NLRB v. MORRISON CAFETERIA CO. OF LITTLE ROCK, INC.,

• Decision Date: 10 January 1963
• Docket Number: No. 17071.,17071.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MORRISON CAFETERIA COMPANY OF LITTLE ROCK, INC., Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

311 F.2d 534 (1963)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MORRISON CAFETERIA COMPANY OF LITTLE ROCK, INC., Respondent.

No. 17071.

United States Court of Appeals Eighth Circuit.

January 10, 1963.

Peter M. Giesey, Atty., National Labor Relations Board, Washington, D. C., for petitioner and Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Warren M. Davison, Atty., N. L. R. B., Washington, D. C., on the brief.

Paul S. Kuelthau, St. Louis, Mo., for respondent and Milton O. Talent, Moller, Talent & Kuelthau, St. Louis, Mo., and Andrew P. Carter, of Monroe & Lemann, New Orleans, La., on the brief.

Before JOHNSEN, Chief Judge, and MATTHES and RIDGE, Circuit Judges.

RIDGE, Circuit Judge.

The instant case is one for enforcement of an order of the National Labor Relations Board (135 N.L.R.B. No. 136) issued against respondent for violations of Section 8(a) (1) and (3) of the National Labor Relations Act, 29 U.S.C.A. § 158(a) (1) and (3). Respondent's opposition thereto is on the ground there is no substantial evidence in the record, considered as a whole, to support the Board's findings and order.

Respondent operates a cafeteria in Little Rock, Arkansas. It is a subsidiary corporation of, and an integral part of, Morrison Cafeterias Consolidated, Inc., a Florida Corporation with general offices in Tampa, Florida. Briefly, the Trial Examiner found seven independent instances of violation of Section 8(a) (1) of the Act, supra, by respondent for threatening and interrogating its employees in connection with their union affiliations and activities. Also, that respondent had discriminated against Cololsees Bowers, one of its employees, by assigning him to unpleasant and less remunerative tasks as a series of punishment for his union activity and that it discharged five employees in violation of Section 8(a) (3) of the Act. The Board affirmed the Trial Examiner's finding and ruling in all respects except as to the discharge of one employee. As to that employee, the Board ruled that the General Counsel had not sustained the burden of proving that his discharge was discriminatory and reversed the Trial Examiner's conclusions to that extent.

The main thrust of respondent's opposition to enforcement of the Board's order as to the other four employees is posited by it thus:

"The Board\'s adoption of the majority rule credibility findings of the Trial Examiner was an erroneous method of resolving the many credibility questions in this case and resulted in the failure to appraise the testimony in the light of all the circumstances. When the testimony is viewed in the proper light the Respondent\'s actions are entirely explicable and in conformity with the National Labor Relations Act." (Emp. added.)

The "majority rule" which respondent theorizes in its brief is that the Trial Examiner concluded to accept and believe the testimony of all the witnesses adduced by the General Counsel and to reject that of the witnesses testifying on behalf of respondent. That is true, but it is plain in the record before us that the Trial Examiner formed that opinion from obvious contradictions, opposures and refutations appearing in the testimony of the witnesses.¹ Notwithstanding, respondent argues that such a "majority rule doctrine" of determining credibility "has not received the sanction of any court,"² and that we should not adopt it; citing Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); N. L. R. B. v. Walton Manufacturing Co., 286 F.2d 16 (5 Cir. 1961), reversed on other grounds 369 U.S. 404, 82 S.Ct. 853, 7 L.Ed.2d 829 and our previous opinion in Local No. 3, United Packinghouse Workers of America, CIO v. N. L. R. B., 210 F.2d 325 (8 Cir. 1954) in support thereof.

We need not differentiate the rulings made in such cited authority. It is deemed sufficient to say that the rule laid down in Universal Camera Corporation v. National Labor Relations Board, infra, does not require that we "displace the Board's choice between two fairly conflicting views, (of the evidence) even though (we) would justifiably have made a different choice (of inferences) had the matter been before (us) de novo." (340 U.S., l. c. 488, 71 S.Ct., l. c. 465). The Universal Camera opinion recognizes that as a reviewing court we should set aside decisions of the N. L. R. B. only when we "cannot conscientiously find that the evidence supporting (the) decision is substantial, when viewed in the light (of) the record in its entirety * * *, including the body of evidence opposed to the Board's view." (l. c. 488, 71 S.Ct. l. c. 465, supra.)

Unlike the facts found in the authorities cited by respondent, the incidents in the case at bar while few in number involved more than isolated chance remarks and interrogations as respondent would have us classify them. The interrogation of respondent's employees by its supervisory personnel concerning their union activities, and the threatening remarks were made at or about the time when there was obvious concerted activity on the part of its employees to join a union and when the four employees (ordered reinstated) were discharged. While the evidence is not as compelling as one might desire, "it gains considerably not only in credibility but in substantiality when it is set in the background developed by other evidence." N. L. R. B. v. Great Eastern Color Lithographic Corporation, 309 F.2d 352 (2 Cir. 1962).

We cannot say that the testimony of the witnesses adduced by General Counsel is less credible, less reasonable, and weaker than that of respondent's witnesses, as respondent suggests. The Trial Examiner had an opportunity to observe the witnesses appearing before him. The matters that he determined were wholly factual, based on contradictory testimony. As to the only issue involved he found, as above stated, several acts on the part of respondent which he determined were interference, restraint and coercion of its employees in violation of Section 8(a) (1) and (3) of the Act. Considered in isolation, they are: He gave credence to and accepted the testimony of one Bowers, that (1) on April 1, 1961, Bowers (later discharged) told Head Waiter Simmons of his intention to contact a union and Simmons said that respondent would fire everybody and import workers from outside the State before it would allow a union in the cafeteria, and warned Bowers that he would lose his job if he mentioned a union again; (2) that on April 4th, Dining Room Supervisor Autry told Bowers, who had remarked that the employees needed a union, "Boy, if you mention union again you are fired"; (3) that on April 12th Simmons reached into an employee's pocket, withdrew the union authorization card she had just signed, read it, and returned it to her with the remark, "You are all trying to get an organization"; (4) on April 13th, following the discharge of Waiter Handy, Autry...