NLRB v. Billen Shoe Co., 7062.
| Decision Date | 02 July 1968 |
| Docket Number | No. 7062.,7062. |
| Citation | 397 F.2d 801 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BILLEN SHOE CO., Inc., Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
Laurence J. Hoffman, Washington, D. C., Atty., with whom Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Gary Green, Washington, D. C., Atty., were on brief, for petitioner.
Irving Isaacson, Lewiston, Me., for respondent.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
This is a petition for enforcement of a Labor Board order. Respondent took no exception to part of the order. The balance we find totally unsupported. The trial examiner, affirmed without comment by the Board, 166 N.L.R.B. No. 19, reached his conclusions essentially by ignoring substantial evidence from General Counsel's own witnesses whose favorable testimony he uncritically accepted. On the basis of the testimony he did accept he drew inferences contradicted by the very witnesses whose testimony he depended upon.
Because posterity would not benefit from our detailed review of the facts in this case we are placing it in an appendix, which is not to be printed. Suffice for present purposes that the discharged employee's own testimony shows him to have been overbearing, insolent and insubordinate from the moment he was appointed a union organizer, and that the final incident of insubordination would have made the most patient employer risk an unfair labor practice charge. By the same token, the decision reveals, unfortunately, how great is this risk, no matter how undeserved.
We may say that our principal criticism, so far as this particular case is concerned, may be merited by the Board only on the basis of respondeat superior. If it regarded the examiner's report as accurate, the result may not have been unwarranted. If its counsel advised the Board as Board counsel have sought to advise us, the Board would equally have been misled. In this respect, however, we wish the Board to know what we expect of its counsel in this court. Naturally we want counsel to be an advocate. However, not unlike what is demanded of the United States Attorney, we expect a presentation that is full and fair to the court. Rather than doing this, counsel argued to the court that certain prior criticisms of the dischargee were "manifest fabrications," when the ignored testimony even of the Board's own witnesses showed they were not. So, also, repetitious references to an incident in which the dischargee was told to "watch out," with no mention of the testimony of the Board's own witness, who had "impressed" the examiner as "quite truthful," that the dischargee had, on a number of occasions, given cause not merely for criticism, but for discharge. Both of these matters were vital to the case. It should not have to be the duty of this court to scrutinize the record to discover that the Board's brief is colored and one sided. It may be good advocacy to hope that the court will not discover this, and we will add, in fairness to present counsel, who impressed us favorably as an individual, that he may have felt obligated to do what he did because the trial examiner, who was affirmed by the Board, had done the same thing. However,...
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