Kitty Clover, Inc. v. National Labor Relations Board, 14833.

• Decision Date: 30 November 1953
• Docket Number: No. 14833.,14833.
• Citation: 208 F.2d 212
• Parties: KITTY CLOVER, Inc. v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Eighth Circuit

208 F.2d 212 (1953)

KITTY CLOVER, Inc. v. NATIONAL LABOR RELATIONS BOARD.

No. 14833.

United States Court of Appeals, Eighth Circuit.

November 30, 1953.

Clarence T. Spier and William C. Spire, Omaha, Neb. (Spier, Ellick & Spire and David W. Swarr, Omaha, Neb., on the brief), for petitioner.

Frederick U. Reel, Washington, D. C. (George J. Bott, General Counsel, David P. Findling, Associate General Counsel, A. Norman Somers, Asst. Gen. Counsel, and Nancy M. Sherman, Washington, D. C., on the brief), for respondent.

Before SANBORN and THOMAS, Circuit Judges, and HARPER, District Judge.

SANBORN, Circuit Judge.

The petitioner asks for the review and reversal of an order of the National Labor Relations Board dated April 8, 1953 (103 N.L.R.B. No. 127). The Board asks for the enforcement of its order.

In a proceeding under Section 10 of the National Labor Relations Act, as amended, 61 Stat. 136, 29 U.S.C.A. § 151 et seq., the Board determined that the petitioner, which has a plant in Omaha, Nebraska, and makes and sells potato chips and popcorn, had during 1951 violated Section 8(a)(3) of the Act, 29 U. S.C.A. § 158(a)(3), (1) by suspending one of its employees and discharging three others because of their activities on behalf of United Packinghouse Workers of America, C.I.O., a labor union, (2) by discharging forty-eight of petitioner's employees who struck in protest against the discharges, and (3) by refusing the application of some of the strikers for reinstatement. The Board also determined that, by these acts and other conduct, the petitioner had interfered with, restrained and coerced its employees in the exercise of their rights to self-organization and to engage in concerted activities, in violation of Section 8(a) (1) of the Act, 29 U.S.C.A. § 158(a)(1).

The Board's order required the petitioner to cease and desist from discouraging membership in the Union or other labor organization by discriminating with respect to employment, and from in any other manner interfering with the rights of petitioner's employees. The order also required the petitioner to offer reinstatement to seventeen employees who, the Board found, had been discriminatorily discharged and not offered reinstatement, and to make whole for loss of pay forty-nine employees who had engaged in the strike.

The issues before the Board were whether the suspension of the one employee and the various discharges of others were the result of the union affiliations and protected activities of the employees involved, as charged by the General Counsel of the Board, or were the result of other causes, as asserted by the petitioner, and whether the petitioner had or had not engaged in interrogation and surveillance of its employees with respect to their union affiliations and activities.

In its brief the petitioner asserts that the issues presented to this Court are:

"(1) Whether or not the discharges of Moore, Gamerl, and Galus were for good cause and not for union activity;

"(2) Whether or not the suspension of Rose Bell was for good cause and not for union activity;

"(3) Whether or not the discharges of July 19, 1951, were for good cause and not an unfair labor practice against employees engaged in a protected concerted activity."

What the petitioner means to assert is, of course, that the question before this Court is whether there was an adequate evidentiary basis for the Board's determination that the suspension and the discharges were discriminatory and constituted unfair labor practices.

This Court cannot retry and redetermine issues of fact which have been tried and determined by the Board. National Labor Relations Board v. Minnesota Mining & Manufacturing Co., 8 Cir., 179 F.2d 323, 325; Hartsell Mills Co. v. National Labor Relations Board, 4 Cir., 111 F.2d 291, 293. The Board, as has frequently been pointed out, is the judge of the facts, the credibility of the witnesses, and the weight of evidence, and may draw inferences from circumstantial, as well as direct, evidence. It is only when the Board's determination is without adequate support in the evidence or is beyond the scope of the Board's statutory authority that this Court may set aside an order or refuse its enforcement.

In the case of National Labor Relations Board v. Minnesota Mining & Manufacturing Co., supra, at page 325 of 179 F.2d, this Court said:

"The only question requiring consideration is whether there is an adequate evidentiary basis for the findings and order of the Board. We think that the time has come to abbreviate, so far as possible, opinions in these National Labor Relations Board cases. A detailed review of the evidence is ordinarily futile. The parties are familiar with it, and others are not interested unless some novel question is presented. Almost all of these cases fall into some familiar pattern. The limited scope of our power of review has often been repeated."

The instant case is of a type entirely familiar to this Court, namely, one in which union members and union supporters are discharged or laid off by an employer during an organizational campaign, the union claiming that the discharges or suspensions were the result of union affiliations or...