National Labor Relations Board v. Mt. Vernon Telephone Corp.
352 F.2d 977
6th Cir.
1965
Check Treatment

*1 course, express no view We, of conclude, of the This, is the weakness we conflicting state of these truth as to the appellee’s position. It is here without that ments, conclude by appellant, do but we by affidavit the follow conviction by Superior Court, intervention Georgia is the that the guilty” in the “plea corpus, trial or suing vacated its writ of habeas ordinarily is the term sense Under conviction. and set aside Rowe’s deter used, conclusive no such is Georgia there such ac it is that law clear the with prosecutor acted that Georgia mination by must be based tion courts prose probable entitle cause something than a determination more discharged civil suit in this to be cutor error committed there was summary judgment. repeatedly motion for on a stat trial court. As has been Court, Georgia Supreme “A ed case judgment and the is reversed corpus, discharge habeas under a writ of proceedings further remanded guilty by plea accused one after a opinion. inconsistent crime, granted except cases cannot be absolutely void, judgment where the for the the function reason test in criminal cases is not to

writ essential to the estab

truth of fact discharge guilt, lishment but judg one convicted of crime where the Balkcom, wholly void.” Dean v. LABOR RELATIONS NATIONAL citing Kin Ga. S.E.2d BOARD, Petitioner, Clark, 195 S.E. v. Ga. many 166, which case in turn cites earlier CORP., VERNON TELEPHONE MT. Georgia cases. Respondent. Here, then, Court is not faced with No. 16236. an indictment case where followed Appeals United States Court a conviction trial or either Sixth Circuit. Georgia plea guilty, because here according court, undisputed Dec. affi- appellant,

davit of there has held that plea guilty, no and that effective Georgia proceedings Criminal utterly

Court void.

We then come whether

there is an issue of fact as to whether fairly

appellee probable Zellner and with prosecutor acted as

cause before Jury. he, course,

Grand While stout-

ly fact, record makes it denies

plain trial court had before it an

affidavit behalf Zellner Celebrezze, Rowe’s Judge, dissented. claiming probable did not have cause for car had been stolen or that forgery, that, check on the other hand, he knew that man had indicted good by giving acted faith him a check right

on an account on which “stop payment”

draw and or-

der was attributable to the father and prevent passage'of

did not title to the

son.

Counsel, Manoli, Dominick L. Associate Counsel, Mallet-Prevost, General Marcel Counsel, Rosenbaum, Asst. General Julius Attorney, B., Washington, C., L. R. D. N. brief, petitioner. on Cleveland, Gentry, Ohio,

Eldred A. Stanley, Smoyer Schwartz, Cleveland, & Ohio, brief, respondent. on WEICK, Judge,

Before Chief CELE- BREZZE, CECIL, Judge, and Judge. Senior Circuit

WEICK, Judge. Chief The National Labor petition filed this Court for enforce- against ment of and its cease desist order respondent, Telephone Corp. Mt. Vernon The Board had found that 8(a) (1) (3) violated section and National Labor Relations Act demoting criminatorily laying off its employee, Sanford, Robert and ordered pay. it to him reinstate with back 158(a) (1), (a) (3). U.S.C. § reported Board’s decision order are at 147N. L. R. B. 125. corporation is an Ohio en-

gaged supplying telephone service to local subscribers. been Sanford had em- ployed by respondent in a of dif- number jobs October, ferent from 1948 to Au- gust, employment had 1963. been except years’ military continuous for two layoff January 15, service and the on July 1963 to had been organize campaign active in a union respondent’s employees. On June 1962 the union was elected exclusive bar- gaining representative and certified August 8, the Board on 1962. There- after, 1,May 1963, respondent on the union entered into a collective bar- agreement gaining year to run for one year year and to continue unless party upon terminated either notice. holding jobs After various with re- repairman, instrument switchman, helper, lineman, Sanford was transferred to switchman May on and as he such worked maintaining in the switchroom central B., Nancy Sherman, equipment. July R. M. N. L. Wash- office On 1962 San- C., Ordman, ington, Arnold General help- D. ford was transferred back to cable

97Q reprisal expression laid off contains no er, position he was threat from which July 15, promise January 15, or force or of benefit. U.S.C. 1963. On nothing pursuant 158(c). There in the above switchman recalled as § during they to work va- statements to indicate that union contract again coercion, reprisal, off or periods and he was effect threat of cation They promise made in 1963. He has since of benefit. *3 speech such the exercise of free and as been recalled. evidentiary an unfair no of have value trans- The Board found that Sanford’s practice. labor N. R. B. v. Tennessee L. helper was fer from switchman to cable Co., (6th 546 Cir. Coach F.2d discriminatorily of because motivated Although Blubaugh Employee the Board in the union activities. testified his layoff hearing found for the Trial Examiner a basis before the Quatman helper respondent’s because of the introduction of “said President saving job,1 equipment year’s labor to that that he would that within time everbody the demotion from switch- else reasoned that be rid of the union and practice. anything unfair it.” Al- was an labor to do that had with making respondent’s though Quatman Board did not claim that denied ap- seniority policy discriminatorily statement, was credited the Trial Examiner plied. Blubaugh also found that The Board “on basis of demeanor.” layoff August 15, 1963, adopted on after find- ford’s The Board the Examiner’s recall, wrongful ings. in that it was mo- by prior tivated discrimination and crediting aof It is clear Sanford’s nomination to office by entitled a Trial Examiner witness president union on 1963. weight reviewing court, great by but to finding crediting The Board based its also true that it is the demotion from switchman to cable court. The court on the conclusive discriminatorily helper on not to bound if believes choose crediting improper. several factors. The Board referred to As stated alleged manage by B. Elias coercive statements of in N. L. R. this Court management’s ment, preoccupa Big Boy, Inc., F.2d to show Brothers subject 1964): tion union (6th with activities. The Cir. organizing brought by up of union proper case this Court “In Sanford discussed with Personnel of an ex- the action to follow decline Director About the Coleman. same time discrediting crediting and aminer in Manager inquired employee Lahm testimony, even Young if he had been contacted about find- adopted Examiner’s has membership employees union or if other ings.”. signed Super union cards. Later why “you credited the Examiner intendent Smith the Trial asked Sanford Here guys prejudiced upstairs” union, witness. wanted the to made responded by inquiring to have When Blubaugh they were question, as to Smith’s basis for the to statement meeting “Oh, whether replied, discuss Smith we know.” At about alone molesting Manager Blubaugh’s suspension same time Tanner District intoxication, expressed hope employees employee Blu female baugh permanent dismissal. and Sanford that the union would should be made Blubaugh crediting prevail. Examin- the Trial The National Labor Rela In provides ad- specifically incident. tions Act mention this er did not apparently expression dition, did Examiner not be evi views shall Blubaugh aspects practice other of an unfair on the dence labor if such credit complaint charges filed a The union had filed the General Counsel with tv) Board, alleging relating other em- Sanford. numerous ployees off, had been but aspect. testimony, one but did his worked switchroom with three Quatman’s demotion, employees did tes- The Examiner credit Sanford’s matters, timony employees prior other than re- some making equipment the state- denial of credited his duction. switch- question. room was almost free fault after the testing as shown device. reduction em also credited The Examiner tend to show the absence would Young rela ployee Lahm over need for an additional man. Young’s testimony tive Company accelerate stated that the would absence of this need further saving equipment introduction of labor traveling shown the amount of time a union. advent because spent respondent’s maintenance at crew statement, making Lahm denied plant At after the reduction. best there Young because the Examiner credited per was an increase of 3.6 hours week. *4 was a for the Board reluctant witness Quatman President came to the conclu- subpoena. a thin under This seems to be op- sion after about fourteen months of ground all of Board’s since witnesses erating men, switchroom with Following subpoenas. under this were operating high cost too and was conclusion, logical to its all of sub that a fourth was The man not needed. poenaed ir should be credited witnesses initial decision to add fourth had a testimony. respective of their The Gen disagree- years come of after four five to did to eral Counsel not ask cross-examine Quatman ment between and the local Young a hostile In as witness. Manager adding necessity over a event, statement, true, if not en is Quatman fourth man. a President had weight titled to much an because where right to to revaluate his decision and change employer a makes which results improper retract in the absence displacing employees in for eco sound motivation. Mana- The fact that Local reasons, wrong nomic that action ger urged Quatman to President ful even switchroom, accelerated union ac add additional tivity. Bindery, Rapid R. B. N. L. long merely was of the a continuation Inc., (2nd 174 Cir. disagreement man. over fourth respond The Board found that Although remaining in the three men ent had no business motives for demot after the switchroom worked harder laying Rather, off Sanford. reduction, part in due to the installation respondent’s concluded that was action long dialing equipment, of new distance Sanford’s union the record extra does not show that activity. entirely Its decision is based effectively work could not be handled However, on inferences. the entire rec three men and a fourth needed. that overbearing ord must be reviewed calling inferences, contrary evidence before, pointed As Trial Ex- out must be considered. Universal Camera layoff' aminer did not Corp. B., v. N. L. R. 340 U.S. helpers. complained cable He about (1951). S.Ct. 95 L.Ed. 456 transfer Sanford from switchman sup- lay- There helper contemplation substantial evidence cable in port respondent’s position that previously But offs. Sanford had been fourth man helper needed the switch- for about five and one-half room, operations years. job were effective- He held switchman ly only months, carried on with slightly three men. With less than fifteen they Quatman four men switchroom then because President job gave against idle at in, judgment, times. Sanford’s was never his better helper Manager refilled arguments since his transfer to cable Lahm. Un- July 25,1962. strong hardly evidence der these be circumstances it can justification job the economic for his said that Sanford’s as switchman was addition, transfer. permanent. less overtime was re- The was not position nominees for Union conflicting keep when office. There was quired him in that longer hostility. evidence of Union needed. were no his services It is that President told fact cited the Blubaugh year’s employee “within rec in letter Tanner District time he would rid of the Union and “good company for a man” ommended everybody anything that had to do else person whose position over another Manager Tanner, with it”. District pro-union. plant in another brother a letter dated November recom- provide Although a basis letter does “good company mended man” over general respondent’s for an inference hostility employee another because other unions, pro it does toward a brother at Mt. Vernon who was on the wrong for an inference vide a basis through going Union side and “after discharge. specific to a ful motive as developments of the last six months Bottling L. B. v. Coca-Cola N. R. Atlanta Vernon, here at Mt. I take a hesitate to Co., (5th 1961), rehear 293 F.2d 300 Cir. anyone”. chance on ing denied, (1961). The F.2d Respondent maintains that here did not relate to Sanford. letter reduction the number of switchmen re- Trial Examiner found from four to three was on economic based considering keeping considerations. The showed beyond the ford as a fourth switchman there was less overtime worked re- period when Sanford vacation *5 after the reduction in the switchroom plan July 1963, 15, called on Also, than before the reduction. certain respondent learned was abandoned when testing equip- devices showed the office activity and union renewed Sanford’s operated efficiently. However, af- president union for his nomination reduction, Service, Telephone ter the was based Inc., Respondent, an affiliate of increas- August “the 15 action relation ed its maintenance work in the switch- * * * prior the ford’s nomination and Respondent proc- room. The inwas the ”* * * discrimination. installing dialing long ess of distance opinion, does In our the evidence equipment required the exclusive intended establish that of one service switchman from four to beyond pe- vacation retain the day. six hours a Local which the Trial riod. The inference urged that a fourth man be added to the respect drew in this Examiner switchroom. letter to President justified. It is admitted that Sanford Quatman September dated specifically recalled for the vacation Manager Lahm said: period time was and his tenure after that “Quite frankly getting was are uncertain. the maintenance should we and with approaching determination of The Board’s the winter season of the Act must based on brings, a violation be the increased load it I’m sure evidence, speculation. not on substantial we are in for trouble. I believe this speculation for things, Here was the basis is due to two lack of be recalled supervision. decision that Sanford was to and lack of longer period. for than the vacation “In all this time this added load actually Enforcement denied. have we reduced our work long force. I think it is time a hard Judge (dis- CELEBREZZE, situation, look at taken senting) asking : for if we don’t we are for trouble.” respect, I must dis- the utmost With majority opinion. sent from adopted Board On these facts the finding Trial Examiner’s that Sanford’s Respondent knew Sanford’s lay-offs by Respondent’s Management were motivated list had a Union activities. hostility ques- toward the Union. The men, also list of of Union Further, during employ- close one. of motivation is a tice. her brief tion credibility Respondent, part and the of witnesses reason- ment with worked she Union, from evi- inference to drawn time she left able after by Respondent are time dence matters for determination she worked full organizer. paid Trial Na- Examiner and the Board. Union as Also there Ben- tional Labor Board v. she Relations was corroborated 1962); leaving Corp., (C.A.6, gave Respond- dix 299 F.2d notice she was case, present Inter- National Labor Relations Board v. Unlike ent. testi- Corp., mony (C.A.6, urban Gas F.2d 724 of Mrs. conflicted Maniscalco 1963); many respects National Board Labor Relations with the “well Plaskolite, Inc., (C.A.6, 309 F.2d 788 and obvious inferences from the rest 1962). The Board’s choice two between the record”. conflicting views not be aside set Union record shows the won justifiably even Court would 15; margin of election a close 19 to have made choice a different had the organ- that Sanford one of matter been before it de novo. National Union; izers and that Corp., Labor Relations Bendix Board v. participation knew Sanford’s active supra; National Labor Relations the Union. after elec- Several weeks Corp., supra. v. Interurban Gas tion Sanford was demoted and subse- proper quently It is reemploy- true that case laid his off. After findings ment, Court decline to follow he was nominated to the Union credibility of an Examiner as office of President within a week again witness. National Labor he was off. The Ex- Trial Big Inc., gave Blubaugh’s Boy, Board v. Elias Brothers aminer tes- credence to (C.A.6, timony 327 F.2d 421 In that that President said that decision the La- National he would be rid of the Union within Pyne Molding year. bor Relations Board v. The record also shows that the Re- Corporation, long (C.A.2, new dial- installed distance *6 1955) quoted: ing equipment placed which an addition- al work load on the switchmen. Even “Although the Board not over- though there was less overtime worked rule its Trial Examiner discard- switchroom, after the reduction in the testimony positive credible Telephone Service, Inc. its increased aof witness favor anof inference switchroom, maintenance work drawn from tenuous circumstances * urged * * local Presi- refuse to follow its dent add additional crediting Trial Examiner in testi- the switchroom. mony where it conflicts with well Considering facts, these it can be said and obvious inferences sup- that there is substantial evidence to rest of the record. Such port layoffs particularly justified inference refusal that Sanford’s discriminatorily testimony il- where the legal given by (1) (a) (3). 8(a) under Uni- an interested witness and Corp. versal Camera relates to v. National Labor his own motives.” Board, Relations 340 U.S. 71 S.Ct. case, In the Elias Brothers Mrs. Man- (1951); Labor National iscalco charged. she claimed Kingsford, (C.A.6, beneficiary She direct pay order, solely a back and it upon her necessary relied For these reasons I find prove prac- the claim of an unfair labor to dissent.