NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Jack C. ROBINSON, d/b/a Robinson Freight Lines, Respondent.
No. 12928.
United States Court of Appeals Sixth Circuit.
Jan. 7, 1958.
251 F.2d 639
We find nothing erroneous or confusing in this instruction. Cf. United States v. Litman, 3 Cir., 1957, 246 F.2d 206; Haskell v. United States, 10 Cir., 1957, 241 F.2d 790; Yarborough v. United States, 4 Cir., 1956, 230 F.2d 56; and see the explanation of the meaning of willfulness in relation to the felony of tax evasion under
We next consider the sufficiency of the proof. The evidence showed that the defendant, who was a lawyer, received taxable income of more than $10,000 in each of the years in question. He was engaged in the general practice of law and also received compensation as Assistant Solicitor of Allegheny County. In each year the county withheld an amount representing estimated tax from defendant‘s salary and thereafter sent him a standard W-2 Form. On its face this form showed the amount withheld and instructed the taxpayer to file a return, attaching the W-2 Form to it. The defense offered no evidence, standing on its claim that the government‘s case was insufficient to justify a conviction.
The government‘s evidence, submitted to the jury without refutation or rebuttal, was sufficient to sustain a guilty verdict. The defendant was revealed as a man who in two successive years received a substantial amount of taxable income from which no tax had been withheld and of which the government was likely to be uninformed unless he filed a tax return. The jury was entitled to reason that a member of the bar, in the nature of his profession, has some general understanding that the United States requires persons who earn substantial income to file periodic income tax returns. And quite apart from that inference, the jury was entitled to view the W-2 Forms as reminders of the duty to file received shortly before or during the period within which filing was required. That is enough to justify a finding that the unexplained failure to file returns for 1953 and 1954 was “willful” within the meaning of the statute. The judgment will be affirmed.
Fannie M. Boyls, Washington, D. C., Theophil C. Kammholz, Marcel Mallet-Prevost, and Ruth V. Reel, Washington, D. C., on the brief, for petitioner.
Thomas W. Thomson, Knoxville, Tenn., Creekmore, Buhl & Thomson, Knoxville, Tenn., on the brief, for respondent.
Before SIMONS, Chief Judge, and ALLEN and McALLISTER, Circuit Judges.
PER CURIAM.
Respondent operates a motor transportation business in Tennessee under franchise from the Public Utilities Commission of that state. Respondent does not cross state lines but moves freight across Tennessee for interstate haulers as a link in interstate commerce. During the period involved Local 621 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (AFL) operated under a collective bargaining contract with respondent. No previous history of hos-
Early in the second strike some of the employees requested respondent‘s local manager to come to the home of one of the strikers for the purpose of lending the strikers some money. Six strikers were present and respondent‘s manager loaned each of them $20, repaid later by payroll deductions. Respondent then sent the strikers a letter notifying them that they had been temporarily replaced and that, unless they reported for work by Monday November 15, they would be permanently replaced.1
The trial examiner found that the letter was a violation of
The Board however, found that the refusal to reinstate certain employees who applied for employment when the strike was abandoned was a violation of
This was an economic strike in which respondent was entitled to hire permanent replacements and was compelled to reinstate only so many strikers as there were vacant places to be filled at the termination of the strike. National Labor Relations Board v. Mackay Radio & Telegraph Company, supra, 304 U.S. 345, 58 S.Ct. 910. Cf. Hamilton v. National Labor Relations Board, 6 Cir., 160 F.2d 465, certiorari denied 332 U.S. 762, 68 S.Ct. 65, 92 L.Ed. 348.
When the strike terminated only nine strikers had been reemployed and seven vacancies still existed. Seven strikers applied for work with respondent between December 13 and December 15, 1954. As shown by the record, new men were employed by respondent to fill all of the vacancies subsequent to application of the strikers for reinstatement. The strikers were presented with application blanks which all refused to sign. Respondent contends therefore that it was not compelled to reinstate them. It asserts that the applications were presented to the men because the Interstate Commerce Commission some six months previously had instructed respondent to secure written applications for employment. However, respondent admitted that previously it had not tendered such applications to any but new employees. Also, fifteen of the sixteen strikers performed a purely local service, hauling and delivering goods in Knoxville, Tennessee. Only one was an “over-the-road man.”
The application is not included in the record. Whether in express terms it deprives the men of their rights as old employees together with seniority and
Subsequent to the filing of petition for enforcement of the Board‘s order this court granted leave to adduce additional evidence with reference to an agreement dated April 8, 1955, between respondent and Local Union 621 and other unions and remanded the case to the Board for that purpose. A supplemental hearing was held in which the Board issued a supplemental decision adhering to its original decision and order.
The agreement between respondent and the local unions involved constituted a settlement of the issues between respondent and Local Union No. 621, which had filed the original charge. The Board was vested with discretion to refuse to allow the charges against respondent to be withdrawn, National Labor Relations Board v. Hekman Furniture Company, 6 Cir., 207 F.2d 561, 562, and its discretion was not abused.
The petition for enforcement will be granted as prayed.
McALLISTER, Circuit Judge (dissenting).
I am of the view that the respondent was not guilty of an unfair labor practice in presenting application blanks to the workers when they applied for work after the strike terminated. The circumstance that they were told that it was a new application does not, in itself, mean, or imply, that the workers were to lose their seniority upon signing applications and accepting re-employment. As to the statement by respondent that it was a new application, it was, in fact, a new application, in that the Interstate Commerce Commission had previously instructed respondent to secure written applications for employment in the future. The fact that such applications had, up to that time, only been tendered to new employees, does not indicate that old employees signing them, would lose any of their previously acquired rights. If there was any question in the minds of the employees to whom such application blanks were submitted for signature as to whether their signature would result in loss of seniority, or more onerous conditions of employment, the natural thing for them to have done would be to ask whether the signing of such an application meant loss of seniority or any disadvantage. For an employee to refuse to sign and to walk away without giving any reason for such action does not convict the respondent of an unfair labor practice. There was no reason for any employees to conclude that the presentation of such an application for signature was made with the purpose of stripping them of any of their seniority rights. Respondent‘s record with his employees had been unusually generous. He had repeatedly loaned them money while they were on strike against him. If they were going to claim that the mere presentation of the application forms was unfair to them, they should have so stated at the time, and given the reasons, rather than walking away in silence. I am, therefore, of the opinion that the order of the Board should not be enforced.