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F.W. Woolworth Co. v. National Labor Relations Board.

July 2, 1941


Petition to Review and Set Aside an Order of the National Labor Relations Board.

Author: Frank

Before L. HAND, CHASE, and FRANK, Circuit Judges.

FRANK, Circuit Judge.

The F. W. Woolworth Company, a New York corporation having its principal place of business in New York City, has petitioned to have an order of the National Labor Relations Board reviewed and set aside. In answering the petition, the Board requests that its order be enforced. Petitioner has been found by the Board to have engaged in violations of sections 8(1) and 8(3) of the National Labor Relations Act, 29 U.S.C.A. § 158(1) (3), with respect to the employees of a warehouse which it operates in New York City, for the purpose of storing and distributing merchandise to its retail variety stores.

Prior to July, 1937, those employees were unorganized. In that month, when there were about 420 employees, a union (which later became Local 65, United Wholesale and Warehouse Employees of America) began a campaign to organize the warehouse. By some time in November, the union had succeeded in signing up 291 men as members. The Board found that, during this period, petitioner engaged in violations of section 8(1) of the Act by interfering, restraining and coercing the men in exercising the rights of self-organization guaranteed to them by the statute. In making this finding , the Board had before it a number of incidents, none of them perhaps conclusive in itself, which, added together, constitute a body of antiunion activity which amply justified the finding of the Board. Since it is not our province to do more than determine whether there was evidence to sustain the Board's findings [section 10(e), 29 U.S.C.A. § 160(e) ], we do not set out the evidence in any detail.

The facts adduced at the hearing showed that a principal aim of the union's campaign, announced in circulars distributed outside the warehouse, was the elimination of compulsory overtime work and the payment of overtime at time and one-half. This was an old grievance, yet nothing was done about it until a few days after the distribution of the union's circulars, when the company, suddenly and without explanation, began to ask its employees whether they wished to work overtime, and began to pay time and one-half for such work. The Board concluded that this, and a later wage raise, were tactics designed to forestall the union's campaign. Petitioner objects that there is no proof that this was, in fact, the company's purpose, and it points out that the union promptly claimed the action as its first victory. The latter is, of course, immaterial; and the former goes to an issue of credibility and inference with which the Board is more capable of dealing than are we. During July and August petitioner abandoned its old practice of permitting employees to move about the packing room without restraint, and assigned certain employees to the middle aisle, ordering them not to leave it.The men working there were under greater surveillance by the foremen and were to some degree isolated from the rest of the employees. No explanation was given for the establishment of this "observation aisle", and there was positive evidence that inability to move about the room resulted in reduced efficiency. All of the men assigned to the aisle were union members; among them were the shop chairman, several captains and financial secretaries, and others who later became captains. The Board concluded, and we think properly, tht petitioner segregated active union men in order to hinder self-organization. Petitioner attacks the Board's finding because there was no positive proof that it knew which of its employees were, and which were not, members of the union. This same protestation is made as a defense to the allegation of discriminatory discharges (which will be discussed below), where the evidence is capable of no other rational explanation than that petitioner knew which employees were members.It seems unlikely that petitioner remained entirely ignorant of the identity of the active union men at a time when they were distributing circulars, soliciting membership, signing up other employees, and collecting dues from their fellow workers. The Board found that the union duties of the active men involved "extensive contact" with the other employees which petitioner must have noted. We cannot say the Board was wrong.

Implicit in petitioner's argument is a basic objection to reliance upon so-called "circumstantial evidence". But courts and other triers of facts, in a multitude of cases, must rely upon such evidence, i.e., inferences from testimony as to attitudes, acts and deeds; where such matters as purpose, plans, designs, motives, intent, or similar matters, are involved, the use of such inferences is often indispensable.*fn1 Persons engaged in unlawful conduct seldom write letters or make public pronouncements explicitly stating their attitudes or objectives; such facts must usually be discovered by inference; the evidence does not come in packages labelled, "Use me", like the cake, bearing the words "Eat me", which Alice found helpful in Wonderland.

The Board, after weighing conflicting evidence, found that petitioner's officials had questioned several employees about their union membership and activity; it concluded that the questions were forbidden by the Act. Petitioner's attack on this finding virtually concedes that we are being asked to re-weigh the evidence and re-determine the credibility of the witnesses. This the Act forbids us to do; see section 10(e). Petitioner urges further that the manager of the warehouse issued instructions to the assistant manager, which he relayed to the foreman, not to interfere with the men's union activity. Such instructions, petitioner, or petitioner's counsel, must know, would hardly save it from responsibility for any other unlawful act by its supervisory employees; we can hardly believe that the company seriously thought that such a pious declaration could immunize it from the acts of its personnel officials, when those acts constituted violations of the National Labor Relations Act. Finally, during a hearing in April, 1938, conducted by the Board to certify a collective bargaining agency, petitioner circulated among its employees a petition requesting the Board to hold a secret election. The union's expressed position was that it could be certified upon the record, without an election, because the evidence showed that it represented a majority of the employees. The company's petition, which was signed within an hour and a half by 284 of the 285 employees in the warehouse, was regarded by the Board as an invasion of a sphere reserved to employees and as an invitation to them to repudiate the union's position. In the circumstances, the Board's finding that this was a violation of section 8(1) of the Act is amply justified.

In sum, petitioner's case does not remotely approach the strength and persuasiveness which we require before we will undertake to reverse the Board's findings. Its entire case on this issue, in effect, is a plea that, if we were to try the case de novo, we might conceivably find evidence to justify a decision contrary to the Board's. That is not our function, and it is a waste of our time and of the client's money to bring before us cases based on such a misconception of our duties.

The Board found further that petitioner had engaged in violations of section 8(3) of the Act by a series of discriminatory discharges. The facts, as found by the Board, are these.*fn2 For a reason which the Board found it unnecessary to establish, but which we will assume, as petitioner contends, was unfavorable business conditions, petitioner discharged a number of men in five lay-offs in November and December, 1937. Prior to the discharges, petitioner had 415 employees, of whom 290, or 70%, were union men. Of the 152 men laid off, 145, or 95%, were union men. The men eliminated included the union's shop chairman, its entire shop committee, its 12 financial secretaries, and 29 of its 32 captains. Petitioner objects to the computation of these illuminating figures on a plant-wide basis, urging that a departmental comparison is more significant.But an examination of its tables does not suggest a different conclusion. The four largest departments had union memberships before the discharges in the following proportions:

Packers 84%

Checkers 62%

Order clerks 72%

Stock clerks ...

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