Petition — Aircraft & Helicopter Leasing & Sales, Inc. v. National Labor Relations Board

FILED.

IN THE juL @ 1975

Supreme Court of the United gfe. soos, sccm

a 4 ni. y’G

No.

AIRCRAFT & HELICOPTER LEASING & SALES. ING...

Penutioner,

VS.

NATIONAL LABOR RELATIONS Boavrn.

Respondent,

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit.

Jospepi bk. Morris,

15720 Ventura Boulevard.

Suite 312.

Encino. Calit. Y%1436.

(213) 7SS-5590.

Counsel tor Petitioner.

Parker & Son, Inc., Law Printers. Los Angeles. Phone 724-6622

SUBJECT INDEX

Page

III SII siscunsdcducisnatadianieeebiatsiausaadtanmannaiaminn l

ERE PE ART Meare Dane Reto 1

Questions Presented ...... saledaeiiniaaeiacsiadiaidaatesmaaaeatats 2

I Ce icici 2

Reasons for Granting the Writ ...............................- 7

REI Teen Sty <a OSESI eeSaR aya enn I ITOD 20

Appendix A. Opinion of the United States Court

of Appeals for the Ninth Circuit ............ App. p. 1

TABLE OF AUTHORITIES CITED

Cases Page

Aguilines, Inc. v. N.L.R.B., 87 F.2d 146 ................ 14

Boeing Airplane Co. v. N.L.R.B., 140 F. 2d 423 .... 8

Consolidated Edison Co. v. N.L.R.B., 350 USS.

Sar — saidiainnedaiensdieammieecibiindanecsbioiedeghinsanciaiblaniaalaneciaiiasiininmnassbiein’ 13

Cupples Co. v. N.L.R.B., 106 F.2d 100 .................. 17

Foster Bros. Mfg. Co., Inc. v. N.L.R.B., 85 F.2d

nay scaclicaldibasenasesicieaaaieesinaioaisdabddeielsenbipbdaseisdatieuidiunnonitite 9

Industrial Assn. of S.F. v. U.S,. 268 U.S. 64 ....12, 13

Jefferson Electric Co. v. N.L.R.B., 102 F.2d 949 .... 18

See fe ee eS Oe Bt OG.) en 14

Kansas City Power & Light Co. v. N.L.R.B., 111

ORT er RARE, ee oO Wea Dad 15

Magnolia Petroleum Co. v. N.L.R.B., 112 F.2d 545

pes A ENR OSE NE ON eC SALT ern aS DCN e 11

N.L.R.B. v. Alco Feed Mills, 133 F.2d 419 ....0....... 11

N.L.R.B. v. Baltimore Transit Co., 140 F.2d 51 .... 8

N.L.R.B. v. Boss Mfg. Co., 107 F.2d 574 .......... 15

N.L.R.B. v. Cape County Milling Co., 140 F.2d

SE scisaiddeiaisinsdininacianneienpitaiionaitabneipediigtniianimiuineniiiaden 19

et Bee Se UE CS Ey, Saeeen 7

N.L.R.B. v. Edward G. Budd Mfg. Co., 138 F.2d

I acai skin ah ethical dcohclenen incl icicmtnisite 14, 18

N.L.R.B. v. Hudson Motor Car Co., 136 F.2d 385

TREE Aree DO eae 8 nT Pe Re tO OR Oe ET TR 14

N.L.R.B. v. Killoren, 122 F.2d 609 ......0000000000... 7

N.L.R.B. v. Montgomery Ward & Co., 157 F.2d

IEEE seehonsbieheslenieeshelbenvicheieiiittdnastomnnnatnilecphiigeipichantinadasinnns 17, 19

Page

N.L.R.B. v. Newark Morning Ledger Co., 120 F.

SUI MEER skictarartaiesettasinapiibiedeaeheosicdahcenaiiinaideeaansliaiianaieesis 8

N.L.R.B. v. Norfolk Shipbuilding Corp., 109 F.2d

I~ sccesiciciahiaeceicecicltanatetannadocaunaannmniasimestiaiediabiehians 10

N.L.R.B. v. Register Pub. Co., 141 F.2d 156 ........ 10

N.L.R.B. v. Rockaway News Supply Co., 197 F.2d

UTES ccnsinbdbuacecasienacsanassacecescneiddlelsslenibeinasoaathcdadintgilendindibeses 19

N.L.R.B. v. Washington Aluminum Co., 370 U.S.

si sinnaleuiaicacicadenesicinisheaictaleiainabadiabienibitemsnininananmneseiaviiaiantd 17

National Licorice Co. v. N.L.R.B., 308 U.S. 350... 7

Pueblo Gas & Fuel Co. v. N.L.R.B., 118 F.2d 304.. 9

Superior Engraving Co. v. N.L.R.B., 183 F.2d 783.. 14

United Leather Workers v. Herbert, 265 U.S. 457 .. 13

United Mine “Vorkers v. Coronado Co., 259 U.S.

ERE oa aes sree Nee eve nee Cnn evan een rare 13

Statutes

United States Code, Title 28, Sec. 1254(1) .......... l

United States Code, Title 29, Sec. 151 ....................

a a aah a 7, 8, 13, 14, 15, 18, 19

United States Code, Title 29, Sec. 157 -.........0.....

SR Beds Ae oe ROS None nes oe ee cc ee: ee,

United States Code, Title 29, Sec. 160 ................ 2

United States Code, Title 29, Sec. 160(c) ............ 18

IN THE

Supreme Court of the United States

October Term, 1975

AIRCRAFT & HELICOPTER LEASING & SALES, INC.,

Petitioner,

vs.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

STATEMENT AS TO JURISDICTION.

The Petitioner, Aircraft & Helicopwr Leasing &

Sales, Inc., prays that a Writ of Certiorari issue to re-

view the Order of the Court of Appeals for the Ninth

Circuit rendered in these proceedings on March 17,

1975.

Opinion Below.

The Order of the said Court of Appeals ( Appendix

A, infra, pp. 1-4), N.L.R.B. v. Aircraft & Helicopter

Leasing & Sales, Inc., is unpublished.

Jurisdiction.

Said Court of Appeals denied a timely filed Petition

for Rehearing on April 9, 1975, and a Notice of Ap

peal from its Ruling, and from said denial of said Peti-

tion for Rehearing, was filed on June 20, 1975. The

jurisdiction of this Court is invoked pursuant to Section

1254(1), Title 28, United States Code.

a on

Questions Presented.

The National Labor Relations Board, Respondent,

brought action against Petitioner under powers granted

to it pursuant to Section 160, et seq., Tit'e 29, of said

Code, charging that Petitioner was guilty of unfair labor

practices.

The questions arising thereby are:

1. Did Respondent have jurisdiction in the

Action it initiated?

A. Was Petitioner, insofar as the involved

employees were concerned, engaged in interstate

commerce?

B. Were the involved employees, when con-

tacting Petitioner through its Agent, engaged in

a concerted action so as to come within the pur-

view of Section 157, Title 29, of said Code?

Statement of Facts.

The Petitioner, Aircraft & Helicopter Leasing &

Sales, Inc., is a California corporation with offices in

Sun Valley, California. It is engaged in the manu-

facture, repair, sale and leasing of helicopters. In Feb-

ruary, 1973, it employed, among other persons, Stephen

Crowe, Dan Crowse, Claude Fournier, George Zuniga

and Royal Wiley. The employees were not members

of any union. On February 5, 1973, these five em-

ployees met in private to discuss their wages. They all

felt that they should be earning a higher salary and

that they would like to be furnished uniforms to wear

and would like to have certain other benefits. The ma-

jor consideration, however, was wages. Some of them

had approached the management in the past as in-

dividuals and asked for a raise and were unsuccessful.

a

Crowe suggested that they make a group demand and

that perhaps they would be more successful.

It was decided that they would approach their su-

pervisor, Jesse James, and present their demand. Crowe

testified that there was no discussion about what would

be done if the demands were not met. [R. Tr. 73.]*

Others, however, testified that there was some discus-

sion that if anyone was fired that they would all “walk

out” in order to back him up. At any rate, however,

they discussed a walkout only among themselves.

Each testified that they did not threaten walkout

to their employer. [R. Tr. 27, 28, 32, 33, 73, 82,

121.]

These five employees then met with James and

stated their demands. Crowe acted as spokesman, and

told James they they were unhappy with the wages, that

they would like uniforms and a cost of living raise.

Crowe stated that he would like Eight Hundred Fifty

Dollars ($850.00) per month, Crowse asked for Four

Dollars ($4.00) per hour, and Fournier requested Nine

Hundred Dollars ($900.00) per month. The other two

employees did not make a request. [R. Tr. 11, 67.]

There was no discussion as to what would be done if

these demands were not met, except a statement by

Fournier that, “Jesse, I don’t believe you quite under-

stand, this is an alternative.” [R. Tr. 11, 27, 28, 32,

90.] There was no discussion as to what the alternative

was.

James then discussed the demands with George Lam,

the President of the Petitioner corporation. He told

Lam that he expected three of the employees would

*R. Tr. refers to the stenographic transcript of the testimony at

the Unfair Labor Practice Hearing.

a oe

walk out on Friday if the demands were not met.

[R. Tr. 178.] He further testified that to him the term

“walk out” meant quit. [R. Tr. 176.] Likewise, Lam

testified that he thought the employees intended to quit.

[R. Tr. 222, 228, 229.] The administrative law judge

made a specific finding that James and Lam believed

that the employees intended to sever employment.

They determined none of the men were deserving

of a raise in pay other than Crowe, and Lam author-

ized an immediate raise for him. [R. Tr. 215.] Since

they felt that three of the men would quit, for con-

venience James directed the accountant to prepare pay-

checks for them. Since they did not expect Zuniga and

Wiley to quit, they did not have their checks prepared.

A few days later, the men asked James if any de-

cision had been made about their demands. [R. Tr.

15, 16, 105, 106, 181, 182.] James replied that a de-

cision had been made and that either he or Lam would

meet singly with the employees in the office but they

would not meet with them collectively. [R. Tr. 16,

42, 182.] Crowe informed the other employees and it

was decided that they would abandon their demand to

meet in a group and meet singly with James. [R. Tr.

42, 46-49, 76, 142, 143.] Two of the employees,

Crowse and Wiley, indicated that they no longer in-

tended to support the group anyway. [R. Tr. 76, 106,

107, 149.]

The first employee to meet with James was Crowse

who informed James that, “I have had a change of

undliien

mind * * *. If I have not jeopardized my job * * * I

would like to stay on with you.” [R. Tr. 164, 165,

183, 194.] James replied that the company was not

satisfied with Crowse’s past work performance and could

not keep him on the payroll. [R. Tr. 116, 117, 164,

165, 183, 188, 194, 195.] The company had placed

a newspaper advertisement the previous month seeking

a replacement for Crowse and used this opportunity to

terminate employment. Crowse stated that he would not

continue to work for the company at his regular salary

in any event. [R. Tr. 117.]

After leaving the office, Crowse walked past the

other employees, showed his check and indicated that

the company had paid him off. [R. Tr. 17, 43, 50,

77, 109, 121.] None of the employees walked out with

Crowse. Instead Fournier entered James’ office for a

meeting.

Fournier asked what was happening and if the em-

ployees were going to receive raises. [R. Tr. 17, 186,

195.] James said they were not, and Fournier said,

“That’s it. I am through. I'll get my tool box and

leave.” [R. Tr. 186, 195.]

When Fournier left the office, the others were aware

that he was leaving the employ of the Petitioner. How-

ever, none of the employees walked out with him. In-

stead, Crowe met with James.

James offered him the raise previously authorized by

Lam. [R. Tr. 51, 52, 78, 91, 93, 145, 146, 162, 185,

189.] Crowe left the office briefly to speak with the

— =

other employees. [R. Tr. 91, 93.] When he returned,

he informed James that he could not accept the raise

because he had been the instigator of the employees’

actions and felt obligated to stick with the other men,

that he was “leaving”, “terminating”. [R. Tr. 94.]

Wiley and Zuniga also met with James on that date.

Wiley told James that he wanted to stay on the job and

has continued to work for the company since. James

asked Zuniga if he was, “staying with me or are you

going to walk out?” [R. ‘r. 187.] Zuniga indicated

that he had given his word of honor to ihe men and

felt obligated to leave with them. [R. Tr. 123, 126, 187,

196.] James said he was sorry to hear this and that he

didn’t expect Zuniga to leave. He gave Zuniga until the

following Monday morning to think over returning to

work. [R. Tr. 124, 127, 187, 196. ]

On the next day, Saturday, February 10, 1973,

Crowse and Fournier made separate phone calls to

Lam to wish him well on a trip he was about to take.

In the course of the conversation, Lam indicated that he

would be willing to talk to each about returning to

work, [R. Tr. 219-223. |

At the time of the meeting with James, Crowe,

Crowse and Fournier were given their final paychecks

when they left James’ office. Since it had not been antici-

pated that Zuniga or Wiley would leave, no checks

had been prepared for them.

=

REASONS FOR GRANTING THE WRIT.

A cogent reason for this Court’s consideration of its

review on certiorari, underlying and permeating the

following subsidiary reasons, is that said Court of Ap-

peals has so far sanctioned the action of Respondent

in its departure from the accepted and usual course

of pertinent judicial proceedings as to call for an exer-

cise of the Court’s power of supervision as will here-

inafter be disclosed.

In initiating its proceeding against Petitioner, Re-

spondent was aware that—

THE NATIONAL LABOR RELATIONS ACT

CONTEMPLATES NO MORE THAN THE

PROTECTION OF THE PUBLIC RIGHTS

WHICH IT CREATES AND DEFINES.

Nat'l Licorice Co. v. N.L.R.B., 309 U.S. 350,

366.

Furthermore, that—

A PROCEEDING UNDER THIS ACT IS

NOT, AND CANNOT BE MADE, A PROCEED-

ING TO ENFORCE A PRIVATE RIGHT; IT

IS A PUBLIC PROCEDURE, LOOKING ONLY

TO PUBLIC ENDS.

N.L.R.B. v. Colten, 105 F.2d 179.

and that—

THE NATIONAL LABOR’ RELATIONS

BOARD ACTS IN A PUBLIC CAPACITY TO

GIVE EFFECT TO THE DECLARED PUBLIC

POLICY OF THE ACT (Sec. 151 et seq.)

N.L.R.B. v. Killoren, 122 F.2d 609.

THE JURISDICTION OF THE BOARD IS

NOT TO BE EXERCISED IN ANY PARTICU-

LAR CASE UNLESS IN THE OPINION OF

THE BOARD THE UNFAIR LABOR PRAC-

—

TICE COMPLAINED OF INTERFERES SO

SUBSTANTIALLY WITH THE PUBLIC

RIGHTS CREATED BY THIS ACT (Sec. 151

et seq.) AS TO REQUIRE ITS RESTRAINTS

IN THE PUBLIC INTEREST.

N.L.R.B. v. Newark Morning Ledger Co., 120

F.2d 262.

At no place in the Record is it shown that the labor

dispute between Petitioner and its employees interfered

with the public rights created by said Sections 151

et seq. SO as to require its restraints in the public inter-

est.

That being the case, Petitioner holds it to have been

of doubtful operability that—

THE BOARD IS REQUIRED TO OBSERVE

THE TRADITIONAL RULE AGAINST THE

PRESUMPTION OF LIABILITY OR BAD

FAITH.

Boeing Airplane Co. v. N.L.R.B., 140 F.2d

423.

because,

THE TEST OF THE BOARD’S JURISDIC-

TION UNDER THIS ACT (Sec. 151 et seg.) IS

NOT WHETHER THE OPERATIONS OF THE

EMPLOYER CONSTITUTE INTERSTATE

COMMERCE BUT WHETHER THE STOP-

PAGE OF ITS OPERATIONS BY THREAT-

ENED INDUSTRIAL STRIFE WOULD RE-

SULT IN SUBSTANTIAL INTERRUPTION TO

OR INTERFERENCE WITH THE FREE FLOW

OF SUCH COMMERCE.

N.L.R.B. v. Baltimore Transit Co., 140 F.2d

os

—

and—

BEFORE THE BOARD MAY EXERCISE

JURISDICTION IT MUST APPEAR EITHER

THAT THE INDUSTRY UNDER CONSIDERA-

TION IS ENGAGED IN INTERSTATE COM-

MERCE OR THAT ITS INTRASTATE BUSI-

NESS IS OF SUCH A NATURE THAT DIS-

TURBANCE THEREOF WOULD SUBSTAN-

TIALLY AFFECT INTERSTATE COMMERCE.

Pueblo Gas & Fuel Co. v. N.L.R.B., 118 F.2d

304.

it being apparent that—

CONGRESS DID NOT INTEND TO CON-

FER POWER ON THE BOARD TO REGU-

LATE UNFAIR LABOR PRACTICES AFFECT-

ING INTRASTATE COMMERCE.

Foster Bros. Mfg. Co., Inc. v. N.L.R.B., 85

F.2d 984.

There has been no evidence produced in this Action

that Petitioner engaged in interstate commerce, either di-

rectly or indirectly, or that “its intrastate business is of

such a nature that disturbance thereof would substan-

tially affect interstate commerce” (Pueblo Gas), or that

“the stoppage of its operations by threatened industrial

strife would result in substantial interruption to or in-

terference with the free flow of such commerce”.

(Baltimore Transit. )

The Administrative Law Judge, in his Findings of

Fact with regard to Petitioner’s business, found that—

“During the year preceding issuance of the com-

plaint, Respondent realized revenues exceeding

$50,000.00 from the shipment of goods from its

Sun Valley location directly to customers outside

of California.”

— =

“Respondent is an employer engaged in and

affecting commerce within the meaning of Section

2(2), (6) and (7) of the Act.” (RA, V-I, p. 13.)*

The foregoing is seriously questioned inasmuch as

there appears to be no evidence in support thereof. The

reference, thereto, in the Complaint, although unde-

nied in the Answer, nevertheless does not comprise

evidence to support a Finding of Fact; and, particu-

larly is this so in view of the fact that George E. Lam,

Petitioner’s President, was called to the stand as Peti-

tioners’ witness, and was available to Respondent’s

Counsel for Cross-Examination, and was directly ques-

tioned by said Judge, but at no time did either of them

question Mr. Lam as to the actual nature of Petitioner’s

business, whether any part thereof actually flowed out

of the State of California, and, if any of it did, how

much of it, worked upon by the three employees, was

directly involved in interstate commerce.

The National Labor Relations Board, on February 28,

1974, adopted, as its Decision and Order, “the rul-

ings, findings, and conclusions of the Administrative

Law Judge” (RA, V-I, p. 38.)

FINDINGS OF THE BOARD ARE CON-

CLUSIVE IF SUPPORTED BY THE EVI-

DENCE.

N.L.R.B. v. Register Pub. Co., (9) 141 F.2d

156.

But,

THE FINDINGS OF THE BOARD MUST

HAVE SUBSTANTIAL SUPPORT IN THE

EVIDENCE.

N.L.R.B. v. Norfolk Shipbuilding Corp., 109

F.2d 128.

*RA refers to the Clerk’s Record on Appeal.

asifiinn

about which,

THE PRINCIPLES WHICH APPLY TO

TESTING WHETHER THE EVIDENCE WILL

SUPPORT A JURY VERDICT APPLY TO THE

FINDINGS OF THE BOARD.

N.L.R.B. v. Alco Feed Mills, 133 F.2d 419.

In other words,

IN ITS CAPACITY AS TRIER, THE BOARD

IS HELD TO THE SAME STANDARD OF

IMPARTIALITY AND FAIRNESS THAT A

JURY IS HELD TO, AND ITS FINDINGS

MUST REST ON SUBSTANTIAL EVIDENCE.

Magnolia Petroleum Co. v. N.L.R.B., 112 F.2d

545. |

It is manifest that neither the Judge nor the Board,

in the capacity of trier, were held to the same standard

of impartiality and fairness that a jury is held to or

one of them would have determined that Petitioner was

not engaged in interstate commerce because—

THIS REVIEW OF THE CASES MAKES IT

CLEAR THAT THE MERE REDUCTION IN

THE SUPPLY OF AN ARTICLE TO 5é

SHIPPED IN INTERSTATE COMMERCE, BY

THE ILLEGAL OR TORTIOUS PREVENTION

OF ITS MANUFACTURE, IS ORDINARILY

AN INDIRECT AND REMOTE OBSTRUC-

TION TO THAT COMMERCE. IT IS ONLY

WHEN THE INTENT OR NECESSARY EF-

FECT ON SUCH COMMERCE IN THE ARTI-

CLE IS TO ENABLE THOSE PREVENTING

THE MANUFACTURER TO MONOPOLIZE

THE SUPPLY, CONTROL ITS PRICE OR DIS-

CRIMINATE BETWEEN ITS WOULD-BE PUR-

— =

CHASERS, THAT THE UNLAWUL INTER-

FERENCE WITH ITS MANUFACTURE CAN

BE SAID DIRECTLY TO BURDEN INTER-

STATE COMMERCE.

Industrial Assn. of S.F. v. United States, 268

U.S. 64.

Patently, relating to Petitioner’s situation, the stop-

page of repair and maintenance of its helicopters be-

cause the three mechanics stopped working for it merely

reduced the supply thereof for lease or sale that could

be used outside the State of California. There was no

showing whatsoever that the equipment those mechanics

worked on were destined to be shipped or used in

interstate commerce, and that their not working on the

equipment in any way interfered with interstate com-

merce, even if it were shown that the employer himself

was engaged in interstate commerce.

A consideration of the foregoing shows, without

question, that Petitioner, insofar as the involved em-

ployees were concerned, was not engaged in interstate

commerce and, therefore, Respondent did not have ju-

risdiction in the Action it initiated.

* * *

It is patent, without question, that Petitioner would

have had to be engaged in interstate commerce of such

nature sad to such extent that work stoppage, such as

would be caused by the three of Petitioner's employees,

the consequences thereof would not have fallen within

the purview of the /ndustrial Assn. ruling just quoted,

in order for their work stoppage to have brought their

=

action within Section 157, Title 29, of said Code, pro-

viding, in part, for the protection of coucerted activities

for employees mutual aid or protection, because,

IN DETERMINING THE CONSTITUTION-

AL BOUNDS OF AUTHORITY CONFERRED

ON THE BOARD BY THIS SUBCHAPTER (Sec.

151 et seq.), IT IS THE EFFECT UPON INTER-

STATE OR FOREIGN COMMERCE AND NOT

THE SOURCE OF THE INJURY WHICH IS

THE CRITERION.

Consolidated Edison Co. v. N.L.R.B., 305 US.

197.

That ruling, as applied to Petitioner’s situation, is—

.. . THE ALL-IMPORTANT FACT THAT

THERE WAS NO INTERFERENCE WITH THE

FREEDOM OF OUTSIDE MANUFACTURERS

TO SELL AND SHIP OR OF THE LOCAL

CONTRACTOR TO BUY. THE PROCESS

WENT NO FURTHER THAN TO TAKE

AWAY THE LATTER’S OPPORTUNITY TO

USE, AND, THEREFORE, HIS INCENTIVE

TO PURCHASE. THE EFFECT UPON, AND

INTERFERENCE WITH, INTERSTATE

TRADE, IF ANY, WERE CLEARLY INCI-

DENTAL, INDIRECT AND REMOTE—PRE-

CISELY SUCH AN INTERFERENCE AS THIS

COURT DEALT WITH IN United Mine Workers

v. Coronado Co., 259 U.S. 344, and United

Leather Workers v. Herkert, 265 U.S. 457.

Industrial Assn. of S.F. v. United States, 268

U.S. 64.

To

So, in Petitioner’s situation, the stoppage of work

by the three employees was not the criterion for deter-

mining the Board’s authority (Consolidated), and said

stoppage of work had, if any, such an incidental, in-

direct, and remote, interference with any interstate

commerce in which Petitioner might have been engaged

(Industrial Assn.) that it would not confer any juris-

diction upon said Board.

Inasmuch as—

THE BOARD ASSERTS A PUBLIC RIGHT

VESTED IN IT AS A _ PUBLIC BODY,

CHARGED IN THE PUBLIC INTEREST WITH

THE DUTY OF PREVENTING UNFAIR

LABOR PRACTICES.

J. 1. Case Co. v. N.L.R.B., 321 U.S. 332.

(IT) DOES NOT EXIST FOR THE ADJUDI-

CATION OF PRIVATE RIGHTS.

N.L.R.B. v. Hudson Motor Car Co., 136 F.2d

385.

Therefore,

THIS CHAPTER CREATES NO PRIVATE

VESTED RIGHTS BUT ONLY PUBLIC

RIGHTS WHICH ARE AT ALL TIMES SUB-

JECT TO THE CONTROL OF CONGRESS.

Superior Engraving Co. v. N.L.R.B., 183 F.2d

783.

it being that—

THIS SUBCHAPTER (Sec. 151 et seq.) DOES

NOT CONFER PRIVATE RIGHTS ENFORCE-

ABLE BY JURY TRIAL.

Agwilines, Inc. v. N.L.R.B., 87 F.2d 146.

=— =

In other words,

THIS SUBCHAPTER (Sec. 151 et seq.) DOES

NOT INTERFERE WITH THE NORMAL

RIGHT OF THE EMPLOYER TO SELECT

ITS EMPLOYEES OR TO DISCHARGE

THEM.

N.L.R.B. v. Boss Mfg. Co., 107 F.2d 574.

nor does—

THIS ACT GIVES THE BOARD SUPER-

VISORY POWER OVER THE CONDUCT OF

A BUSINESS BY ITS OWN MANAGEMENT.

Kansas City Power & Light Co. v. N.L.R.B.,

111 F.2d 340.

In regard to Petitioner and its conduct with its em-

ployees, the Judge and the Board would like to make

it appear that said employees ‘were engaged in a “pro-

tected” concerted activity for the purpose of collective

bargaining (Sec. 157), but such is not a tenable posi-

tion in that it is unsupported by the evidence.

The only concerted activity engaged in by the em-

ployees was a meeting in the office of a Jesse James,

Supervisor with authority to hire and fire employees,

on February 5, 1973, with five employees—Crowe,

Fournier, Crowse, Wiley, and Zuniga—during which

Crowe, acting as spokesman, told James that they were

unhappy with the wages, would like to have uniforms,

and a cost-of-living raise. [R. Tr. p. 67, lines 15-18.]

That was the only “concerted” activity in evidence. Im-

mediately thereafter, Fournier said he wanted a hun-

dred dollars; Crowe thought he was worth $850.00 a

month, but did not know what the rest of the fellows

wanted; Crowse thought he wanted $4.00; Wiley and

Zuniga were silent. [R. Tr. p. 67, lines 20-25.] Four-

—

nier’s version of the same meeting was substantially the

same; that Crowe told James that he thought the wages

were too small, that he thought they should be getting

a cost-of-living wage increase. Again, this is all the

Judge hung-his-hat on as being “concerted” activity. Im-

mediately thereafter, each veered off in his individual

direction, as the Record shows. [R. Tr. p. 10, lines

9-24. |

The Record further shows that Crowse referred to

the same initial point of the same meeting with James,

that Crowe thought that they deserved more money, the

only aspect of what was deemed to be “concerted”

activity; thereafter, each man went off on his own [R.

Tr. p. 100, line 5, to p. 102, line 14.] Zuniga made no

mention of said meeting with James [R. Tr. pp. 118-

133.] Wiley referred to the same initial meeting with

the expressed belief that it was either Fournier or Crowe

that initiated the meeting by Fournier deciding that he

should have $900.00 a month, that Crowe decided he

should have $850.00, that Crowse decided that he

did not have a figure at that time, nor did he, nor

Zuniga; that they wanted a cost-of-living raise, and

uniforms; to which, James is said to have said that

he would approach Lam, Petitioner’s President, about

the matter, and would give them an answer. [R. Tr. p.

138, line 25, to p. 139, line 25.]

Thereafter, according to the Record [R. Tr. p. 16,

74, 106, 143, 121], when told by James that he would

talk to each of them, individually, there was no “con-

certed” stand by the men that they would talk as a

group, or through their “spokesman”; instead, each,

individually, pursued his own course, as the individual

Record shows, completely nullifying the Judge’s

Finding of Fact, Part II, and his analysis thereof, cit-

— =

ing in support thereof, N.L.R.B. v. Washington Alu-

minum Co., 370 U.S. 9, a case in which all of the em-

ployees did the same act for the same reason, that is,

they all left the shop—stopped work—because the shop

was too cold to work in.

Obviously, there is little or no similarity between

that case and the present; there, the employees acted

simultaneously, stopping work within a few minutes of

each other and leaving the shop here, after an initial

Statement as to differing desires, each employee acted

independent of the other, and deciding his own course.

There may have been a general simultaneity of action,

on the part of said employees, but, there was no “con-

certed” activity as contemplated in said Section 157.

Crowe, although offered a raise [R. Tr. p. 93, line

15], refused to continue in Petitioner’s employment.

[R. Tr. p. 94, lines 2-12.]

AN EMPLOYER CANNOT BE COM-

PELLED TO REINSTATE OR PAY PERSONS

UNWILLING TO WORK FOR HIM.

Cupples Co. v. N.L.R.B., 106 F.2d 100.

WHERE EMPLOYEES WERE LAWFULLY

DISCHARGED, THEY DID NOT REMAIN

EMPLOYEES, AND WERE NOT ENTITLED

TO REINSTATEMENT TO THEIR FORMER

POSITIONS.

N.L.R.B. v. Montgomery Ward & Co., 157 F.

2d 486.

Crowse was terminated because of his lateness on

the job. [R. Tr. p. 101, lines 5-15. ]

THE BOARD IS NOT ENTITLED TO

MAKE ITS AUTHORITY A PRETEXT FOR

INTERFERENCE WITH THE RIGHT TO DIS-

— =

CHARGE WHEN THAT RIGHT IS EXER-

CISED FOR OTHER REASONS THAN IN-

TIMIDATION AND COERCION.

=— =

THE QUESTION AS TO PROPER DISCI-

PLINE OF EMPLOYEES WAS A MATTER

FOR THE DECISION OF THE MANAGE-

Jefferson Electric Co. v. N.L.R.B., 102 F.2d MENT IN ITS DISCRETION.

949. N.L.R.B. v. Montgomery Ward & Co., 157

Fournier was let go because he had given Peti- F.2d 486.

tioner an ultimatum that it was a “aise or else. [R. Tr. In fine,

p. 17, lines 17-23. } THE RIGHTS OF AN EMPLOYEE GUAR-

NO ORDER OF THE BOARD SHALL RE-

QUIRE THE REINSTATEMENT OF ANY IN-

DIVIDUAL AS AN EMPLOYEE WHO HAS

BEEN SUSPENDED OR DISCHARGED, OR

THE PAYMENT TO HIM OF ANY BACK

PAY, IF SUCH INDIVIDUAL WAS _ SUS-

PENDED OR DISCHARGED FOR CAUSE.

Section 160(c), Title 29, U.S.C.

AN EMPLOYER MAY DISCHARGE AN

EMPLOYEE FOR A GOOD REASON, A POOR

REASON, OR NO REASON AT ALL, SO LONG

AS THE PROVISIONS OF THIS ACT (Sec. 151

et seq.) ARE NOT VIOLATED.

N.L.R.B. v. Edward G. Budd Mfg. Co., 138

F.2d 86.

it being that—

UNDER THIS ACT (Sec. 151 et seq.), THE

RIGHT TO HIRE AND DISCHARGE RE-

MAINS INVIOLATE, WHEN EXERCISED FOR

ORDINARY ENDS, AND THE EMPLOYER

MAY STILL DISCHARGE FOR GOOD CAUSE

OR NOT CAUSE AT ALL.

Jefferson Electric Co. v. N.L.R.B., 102 F.2d

949.

ANTEED BY THIS SECTION (157) ARE NOT

UNLIMITED BUT MUST BE EXERCISED,

IN CONFORMANCE WITH HIS DUTY TO

HIS EMPLOYER.

N.L.R.B. v. Rockaway News Supply Co., 197

F.2d 111.

Furthermore,

THE BOARD DOES NOT HAVE AUTHOR-

ITY TO IMPOSE A PENALTY OR TO INTER-

FERE WITH THE NORMAL EXERCISE OF

THE RIGHT OF AN EMPLOYER TO CON-

DUCT ITS BUSINESS.

N.L.R.B. v. Cape County Milling Co., 140 F.2d

543.

From the foregoing, assuming, arguendo, but not

conceding said assumption, that Petitioner was engaged

in interstate commerce so as to bring its activities with-

in the purview of Section 151 ef seq., still, there is

no evidence to support the Part II of the Judge’s

Findings of Fact. Instead, said involved employees,

when contacting Petitioner through its Agent, were not

engaged in a concerted action so as to come within

the purview of Section 157, Title 29, United States

Code.

=" =

Conclusion.

For these reasons, a Writ of Certiorari should issue

to review the Ord.s of the United States Court of

Appeals, for the Ninth Circuit to enforce an Order of

the National Labor Relations Board.

Respectfully submitted,

JOSEPH E. Morris,

Attorney for Petitioner.

APPENDIX A.

Opinion of the United States Court of Appeals

for the Ninth Circuit.

United States Court of Appeals for the Ninth Cir-

cuit.

National Labor Relations Board, Petitioner, vs. Air-

craft & Helicopter Leasing & Sales, Inc., Respondent.

No. 74-1796.

ORDER

[March 17, 1975].

On Petition to Enforce Order of the National Labor

Relations Board.

Before: BARNES, TRASK and GOODWIN, Circuit

Judges.

This proceeding is brought by the National Labor

Relations Board to enforce an order of the Board issued

on February 28, 1974, against respondent requiring it

to reinstate three employees, who the Board found were

illegally discharged in violation of Section 8(a)(1) of

the National Labor Relations Act for engaging in pro-

tected concerted activity. The Board’s decision is re-

ported at 209 NLRB No. 43.

Respondent advances two reasons why the order of

the Board ought not to be enforced: (1) “there is no

substantial evidence in the record to support the Board’s

findings,” and (2) “the Administrative Law Judge in

a hearing of this matter committed prejudicial error in

[a] failing to exclude the witnesses from the hearing,

in [b] admitting immaterial evidence, and in [c] limit-

ing examination of witnesses.”

As to the first issue, it is the contention of respondent

that two of the employees in question quit and the other

_

one was fired for poor job performance, and that none

of them was fired for engaging in concerted activity.

There is evidence in the record which is certainly sus-

ceptible to this interpretation, but this is not the only

interpretation which this evidence will support. Most

of the evidence would support either the petitioner’s or

respondent’s version of the facts depending on whether

one interprets the employees’ threats to “walk out” as a

threat to strike (a concerted and protected activity),

or a threat to quit en masse. (If the employees quit

they could not have been improperly terminated.) (See

e.g., R.T. 120 In 20-25; R.T. 196, 1n 2-4). Some of

the evidence more strongly supports an inference that

the employees were fired for their concerted efforts

(See R.T. 17 1n 17, to 18 1n 8; R.T. 108 In 14 to 109

In 4; R.T. 115 in 23 to 25), other evidence supports

the inference that they quit (See R.T. 43 In 17-22;

R.T. 51 In 11-24; R.T. 52 In 3-5; R.T. 78 In 10-11;

R.T. 79 In 1-3; R.T. 193 In 2-194 In 19; R.T. 145 In

14-19; R.T. 146 1n 7-10). Much of the testimony is

ambiguous. It is possible and perhaps likely that even

the parties themselves were unsure of what they in-

tended to do. (See R.T. 73 1n 10-15).

We have carefully read the entire record and while

one or more of this panel might not have decided the

case the way the hearing examiner did, we conclude

that his determination, and that of the Board (that the

employees were terminated in violation of § 8(a)(1))

is supported by substantial evidence.

Concerning respondent’s remaining contentions, we

conclude that any acts complained of do not amount to

an abuse of discretion, or reversible error.

First, the complained of admission into evidence of

the pay check stubs with the word “terminated” written

=

on them was no error. In light of the other testimony

of this case, and in its own right, this was material and

relevant evidence. Since this case was heard before a

hearing examiner, and not a jury, there is little risk of

prejudice—especially (a) since respondent was afforded,

and fully utilized, an opportunity to explain that “ter-

minated” could mean either voluntary or involuntary

cessation of employment; and (b) permitted to explain

how the word “terminated” came to be placed on the

checks, and under whose authority it was done. (See,

e.g., R.T. 202 et seq.)

Second, as to the limiting of respondent’s cross-

examination of witness Fournier concerning his dis-

cussions with a representative of the N.L.B.R. (R.T.

36-40), we cannot say that the exclusion of this testi-

mony (of little apparent relevance), was an abuse of

discretion. Whether or not the officer of the day in

charge when the employees contacted the N.L.R.B. gave

the employees “good or bad advice” regarding engaging

in concerted activity—which was attorney Morris’s

avowed purpose in seeking to continue that line of

questioning R.T. 38 In 16-25)—appears to us, as it

did to Judge Boyce (R.T. 39-40), to be of but tan-

gential relevance to what the employees actually did.

Because the excluded testimony could have had some

bearing on motive, it probably should have been ad-

mitted, but viewing the record as a whole, we cannot

say that its exclusion was prejudicial to respondent’s

case.

Third, relative to respondent’s objection to the non-

sequestration of discriminatees Fournier and Crowse,

we note that this is also a matter committed to the

sound discretion of the trier of fact. See N.L.R.B. v.

Quality & Service Laundry, 131 F.2d 182, 183 (4th

_ ve

Cir. 1942), cert. denied, 318 U.S. 775 (1942);

N.L.R.B. v. Great Atlantic & Pacific Tea Co., 408 F.2d

374, 375 (Sth Cir. 1969). The Board has repeatedly

held that alleged discriminatees are “parties” to a pro-

ceeding and, as such, cannot be excluded from the

hearing. Sopps, Inc., 189 NLRB 822 (1971); T.J.L.

Sportswear Corp., 131 NLRB 176, 177 n.1 (1961)

enf'd., 302 F.2d 186 (D.C. Cir. 1962); Walsh-

Lumpkin Wholesale Drug Co., 129 NLRB 294, 295

(1960), enf'd., 291 F.2d 751 (8th Cir. 1961); Scott

Gross Co., 197 NLRB 420 n.1, enf'd., 477 F.2d 64

(6th Cir. 1973). The failure to separate witnesses who

give similar testimony before a hearing examiner of the

NLRB may be improvident, but it is not an abuse of

discretion which requires the denial of the Board’s peti-

tion for enforcement. See N.L.R.B. v. Burke Machine

Tool Co., 133 F.2d 618, 621 (6th Cir. 1943).

Finding substantial evidence to support the decision

of the NLRB, and not finding an abuse of discretion

or reversible error in the matters alleged by respondent

respecting their second issue, we order that the decision

of the NLRB in this case be enforced.