NATIONAL LABOR RELATIONS BOARD v. WALTON MFG. CO.

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Argument of Norton J. Come

Chief Justice Earl Warren: Number 77, N.L.R.B, Petitioner, versus Walton Manufacturing Company.

Mr. Come.

Mr. Norton J. Come: May it please the Court.

This case is here on certiorari to the Court of Appeals for the Fifth Circuit to review the judgement of that court denying enforcement of a Board order requiring the respondent, Walton Manufacturing Company, to reinstate with back pay 13 employees who the Board found were discriminated against because of their union activity.

The basic question is whether the Fifth Circuit in concluding that the Board's findings were not supported by substantial evidence on the record as a whole, grossly misapplied the standard of review enunciated by this Court in the Universal Camera case.

Now, in Universal Camera, which was decided by this Court 11 years ago, the Court held that a reviewing court in determining whether there is substantial evidence as a whole to support the Board's findings of fact.

And incidentally, Section 10 (e) of the National Labor Relations Act provides that if there is substantial evidence on the record as a whole to support the Board's findings of fact, those findings shall be conclusive on review.

Universal Camera, this Court held that in determining this question, the reviewing court is entitled to look not only at the evidence which supports the Board's view but also at that which attracts from it.

And it may set aside, I'm quoting now, “A Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial when viewed in the light of the record in its entirely furnishes.”

However, at the same time, the Court pointed out that this does not mean and I'm quoting again, “That a court may displace a Board's choice between two fairly conflicting views even though the court would justifiably have made a different choice, had the matter had been before it de novo.”

In other words as we read Universal Camera and has all of the other Courts of Appeals have been reading it.

It recognizes that the task of making determinations of credibility and of weighing the conflicting inferences to be drawn from credited testimony, a task which Congress entrusted primarily to the Board.

The function of the reviewing court is not to redetermine these questions de novo but merely to determine whether the choice made by the Board was a reasonable one and the like of the entire record.

Now, the Fifth Circuit, as I shall attempt to show, has had difficulty in adhering to this standard particularly in discriminatory discharged cases.

In those cases in particular, its practice is to set aside the Board's finding of unlawful motivation where the employer can point the some incident or shortcoming on the part of the employee that might have been the cause of the discharge.

The Board cannot draw the contrary inference unless there is evidence that directly contradicts the cost assigned by the employer.

Now, this practice, we submit, in effect denies the Board the power to choose between two fairly conflicting views and it's contrary to our reading of the standard of review as enunciated in Universal Camera.

Justice Felix Frankfurter: I thought you said that the Fifth Circuit has had difficulty.

Mr. Norton J. Come: Yes --

Justice Felix Frankfurter: Are you suggesting, however, privilege this -- let's put it, that the Fifth Circuit have an stigma on this subject, there's a particular of the 0551.

You're not suggesting about a series of cases that this Court -- the Fifth Circuit, it gets throughout line from all the other circuits that there must be something, something that matters, some ingredient let's say infuses to their judgment or some ingredient to be found either appropriate, is that what you're saying?

What are you saying?

Or are you suggesting that in this case --

Mr. Norton J. Come: I'm --

Justice Felix Frankfurter: -- court will practice under good faith.

The Department has examind, the Board has examined that (Inaudible).

But to me, it takes a lot of efforts but I should direct myself to the general asset (Inaudible) one thing or another (Inaudible) by this Board or in the particular case, the Board's view that they have (Inaudible) this is the record.

Mr. Norton J. Come: Well, Your Honor, we feel that they have misevaluated the record in this particular case.

However, we would not be here if it were limited to this particular case.

This is a problem that has been going on since the Universal Camera decision.

In many cases --

Justice Felix Frankfurter: You mean in the Fifth Circuit?

Mr. Norton J. Come: In the Fifth Circuit, Your Honor.

Justice Felix Frankfurter: But I've been looking for and that is on the, I think, on the outset for (Inaudible) a decision which demonstrate from which one can fairly draw as an inquiry.

I get to find that the Board in nature that every once in a while they refer from other case.

It goes on to hold that this follow the Universal Camera that merely because of the problem of the Board of the different abuse from the conclusion reach by Court of Appeals has no justification for coming here because that's draw the Courts of Appeal under our common law.

Mr. Norton J. Come: That is correct, Your Honor.

We thought that we had made such a showing in our petition for certiorari in this case.

We also have some statistics there, which I was going to allude to a little later on to show how far out of line the Fifth Circuit is with the -- with the other Courts of Appeals.

Justice Felix Frankfurter: (Voice Overlap) we did on to your courts.

Mr. Norton J. Come: Yes, Your Honor --

Justice Felix Frankfurter: Because you have -- in order to get certificate, you must show (Voice Overlap) that come before the court, one would might get the impression that many come before that court as compared with First Circuit, the one I am thinking about or some other circuit, so (Inaudible) significance.

Mr. Norton J. Come: That is correct, Your Honor.

I should like to first address myself to the facts of this case to show what we think the Court did wrong and then try to indicate that the error is a more deep-seated one than as presented by this particular case.

Justice Felix Frankfurter: Is this (Inaudible)?

Mr. Norton J. Come: Yes.

Justice Felix Frankfurter: Is this -- how many judges are there in the Fifth Circuit?

Mr. Norton J. Come: I don't think there are -- about seven.

Justice Felix Frankfurter: It's what you're saying the tendency that you imply or is it to abolish Camera, was there a difference?

Do your -- do your legislation show the difference as to who is (Inaudible) or is this a -- was this an

Mr. Norton J. Come: My research indicates that it does not make much of a difference who -- it's -- it's a problem that seems to be present throughout the -- throughout the Circuit --

Justice Potter Stewart: As I proceed it --

Justice Felix Frankfurter: That surely is phenomenal, isn't it?

Justice Potter Stewart: The interesting thing about this case is the two of the judges were District Court Judges.

Mr. Norton J. Come: That is correct Your Honor, and for that reason, I -- among other things, I was very careful in reviewing the past histories to see whether it can be attributed simply to that --

Justice Potter Stewart: I can tell you from personal experience if District Judges is sitting by designation to the Court of Appeals at particular problems with the Universal Camera doctrine because it's unfamiliar to their particular experience.

Mr. Norton J. Come: I can appreciate that.

But first of all, my study of the cases indicates that it's not limit to that.

Secondly, as I will hope to develop, I think that the problem stems from the Tex-O-Kan decision of the Fifth Circuit which was handed down in 1941 before the Universal Camera and it is the fact that the Court continues to -- to adhere to the principles enunciated in Tex-O-Kan which we submit are erroneous that we get the problem that -- that we do.

Well, let me tell you a little something about the facts of this case.

In November of 1957, the Amalgamated Clothing Workers embarked on a campaign to organize respondent's employees.

Respondent was opposed to the union and sought to defeat it not merely by expressing opposition to it but by such coercive nature as surveillance of union organizers, interrogation of employees and threats of job loss.

These are not mere isolated acts.

The Board found that this added up to restraint and coercion in violation of Section 8 (a) (1), and the court below agreed except in one or two minor respects and enforce a cease-and-desist order against this pattern of restraint and coercion.

Now, in the midst of this 8 (a) (1) activity, four employees are discharged and shortly thereafter, nine more are laid off.

Now, the Board found that these employes were so affected because of their union activity and that the respondent does discriminate it in violation of Section 8 (a) (3).

The respondent on the other hand contended that the 13 employees were selected because they were poor workers or less efficient than other employees.

And the court below accepted the -- the reasons assigned by the respondent and set aside the Board's order -- the Board's findings of illegal motivation, even though as I will show in a moment, they were not without rational support.

Let me just start with one of the -- the first employee that was -- the Board found with discriminatorily discharge.

Her name is Lucille Yancey and she was discharged in December 4, shortly after she had joined the union and let the union organizers used her home.

Plant Superintendent Forstermann told her there was not enough work for her.That's the reason he gave her when he was discharged.

She insisted on seeing Maura Sharp was the principle operating official and according to Yancey's testimony which the Trial Examiner and the Board credited, Sharp first repeated the reason given by Forstermann, there wasn't enough to work.

And -- then he added in any event or work was unsatisfactory.

Yancey asserted that there was another reason because she had never been criticized according to her credited testimony for her work, and this is credited testimony, Sharp handed her a Union paper and said, “Well, Lucille, I tell you.

I've heard that you and your husband have been working with the union organizers.

She further testified that she told Sharp that her job meant more to her than the union and that she voted against the union if she could have her job back.

Sharp says no that you might be able to put her back if the union drive fail.

Now here, you have -- if you accept the credited testimony, even direct evidence of a discriminatory motive and yet the Board's finding of illegal motivation was upset, because respondent's witnesses testified that Yancey's work was poor that she was uncooperative.

And to be sure, these are reasons that might justify a discharge.

The Board, however, on -- on this record was certainly entitled to weigh the cause that was assigned against these other factors and was certainly not unreasonable in concluding that it was more likely that against she was discharged because of her union activity.

Now, I don't want to go into all 13 of the discriminatory discharges and layoffs.

But the pattern in all of them is about the same.

You have evidence which could have afforded cause with the layoffs.

As against that, you have the fact that the layoffs or the discharges occurred on the hills of this extensive campaign of restraint and coercion as the Board found to violate Section 8 (a) (1) and which the -- which the Court agreed.

You have the further fact that on analysis some of the reasons the respondent assigned did not even stand up under scrutiny.

So in the light of all those circumstances, we submit that the Board was clearly not unreasonable in concluding that the evidence of discriminatory motivation preponderated as against the other co -- the other factors that respondent assigned.

And in some of these cases, as I have indicated, you had actually direct evidence of a discriminatory motive if you accept the credited testimony, the Board and the Trial Examiner.

Now, what is the reason for the Court's error because as I have indicated at the outset, we feel that it goes beyond the particular facts of this case.

And I mentioned the Tex-O-Kan case which was decided by the Fifth Circuit in 1941.

In that case, the Fifth Circuit in an opinion by Judge Sibley, pointed out that since a discriminatory discharge case entails a back pay remedy which may -- “The Court may impoverish or break an employer” and not a mere or cease-and-desist order a higher standard of proof is required.

And what is that standard?

And here, I'm quoting the Court in Tex-O-Kan, “If the employer were to testify and the discharge was for cause, his oath cannot be disregarded because of suspicion that he may be lying.”

There must be impeachment of him or substantial contradiction or of circumstances raise doubts.

They must be inconsistent with the positive sworn evidence on the exact point.

Now, the Tex-O-Kan principle has continued to be cited and quoted by the Fifth Circuit in these 8 (a) (3) cases, the Court here ended up on page 733 of the record with the precise quote that I've just read to the Court.

Now, apart from the fact that the standard of proof in an 8 (a) (3) case under the statute is no different from what it is in an 8 (a) (1) case or any other unfair labor practice case, the statute says that the Board's finding of fact that supported by substantial evidence on the record of the whole shall be conclusive.

The required direct contradiction of the employer's testimony is to the reason for a discharge is virtually the equivalent of requiring something which is rarely obtainable in these cases, and direct evidence of a purpose to violate the Act in most of these cases as this illustrated by the record in this case.

You have a set of circumstances which point to a discriminatory motive with the discharge.

You have a set of circumstances which might have afforded could cost for the discharge.

The problem that the Board has is to assess both sets of factors and to make a judgment as to which inference is the stronger under the circumstances.

Now, if the Board's inference is a reasonable one, taking into account the entire record, we submit that the reviewing court under the standard of Universal Camera should sustain the Board's findings.

Now, to require that you have to have direct contradiction of the reason assigned by the employer imposes a more astringent reviewing standard in 8 (a) (3) cases because it overlooks the fact that sometimes the employer's demeanor may along be a sufficient reason for rejecting the ground that he has assigned.

Secondly, it overlooks the fact that the Board is empowered to draw inferences and that even though you may not have direct contradiction of the employer, a set of circumstances may be so strong in the direction of discriminatory motivation that the Board would be quite reasonable in drawing an inference on discriminatory motivation.

Justice Felix Frankfurter: Mr. Come, I notice you rely on regard of (Inaudible)?

Mr. Norton J. Come: Yes, Your Honor.

Justice Felix Frankfurter: Have you taken into account that the Universal Camera (Inaudible)?

Mr. Norton J. Come: Yes Your Honor, I have and I like to address --

Justice Felix Frankfurter: (Inaudible) that was not to be cited (Inaudible).

Mr. Norton J. Come: Yes, Your Honor.

And it is quite true that Nevada Consolidated was cited in the House Conference report as an instance of the type of review that Congress wanted to change in amending Taft-Hartley.

However, there are two parts about Nevada Consolidated.

It can be looked at broadly as merely an instance where the Court is looking to see whether there is any evidence that supports the Board's conclusion and not looking at the rest of the record and resting --

Justice Felix Frankfurter: That's what Universal Camera put out of business.

Mr. Norton J. Come: That's what Universal put out of business but Universal Camera did not put out of business and indeed, it indicated that it definitely was leaving into business.

The actual situation in Nevada Consolidated namely that if you look at all of the evidence in Nevada Consolidated, you have a set of circumstances that would permit conflicting inferences.

One in favor of union motivation, one in favor of cause and the fact that the inferences -- that the circumstances were susceptible of opposing inferences did not preclude the Board from concluding that the inference in favor of union activity was the basis for -- or was the stronger one.

In other words, Nevada Consolidated dealt with the power of the Board to draw inference, as Universal Camera indicates that Congress could not have met to deprive the Board of that power.

And in the Radio Officers case subsequent to Universal Camera, this Court 347 U.S. 49-50 again dealt with the argument that Nevada Consolidated was overruled by the amendments of the Act and it concluded that whatever Congress said about Nevada Consolidated, it could not have intended to overrule that part of Nevada Consolidated which says that the power to draw inferences is primarily entrusted to the Board and that the Board is in -- is in -- that where the inferences are susceptible of either interpretation if the Board were to conclude that the inference in favor of union of membership or activity was the stronger, the Court was not to step in and redetermine it because otherwise, you would get the Court weighing the evidence and this --

Justice Felix Frankfurter: The same day that Universal Camera was decided (Inaudible) was the Pittsburgh Steamship Company was decided and that sustained or concluded that the Court -- Court of Appeals for the Fifth Circuit opinion really indicates that if one were to view this independently, one would have reached the ultimate conclusion that it should not qualify what is found in Universal Camera and that did not preclude the Court of Appeals on the examination of the whole record from drawing an inference that we may not draw that drawing inference is different from which the Board, the Labor Board's ruling.

And I notice throughout the Government in its brief, all it comes about Universal Camera never talks about the necessary incompetence of Universal Camera and Pittsburgh Steamship Company.

Mr. Norton J. Come: Well, Your Honor, I -- we're quite aware --

Justice Felix Frankfurter: That was at the same time.

Mr. Norton J. Come: Yes, Your Honor.

We think --

Justice Felix Frankfurter: In other words, there is the largest of leeway given to the Courts of Appeals and on the whole cases ought to come here.

That was the burden of Pittsburgh Steamship Company.

If on all of these records, the reviewing board couldn't say on the whole, we think, the rest of the record or the totality of the record overbears the (Inaudible) of the Board which is a very different thing from saying, they could -- that's de novo.

Mr. Norton J. Come: That is correct Your Honor but however, in Universal Camera, this Court did leave itself power to review in that rare instance where the standard had been grossly misapplied.

And we submit that this is such a case because the Court is imposing this subsidiary test of requiring that you have direct contradiction of the reason assigned by the employer before the Board's contrary evaluation of the evidence is entitled to stand.

Justice Felix Frankfurter: That's why the case -- the case like this could come here on the -- on the decision of the Government, not that this particular case or that particular case is brought.

It's brought on specific judgment, upon those judgments to the Court of Appeals or to come here in and prepare to show that the conduct being shown that in fact the Fifth Circuit or the Ninth Circuit has a wrong sense of mind in these cases.

It's not just making a judgment which the Board could defense in this Court its decree.

Now, that's the the burden of Pittsburgh Steamship.

Mr. Norton J. Come: Well Your Honor, I realize my time is up.

I just like to indicate that I think that in our petition and in our brief here, we have gone beyond the facts of this case and I've cited Fifth Circuit cases where over the period of years which we think reflect the erroneous standard which we think was very clearly shown in -- in this case.

Justice Felix Frankfurter: That's according to the Board must -- ought to be (Inaudible) things are not one of those (Inaudible) judicial questions decided by (Inaudible) of the various Courts of Appeals which have numerated reviewed Labor Board cases over period of five years, (Inaudible) ought to be reversals or affirmances or possible affirmances or possible reversal in relation to the quality of cases.

Mr. Norton J. Come: Well, Your Honor I'll just refer you to pages 16 and 17 of our petition for certiorari which set forth statistics along the line that Your Honor has indicated.

If I can just intrude for a moment more, I like to -- thank you, Your Honor.

Justice Felix Frankfurter: (Inaudible) the Fifth Circuit.

Mr. Norton J. Come: No Your Honor, I think that --

Justice Felix Frankfurter: (Inaudible)

Mr. Norton J. Come: -- we said that -- we refer to a survey published in the American Bar Journal by Frank Cooper at -- at Michigan which covered substantial evidence cases over a five-year period and he finds that in the Fifth Circuit, this covers all the Government agencies.

Of course the Board had the lion share, sustained administrative findings in only 45% of the cases while the other Ten Circuits did so in 72% of the cases that.

Justice Felix Frankfurter: Well, that doesn't -- unless you break that down and tell me how many cases there are in the Fourth -- First Circuit.

There may be three cases in the First Circuit that might get a 100% affirmance.

That doesn't show anything.

Mr. Norton J. Come: Well, if Your -- if Your Honor will permit and the Court will, I will try to present some statistics along that line.

I have some.

I'll just indicate that in the fiscal year in 1960 for example.

In circuits other than the Fifth Circuit, our records, the Board's record show that we had 31 cases substantial -- these are 8, 3 substantial evidence, fact cases circuits other than the Fifth Circuit.

27% or 87% were enforced in the Fifth Circuit in the same time we had eight cases and two were enforced, are only 25%.

Justice Hugo L. Black: (Inaudible)

Mr. Norton J. Come: 347 U.S. was the Radio Officers case, 347 U.S. at 49 to 50.

Chief Justice Earl Warren: Mr. Thompson.

Argument of Robert T. Thompson

Mr. Robert T. Thompson: It's indeed a privilege for me to stand before this Court and defend the good name of the Fifth Circuit because I think that's exactly the issue which has been raised by the Board in this case.

And I -- I say that with these factors in mind.

They not only say that the Fifth Circuit has misapplied the law, but they say that the Fifth Circuit in this very case has misapplied by the law and the Fifth Circuit in this very case has stated precisely what they say the law is.

Now, the only conclusion that can be drawn from an argument along that line is that the Court is saying it's doing one thing but it's actually doing another.

There is suggestion of bad faith.

I will not go into that but it's certainly is the position of the Board that the Court is talking one game and playing another.

Now, as I understand, the Board's argument on the law in this case, they are stating that the Fifth Circuit has rejected the Board's choice of unreasonable or reasonably conflicting inferences which they contend that this Court has said the Fifth Circuit or any circuit cannot do.

In the decision itself, the Court took cognizance of the decisions, the opinions of this Court in stating that it was aware of the fact that it did not have the right to displace the inferences which have been drawn by the Board where they are fairly conflict -- conflicting and reasonably drawn.

The Court of Appeals went on to find and state that from a tedious examination of this record, it had come to the firm conviction that the Board's opinion was not supported by substantial evidence in the record as they hold.

Secondly, as I understand the Board's contention, they say that the Fifth Circuit requires a higher degree of proof in -- in discharge cases such as this as opposed to routine cease-and-desist order cases such as 8 (a) (1) matters, citing in support of that, Tex-O-Kan -- the Tex-O-Kan case which was decided some 20 years ago and as far as I've been able to determine was not questioned by the Board at that time, certainly was not reviewed by this Court.

I respectfully submit that a fair reading of the Tex-O-Kan case does not support the contention which is here made by the Board.

In the Tex-O-Kan case, if you read the precise language and Judge -- Judge Sibley was one of our great jurors from my State.

He said that in a cease-and-desist case, we require less than a demonstration.

Those are his words because the remedy which is proposed imposes no great burden on the employer.

But in a discharge case where there is a remedy of back pay, reinstatement and so forth, the burden is upon the employer and it could possibly impoverish him or break him to use his words.

And in those cases and here again, these are his exact words, “We will require substantial evidence.”

Now, the National Labor Relations Act at that time did not read as it does now on this scope of review question.

Perhaps, the Tex-O-Kan case was subject to question in 1940 or 1941 when it was decided.

But in 1947, Congress enacted the Taft-Hartley Act and inserted into the law governing this scope of review the requirement that the Board's findings of fact be supported by the -- by substantial evidence upon consideration of the record as they hold.

Now, what Judge Sibley said was exactly what the statute now requires and his further statement concerning the Board's treatment of a respondent's or an employer's testimony likewise is a proper statement of the law.

Before I left home, I glanced that Shepherd cited on this Tex-O-Kan case and it must have been cited 50 or 60 times since 1940.

So far as I know, it's never been questioned until now.

If you read the language concerning which the Board complains and which he cited in the -- in the opinion in this very case, either the Board has misread the language or I misread the language.

Judge Sibley said that when an employer testifies that union membership was not the reason for the discharge.

His oath cannot be disregarded because of suspicion that he may be lying.

Well now, there are dozens and dozens of cases from all over the Circuits which hold and the statute itself says in requiring substantial evidence that the Board cannot decide these cases on suspicion and surmise but that the Board must have substantial evidence, evidence which it may credit and rely upon.

True, the Board may draw -- draw inferences.

We do not condemn that the Consolidated Copper case, Nevada Consolidated Copper case is completely out of date in that regard.

We concede that the Board as in effect finds to must have the right to draw inferences.

But those inferences must be reasonable and they must be supported by some facts in the record.

By the same token, simply because the Board can draw an inference, that does not enable the Board to state its entire case on an inference which from a review of the record as a whole does not hold up or is not considered substantial.

But to go back to the Tex-O-Kan case, Judge Sibley stated, “There must be impeachment of him or substantial contradiction or if circumstances raised doubts.

They must be inconsistent with the positive sworn testimony on the exact point.”

Now, what he was saying there was, not that the Board has got to have positive sworn testimony on the exact thought but that if the Board relies upon circumstances which raised doubt, they must be inconsistent with the positive sworn testimony of the employer, therein lies the misconstruction of that decision.

If you read it in that regard, certainly it cannot be said to be a misconstruction of the law.

Certainly, if the Board is going to rely upon circumstances, they should be inconsistent the positive testimony of the employer in that regard and should not be some completely unrelated set of circumstances which throw no light upon that.

Justice Felix Frankfurter: Would you be good enough to state as you recall a testimony of the worker as to whom Mr. Come referred the evidence of the basis, this the findings the Board with reference here, (Inaudible)?

Mr. Robert T. Thompson: Yes sir.

Justice Felix Frankfurter: The findings.

Certainly, the evidence on which the Board based concerning the reason given, the considerations of evidence by both (Inaudible).

Mr. Robert T. Thompson: It certainly was sir.

First, the finding of the Board was that -- this Mrs. Yancey was discharged because of union activities.

The basis for that finding as I read the record --

Justice Felix Frankfurter: The Examiner reported.

Mr. Robert T. Thompson: The Examiner reported on that in great detail.

Justice Felix Frankfurter: What does he examine?

Mr. Robert T. Thompson: The Examiner reported that he found that this lady, Mrs. Yancey had joined the union some time prior to her being discharged.

He did -- there was no evidence that the employer had knowledge of hers having sign with the union.

The Examiner found that she has signed roughly ten days before her discharge.

The -- there is evidence in the record.

The record is not clear on that point.

The Court was of the impression.

Justice Felix Frankfurter: (Inaudible)

Mr. Robert T. Thompson: Alright sir.

Justice Felix Frankfurter: (Inaudible)

Mr. Robert T. Thompson: She was -- she was discharged.

She came in and complained about being discharged.

She was first told, the Examiner found, that she was being discharged for lack of work.

She went in and complained to the manager and she was told by the manager that she was being discharged because her work was not satisfactory.

The additional element which the Board found and I -- I sincerely believe is the reason that they made this finding was that the following day and in this regard, I'm sure counsel overlooked this fact.

But in this regard, I think it should be pointed out.

The following day after she was discharged, after her conversation with the manager in which he told she was discharge for unsatisfactory work.

She returned to the plant and -- and demanded an interview with the same manager and she sat down with him and she testified that during the course of the conversation, she stated that she thought she was being discharge for union activities and that he then stated to her that he understood that she and her husband had been doing work with the union organizers, now, that's -- as I read the record, the basis for the Board's decision.

And on the other hand, the testimony which was put in by the employer can --

Justice Felix Frankfurter: (Inaudible)

Mr. Robert T. Thompson: That's my understanding of, yes sir.

Unknown Speaker: (Inaudible)

Mr. Robert T. Thompson: I beg your pardon sir?

Unknown Speaker: (Inaudible)

Mr. Robert T. Thompson: The testimony of the lady.

Unknown Speaker: (Inaudible)

Mr. Robert T. Thompson: Well, her testimony is found at page 521 of the record.

Let's see.

Also at -- actually, I'm looking at indexes.

Also at page 331 of the record, her testimony is found.

Chief Justice Earl Warren: I understand Mr. Come to say also that (Inaudible)

Mr. Robert T. Thompson: I did overlook that, not intentionally.

I'll show you a further part of that conversation on the second day after she was discharged was her statement to the manager that my job means more to me than this union.

Now, our contention was that she told them that I'll go out and spy for you on the union and report back to you.

She admitted at least on the stand that she told them she would be against the union if he would give her job back.

Chief Justice Earl Warren: (Inaudible)

Mr. Robert T. Thompson: Yes sir.

I don't question that.

And I think certainly, these are important matters which -- which are under consideration.

I don't mean to make light of any of these things.

I think it's also an important matter for -- for an employer to -- to have the problem or the liability which is -- which is contained in the case such as this.

Certainly, in many of these circuits, I think you find the employers less litigious over these points for that very reason.

That -- that element, I -- I concede was also contained in the conversation and it was an oversight on my part.

The --

Chief Justice Earl Warren: (Inaudible)

Mr. Robert T. Thompson: The --

Chief Justice Earl Warren: (Inaudible)

Mr. Robert T. Thompson: Well, that's not my reading of the record.

And I -- it's possible that --

Chief Justice Earl Warren: (Inaudible)

Mr. Robert T. Thompson: There is -- yes sir, there is -- there is that conversation in her testimony.

Chief Justice Earl Warren: Where is it in the record?

Mr. Robert T. Thompson: I can't call your attention to -- at this -- this very moment.

I'm informed that it's at page 332.

Chief Justice Earl Warren: Page 332. (Inaudible)

Mr. Robert T. Thompson: Yes sir.

331

Justice Hugo L. Black: 331

Justice Felix Frankfurter: (Inaudible)

Mr. Robert T. Thompson: She -- I think she --

Justice Felix Frankfurter: (Inaudible)

Mr. Robert T. Thompson: Yes sir.

I think you find that the reason you get two sections of testimony is that, when this thing was printed, they printed the Board's specification of the record and they printed out specifications separately so you actually have to go one of those in order to get the entire testimony.

Chief Justice Earl Warren: (Inaudible) is it found in the page?

The bottom of that page?

Mr. Robert T. Thompson: The bottom I believe sir.

And his testimony on page 332 is this.

He said that he didn't know whether I signed the union card or not.

I told him, I said, “Well, Morris, my job means more than being a member of the union if you would give it back -- give my job back, I won't vote for the union.

I definitely told him I would not vote for the union.

After he didn't give me my job back of course I had no other choice, I went on with the union.”

“What did he say when you said to him?

What did he say?

“Well, he couldn't put me back to work.”

Now, I don't know frankly what to --

Justice Felix Frankfurter: Would you mind telling me because I have another volume?

Mr. Robert T. Thompson: This is volume --

Justice Felix Frankfurter: (Inaudible)

Mr. Robert T. Thompson: As I say, I think you'll find that the part I'm reading from is the Board's specification of it.

It's -- it's the same witness but it's different -- different testimony.

It all took place in one time.

And we just specified different sections of it.

Justice William J. Brennan: But Mr. Thompson, does this help us any -- I noticed that over volume 3 is used for the Board's.

There are brackets, there are numerals, 310, 311 and so forth and then in Volume II, when we go over there, we'll find brackets 321, 322, 323.

So one has -- this was continuing -- continuous testimony but excerpts from within one volume and then --

Mr. Robert T. Thompson: That's correct sir.

Justice William J. Brennan: Different excerpts in another volume?

Mr. Robert T. Thompson: That -- it was printed in the large type as what the Board specified and that which is printed the small type is what I specified.

Justice William J. Brennan: This opposed to assist the court, isn't it?

Mr. Robert T. Thompson: It all came out of the -- when I -- I -- I must state in my own defense, I didn't arrange for the printing of this record.

I simply specified that portion that I thought should go in addition what they specify.

On the next page, they are -- don't want to appear --

Justice William J. Brennan: Now, which volume you're in now?

Mr. Robert T. Thompson: Well, I'm in Volume II at the bottom of the pages -- page 333.

She stated upon questioning by the Trial Examiner.

At the top of the page there, he said that if the union didn't go in, he put me back to work.

I assume that's the testimony that the --- that the Board was relying upon.

Of course Mr. --

Justice Felix Frankfurter: Now, who's the he?

Mr. Robert T. Thompson: That's Mr. Sharp who was the manager --

Justice Felix Frankfurter: Who?

Mr. Robert T. Thompson: Mr. Sharp.

Justice Felix Frankfurter: That he was a witness?

Mr. Robert T. Thompson: He was a witness, yes sir, in the several days.

Justice Felix Frankfurter: (Inaudible)

Mr. Robert T. Thompson: I beg your pardon sir?

Justice Felix Frankfurter: Was he examined?

Mr. Robert T. Thompson: Yes sir, he certainly was.

Justice Felix Frankfurter: What did he tell you?

Mr. Robert T. Thompson: He denied that he told her that.

And of course that's a -- that's a question of who you're going to believe but --

Chief Justice Earl Warren: Well, may I ask what is the -- her testimony to the fact when you say something about the (Inaudible).

Mr. Robert T. Thompson: On page 333.

Chief Justice Earl Warren: 333

Mr. Robert T. Thompson: This is the -- the numbering is at the bottom.

The statement is at the top of the page.

Unknown Speaker: (Inaudible) put you back.

Mr. Robert T. Thompson: Yes sir.

Now, that was on questioning by the Trial Examiner.

He asked it two or three times and finally she came out with that but she said it nevertheless, so I suppose --

Justice Felix Frankfurter: What evidence you say, you said (Inaudible) that there's no evidence that the -- there's no evidence that the management suppose that any of the employers -- any employers (Inaudible).

Mr. Robert T. Thompson: That's correct sir, she --

Justice Felix Frankfurter: (Inaudible) in examination.

Mr. Robert T. Thompson: Yes sir.

She testified that she had signed a union card because there was no testimony of anybody connected with management who's present at the time or the -- there's no testimony then above the management saw it or heard about it or anything else until this conversation a day after she was discharged when she and the manager were discussing unions.

He stated that I understand you've been working with the union organizers.

Justice Felix Frankfurter: Wasn't she discharge then?

Mr. Robert T. Thompson: Yes sir, she was discharged the day before.

Justice Felix Frankfurter: Another one, there's a different question, testimony he gave is what -- what testimony there was, (Inaudible), all the testimony --

Mr. Robert T. Thompson: Now --

Justice Felix Frankfurter: It was before the Examiner on the day (Inaudible) because of her union activities.

Mr. Robert T. Thompson: Well I think -- I think it would be more appropriate to tell you at this point what the employer's testimony was concerning the discharge of this woman and then I'll have to come back to her testimony because she denied some of it.

The employer's evidence concerning this woman was that first she was not producing in accordance with the production quotas and that she had been employed by this company for some six months or so and rather than showing improvement, the last six works -- last six weeks that she worked, she actually had make up where she had previously made her production quotas.

I think you have to bear in mind that this was a brand new little company that employed a hundred or so people and that they were going through a training period and that this was at -- the end of about five or six months of the training period.

Justice Felix Frankfurter: That line of evidence is not in what the employer said or were there worksheets?

Mr. Robert T. Thompson: There were worksheets in the record which showed her make up faith.

It showed that the first several weeks she was employed, she made exactly the pay for 40 hours which indicated in the testimony was that she was on an hourly rate at that time because she was just beginning.

And she was put on piece rate.

For several weeks she had a -- she had what they called “make up pay” which means she didn't make her production quotas.

And then for few weeks, she made her quotas and then for six weeks, she did not make her production quotas.

That's one factor which is in this record and there's no way you can get around.

The -- her production record established that.

Another fact there was that the work which she did was not satisfactory and in that regard, we had six witnesses who attempted to testify that her work -- the work she did was shoddy, that a great deal of it had to be returned and redone.

Three of those witnesses were management people.

The other three were just ordinary employees, fellow employees of hers who had presumably no extra ground and who -- who backed up what the management said.

In addition to that, we had testimony that she was an employee who was constantly causing agitation with the supervisor that she would not take instructions, that she would not follow orders, that she rambled and complaining.

And there is a statement in the -- in the record that she complained about the skimpy cut of the cloth and from that statement, it was inferred by the Trial Examiner and the Board that the reason her work was not satisfactory was because the -- of the skimpy cut of the cloth implying I suppose that this was a marginal operator who was cutting his cloth too skimpy.

However, there is no other testimony concerning that.

No one else seemed to have trouble with this skimpy cut of the cloth.

Justice Felix Frankfurter: Has there any suggestion, you used the word adaption?

(Inaudible)?

Mr. Robert T. Thompson: None whatsoever, none whatsoever.

Now, bear in mind that this discharge was right at the very outset of the union campaign.

There was no campaigning, at least the record shows.

It doesn't show that there was any campaigning in the plant or -- or even open campaigning.

The best the record shows is that the organizers were going around to these peoples' homes attempting to sign them up.

Chief Justice Earl Warren: Mr. Thompson, is there anything in the record to show that she was taken the test (Inaudible) or anything at that time?

Mr. Robert T. Thompson: There is testimony in record, yes sir, whether the testimony was credit, there was not a little proposition but --

Chief Justice Earl Warren: (Inaudible)

Mr. Robert T. Thompson: I think if you look at the testimony, I can't point to the page because I'm not prepared to point.

Mr. Frostermann and also her supervisor which would be --

Chief Justice Earl Warren: (Inaudible)

Mr. Robert T. Thompson: Yes sir.

Her supervisor, I believe was Mrs. Hewing also testified that she had so much trouble with her that she, herself Mrs. Hewing was put to tears on several occasions.

Now, Mrs. Yancey denied these things, denied that she had been criticized.

Our contention of course was that her work -- she rather than showing improvement was showing a decline and it was not seemed logical as somebody would not have spoken to her and our testimony was that they had.

Now, I realize that my time is drawn --

Justice Felix Frankfurter: (Inaudible) must be generally reported, was the Board found and then to what the Court (Inaudible)

Mr. Robert T. Thompson: The Board, this particular -- this particular case, the Board sustained.

They examined those findings in every respect.

As a matter of fact, the Board sustained, they examined practically everything.

I think they dis -- throughout of couple of this 8 (1) findings but added about five or more that he had made the finding.

Justice Felix Frankfurter: On the basis of records that came to Court.

Mr. Robert T. Thompson: Yes.

Justice Felix Frankfurter: (Inaudible)

Mr. Robert T. Thompson: That's correct sir.

Justice Felix Frankfurter: (Inaudible) Court.

Mr. Robert T. Thompson: The Court, this particular case, I assume that this one was singled out because it -- it did bring about more testimony and was more hotly contested.

The Court went into a great deal of details concerning this Mrs. Yancey.

The Court was not impressed that she was in ardent or active union worker and incidentally, she admitted herself that she didn't sign anybody to go out and try to sign people up for the union which is usually the case in one of these people.

The Court went into -- as I say a detail concerning Mrs. Yancey's case more so than -- than any of the others.

The Court was not impressed with the findings of the Board in any respect.

The Court as I read it came to the impression this was simply a woman who had signed up with the union but who also had a bad production record, who had been -- who had done shoddy work.

And the Board simply had not provided substantial evidence in the record to support his findings.

Now, he stated that specifically.

And he says at the outset of his -- of his opinion he states that I have made a tedious appraisal of this record going from one of these books to the others, we've done here a few minutes ago and no question it.

It's a tedious proposition.

This trial lasted six or seven days and there were well over thousand pages of testimony.

Now, we come to the point that this Court has asked -- I assume that they did the same thing which is right into the teeth of the Pittsburgh Steamship case, right in to the teeth of the very case that they cite as being an implication that this Court has been critical of this Circuit before.

I'm referring to the Fant Milling case, but the Fant Milling case is an -- is an illustration of what this Court is done up to now with these cases and that is that they review the record is the function of the Court of Appeals.

Congress offered to put that responsibility upon the Court of Appeals and in 1947, they attempted to put added responsibility upon them in order to ensure the families in reasonableness of their orders.

This Court in Fant Milling suggested to the Fifth Circuit first rule in Footnote 10 that this is not the place to review the records, cited Pittsburgh Steamship and then stated that we will remand the case back to the Fifth Circuit but if the facts which were brought out in the dissenting opinion are true then possibly the thing should be enforced.

Well, the case went back to the Fifth Circuit and they enforced it per curiam without a dissent or anything else.

Prior to the time Fant Milling came here, there had been no decision on the merits.

There was merely a dissenting opinion or a special concurring opinion by Judge Hutchenson which suggested and he didn't think that there was substantial evidence in that record.

Now in closing, I would like to suggest to this Court what I consider the real issue in this case and what I -- I think is the possible result if the Board's contention is followed and that is this.

If you take that contention to its logical conclusion, it will mean that anytime the Board makes out a prima facie case and in this case, a prima facie case would be union membership or activities, competent knowledge, and some anti-union animus on the part of the company, that there would be no circumstances under which the Court of Appeals could reverse them and that's what they are in effect saying.

And they criticized the Fifth Circuit in the Frosty Morn case which came out in November for taking issue with them there.

The Fifth Circuit said that it's true if the evidence on the Board's side is reasonably equal to the evidence on the employer's side, we can't upset it.

But if there's evidence to prove that an employee has given just cause for his discharge, then just because there's evidence to support the Board there, does not mean we can't upset it because if there is just cause for discharge and the man is discharged, there can be no discrimination because anyone who committed those acts would have been discharged.

Discrimination is treating one person differently than you would treat another.

The second --

Justice Felix Frankfurter: Mr. Thompson, was there any evidence on this record -- was there any evidence by the Board that (Inaudible)?

Mr. Robert T. Thompson: There was about 200 exhibits and I suppose they would contend from those without any testimony explaining them.

Justice Felix Frankfurter: Talk about that.

Mr. Robert T. Thompson: There's no direct evidence, no.

Justice Felix Frankfurter: Was there any -- was there intention for the specific instances that (Inaudible).

Mr. Robert T. Thompson: No sir.

The Board put in 90 somewhat worksheets.

Some of the Mrs. Yancey's and then in their brief, they attempted to draw analogy but there was no testimony that you could compare this one with that one and there was testimony that you -- you had to deal with these different jobs on a specific basis.

The other issue which I think is in this case --

Justice Felix Frankfurter: What do you mean show?

Worksheets really don't show anything (Inaudible)

Mr. Robert T. Thompson: That's right sir and they wouldn't show the -- the relative difficulty of the job that was in question which is a big factor.

The other issue in this case is this.

This union wrote a letter to this employer in which it stated the following people of the members of our organizing committee.

The Court found and we here contend that this letter was not only designed but did have the effect of blinding the Board to any logical and reasonable consideration of the -- of true evidence in the case.

And the true test for that is if you turn these layoffs around, if you say what the Board has said to us, you got to keep this particular employee Nelly Hood or Nelly Wood or what have you.

Then you've got to layoff somebody else because it must be remembered that the layoff itself was stipulated to be economically necessary.

So you've got a layoff which is necessary.

Somebody's got to be laid off.

Now, what the Board has told us is that in every one of these cases, nine of them, that's all we were charged with on the layoff.

You've got to keep all nine of them although there is no evidence in this record which would justify at least seven of them being kept under any circumstances except that they found an anti-union motive.

That's not what the law was designed to do.

It was not designed to promote discrimination in favor of union members anymore than it was designed to promote discrimination against them.

I appreciate your attention, thank you.

Print this transcript Transcript: 

Argument of Norton J. Come

Chief Justice Earl Warren: Number 94, National Labor Relations Board, versus Florida Citrus Canners case.

Mr. Come.

Mr. Norton J. Come: May it please the Court.

This case is likewise here on certiorari to the Fifth Circuit and presents an issue similar to that in Walton, the higher case, namely whether the court has grossly exceeded its reviewing power and setting aside for the findings of fact in an unfair labor practice case.

Here, the Board found that the respondent unlawfully refused to bargain with the Teamsters, the certified bargaining agent of its employees, that this unfair labor practice was the cause of a strike which in ensued so that 274 strikers were entitled to be returned to their jobs with back pay, notwithstanding intervening replacement, and that respondent engaged in various acts of interference to restrain in addition in the violation of Section 8 (a) (1) of the Act.

The court below set aside the refusal to bargain findings which in turn upset the finding that the strike was an unfair labor practice strike because in its view, the trial examiner's credibility determinations could not be accepted and then it proceeded to reevaluate and minimize the 8 (a) (1) Act cavity and then decided not even to enforce that part of the Board's order.

Now, in Walton, we attempted to show that the court below erred in rejecting inferences drawn by the Board though on the entire record, they had rational support.

Here, we submit, the Court has made an even more basic incursion into the Board's fact finding function by setting aside terminations as to the credibility of witnesses which were neither irrational nor contrary to the view of the court below based on an improper standard.

The facts can be briefly set forth as follows.

The union was certified in February of 1957, and bargaining negotiations were carried on sporadically from April through November, but the parties were unable to reach an agreement.

On December 4, Union Negotiator, Wingate and Production Manager, Stephenson, after a private off the record meeting, appeared to be not far apart on the union's latest proposal and another formal negotiating session was set for December 18th.

Now, that is a critical date because the Board finds a refusal to bargain on and after that date.

At the off the record meeting with Stephenson on December 4th, they agreed to set up a resumed negotiations on December 18th.

On December 12th and 13th, the Florida Citrus belt was hit by a severe freeze.

At December 18, the meeting opens and Union Organizer, Wingate, asked for the company's views on the union's latest proposals, which as I've indicated, appeared to be acceptable to Stephenson.

The company attorney said that there was no point in discussing them since they were completely different from anything that have ever been discussed up to then and besides the company wanted to talk about the effects of the freeze.

Wingate thereupon accused the company of strolling and threatened a strike.

The company representatives at that point terminated the meeting, indicating that they would not respond to the pressure of the strike and it might do the employee some good to get it out of their system.

Despite frequent requests by the union, there was no further meeting until January 28, 1958.

The parties got together after a short meeting that broke up with the company indicating that it would get in touch with the union for further meetings.

No further word was received from the company and no future meeting was selected.

In the meantime, a decertification petition was circulated in the plant.

The company allowed the employees to circulate it on company time.

Majority of the employee signed it, repudiating the union.

As soon as the company receives that they tell the union that they will no longer bargain with them because the union has lost its majority.

Now, the Board found that on and after December 18, 1957, the company refused to bargain in good faith with the union.

That what it was doing was exploiting the emergency created by the freeze in this Florida Citrus belt as an excuse for delaying negotiations while in the meantime, it was carrying on a course of conduct which I will elude to later for the purpose of undermining the support for the union so that when February 8 came around which was the end of the certification year, the company could withdraw recognition from the union.

Now, to support this finding that there was bad faith between bargaining and a consorted effort to undermine the union on and after December 18th, 1957.

This finding is supported basically on the testimony of the employee Holly and Union Organizer, Wingate whom the Board and the trial examiner credited.

These credibility findings, the court below upset and that is the nub of this case.

We submit that that Court was unjustified in setting aside those credibility findings.

It implied, and indeed, in doing so, it exceeded its reviewing power under Section 10 (e) of the Act because they were based on reasonable considerations.

They were well within the examiner's province as the presiding officer at the hearing and the bias that the Court attributed to the examiner was based upon statements in his intermediate report which we submit do not reasonably have the significance that the Court attributed to them.

Now, as to Holly, because he is the key, one of the key witnesses here.

Justice Potter Stewart: Is Holly the employee or the organizer?

Mr. Norton J. Come: Holly was the employee.

He was an old time employee who had been active in the administration of the former union which had previously represented the employees before the Teamsters came on the scene.

I'll continue tomorrow.

Print this transcript Transcript: 

Argument of Norton J. Come

Chief Justice Earl Warren: -- Relations Board, Petitioner, versus Florida Citrus Canners Coop.

Mr. Come, you may continue your argument.

Mr. Norton J. Come: May it please the Court.

In adjournment yesterday afternoon, I pointed out that the Board found that on and after December 18, 1957, the company had refused to bargain with the union and had engaged in other activity to undermine the union and that this -- this was all part of a plan so that when February 8th came around and the union's certification year was at an end, the union would have lost its majority support with the company would have a pre-tax for withdrawing recognition.

Now, crucial to that finding as the court below acknowledged was the testimony of two witnesses whom the Trial Examiner and the Board credited and whom the court below discredited.

Attributing to the Examiner, we submit an erroneous standard which he did not apply.

Now, I'd like to address myself to the two witnesses.

The first witness was Holly who, as I indicated yesterday, was an old time employee who had been active in the administration of the union that had previously represented the employees before the Teamsters had been certified.

He had active in negotiations on behalf of the former union and participated across the table which Stephenson in -- in -- in numerable arbitration proceedings.

He testified and his testimony is in Volume II of the record here beginning at page 24.

And I like to just point out by way of introductions since there was a little confusion yesterday that the three volumes in both of these cases break down roughly this way.

Volume I consists of the so-called formal materials, the Board's decision, the Trial Examiner's intermediate report Volume II is the portions of the transcript of the record that the Board designated in the court below and Volume III is the portions that the respondent designated in court below and then add it.

At the back of that is the decision of the -- of the court below.

Now, Holly's testimony which is set forth as I indicated in the Volume II was that -- while he was at the plant on Christmas Day, he was currently acting as a -- as a watchman at that time.

Stephenson came to the plant to do some work.

And the -- and this Christmas Day was shortly after the breakup of the negotiations on December 18th.

Stephenson engaged him in -- in conversation and the -- and the gist of the conversation was that the company didn't intend to sign a contract with the Teamsters although it might meet with them a time or two more until February 6th because they thought that the Teamsters were a bunch of crooks and gangsters and they didn't intend to sign a contract with them.

He suggested that Stephenson did that Holly form a group of employees to express their dissatisfaction with the union and to initiate decertification proceedings and offering to make legal counsel available off the record and of the employees thought that they still made at the union to assist them in forming a company union.

Finally, Stephenson indicated according to Holly's testimony that the company would post certain pay raises that is on the bulletin board in the next few weeks which would give the employees an incentive to get rid of the union.

Now, this is Holly's testimony.

Stephenson, whose testimony is likewise in Volume II of the record beginning about page 474, is to discipline.

He admitted that he had a conversation with Holly on Christmas Day.

He admitted that the subjects of a company union and a proposed wage increase were discussed.

However, he said that these subjects were -- were brought up by -- by Holly and not by he.

And he denied stating that the company would not sign a contract with the Teamsters.

He denied calling them crooks and gangsters saying that he never used those terms.

Now, the Trial Examiner confronted with these two conflicting pieces of testimony credited Holly.

And his reasons for crediting Holly are set forth in Volume I of the record here beginning on pages 94 to 95.

And he gives a rather painstaking analysis of his reasons for crediting Holly over Stephenson.

In the first place, he concludes that terms of the demeanor of the respective witnesses, Holly demeanor was more impressive.

He was firmer and direct and stood up well on cross-examination whereas Stephenson particularly on cross-examination showed a demeanor and a manner of reluctance in testimony which concluded -- which led the Examiner to believe that Holly was the more reliable witness.

So this --

Justice Potter Stewart: Was this reaction on cross-examination anything that one can gather from the record, it was just -- this is appearance or does it appear the (Voice Overlap)--

Mr. Norton J. Come: I think it was both, Your Honor.

I think if you read the record you will find the -- any --

Justice Potter Stewart: Well, I have the record in here in front of me now, Stephenson's testimony, I'm trying to get to his cross-examination seeing what it was to which the Trial Examiner was referring or was he just referring to the fact that he -- he blinked his eyes and blushed and so on, something that wouldn't appear in the record.

Mr. Norton J. Come: Oh, I think he was referring to both things, Your Honor.

I think --

Justice Potter Stewart: Then insofar as it does appear in the record, where is it?

Mr. Norton J. Come: Well, I think that you would -- what you have to do, you should have to read over the whole cross-examination which begins on 486 to seven.

And you will find that in many of these colloquies here, Stephenson reflects a great uncertainty about details that --

Justice William J. Brennan: I want to (Inaudible).

Mr. Norton J. Come: Alright, well, I have here marked --

Justice William J. Brennan: (Inaudible)

Mr. Norton J. Come: I have 486 to seven.

They were talking about a phone conversation that they had from -- that Wingate had -- had called about arranging a -- a meeting after the -- as I recalled yesterday Wingate and then Stephenson had had these man-to-man meeting on December 4th.

And then they left things so that Holly was go -- that Stephenson was going to arrange a -- a suitable meeting date after checking what the company attorney and after Wingate hadn't -- hadn't heard for several weeks, he -- he got in -- in touch with Stephenson wanting to know what the date was going to be.

Apparently, Stephenson had made a notation.

There had been a phone call.

And you go on here for several pages but he's being a very, very vague as to -- as to what the notation was and that finally spool out at him that this is the -- must have been a phone call that Wingate had made with reference to setting up a meeting subsequent to December 4.

And as you -- as you go on with the -- with the cross-examination, there are numerous other instances of that sort.

Now --

Justice Hugo L. Black: May I ask you please?

Mr. Norton J. Come: Yes, Your Honor.

Justice Hugo L. Black: Does -- do these two records contain all of the evidence before the Labor Board or simply selected parts?

Mr. Norton J. Come: I would say Your Honor that they com -- that they consist of about 80% of it.

We have filed the original transcripts with this court so that the court has the -- has the full record.

But what we've -- or the system that's used in the -- in the -- in the Fifth Circuit as in most of the other circuits is that the Board will designate the portions of the transcript that it once printed and the other side will come in with the portion that it once printed and then you can read designate so that by the time your through with it, you have pretty much everything of the record that is at all relevant and that was done here.

I think that when I say 80%, perhaps, I was -- even a little conservative there.

But I think you have virtually everything in this printed portion.

But to the --

Justice Hugo L. Black: But your --

Mr. Norton J. Come: -- the extent that there was anything that was not designated, that is in the original transcript which is up before this Court both in this case and also in the Walton case.

Justice Hugo L. Black: I asked you that question because the -- as I understand that the act of Congress was intending to require the judge that decided on this frequency of this evidence to review the whole record rather than part that we have previously been doing.

Mr. Norton J. Come: Yes, Your Honor.

Well, I think that the Administrative Procedure Act however indicates that -- that it's the whole record in the sense that the parties can -- it's the whole record that the parties bring to the attention of the -- of the -- of the court.

Justice Hugo L. Black: What was called to the attention of defense you yield, just a part of it?

Mr. Norton J. Come: No, what was called the attention of the Court of Appeals is what we have in these two volumes.

And that is -- of course we -- and that is, as I indicated, all of the relevant testimony in the case.

The only thing that may have not been printed in here might have been colloquy on things that are not really germane.

But you have here a very --

Justice Felix Frankfurter: But whose to decide whether they're germane or not?

Perfectly careful conscientious and perhaps equally highly trained lawyers constantly differs to what is germane and what isn't germane?

One can sit in this Court in a week or two days without realizing differences of use even among the justices on what they deem as relevant.

And when you say colloquy, a colloquy may shed a lot of light on a man's insight.

A remark by -- by the Examiner in -- in colloquy of your counsel may -- may or may not justify the Court of Appeals in finding a particular bench into the examiner's mind.

Mr. Norton J. Come: Well --

Justice Felix Frankfurter: The whole point about the Amendment of 1947 was that Justice Black has just indicated that the totally of everything that was before the Board should be before the reviewing of courts -- of the court -- three judges in the Court of Appeals.

Mr. Norton J. Come: Well, it is you -- Your Honor in the sense that we filed the complete transcript of record in the Courts of Appeals.

The court's rule then provide what the parties to designate relevant parts of those -- of the record for printing.

Now, as Your Honor can appreciate in an original transcript, you get a lot of stuff in there that is not relevant.

I don't think they've -- there'd be any dispute about it.

You get a lot of motion that is -- is wasted.

Now, when you have this cross designation system, it is very rare that with both sides keeping tabs on each other that -- and with the opportunity for cross designation that anything is going to be left out that either side would think what that all have a remote bearing on the case.

And if by any chance, the Court should feel that it wants more, it's got the original transcript there.

Now, there's no suggestion in either in this case or in Walton case that there is anything in the material that wasn't printed that has a bearing on the issues that we have here.

And now as to what this Court said in Universal Camera, it said that unlike what some courts may have been doing in the past namely, they looked only at the volume that the Board printed and saw whether that was enough to support beforehand --

Justice Felix Frankfurter: Not only comes what's this Court, did it?

Mr. Norton J. Come: -- and stop there.

According Universal Camera says you can't do that any longer.

You got to look at the whole record, both the portion that the Board designates and the Board, I might say, is -- tries to be very careful to designate not only the -- the part that is relevant to its case but any parts that go to the other case that has been discredited or may have a bearing on the Board's findings as we did here because the Stephenson's testimony is in the Board's designation here.

And what Universal Camera says is that the reviewing court has going to look at both of these things.

Justice Felix Frankfurter: That is what it said.

It stated it has to look at the whole record that was before the Board.

This isn't a question -- Mr. Come, this isn't a question of anybody's good faith, the conscientiousness.

The question of judgment and anybody who's ever had to get up a bill of exceptions in the old days must have experienced, must have realized the extent to which men looking at relevance to their special particular glasses would have very different views of what you think is fully irrelevant.

And if you only print a part, there is such a thing as mo -- the momentum of laziness in all of us.

And -- and very few of us attempted to go beyond three facts or two -- one fact and two more or less ample printed record and go to the tedious and difficult reading of the typewritten copy.

Mr. Norton J. Come: Your Honor, I -- I would just like to say that the Court of Appeals apparently feel that they do get the whole record through this system because all of them do not say that you print up the whole record before the Board.

But the --

Justice Felix Frankfurter: Those rules -- the rule to which you referred, as I understand it, is not a rule with reference to this particular classification but a rule generally as to how the appeal broke or whatever you call it, the record should be made up in the Court of Appeals, isn't that true?

Mr. Norton J. Come: No, Your Honor --

Justice Felix Frankfurter: Now, this is --

Mr. Norton J. Come: -- the -- the most of the rules have a special section for review of administrative orders, for agencies like the Board and the Federal Trade Commission and so on and so forth, then those -- that special section for administrative agencies has this provision for --

Justice Felix Frankfurter: Oh, I think that -- if that is so, then with all due respect, they make in laws on what was the official problem after the Amendment which was re -- which was applied in Universal Camera.

Because this Court from -- from the time certainly this -- the older fellows that sat here had a totally different conception of what the scope of review in these cases were -- was until the Act of 1947.

And case after case went on the simple question of seeing what was before the Board on one side and meant -- and possible that was in now.

And that's why -- and then came the Amendment in which the both committees of Congress pointed out that this Court rendered decisions that the Congress did not plan in the future to have rendered.

And they specify including the one that you relied on yesterday.

Mr. Norton J. Come: I've -- if -- if I may be permitted just one further comment then I don't want to be insisting on the last word but, this Court indicated in Universal Camera, as Your Honor is familiar, the standard of review in -- in Taft-Hartley was the same as in the Administrative Procedure Act.You read the two statutes together.

Now, the Administrative Procedure Act in the very same Section 10 that sets forth the standard of review also has a provision that provides that on review, the record show that the Court may consider as the record those portions that have been designated by the respective parties.

Justice Felix Frankfurter: That is not in the Taft-Hartley Act.

And Universal Camera drew light from the Administrative Procedure Act as to the -- as to the general scope of review but the Taft-Hartley Act is a specific act not qualified or limited by the Administrative Procedure Act and you leave onto account, if I may say so.

This is a very difficult problem, and I'm sure it is for my brother on the Court, this is a very difficult problem since the Taft-Hartley Act made the Amendment whereby the Congress decided to vest the Courts of Appeals with a far greater duty than they before had been imposed upon them namely, that they should go through the whole record which meant not merely say, as one witness say one thing and another witness say another thing, therefore, the Board is free to choose A rather than B or take the whole record and make a judgment, a judgment on the totality of the record.

And then what comes before us, as I see it, what comes before this Court is not determine whether the Board was justified in reaching the conclusion that it did but whether the Court of Appeals.

We have here for review the judgment of a Court of Appeals, was the Court of Appeals justified or unjustified as to its scrutiny of the entire record, likewise on the record which is all that the Board had before it, not the living witnesses, was the Court of Appeals justify in drawing these inferences so that we are not called upon to say yes, the Board was entitled to reach this conclusion but was the Court of Appeals in reviewing disentitled to reach its conclusion.

Mr. Norton J. Come: We submit that reapplying that test, a fair reading of -- of the record indicates that -- and of the court's reasons for rejecting a board's conclusion that the court was not entitled to reach the judgment that it did.

This is not a Pittsburgh Steamship type case.

If it were, we would not be here.

We've waited 11 years.

And we think that these cases present that rare instance that the Court talked about in Universal Camera.

Justice Hugo L. Black: May I ask you just one --

Mr. Norton J. Come: Yes, Your Honor.

Justice Hugo L. Black: -- your time is up but Mr. Justice Frankfurter has mentioned to you that, which troubles me about both of your cases, I, under the old rule, I wrote many of the opinions in which we picked out part of the evidence, picked out another file and this shows a claim conflict which was the duty of the Board to decide.

Now, they claim there, Congress claim they wanted to get away from there as wi -- within its power to do it, as I understand.

And it then said that after, you must not do that.

You must look at the entire record.

What bothers me is how is it possible to say that this Court must look at the entire records not leaving a great leeway to use its own judgment whether or not some told the -- the conclusion should be reached one way or the other on the merit.

If that is not the case then we are required, are we not, to read all of the evidence when cases come before us, a test which would not very high and many cases came in order for us to reach a conclusion not merely as just one witness testified just another testifies did but we impressed like a jury with the or judge on the trier of fact one side is right and one side is wrong.

Why -- why does that not indicate that Congress intended to leave the Courts of Appeal with practical -- fina -- as to practical power finalities on using that judgment and substituted their judgment, if you please, put out as the Board.

Mr. Norton J. Come: Well, I think that Mr. Justice Black that the result is that -- that is what happens in the overwhelming majority of the -- of the cases.

The -- put it -- most of the -- of the Circuits, as I indicated yesterday, have had no trouble in the -- in applying the Universal Camera principle.

We don't win all of our cases there but -- in those other Circuits but you have nothing more than just a difference of view on a fair appraisal of the -- of the evidence.

But what we believe is here is that the court is doing more than just differing what the Board on its appraisal of the evidence what it is doing is applying wrong principles and evaluating the evidence in the 8 (3) situation, it is setting forth this principle that you cannot upset the reason assigned by the employer unless it's directly contradicted.

Now, certainly that -- if that principle is wrong, this Court straightens that up presumably from thereon in there should be no need to have a flood of cases from the Fifth Circuit.

None of the other circuits are adhering to that standard.

And we haven't brought any cases from --

Justice Hugo L. Black: I haven't seen any in either the cases here.

I may say that under the old rule, I would have no trouble with your cases at all.

Mr. Norton J. Come: Yes, sir.

Justice Hugo L. Black: There's none.

But I've seen no indication in here has been decided on such a legal le -- rigid legal principle.

As you say, I can see where the result of what the Congress has done is liable to give different kind of judgment in ten different circuits.

If that has to be faced, it will not be as uniform action as you have when you have one censor board finally to make the judgment.

But just as Congress -- is that what they've done?

Mr. Norton J. Come: Well, Congress still has left this Court with a certiorari power to review the judgments of the Court of Appeals.

It hasn't said --

Justice Hugo L. Black: But we should do it?

Should we re -- should we reverse that without reading every word of the record?

Mr. Norton J. Come: Well, I think in the cases that we bring up to you, those rare cases and as I said this is the -- these are the first two in -- in 11 years.

I think that this Court has no choice but -- but to -- but to reevaluate the --

Justice Hugo L. Black: But that would require, would it not, in good conscience that we read them all evidence?

How could we do it otherwise?

That's what Congress has said.

We could say maybe you're not -- we couldn't argue that Congress didn't have the power suppose you're not arguing that.

Mr. Norton J. Come: No.

I'm not --

Justice Hugo L. Black: They said that and how can we do it without reading every word of the evidence?

Mr. Norton J. Come: Well, I think in these two cases, the Court might find that -- that that is necessary.

I don't know to what extent it -- it -- it would be necessary.

I think that --

Justice Hugo L. Black: Is it a -- is it a non-reasonable assumption as what Congress intended to do here was really to make the Court of Appeals?

The judge of the -- use its best judgment in deciding which way, what should be done in -- in affecting these laws so long as -- it might be -- you could say, “Well, there's just no earthly reason.

You can read the evidence.”

No possibility of reaching this conclusion.

But if there's a possibility, can we do anything and can we do anything anyhow without reading all the record of the evidence?

Mr. Norton J. Come: Well, I think that this -- the Congress did not say that this Court should relinquish -- review over what the Courts of Appeals are doing to the extent of -- of -- of not ensuring that they are applying the -- the same principles in evaluating this evidence.

Now, if we can --

Justice Hugo L. Black: Well the evaluation of evidence by evaluators as very hard enough legal principles under which it do it.

I know about a lot of the rules that this deems and from this you can presume with, but in the final analysis, that's the exercise of judgment if -- like a jury does.

Mr. Norton J. Come: It is -- it is the exercise of judgment but yet this Court takes jury cases.

I know that there's dispute about that in -- in a situation where they find that the trial court has applied the wrong principle.

Now, we --

Justice Felix Frankfurter: And what if the wrong principle in this case state the wrong principle in this case.

Mr. Norton J. Come: Alright.

The wrong principle in this case is to upset the Trial Examiner's credibility determination on the basis that he exhibited bias and prejudice toward company witnesses on a basis that just taking plea insubstantial and erroneous.

It is esse -- it is essentially the same principle because this Court in Pittsburgh Steamship 1, the first Pittsburgh Steamship case to take that case from the Sixth Circuit and reverse when it found that the Sixth Circuit was applying the principle that just because the Trial Examiner had credited all the witnesses on one side and discredited on the other side.

Justice Felix Frankfurter: Do you think today if we had a record in which this -- the Court of Appeals finds that as a matter of fact the Trial Examiner discredited all the employer's testimo -- witnesses and credited all the employee -- all the union's witnesses, that the Court of Appeals wouldn't -- that as a matter of law, you say it couldn't find, if it found that situation, disbelieving all the witnesses on one side and believing all the witnesses on the other that it couldn't draw the inference of a certain bias on the Examiner?

Are you laying down that as a proposition of law that an exa -- that the Court of Appeals couldn't make such a finding and that we have to reverse it today?

Mr. Norton J. Come: Not -- I am, if that is all that they relied on because I think that's what --

Justice Felix Frankfurter: But it all depends that -- but a -- a -- a court used this in the case where we have like the FELA cases or negligence cases where this Court is called upon to decide whether enough was left to a jury for the jury to enable it define to a breach of contra verdict, this is a situation where five members of the Board -- there are five of them?

Mr. Norton J. Come: Yes, Your Honor.

Justice Felix Frankfurter: Where five men reading a document -- reading this volume, each one concluding and the Congress of the Untied States says their conclusion on the reading of this record should be reviewed by three other men.

It's a very different thing.

Of -- of course, if the jury question in the sense that you -- to evaluate facts but it's a very -- it isn't a question of -- of the time of constitutional deposit of power in a jury whose verdict must be final and not reviewable or not to set aside if there's enough for -- enough evidence to go there.

This is five men reading dead print and then three men -- three judges called upon to reconsider the -- the judgment they formed on the dead print.

And I cannot see that you can say as a matter of law of Court of Appeals under the new dispensation isn't allowed to say it is our conscientious judgment that if examiner finds all the witnesses on one side credible and all the witnesses on the other side incredible that on their reading of the print, they couldn't have come to a different conclusion than the Board.

If that's the principle of law then I don't understand what principles of law which may well be so.

Mr. Norton J. Come: I would be the last to suggest that Your Honor.

I've more than exhausted my time.

Thank you for --

Chief Justice Earl Warren: Pretty well.

Mr. Norton J. Come: -- the extension.

Chief Justice Earl Warren: Mr. Bowden.

Argument of O.r.t. Bowden

Mr. O.r.t. Bowden: Mr. Chief Justice, members of the Court and Mr. Come.

First, I would like to comment by saying that the figures and the percentages that Mr. Come presented here yesterday as to the percentage of reversals or affirmations by the Circuit Courts do not in themselves impressed me too much for the simple reason that it well may be that the court which affirms the most is the one that it's not applying rule that you had in Universal Camera Company case.

I think the figures that I have seen on the -- on the courts would indicate, as Justice Frankfurter mentioned, that the Fifth Circuit had handled more labor cases than all the other circuits combined with exception of the Second Circuit.

And two, the Fifth Circuit had affirmed more cases at the Labor Board with the exception of the Second Circuit.

And it's the Fifth Circuit that also refused to enforce more cases than any circuits.

There are other Circuits, I believe it was the Sixth that had affirmed two cases and denied enforcement in form which is not too good a percentage if you want to approach on the percentage before us.

Now at the outset, I must --

Justice Felix Frankfurter: Would you mind shedding a little light to one theory as (Voice Overlap) --

Mr. O.r.t. Bowden: Yes.

Justice Felix Frankfurter: Why so many Labor Board cases rather taken to the Fifth Circuit?

Mr. O.r.t. Bowden: I can explain that, Your Honor.

It's -- it may do with the sanction, the thinking.

I think there is a certain -- there's less regimentation I -- if I may use that word as to thinking of lawyers in the Fifth Circuit.

Justice Felix Frankfurter: You mean they're more -- more litigious minded on there?

Mr. O.r.t. Bowden: They're -- they could be that.

And they're -- I think they're --

Justice Felix Frankfurter: Less unionization there too, isn't it?

Mr. O.r.t. Bowden: That could be an element.

Justice Potter Stewart: More resistant.

Mr. O.r.t. Bowden: I'll -- I'll have to agree with you, Your Honor.

Yes --

Justice Felix Frankfurter: That's what I meant.

Mr. O.r.t. Bowden: Yes, I do, Your Honor, that would account for.

Chief Justice Earl Warren: That's right.

Mr. O.r.t. Bowden: And you -- It might --

Unknown Speaker: (Voice Overlap) --

Mr. O.r.t. Bowden: It might be this -- is the proposition that we'd have presented, too, Your Honor.

To the fact that there is more unionization at this time in this south and pass where it is or any other section so it actually --

Justice Potter Stewart: It also happens to be the Circuit's issue.

Mr. O.r.t. Bowden: That is another fact, Your Honor.

I think all of which possibly.

Unknown Speaker: (Inaudible)

Mr. O.r.t. Bowden: Now, at outset, I must state that I agree with the statement that the General Counsel had in their position for their brief.

And that this case standing alone would not be sufficient to invoke this court's supervisory powers, that statement appeared.

It is therefore where some apprehension that I find the interest of my client being considered along with another case although which I have no control.

It is apparent that the Government itself is violating this Court's rule in the Pittsburgh Steamship case when the purpose of this case is to do nothing more than the old return, the verdict and the finding and the judgment of Fifth Circuit Court of Appeal.

My reading of that case indicates that this court expressly that it was not the policy nor the function of this court to review each and every individual decision.

Now, they do not show that, when I say 'they', I'm referring to the Government, that the findings of the Fifth Circuit on these questions are at variance with any other circuits.

So we're not here determining a conflict between Circuits.

They have laid before you the proposition that since the percentages one thing and one circuit and another thing in the Fifth Circuit that the Fifth Circuit must be wrong.

That was a reading from my statement saying, “We have just as much right to look at the cases that decided in the other Circuits and see if they are correctly applying the rule and if in fact the rule is not being correctly applied in the Fifth Circuit and that court is acknowledged in its responsibilities as this Court has directed the court should do in the Universal Camera case.

It is also apparent from the review of this case but the General Counsel is seeking to impose to form the Fifth Circuit standards on a reviewing court that the Universal Camera case condemns.

I like to -- for a moment, discuss the facts in this case.

I'm -- hadn't -- didn't think it was proper frankly because of the holding in the Pittsburgh Steamship case.

But since the facts are before the Court, I'd like to make some observations.

But this case may be divided into two parts for practical purposes that is 8 (a) (5) part which is the refusal to bargain in good faith part of the violation.

And it has a tender 8 (a) (3) charges which is the replacement of strikers.

Now, if the bargaining was not unlawful, then the General Counsel conceded in the case that then the -- there was no question of reinstatement of the strikers.

If the bargain is found to be unlawful, then of course there is a question of reinstatement of the strikers.

The second part of the case, we have 8 (a) (1) violations which the Trial Examiner himself characterized as a miscellany of minor charges of interference, restraint and coercion.

Now, I submit to the Court that the criticism that the General Counsel throws at the judgment of the Fifth Circuit applies in the main to this miscellany of minor charges, interference, restraint and coercion which is the basis of 8 (a) (1) charges here.

Now, let's examine the first part of this case which I will call are refused the bargaining part, the 8 (a) (5) violation.

Now, the -- the general -- the Trial Examiner and the counsels here goes into a year bargaining period and fixed out one incident and says “Right here, you refused to bargain.”

We're talking about now the December the 18th meeting.

The -- it maybe well and few comments made to the court to read what the Trial Examiner said about this.

It'll be in page 114 and 115.

Justice Hugo L. Black: Which volume?

Mr. O.r.t. Bowden: Volume I, I believe this is -- he says this, “Through the false significance of the December 18th meeting can be determine only in the light of later developments”.

This appear -- this much appears from the meeting itself and the advance which immediately preceded it.

Then he said, “This time, it was the company which delayed setting of a negotiating meeting at a crucial time when it appeared from a private meeting without benefit of counsel then they agreed it was near.”

Now, here's a statement he made at the same, “The unfortunate circumstances of the freeze brought home to the union realizations that this earlier -- earlier dalliance in the negotiation had placed that bargaining position in peril plus the urgent deadline”.

He threatens strike.

He attempts to force all use of the freeze as an excuse for further delay.

Now, he goes on -- that's his summation.

Now, let's turn to what the Fifth Circuit said in this regard which is in Volume II page 79 to 80.

Justice William O. Douglas: (Inaudible)

Mr. O.r.t. Bowden: Yes, sir.

The Fifth Circuit summarizes, as I understand, the Trial Examiner now is treating only this as a one incident without any relation at all to the fiat as they existed at that time.

The Fifth Circuit in its opinion says on the nights of December the 12th and 13th, disastrous freezes occurred in the Florida Citrus Belt.

There was no way so the examiner found by which the extent of the laws and the effect on the industry could be gauged at that time.

Justice Hugo L. Black: What is that (Voice Overlap) --

Mr. O.r.t. Bowden: Sir?

Justice Hugo L. Black: Did you say Volume II?

Mr. O.r.t. Bowden: Volume III sir, page 79 at the bottom of the page.

M.H. Walker general manager of the respondent had been informed that because of the freezes other Teamster locals had agreed to the suspension on negotiations with other citrus processors in order for the latter to appraise its situation in light of the freezes.

Walker came to the meeting of December 18th which commenced about 2 o'clock in the afternoon intending to ask for delay in the negotiation.

This intention was announced at the opening of the meeting.

The chief union representative, David Wingate refused to listen to any statement on behalf of the respondent and insisted on first stating his position.

The chief union negotiator informed their respondent that the freezes were not a factor which would be considered in the negotiations.

He informed the respondent's representatives that the union's negotiating committee was authorized to call a strike whenever it's saw fit.

And he gave the respondent a deadline of 400 that afternoon to agree upon a contract or give assurances that a contract would be agreed on.

Fifth Circuit says the Examiner and the Board reached the conclusion that Walker, the respondent's general manager, should have made his plea for suspension on negotiations but we see no reason why he should have done it in view of Wingate's declaration that freezes or no freezes, the respondent must within two hours commit itself to a contract.

The doing of a useless and feudal fighting is no more required in collective bargaining and between an employer and a labor union that in -- in other activities.

Now, you can see from the readings that the Fifth Circuit considered the record as a whole.

Now, let's go back and see what the Examiner stated about the bargain of the union altogether.

The Examiner stated as follows, “Indeed, through a combination of bad luck”, now, there's no reference or record to what he means by bad luck, “and bad bargaining techniques, the union had permitted the negotiations to proceed in such a manner as to create a situation in which respondents owned alleged good faith bargaining could not be tested”.

Now, when we're considering whether the Fifth Circuit accepted the testimony of Mr. Stephenson and did not accept the testimony went to Mr. Wingate, we have to take in consideration that Mr. Wingate was the chief union witness throughout this -- this period and negotiator and Mr. Stephenson was testifying about the same period for behalf of the respondent.

Now, Wingate, if we want to get into why the Fifth Circuit did not accept this testimony, was found by the Trial Examiner himself to be inept, careless and in numerous cases during this nine and a half months of bargaining prior to December 18th, he found Wingate time and time again misrepresenting it.

And he stated in his report.

For example, Wingate testified that the company --

Justice John M. Harlan: What -- what page are you reading from?

Mr. O.r.t. Bowden: I'm reading now -- I don't have that it's in the -- if you -- it's in the Trial Examiner's report which would be --

Justice Hugo L. Black: I've got the report, I just --

Mr. O.r.t. Bowden: Yes, sir.

The exact reference, I just made a note as to statements without -- Wingate had testified that the company never offered to itself.

The old Citrus worker's labor agreement was such modification as the union desired to make as the basis for settling.

Bargaining had been going on to some time.

But the Trial Examiners found that Wingate did state that he was willing to go along with the old contract.

Now, the record shows for example that Wingate had delayed bargaining because he wanted to go to Teamster convention.

Now, I understand that during this period of time from February to December the 18th, the Trial Examiner very carefully each time said that this concerned no crucial matter.

This was not a crucial time.

And therefore, he didn't attach in to forum.

But on December the 18th for some reason, he suddenly decided that was crucial.

And there's no explanation in the record why the Trial Examiner would think that December the 18th was crucial and December the 17th not crucial.

However, he makes this statement and in explaining Wingate's delay during this eight and a half months of bargaining prior to December the 18th, he says that it concern no crucial matter that it was not a crucial period and words of that import.

The record will show that the company had bargained with this union from the certification in February to December the 18th.

During that period of time and for the period of time to January the 28th, the union at ho -- at -- used four different negotiators in the bargaining that none of the negotiators may took over had any conception of what the other negotiators had negotiated that the company during these changes had to furnish a new union negotiator with contracts and go through it, make notes for them so that they would know what it transpired in the previous bargaining.

There's testimony here by Mr. Wingate in which he claimed that he furnished a company proposal in which the Trial Examiner himself said that it was apparent that Mr. Wingate was in error, had not furnished us with the proposal.

The transcript will show and the testimony will show that even though company representatives had traveled 400 miles to attend a bargaining session that even though the union was present in the town that they refused to come to the meeting.

Either -- the transcript and the record would also show that Mr. Wingate broke the bargaining at all on October the 31st in 1957 stated that he had to get work for from the international.

Now, he never requested another meeting until this meeting at December the 18th yet the Trial Examiner brushes that at all by saying it concern no crucial period.

(Inaudible) December the 18th was a crucial period and he found that because Mr. Walker, the company's general manager, did not assume a knee on the floor attitude and begged for delay in view the freeze that that was a refusal to bargain.

I submit that the Fifth Circuit had every reasons Your Honor to adopt and -- and find that there's no evidence of bargaining.

A couple of this would apply too that there is not one word or record -- in the record prior to December 18th meeting in which could be considered as anti-union remark or anti-union animus This company had for years dealt with unions.

This company had for years satisfactorily negotiated, went out of strike.

And they were doing it this time even with the flames and the roadblocks and the difficulties.

Mr. Walker, the general manager of the company, said in September, he attended negotiations and wanted to know why we weren't getting along faster because of the fact that the season, the operating season was at hand and that he wanted the contract settled before the operating season started yet the Trial Examiner said that this concerned no crucial period but on December the 18th, it did.

Why?

I do not know.

Now, keeping in mind that this incident, if it happened at all, with Holly occurred afterwards their -- the records from February until December the 18th has no record of any anti-union animus or -- or anti-union statesmanship.

We would found at that time to have not bargaining in good faith because we did not ask for the suspension.

It is a well-known fact and the Trial Examiner states that all the other citrus plants, Minute Maid, Adams Packing, we have incorporated some of those reports in our record, were granted suspension by the same union for the purposes of bargaining.

I will show you and it -- I will not show you, but it appears on our appendix that a similar, almost on all fours case, such as this was tried by the Teamsters and by the Board in reference to Adams Packing Company and the Trial Examiner in that case reached an absolute conclusion under identical circumstances.

And then to -- to bring and to paint the picture of what the situation was at that time, we will have to show that on -- on December the 12th and the 13th with these freezes in which the industry did not know whether the entire crop was lost or not for the season that the union comes in and says, “If you don't sign a contract in two hours, we're going to strike”.

In Decem -- on January the 10th -- 9th and 10th this -- this -- the area again was hit by freezes.

It was during that period of time that the union actually called a strike.

Now, the Trial Examiners claim that the company exploited the freeze.

How he reached that conclusion, he does not state when it is common sense would dictate that at the time of the freezes, when the fruit has to be processed before it warms up and began to ferment that it was to the answers to the company to work night and day to process what fruit was available.

And we would not exploit a freeze by trying to call a strike during that period of time.

Yet that's his finding.

The Fifth Circuit didn't go along with that finding either.

Now, in reference to Holly, which is the other incident, I think the Fifth Circuit made a fair evaluation of that testimony.

When you keep in mind that we -- Holly is at most a plant guard that Mr. Stephenson, the general manager or production manager in -- in that case, would go to the trouble seek him out and have such a conversation with this man.

Now, Holly's testimony cared of his own death-wound and that Mr. Stephenson -- Mr. Walker testified that he, as general manager of the company, made the decision as to the rate -- wages that Mr. Walker or that Mr. Stephenson did not and that he made it at the time it was announced and it was his decision.

Stephen -- the -- Holly testified too in reference to the petitions but another employee unrefuted testified that he got the -- the idea from the other citrus plants and that he started the petitioners to decertify that union and that the company had nothing to do with it.

If the Trial Examiner found that although Mr. Stephenson did not succeed en -- enticing Mr. Holly that he otherwise succeeded by Mr. Scheuer.

When that is in the testimony as all and was explicitly denied by Mr. Scheuer unrefuted it to place.

Now, the Fifth Circuit in going over to this case considered the record as a whole.

They did not do as Mr. Come would held us to do that is going in and take the testimony of Mr. Stephenson and Mr. Holly in isolation and view that without re -- considering that with the whole record.

It is our contention that when the Fifth Circuit and any Circuit refused the record as the whole, that is -- he is entitled and must necessarily read all these parts together and therefore reach the conclusion on that basis.

Now, there was some mention by Mr. Justice Frankfurter about these colloquies that the -- that often come in trial and I agree with him that they are informed.

And when you consider that when a trial examiner goes out on his own without any reason except to merely express his personal opinions and make statements in the record like this Trial Examiner did about a witness who did not even testify then I think that is something that the Fifth Circuit Court of Appeals ought to consider when they're considering his evaluation of testimony of witness who did testify.

He goes the great lengths in one place to take a part a witness by the name of Roberts who was -- did not testify.

And he explained in great detail why the General Counsel did not call Mr. Roberts.

None of which was necessary and he chooses words.

Justice Potter Stewart: What kind of a witness is this who doesn't testify?

Mr. O.r.t. Bowden: He was excused in the presence of this man from testimony because it was apparent, if your Court please, that he had handled some of the negotiations and -- and it was -- they were trying to explain why the General Counsel didn't call them to testify as to his part of negotiation.

Justice Potter Stewart: He wasn't a witness.

Mr. O.r.t. Bowden: He actually didn't show after -- I shouldn't have said a witness but an individual I should say.

But the Trial Examiner referred him as a defector and words that he adjoined in the opposition meaning that he had at that time going to work with Minute Maid and that the -- the Trial Examiner viewed employers at opposition.

There were other statements by the Trial Examiner.

And there were statements too by the General Counsel who tried the case.

Justice Potter Stewart: How long before the -- this was allegedly in December that --

Mr. O.r.t. Bowden: Yes.

Justice Potter Stewart: -- that the company decided no longer --

Mr. O.r.t. Bowden: Yes.

Justice Potter Stewart: -- (Voice Overlap) in good faith?

How long earlier had Roberts or Robertson left the employer of the (Voice Overlap)?

Mr. O.r.t. Bowden: It's my recollection that Mr. Wingate while he had been present previously took over the actual negotiations at the October meetings and Roberts immediately preceded him as the Teamster negotiator.

And he was trying to explain why Rob -- Roberts was not used since we have been charged for refusal to bargain back as far as July.

Justice Potter Stewart: Of course but the Board's mentioned determination was that the refusal to bargain occurred in -- on December onwards?

Mr. O.r.t. Bowden: That's correct.

Justice Potter Stewart: Roberts really had nothing to (Voice Overlap) --

Mr. O.r.t. Bowden: Not at that time.

But which is all the more reason why there's no reason for the Trial Examiner to go to the extent he did to -- to criticize.

Now, the General Counsel in that case in a colloquy which is reported, I believe, in the brief of the Board was asked that if going to the management side necessarily affected the force of the old and the General Counsel replied “sometimes I wonder”.

This is in the presence of witnesses.

And apparently, it was an expression of which the Trial Examiner agreed.

I can't find --

Justice Felix Frankfurter: Well, the General Counsel while he has certain quasi -- independent quasi non-partisan duties in determining whether the brink of these files but in -- in a situation like this, in the litigation like this, the General Counsel departed that, isn't it?

Mr. O.r.t. Bowden: The actual prosecutes.

That's correct, sir.

Justice Felix Frankfurter: Yes --

Mr. O.r.t. Bowden: -- sir.

Justice Felix Frankfurter: So, his statement isn't -- isn't comprehensible.

Mr. O.r.t. Bowden: No, but I think it's on --

Justice Felix Frankfurter: But it's a very different --

Mr. O.r.t. Bowden: -- call for.

Justice Felix Frankfurter: -- thing for him to say thing as against the manifestations on the part of the Trial Examiner.

Mr. O.r.t. Bowden: No, but I think that that is on call for Your Honor --

Justice Felix Frankfurter: Both on --

Mr. O.r.t. Bowden: -- to test that kind of --

Justice Felix Frankfurter: They have different functions, the Trial --

Mr. O.r.t. Bowden: That's correct.

Justice Felix Frankfurter: -- Examiner and the General Counsel have very different function.

One is on the whole of partisan.

Mr. O.r.t. Bowden: That's correct, sir.

I agree with you.

Justice Hugo L. Black: Where is the statement?

I don't see much relevant to.

I'd like to see.

Mr. O.r.t. Bowden: Well, it's in the brief of the appellant counsel.

It's at the bottom of the page and some reproduced -- page 26.

Justice Hugo L. Black: Read the whole brief.

Mr. O.r.t. Bowden: The Government's brief.

It's at the bottom of the page in the -- (Voice Overlap) set forth in passing on this.

It is our position, if the Court please, that the Fifth Circuit fulfill its functions and the directions of this Court as set out in the Universal Camera case and that that court is accepting the responsibility which this Court urged upon it.

At this time, as my friend and colleague from Georgia said yesterday, I would like to state that I object to the use of the word “grossly” misapplied standards when directed through the Fifth Circuit Court of Appeals because Judge Jones who wrote this decision was a -- was a member, before going to the bench, to one of the largest most respected law firms in my State of Florida.

And it does not reflect and we do not believe that any such allegation could be appropriately addressed to him.

I know the judges, I respect them, I love them and I certainly object in any such criticism as grossly misapplying the law at anytime.

Now, I thank you.