Petition for a Writ Certiorari — Grieder Machine Tool & Die Co. v. National Labor Relations Board

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IN THE

October Term, 1944

No....234..

GrrepeR Macuine Toon & Diz Company,

Petitioner,

vs.

NationaL Laspor Rewations Boarp,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF

APPEALS FOR THE SIXTH CIRCUIT

Henry A. MIppLeton,

Cuartes W. Racrye,

16th Floor Ohio Bldg., Toledo, Ohio,

Moses Lang,

Bowling Green, Ohio,

Attorneys for Grieder Machine Tool

& Die Company.

| Wruuiams, EversmMan & Morgan,

16th Floor Ohio Bldg., Toledo, Ohio,

Joun F. Jones,

Ohio Bldg., Toledo, Ohio,

Of Counsel.

Supreme Court of the United States

IN THE

Supreme Court of the United States

October Term, 1944

GRIEDER MacHINE Toon & Dir Company,

Petitioner,

vs.

NaTIONAL LaBor Retations Boarp,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF

APPEALS FOR THE SIXTH CIRCUIT

Henry A. MIDDLETON,

CuHartes W. Racine,

16th Floor Ohio Bldg., Toledo, Ohio,

Moses Lang,

Bowling Green, Ohio,

Attorneys for Grieder Machine Tool

& Die Company.

Winuiams, EversmMan & Morgan,

16th Floor Ohie Bldg., Toledo, Ohio,

Joun F. Jongs,

Ohio Bldg., Toledo, Ohio,

Of Counsel.

INDEX

Page

I SE ce neha a nar ik als haa oun e890 2m wees 1

PEE RT EEL FECT ELE EEE TON 2

Statement of the Matter Involved..................... 2

I ED rs or Goo KK 5 yes baad See he va oO 8

Reasons Relied On For Allowance Of The Writ....... 9

I. The Order that petitioner post notices that its

employees may without fear of discrimination

become or remain members of one particular

a en re 9

Il. The judgment that petitioner has refused to

bargain collectively should be reviewed by this

3 ake MES Seater oS ee ane eee e SCeer rae 11

Ill. The unsupported and completely contradicted

testimony of Clabaugh Coes not constitute sub-

II Sh a eo oo oe BE alk ab ees 13

PE EES LS BLE MOLT EE TS ON PAPA TE a 15

CITATIONS

CASES

Ballston-Stillwater Manufacturing Co. vs. N. L. R. B.,

rN ES Goo ia Sieh cee bh aida boeken Now kode Oe eae aS 14,16

Colorado F. & I. Corp. vs. N. L. R. B., 121 F. (2d) 165... 10

Consolidated Edison Company of New York vs.

ee a Ne OR MT choca cee ER hs ee ee Kime 14

Cudahy Packing Co. vs. N. L. R. B., 102 F. (2d) 745... .9, 10

De Bardeleben, et al. vs. N. L. R. B., 135 BF. (2d) 15....9, 10

N. L. R. B. vs. Columbian Enameling & Stamping Co.,

a RAE) J NG Ae vw. adie cece eee eee eee ek 11,13, 16

N.L. R. B. vs. Elizabeth Arden, Ine., 139 F. (2d) 488.... 9

Page

N. L. - B. _Vs. Jones & Laughlin Steel Corporation,

3

. B. vs. Sands Manufacturing Company, 306

J a eer eer rey Tree errr ys 11, 13, 16

N. L. R. B. vs. Standard Oil Co., 138 F. (2d) 885...... 9

N. L. R. B. vs. Williamson-Dickie Manufacturing Co.,

TOO CBB) DO ens voc chives cae es eecnses vives 15, 16

The Associated Press vs. N. L. R. B., 301 U. S. 103... 14

Westinghouse Electric & Mfg. Co. vs. N. L. R. B. 112

ABO) COE aa vende caness cetera sPeeweeseneeseees 9

STATUTES

Section 240(a) Judicial Code as amended (28 U. S.

a Re.” nics yer rrr rarer les tern 2

National Labor Relations Act, Section 10(e) and (f)

(29 U.S. C. A. 160(e) and (f))........-.eeee eens 2

RULES

Supreme Court Rule 38, par. 5(b)...... eee ee eee ees 11

IN THE

Supreme Court of the United States

October Term, 1944

GRIeEDER Macurtne Toot & Die Company,

Petitioner,

vs.

NationaL Lasor Retations Boarp,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF

APPEALS FOR THE SIXTH CIRCUIT

To the Honorable Chief Justice and Associate Justices

of the Supreme Court of the United States:

The petitioner, Grieder Machine Tool & Die Company,

prays that a writ of certiorari be issued to review the de-

cree of the United States Cireuit Court of Appeals for the

Sixth Cireuit entered on April 13, 1944, directing the en-

forcement of an order of the National Labor Relations

Board.

Opinions Below

The United States Cireuit Court of Appeals for the

Sixth Cireuit entered judgment on this cause on April 13,

1944. The decision, not yet officially reported, is set out in

full at pages 395 to 402 of the record.

2

The decision and order of the National Labor Relations

Board are reported in 49 N. L. R. B. No. 190, and are

printed in the record at pages 79 to 80.

Jurisdiction

The jurisdiction of this court is invoked under Section

240(a) of the Judicial Code as amended by the Act of Feb-

ruary 13, 1925 (28 U. S. C. 347), and under Section 10(e)

and (f) of the National Labor Relations Act (29 U.S. ¢.

160(e) and (f)).

Statement of the Matter Involved

On May 29, 1943, the National Labor Relations Board

entered its Order (R. 75-80) requiring petitioner:

1. To cease and desist from (a) discouraging mem-

bership in International Union, United Automobile, <Air-

eraft & Agricultural Implement Workers of America, affill-

ated with the Congress of Industrial Organizations, or any

ether labor organization, (b) refusing to bargain collee-

tively, and (c) in any other manner interfering with, re-

straining or coercing its employees in the exercise of the

rights guaranteed by Section 7 of the National Labor Re-

lations Act.

29 To reinstate one Henry Clabaugh and make him

whole for any loss of pay he may have suffered by reason

of his discharge.

3. Upon request, to bargain collectively with the In-

ternational Union, United Automobile, Aircraft & Agricul-

tural Implement Workers of America, affiliated with the

Congress of Industrial Organizations, as the exclusive Tep

resentative of petitioner’s employees.

4. To post in its plant notices that petitioner’s em-

ployees ‘tare free to become or remain members of Inter-

national Union, United Automobile, Aireraft & Agricultural

Implement Workers of America, affiliated with the Con-

3

ss

gress of Industrial Organizations ’’, and that petitioner will

not discriminate against any employee ‘because of his

membership or activity in any such organization’,

Petitioner is an Ohio corporation organized in [041

and located in Bowling Green, Ghio. (R. 94). It is en-

gaged in the manufacture of precision gun and machine

tool parts for the United States Arniv and Navy. (R. 94).

Because the skilled workmen needed for the manutfae-

ture of such products cannot in these war years be obtaimed

inarural community like Bowling Green, petitioner adopted

a system of apprentice employment and training. (R. 287,

300). These apprentices were men without previous indus-

trial experience who completed an emgage course in

industrial machine operation, (R. 287). Such men were

given probationary employment at a wine wage rate of

4o¢ an hour and assigned to easily operated machines under

close supervision. (R. 291). They were retained for a

period long enough to test their ability and desire to de-

velop into useful employees. (R. 291). The apprentice

who developed satisfactorily was given wage increases from

time to time and his employment finally made permanent.

(R. 197). The unsatisfactory trainee received no such wage

increases and was discharged at the end of the trial peried.

(R. 245, 349).

Clabaugh, whom the Board has ordered reinstated, was

one of these trainees or apprentices. (R. 114, 275). Clabangh

came to the Grieder factory entirely lacking in experience

in machine operation. (R. 118). His employment record

demonstrated that he had been found unsatisfactory by his

previous employers, (R. 115-120). He was still on W.PLA.

in January, 1942. (R. 114). It was under W.P.A, auspices

that he first came into the petitioner’s plant in February,

1942, to take a four weeks W.P.A. course designed to fit

him for a position of novice machine operator. (R. 114).

While he took this training at the Grieder plant, he v was

entirely free of the petitioner’s supervision. (R. 114, 27

4

Clabaugh was placed on the Grieder pay roll in March,

1942, (R. 114). He was hired not out of charity, but be-

cause labor was searce and skilled workers unavailable.

He, like other inexperienced men, was hired with the hope

that he would develop into a competent and useful ma-

chine operator. (R. 287, 291). He was hired at the begin-

ners’ rate of 45¢ an hour, and he was still making that rate

at the end of six weeks when he was discharged. (R. 115).

Those six weeks are a continuous record of incompetence

and misconduet, of indifference to the advice and warnings

of supervision, and of fast-mounting realization that Cla-

baugh was not making good and did not, in fact, desire to

do so. Their inevitable culmination was discharge. Fol-

lowing Clabaugh’s discharge, he worked for the Toledo

Steel about four weeks, and then he drove a truck for a

grocery for about three or four weeks. (R. 130). At the

time of the hearing in January, 1943, he was a guard at the

Willys-Overland. It is quite significant that this man held

at least three jobs in the ten months following his discharge

by the petitioner. (R. 130-131).

Despite external pressure on the Grieder factory pro-

dueed by a strict production schedule and work undertaken

on a quotation rather than ‘‘eost-plus’’ basis (R. 279, 281),

the impossible was not expected of Clabaugh or of any

other novice. (R. 245, 291). He was assigned to a simple

hand milling operation. (R. 106, 348). He received the

benefit of continued supervision and adviee. (R. 277). The

W.P.A. graduate was not a finished product, nor was he

expected to be. (R. 279, 987). He was hired in the hepe

that he would inerease in skill and efficiency. (R. 287).

When employees did improve, they were given current

wage inereases and retained. (R. 197, 291). When it be-

came evident that improvement was improbable, they were

released. (R. 349, 351, 352). During the five or six weeks

Clabaugh was on the Grieder pay roll, he did not improve

and by his own admission he received no increase in pay:

(R. 115). Just as Clabaugh’s hiring and treatment were

a part of the regular Grieder policy, so also was his dis-

charge. Other trainees of caliber superior to Clabaugh’s

were released because their work did not merit retention.

(R. 245, 291, 351, 352). The fact that Clabaugh belonged

to the union certainly should not have made him immune to

the consequences of his own incompetency.

‘It was for that incompetency that Clabaugh was dis-

charged. There is no evidence in the record sowing that

the Grieder Company was even aware of Clabaugh’s union

activities. He was not, as others had been, a anion mom-

ber when he began work. (R. 106, 288). His discharge

occurred prior to the day on which unien buttons were first

worn in the Grieder plant. (R. 131, 195). The Board’s

finding, therefore, presents the ease of a man being dis-

charged for union activities when there is absolutely no

proof that those activities were known to the employer

who discharged him.

The best that can be said for Clabaugh’s record in the

Grieder plant is that he himself testified he had never been

reprimanded for his work—he likewise admitted, however,

that he had never been complimented on his work. (R. 108,

109, 124). Clabaugh’s testimony in his own favor is not

only weak but is also unreliable; Clabaugh perjured him-

self on the stand on at least two occasions. (R. 126-128,

131; 119-122).

Clahaugh’s incompetence and misconduct are estab-

lished beyond refutation by the testimony of his superiors,

by the testimony of other employees in the plant, and by

the testimony of his fellow union workers. Clabaugh’s

discharge slip read: ‘‘Late starting work, excessive smok-

ing on job. To (sic) much talking and visiting other ma-

chine. Do not rehire’’, (R. 393). Three supervisors of

Clabaugh testified at the hearing concerning the reasons

for Clabaugh’s discharge. They were Superintendent

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Strothers, Vice President Dunlap, and President Grieder.

Superintendent Strothers testified that he told Cla-

baugh many times to cut down on smoking (R. 236); that

notwithstanding these warnings Clabaugh continued to

smoke constantly, in spite of the fact that the machine he

was operating required the use of both hands, and that

smoking interfered with his operation of the machine (R.

237, 238); that he warned Clabaugh several times against

the practice of constantly visiting other operators and im-

peding their work (R. 238); that Clabaugh spoiled more

work than the average employee (R. 239); that Clabaugh

was always late in starting work and was the worst visitor

in the plant (R. 245); that Grieder and Dunlap continually

complained to him about Clabaugh’s derelictions (R. 247,

248); that every time he saw Clabaugh, Clabaugh was

either getting a drink or smoking (R. 255); and_ that

Grieder frequently complained about Clabaugh smoking

and visiting and told him to let Clabaugh go if he didn’t

cut out so much smoking and visiting. (R. 246, 247).

President Grieder testified that Clabaugh’s work was

very poor (R. 275); that he spoke to Strothers about the

poor quality of Clabaugh’s work (R. 275); that Clabaugh

was an excessive smoker (R. 275); that the operation of

Clabaugh’s machine required the use of both hands (Rt.

°76); that the difference between Clabaugh’s smoking and

the smoking of other workers was that Clabaugh smoked

constantly (R. 276); that Clabaugh was constantly talking

with other workers (R. 288) ; that he was always going over

to other machines and bothering other employees (R. 276,

977, 288); that Clabaugh was late getting started in the

morning and at noon (R. 278); that Clabaugh had toe much

serap (R. 279, 279-281); and that his warnings to Clabaugh

went unheeded. (R. 276, 289).

Dunlap testified that every time he had oceasion to go

into the plant, he saw Clabaugh talking (R. 347, 349) ;

7

that Clabaugh was always 10 to 15 minutes late getting

started after lunch (R. 347) ; that other employees who were

warned for similar misbehavior mended their ways, but

not Clabaugh (R. 349, 350); and that he made out Cla-

baugh’s separation slip a couple of hours after his dis-

charge. (R. 350).

The supervisory judgments of Clabaugh which

prompted his discharge were accurate judgments. They

were shared by the men who worked by his side on other

machines. One employee testified that although he had to

tend to his own machine fe observed that Clabaugh was

smeking constantly and was also talking ‘‘off and on’*, (R.

215). This employee testified that if Clabaugh had not been

warned for his misconduct ‘tit was a wonder’’, (R. 216).

The Board’s own witnesses unconsciously collaborated

the foregoing testimony. Clabaugh’s fellow complainant

and eo-union worker and organizer testified that he had

observed Clabaugh smoking and talking to other workers

‘at his machine’’, ‘fat another machine’’, ‘tat the tool

erib’’, and ‘fall over the plant for that matter’’. (R. 201,

202). When asked whether this conduct of Clabaugh’s had

oceurred while Clabaugh’s machines were in operation, this

Board witness, who had already testified that he could ob-

serve Clabaugh’s work (R. 201), replied that he ‘*wonldn’t

know’, (R. 202). When asked if he had ever seen Cla-

baugh *‘loafing around*’, he ‘*wouldn’t sav’’. (R. 202).

The facts above constitute the record upon the dis-

charge which the Board and the United States Cireuit

Court of Appeals have found was discriminatory.

On July 27, 1942, a consent election was held in peti-

tioner’s factory to determine the bargaining representative

for petitioner’s employees. (R. 99). Three weeks later,

the National Labor Relations Board aceredited the CTO as

such representative. (R. 92). Thereafter, in October and

November of 1942, petitioner’s representatives and repre-

OS eee

8

sentatives of the accredited union met several times and

diseussed terms for a proposed contract. (R. 178, 181, 322-

324). These conferences, conducted in admitted good faith,

resulted in petitioner’s agreement to the adoption of thirty-

nine of the union’s proposals, including recognition of the

accredited union as the sole bargaining agent for all of

petitioner’s employees. (R. 174-184, 373-389). The last of

these conferences was held on November 16, 1942. (R. 325).

On that date, the union representatives refused to bargain

further and demanded that petitioner agree immediately to

the union’s proposals for a closed shop and blanket wage

increases. (R. 168, 187, 188, 363, 364). When petitioner

requested further discussion, the union representatives

broke off the conference and ‘‘walked out’’ of the confer-

ence room. (R. 168, 188). Neither the union nor petitioner

afterward asked for renewal of negotiations. (R. 189, 213,

332, 366).

On May 29, 1943, after the usual proceedings pursuant

to Section 10 of the Act, the National Labor Relations

Board entered its decision and order requiring petitioner

to bargain collectively upon request, to notify its employees

that they may become or remain members of the CIO-

affiliated union without fear of discrimination, and to rein-

state Henry Clabaugh with back pay. (R. 75-80). On

April 13, 1944, the United States Cireuit Court of Appeals

for the Sixth Cireuit, with Judge Simons dissenting in part,

affirmed the Board’s decision and decreed enforcement of

the Board’s order. (R. 295-402). Petitioner seeks writ of

certiorari to review that decision of the Cireuit Court of

Appeals.

Questions Presented

1. (Can petitioner be required to post notices that its

employees may without fear of discrimination become or

remain members of one particular union?

9

2. Must an employer initiate renewal of bargaining

which has been broken off by the union?

3. Does the unsupported and completely contradicted

testimony of a discharged employee constitute substantial

evidence that his discharge was discriminatory ?

Reasons Relied On For Allowance Of The Writ

I. THE ORDER THAT PETITIONER POST NO-

TICES THAT ITS EMPLOYEES MAY WITHOUT

FEAR OF DISCRIMINATION BECOME OR REMAIN

MEMBERS OF ONE PARTICULAR UNION IS CON-

TRARY TO LAW.

In Seetion 2(d) (3) of its order (R. 79), the Board

ordered petitioner to post notices that its employees ‘‘are

free to become or remain members of the International

Union, United Automobile, Aircraft & Agricultural Imple-

ment Workers of America, affiliated with the Congress of

Industrial Organizations, and that petitioner will not dis-

criminate against any employee because of membership or

activity in such an organization’’.

Obviously, the decision of the United States Cireuit

Court of Appeals for the Sixth Circuit sustaining this por-

tion of the Board’s order, is in conflict with the decisions

of the United States Cirenit Court of Appeals for the See-

ond Cirenit in Westinghouse Electric & Mfg. Co. vs. N. L.

h. B., 112 F. (2d) 657; N. L. R. B. vs. Standard Oil Co.,

138 F. (2d) 885, and N. L. R. B. vs. Elizabeth Arden, Inc.,

139 F. (2d) 488, with the decision of the United States Cir-

euit Court of Appeals for the Fifth Cireuit in De Bardele-

ben et al. vs. N. L. R. B., 135 F. (2d) 13, with the decision

of the United States Cireuit Court of Appeals for the

Kighth Cireuit in Cudahy Packing Co. vs. N. L. R. B., 102

F. (2d) 745, and with the decision of the United States

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Circuit Court of Appeals for the Tenth Cireuit in Colorado

F. & 1. Corp. vs. N. L. R. B., 421 F, (2d) 165. The United

States Cireuit Courts of Appeals for the Second, Fifth,

Eighth, and Tenth Circuits, upon the principal that ‘‘the

purpose of the Act is to leave the employees with a free

choice”? and not ‘subject them to the compulsion of their

employer, outside labor union, the Labor Relations Board,

or anybody else as to what is their best interest in joining

or forming labor organizations’’ because “the act was not

passed, it may not be used for the purpose of forcing thie

seating of nationally affiliated labor organizations contrary

to the real wishes of the employees’? (De Bardeleben ct

al. vs. N. L. R. B., 135 F. (2d) 13, 15), have revised the

terms of the notices which employers must post to read

that employees are ‘‘free to join or not join any labor or-

ganization’? (Cudahy Packing Co. vs. N. L. R. B., 102 F.

(2d) 745).

If the petitioner should ultimately be required to post

a notice, the form of that notice will be particularly im-

portant because a union not affiliated with the CIO has

conducted a membership campaign among petitioner’s em-

ployees and has petitioned the Board for certification as

the accredited bargaining representative. (R. 221-226).

The United States Cireuit Court of Appeals was aware of

the activities of this other union when the court ordered

petitioner to post the notice specified by the Board. (R.

399).

This court should decide whether the National Labor

Relations Board has the power under these circumstances

to order an employer to post a notice that his employees

may without discrimination join or become members of one

particular union. The decision of this court will resolve

the conflict which now exists between the decisions of the

~arious United States Circuit Courts of Appeals.

ll

Il. THE JUDGMENT THAT PETITIONER HAS

REFUSED TO BARGAIN COLLECTIVELY SHOULD

Blo REVIEWED BY THIS COURT.

The decision that petitioner has violated its duty to

bargain collectively should be reviewed because it is a de-

cision “probably in conflict with applicable decisions of

this court’? (Supreme Court Rule 38, par. 5(b)).

The present decision holds that an employer must re-

quest renewal of bargaining conferences broken off by em-

ployees’ representatives. Such a decision is in conflict with

the decisions of this eourt in N. 1. R. Be vs. Columbian

Enameling & Stamping Co., Inc., 806 U.S. 292, and N. DL,

R. Bo vs. Sands Manufacturing Company, 306 U.S. 332, and

should be reviewed for that reason.

The United States Circuit Court of Appeals crrone-

ously assumed petitioner’s position to be that although

petitioner had refused to continue negotiations on Novem-

her 16, 1942, such refusal was justified by petitioner’s re-

ceipt of notice that a second union had asked to be certified

as the bargaining agent of petitioner’s employees. Thus,

the court passed over the actual reason for termination of

the bargaining between petitioner and the already aecred-

ited union with the statement that:

“* * * We do not go into detail touching the evi-

dence as to what caused the break in negotiations

on November 16th. * * *’? (R. 398).

The court continued by stating that:

* * * Tt is enough to say that the Union’s repre-

sentatives insisted upon going forward and respond-

ent’s contention was that in view of the Regional

Director’s letter of November 16th it doubted the ad-

visability of further recognizing the. stafas of the

Union as bargaining agent. * * *"? (R. 398),

The court then declared that an employer’s doubts as to

the propriety of an established certification do not justify

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12

his refusal to bargain with the certified union and that if

petitioner had such doubts, it should have communicated

with the Regional Director ‘‘as it had been invited to do

in the letter of November 13, 1942’’. (R. 399).

The court clearly misstated the facts. Reference to

the letter of November 13, 1942 (R. 387), shows that peti-

tioner was advised only that the petition of the intervening

union had been assigned to a Field Examiner who was to

communicate with petitioner in the course of his investiga-

tion. Nowhere was the petitioner invited to communicate

with the Regional Director. Furthermore, what is even

more important, the court below improperly appraised the

real issue as to this matter. We submit that the fact that

the petitioner received notice of another union’s interven-

tion is a fact entirely irrelevant to the issue in this ease.

The notice of intervention had simply one effect upon

the November 16, 1942, bargaining conference between peti-

tioner and the aceredited union. Because the notice had

arrived immediately prior to the conference, petitioner’s

representatives asked for a recess to enable them to dis-

cuss the significance of the notice. (R. 326). The notice

had no other effect. When the twenty-minute recess ended,

petitioner’s representatives walked back into the confer-

ence room and stated that they were ready to continue bar-

gaining. (R. 186, 362). There is no dispute upon this

evidence. Nor is there any dispute on the evidence that

negotiations were then entered into and continued for a

period variously estimated by the union’s and petitioner’s

representatives as between one and two hours. (R. 326,

329, 363). There is no dispute that the negotiations after

the recess on November 16 were bona fide and resulted in

agreement upon such matters as the duration of the pros-

pective contract. (R. 326). There is, finally, no dispute «0

the record evidence ihat the last bargaining conference

terminated because the union representatives “walked

13

out’? when petitioner’s representatives, who had already

consented to a large part of the union’s demands, were not

ready without further discussion to agree to the remain-

der. (R. 168-170, 188).

There is no escape from these facts. The issue in this

case is now and always has been whether an employer must

initiate renewal of bargaining broken off because dis-

gruntled union bargainers refused to continue negotiations.

The uneontradieted evidence in this ease shows that the

union representatives became impatient, walked out, filed

charges, and never attempted after that to meet with the

petitioner. There is absolutely no evidence that the peti-

tioner at any time refused to continue negotiations.

The appellate court’s decision upon this issue is con-

trary to the decisions of this court in V. L. R. B. vs. Colum-

hian Enameling & Stamping Co., Inc., 306 U.S. 292, and

VL. R. Bo vs. Sands Manufacturing Company, 306 U.S.

362, and should therefore be reviewed by this court.

Ill. THE UNSUPPORTED AND COMPLETELY

CONTRADICTED TESTIMONY OF CLABAUGH DOES

NOT CONSTITUTE SUBSTANTIAL EVIDENCE.

The reinstatement order in this case was entered upon

the uneorroborated testimony of the complainant. Every

other relevant portion of the record refutes that testimony.

As stated by dissenting Judge Simons of the Circuit Court

of Appeals :

‘c* * * There is cumulative evidence that Clabaugh

was a poor workman, wasted his time, and was a

destructive influence in the plant, and this quite

apart from his union activity. It is true that Cla-

baugh himself challenged this evidence, but upon this

record Clabaugh’s evidence, insofar as it is unsup-

ported by other witnesses or reasonable inferences,

is not entitled to belief by reasonable men, and so

does not rise to the dignity of substantial evidence.”’

(R. 402).

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14

The order of reinstatement means that an employer cannot

discharge an active union worker regardless of that

worker’s incompetence and misconduct. It is an order

which direetly contradicts this court’s decisions in N. L.

R. B. vs. Jones & Laughlin Steel Corporation, 301 ui. eds

and The Associated Press Us. N. L. R. B., 301 U.S. 103,

that the National Labor Relations Act does not take away

the employer’s right to discharge an unsatisfactory em-

ployee. The petitioner together with every other employer

of union labor is entitled to know if the present order is

valid. The growth of unionism in this country makes the

importance of the issue obvious. Does union activity pro-

vide job insurance?

This issue is more than another application of the

standard that an order of the Board must be based upon

substantial evidence. Consolidated Edison Company of

New York vs. N. L. R. B., 305 U. 8. 197. The character of

the evidence in the present case—the discharged employee’s

own testimony versus the rest of the record—presents the

qualitative issue of whether union activity immunizes a

worker to discharge. Particularly is this true where the

record shows Clabaugh perjured himself on the stand on

at least two oceasions. (R. 126-128, 131; 119-122). This

issue clearly deserves the consideration of this court.

Moreover, the decision here conflicts with the decisions

of the United States Cirenit Courts of Appeals for the

Second and Fifth Cirenits. In Ballston-Stillwater Mani

facturing Co. vs. NV. L. R. B., 98 F. (2d) 758, the Cireuit

Court of Appeals for the Second Cireuit was asked to de-

cide whether the National Labor Relations Board can order

a worker reinstated beeause of his own testimony, contra-

dicted by the testimony of his foreman and fellow workers.

That court declared:

«“* * * The inference that Ippoliti was discharged

because of her CIO membership instead of her vl0-

lation of the rule and her habitually poor work is

15

too arbitrary to stand. To sustain it on sueh a

record would grant to members of a complaining

union absolute immunity from discharge for inefli-

ciency.’’

In NV. L. R. B. vs. Williamson-Dickie Manufacturing

Co., 130 F. (2d) 260, the Cireuit Court of Appeals for the

Fifth Cireuit was asked to decide the same question. It

declared :

‘cow * * Tf real grounds for discharging him had

not been shown, or if he had been discharged for

trivial or fanciful reasons, these facts would have

supported an inference that he was discharged for

union activity, but when the real facts of the dis-

charge appear, these facts are stripped entirely of

probative foree. For it is settled by the decisions

that membership in a unien is not a guarantee

against discharge, and that when real grounds for

discharge exists, fhe management may not be pre-

vented, beeause of union membership, from discharg-

ing for them.’ ”’

The facets of the present case call even more clearly

than did the facts in the cited case for application of their

rule that:

seoee * * when real grounds for discharge exist, the

management may not be prevented, because of union

membership, from discharging for them.’ ”’

Therefore, beeause the decision appealed from both

presents an important but unsettled question of federal law

and conflicts with the decisions of other Cireuit Courts of

Appeals, the decision should be reviewed by this court.

Conclusion

The decision of the court below that petitioner must

post notices that its employees are free to beeome or re-

main members of one particular union is in direct conflict

with the decisions of the United States Cireuit Courts of

16

Appeals for the Second, Fifth, Eighth, and Tenth Circuits.

Moreover, the court’s decision that petitioner has refused

to bargain collectively conflicts with this court’s decision in

N. L. R. B. vs. Columbian Enameling & Stamping Com-

pany, Inc., 306 U.S. 292, and N. L. R. B. vs. Sands Manw-

facturing Company, 306 U.S. 382. Finally, the decision

that the entirely uncorroborated and completely contra-

dicted testimony of a discharged employee constitutes sub-

stantial evidence that his discharge was discriminatory,

presents an important and unsettled question of federal

law, and is a decision in conflict with the decisions of the

United States Cireuit Courts of Appeals for the Seeond

and Fifth Cireuits in Ballston-Stillwater Manufacturing

Co. vs. N. L. R. B., 98 F. (2d) 758, and N. L. R. B. vs.

Williamson-Dickie Manufacturing Co., 130 F. (2d) 260.

For these reasons, we submit that this petition for a

writ of certiorari to the United States Cirenit Court of Ap-

peals for the Sixth Cireuit should be granted.

Respectfully submitted,

Henry A. MIDDLETON,

CxHartes W. Racine,

16th Floor Ohio Bldg., Toledo, Ohio,

Mosss Lane,

Bowling Green, Ohio,

Attorneys for Grieder Machine Tool

& Die Company, Bowling Green, Ohio.

Wiis, EversMaAn & Morcan,

16th Floor Ohio Bldg., Toledo, Ohio,

Jouyx F. Jones,

Ohio Bldg., Toledo, Ohio,

Of Counsel.

Dated June 29, 1944.