State v. McDermott

220 A.2d 38, 3 Conn. Cir. Ct. 524, 62 L.R.R.M. (BNA) 2733, 1965 Conn. Cir. LEXIS 204
Connecticut Appellate Court·Decided December 17, 1965·No. File No. CR 10-15389·Published·Cited by 1 cases

Opinion

Dearington, J.

The defendant was convicted on a charge of trespassing in violation of § 53-103 of the General Statutes1 and has appealed. In his appeal, he has assigned error in the court’s failure to correct the finding and in its conclusions.

The defendant’s first three assignments of error relate to the trial court’s failure to find certain facts set forth in paragraphs appearing in the defendant’s draft finding. Under our procedure, no draft finding is required in a court case; such [526] a finding, however, may be helpful to the court. But a trier is not bound by paragraphs appearing in a draft finding. Neubauer v. Liquor Control Commission., 128 Conn. 113, 116; see Humphrys v. Beach, 149 Conn. 14, 20. A cause is to be determined by the facts found by the court. Turner v. Connecticut Co., 91 Conn. 692, 696. In this respect the defendant is not entitled to any corrections in the finding.

The defendant has assigned no grounds of error in his motion to correct the finding. Practice Book §§ 622, 981; Maltbie, Conn. App. Proc. § 173; see Practice Book, Form No. 819. Such a deviation from our rules would justify a refusal to consider further each of his assignments of error. Siller v. Philip, 107 Conn. 612, 616. We have, however, examined each in order that no injustice result to the defendant. O’Keefe v. Bassett, 132 Conn. 659, 660. He first contends that the court failed to find certain facts relating to his activities while he was in the personnel manager’s office and in the production area. This contention merits little consideration, since these facts are substantially embodied in the finding. He further contends that the court erred in failing to find that he stated to an official of Robertson that he had a right to remain in the production area “since under the national and state labor laws and under the labor contract he had a right to be there.” There is no evidence that the defendant made such a statement. He further assigns error in the court’s finding of certain facts, presumably because they were found without evidence. On this point, the court found that the discussions to be held for the purpose of ascertaining whether there was a grievance were preliminary in nature, and further that the defendant, without permission from any company employee, proceeded to the production area. There was adequate evidence to support the court’s finding in this respect. [527] The defendant is not entitled to any corrections in the finding.

The following facts were found: On March 22, 1965, the defendant was a union representative of International Union of District 50, United Mine Workers of America, Local 14977. This local had entered into a contract with the Robertson Paper Box Company of Montville on behalf of certain employees of the company. The contract covered labor-management relations and was in effect on the day in question. It was the defendant’s duty to see to it that the employees obtained their rights under the contract. On the day in question, the defendant arranged with O’Neill, personnel manager of Robertson, to confer with Burdick, a shop steward, in the personnel office. At this meeting the defendant learned that company representatives were in the process of conducting a discussion with certain employees concerning union activities. A preliminary discussion was to be held in an office located in the production area. Without permission, the defendant left the personnel office and proceeded to the production area. Arriving there, he was told that the employees would be represented by Dolzenehuk, the union president. The defendant was then told to leave by Lockwood, a company foreman, and later by O’Neill. The defendant refused to leave, asserting he had a right to be present in the absence of Dolzenehuk. Dolzenehuk was late for work and arrived some twenty minutes later, at which time the defendant left the production area.

The court reached the following conclusions: (1) The contract did not give the defendant the right to remain in the production area. (2) The defendant did not obtain such a right by virtue of § 31-105 (7) of the General Statutes. (3) The defendant did remain in the production area “without right” in violation of § 53-103 of the General Statutes.

[528] The defendant has assigned error in the court’s conclusions. On such an assignment, an appellate review is limited to whether the conclusions were illegally or illogically drawn from the subordinate facts as found, or whether the conclusions involved the application of an erroneous rule of law material to the case. Yale University v. Bermeson, 147 Conn. 254, 255. The evidence is not reviewed for the purpose of determining whether the subordinate facts furnish legal support for the conclusions, for the court’s conclusions are to be tested by its finding and not by the evidence. Klahr v. Kostopoulos, 138 Conn. 653, 655. The first conclusion reached by the trial court was that the contract did not give the defendant the right to remain in the production area. The defendant contends otherwise. He unsuccessfully sought to raise this point in his motion to correct the finding but did not pursue it in his assignment of errors. Since, however, it appears to be an essential part of the case, it is hereinafter considered. It is agreed that the pertinent part of the contract relating to this claim is article 14, § l,2 which provides for a certain procedure, consisting of progressive steps, in the event of any grievance or dispute between the company and the union. If an adjustment is not resolved under the first step, the matter progresses to the next step until four steps have been exhausted, in which event the matter goes [529] to arbitration. The first step, which the conrt found to be preliminary in nature, provides for a meeting “[bjetween the aggrieved employee, accompanied by his department steward if he so desires, and his foreman.” The court did not err in concluding that the defendant derived no right to remain in the production area under this provision, since there is no finding that he was either a department steward or a foreman.

The defendant also claims that his right to be in the production area was lawful under the provisions of § 31-105 (7) of the General Statutes. The court concluded otherwise. The provision in question provides that it shall be an unfair labor practice for an employer “to refuse to discuss grievances with representatives of employees . . . .” There is no finding, and the defendant makes no claim, that the employer refused to discuss a grievance with the duly designated or selected representative of the employees. See General Statutes § 31-106, defining designated or selected representatives. The defendant gains little under this assignment of error.

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State v. McDermott, 220 A.2d 38, 3 Conn. Cir. Ct. 524, 62 L.R.R.M. (BNA) 2733, 1965 Conn. Cir. LEXIS 204 (Colo. Ct. App. 1965).

220 A.2d 38 (State v. McDermott) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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