with seniority where appropriate, and post the customary notices. This proceeding is brought by the Board to enforce its own order of December 7, 1948, modifying in part, but otherwise accepting, the report of the trial examiner.

The facts of the case are set forth in the Board's decision reported in 80 N.L.R. B. 1149, and we shall repeat only some of the more essential points in the evidence adduced at the hearing which appear to characterize respondent's employment activities. Prior to 1946 sporadic and unsuccessful attempts were made to unionize respondent's plants. In October of that year the employees at the 39th Street plant began to discuss the possibility of bringing in a union. One day several of respondent's responsible officials (President Andrew Paolillo, Vice-President Anthony Paolillo, and Plant Superintendent Emilio Paolillo) assembled and addressed the employees there, promising them certain benefits if they would desist in their union demands. On this occasion unions were characterized generally as racketeers and gangsters. Apparently nothing more happened for some months; but on January 22, 1947, the employees at the same plant again began to discuss the union issue, after one of their number had been refused a raise. That afternoon employee Nardella was discharged after the superintendent, observing that she had passed a note to another employee, asked her what union activities were going on in the plant, and she refused to answer. The Board concluded that her summary discharge under these circumstances was in violation of the statute. Later that same afternoon seven other girls who had figured prominently in the union discussions were also summarily discharged by the superintendent, ostensibly for lack of production on their part. But the Board found, significantly, that "the Respondent's production records, as the Examiner found, show that some of these seven employees were among the best producers in the plant, and that workers less efficient than any of these seven were retained."

In the course of the following morning respondent's vice-president, the plant superintendent, and the forelady repeated several times an order that all those employees who wanted a union should leave. The vice-president even restated this command over the plant's public-address system. Thereafter some thirty girls did leave. The Board held it not proven that all of these people left because of the order referred to — thus disagreeing with the trial examiner, to respondent's benefit;¹ but, on the evidence it did accept, respondent's relentless campaign against unionization was abundantly shown. Thus, further, on the morning of the 23d, two employees were not allowed to "punch in" — because, they were told, there was no work. The Board found that this lockout was occasioned by their union sympathies, for the evidence was that a majority of the employees remained at the plant that morning and worked the entire day. On the Board's findings the conclusion that respondent had violated the law necessarily followed.

The evidence accepted by the Board came from respondent's female employees, particularly from those considered by respondent to be ringleaders in the union activities. It was, of course, disputed by respondent's officials and in various parts by other employees, including employees who had been taken back by respondent. But the evidence against respondent was perfectly credible and naturally found support in the inference to be drawn from the wholesale discharges of workers with good production records at times when other employees were being sought. Consequently respondent's contention that the decision and order of the Board are against the weight of the credible evidence cannot be upheld. Nor, in view of this relatively strong case, do we need to re-examine further the issue whether a greater weight of evidence than formerly is now required to sustain findings of the Board.²

Under these circumstances, respondent is necessarily forced to attack the fairness or validity of the hearing before the trial examiner on procedural grounds. We pass at once its first point that the taking effect of the Labor Management Relations (Taft-Hartley) Act, 29 U.S. C.A. § 141 et seq., on August 22, 1947, during the hearings required that they be discontinued and new proceedings be instituted. The new act was an amendment asserted to strengthen and improve, not set aside, the earlier act; and continuance of the proceedings (according to whatever changed standards might then obtain) was obviously proper. Except in so far as actual prejudice to the respondent from a failure to observe these standards is shown, respondent has no just ground of complaint. Next the assertion that the hearing was neither fair nor impartial is definitely unsupported on the record before us.

There remain the objections (1) that certain statements obtained on behalf of the Board were not sworn to before a notary, as they appeared to be on their face, (2) that these statements were improperly used before the trial examiner, and (3) that the examiner committed reversible error by refusing to compel the production of all these statements by subpoena duces tecum so that respondent might examine them prior to or during the hearing.

At the hearing it appeared that the statements of employees, taken by an investigator for the Board, were thereafter notarized on the procurement of a representative of the union, without, however, the personal appearance before the notary public of the persons involved. At this the Board's counsel stated that he was without previous knowledge of this defect and acknowledged the invalidity of the statements as affidavits, but did use them for the discrediting of...