National Labor Relations Board v. Solo Cup Company

• Citation: 237 F.2d 521
• Decision Date: 16 November 1956
• Docket Number: No. 15524.,15524.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SOLO CUP COMPANY, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

237 F.2d 521 (1956)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SOLO CUP COMPANY, Respondent.

No. 15524.

United States Court of Appeals Eighth Circuit.

October 18, 1956.

Rehearing Denied November 16, 1956.

Samuel M. Singer, Atty., N. L. R. B., Washington, D. C. (Theophil C. Kammholz, Gen. Counsel, David P. Findling, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Nancy M. Sherman, Atty., N. L. R. B., Washington, D. C., were with him on the brief), for petitioner.

John J. Hasburgh, Kansas City, Mo. (Carl E. Enggas and Watson S. Marshall & Enggas, Kansas City, Mo., were with him on the brief), for respondent.

Before WOODROUGH, VOGEL and VAN OOSTERHOUT, Circuit Judges.

VOGEL, Circuit Judge.

The National Labor Relations Board has petitioned this court pursuant to Section 10(e) of the National Labor Relations Act, 61 Stat. 136, 29 U.S.C.A. § 151 et seq., for enforcement of an order issued against respondent on September 21, 1955, following the usual proceedings under Section 10 of the Act. The decision of the National Labor Relations Board is reported at 114 N.L.R.B. No. 31.

The Board found that respondent, in violation of Section 8(a) (3) and (1) of the Act, discharged one of its employees (Page) because it believed such employee to be active on behalf of the International Brotherhood of Pulp, Sulphite and Paper Mill Workers, A.F.L.; that in further violation of Section 8(a) (3) and (1) it suspended four other employees (Westmoreland, Bradley, Warden and Palmer) because they participated in a brief strike protesting the alleged unlawful discharge of Page; and that by these and other acts of interference, restraint and coercion through the conduct of Joseph Donahoe, whom the company had allegedly clothed with apparent authority of a supervisor, had violated Section 8 (a) (1). The complaint was dismissed as to certain other employees not here involved. The Board adopted the fact determinations of the Trial Examiner.

The Board's order of which enforcement is sought here, requires the company to cease and desist from the unfair labor practices found or from in any other manner interfering with, restraining or coercing its employees in the exercise of their organizational rights. It also affirmatively requires the reinstatement of employee Page and to make her and employees Westmoreland, Bradley, Warden and Palmer whole for any loss of pay they may have suffered by reason of the discrimination against them, and to post appropriate notices.

Respondent resists enforcement of the order generally on three grounds: (1) There is no substantial testimony to justify the conclusions of the Board that the Solo Cup Company discharged Mary Page because it believed she was engaged in union activities; (2) the Board erred in holding that the suspension of Westmoreland, Bradley, Palmer and Warden for a period of four days constituted a violation of Section 8(a) (3) and (1) of the Act; and (3) the Board erred in finding that respondent independently violated Section 8(a) (1) of the Act by reason of the course of conduct of Joseph Donahoe.

Under 29 U.S.C.A. § 160(e), "The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive." A Court of Appeals may not disturb the Board's findings based on substantial evidence, even though such court, had it been the trier of the facts, would have reached a different conclusion. N. L. R. B. v. Sun Co., 9 Cir., 1954, 215 F.2d 379; Foreman & Clark, Inc., v. N. L. R. B., 9 Cir., 1954, 215 F.2d 396, certiorari denied 348 U.S. 887, 75 S.Ct. 207, 99 L.Ed. 697; N. L. R. B. v. Denton, 5 Cir., 1954, 217 F.2d 567, certiorari denied 348 U.S. 981, 75 S.Ct. 572, 99 L.Ed. 764. In N. L. R. B. v. United Biscuit Co., 8 Cir., 1953, 208 F.2d 52, certiorari denied 347 U.S. 934, 74 S.Ct. 629, 98 L.Ed. 1085, this court stated the rule, 208 F.2d at page 54:

"In this proceeding we are not called upon to weigh the evidence but only to examine it for the purpose of determining whether or not on the entire record the essential findings are sustained by substantial evidence and in performing this function we must view the evidence in a light most favorable to the prevailing party."

To the same effect see N. L. R. B. v. Wheeling Pipe Line, Inc., 8 Cir., 1956, 229 F.2d 391; N. L. R. B. v. United Broth. of Carpenters, A.F.L., 10 Cir., 1950, 184 F.2d 60, certiorari denied 341 U.S. 947, 71 S.Ct. 1011, 95 L.Ed. 1371; N. L. R. B. v. Gonzalez Padin Co., 1 Cir., 1947, 161 F.2d 353. The Supreme Court, in N. L. R. B. v. Waterman S. S. Corp., 1940, 309 U.S. 206, 226, 60 S.Ct. 493, 503, 84 L.Ed. 704, after discussion of the division of authority between the Board and the courts, placed the role of this court in proper perspective as follows:

"The Court of Appeals\' failure to enforce the Board\'s order resulted from the substitution of its judgment on disputed facts for the Board\'s judgment, — and power to do that has been denied the courts by Congress. Whether the court would reach the same conclusion as the Board from the conflicting evidence is immaterial and the court\'s disagreement with the Board could not warrant the disregard of the statutory division of authority set up by Congress."

See also N. L. R. B. v. Link-Belt Co., 1940, 311 U.S. 584, 61 S.Ct. 358, 85 L.Ed. 368.¹

As the above cases have repeatedly defined this court's function, we are only to determine, upon looking at the record as a whole, if the Board has made findings based on substantial evidence.

While the record includes additional evidence, the finding of the Board as to interference, restraint and coercion is concerned mainly with the activities of Joseph Donahoe, respondent's "personnel man". We have reviewed the testimony regarding the activities and statements of Donahoe, as well as the other testimony on this point. It would serve no good purpose to recite the evidence in detail here. Donahoe was not a supervisor or a ranking member of the company hierarchy but he did exercise some control over employees and was certainly in a strategic position to translate to the employees the policies of the company. His activities and his statements to the effect that respondent would replace all employees on the evening shift and stop paying Christmas bonuses if the union organized the plant, and that one of the employees could retain her job only if she refrained from supporting the union, his warning employees that they would be discharged if they again engaged in a protesting strike like that involved in the discharge of employee Page, his threatening reprisals, coercive conduct and interrogating employees regarding union activities were unquestionably violative of Section 8(a) (1) of the Act, provided, of course, respondent was responsible for such activities. Respondent contends that it did not violate the Act on the ground that it was not responsible for the conduct or statements of Donahoe. The Board specifically found that:

"In view of Donahoe\'s various duties and undertakings shown in the record, it is clear that he was, or was held out as, a management representative having specific functions bearing upon the Respondent\'s personnel and labor relations with the employees. He was referred to by Respondent at the representation hearing as `the personnel man,\' and was excluded from the bargaining unit. Donahoe described his job to individuals employed at the plant as that of `personnel director\' and `personnel manager,\' and he testified that his duties were `to sort of feel out the pulse of the individuals working,\' adding — `just personnel pulse.\'"

The Board further found:

"Whether or not Donahoe was technically a `supervisor\' within the Act\'s definition, we conclude with the Trial Examiner that he had at least apparent authority to speak for management, and that the Respondent was responsible for his coercive conduct."

True enough, the record includes disclaimers of responsibility for the statements of Donahoe, but such disclaimers did not overcome the permissible conclusion that Donahoe was acting for respondent when he was continuously allowed to interview the employees, make threatening statements to them, and attend meetings. The situation presented was not unlike that where the right hand claims not to know nor be responsible for what the left hand does. We believe there was justification in the record for the Board's statement that:

"Nor was the Respondent relieved of such responsibility because of any instruction it issued to management personnel to remain neutral concerning union matters, as these instructions, in any event, were not communicated to the employees."

We accordingly conclude that there is substantial evidence on the record considered as a whole which supports the Board's finding that respondent violated Section 8(a) (1) of the Act. Cf. International Assoc. of Machinists, etc., v. N. L. R. B., 1940, 311 U.S. 72, 80, 61 S. Ct. 83, 85 L.Ed. 50.

With reference to employee Page, the Board found that she was discharged because the respondent believed that she was actively involved in union organizational activities. At her previous place of employment she had been a member of the United Garment Workers, A.F.L., from which she had received a booklet outlining the advantages and benefits of unionization. She brought this booklet to the plant and let several of her fellow employees read it. During her interview with Donahoe, he asked her what she thought of the union. When she told him that she had been a union member at another plant, he reminded her that the factory was a non-union establishment and stated that if the union should prevail in a coming election, the company had enough applications on file to replace all the girls on her shift. One of the four cup machines whose output employee Page was required to inspect produced defective cups. Some of these cups were passed unnoticed into cases and...