Petition — Dover Corp. v. National Labor Relations Board

Supreme Court brief1976

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a Supreme Court, U. S.

} FILED

In The SEP 1 1976

Supreme Court of the United [Pabesoon JR..CLERK

OCTOBER TERM, 1972

no. %6- 3 <0

DOVER CORPORATION,

NORRIS DIVISION,

Petitioner

V

NATIONAL LABOR RELATIONS BOARD,

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

AND APPENDICES

Mary I. Matthies

Charles A. Kothe

KQTHE. NICHOLS & WOLFE, INC

124 East Fourth Street

Tulsa, Oklahoma 74103

ATTORNEYS FOR DOVER

CORPORATION, NORRIS

DIVISION

WAYNE R. SCOTT CO., 507 S. QUAKER, TULSA, OK, 74120 — (918) 587-2052

—_ eet ad s

INDEX

Page

oe es ee ak ees aoe ¥en l

EE Otho, ee os heb saa ahaa eee 2

eb yy 8 Fy | Be 2

STATUTES INVOLVED .......... re ee Se Pe ee

SEADimeeeee Ge Cems CARE ow. ccc cece ecees 3

REASONS FOR GRANTING THE WRIT ......... 7

A. The Decision Below Presents A Direct Conflict

With The Decisions Of This And Other Couits _

And With The Legislative History Of The

Rand one wee bcd oe eee hee 7

B. The Case Raises Vital Questions Concerning

The Interpretation Of Section 2(2), 2(13) And

10 Of The Labor-Management Relations Act

Which Have Not Been, But Should Be De-

SY WE Ss go 4.6.60 y 0 004% 4 Weanwe 12

ccna wae ns kde oe 46s 58 84 eee EE 16

ES ee re ee er ee oe la

Ps ttn tebe naw aee webs ba een ea eae 45a

a ia eae ents 6 pe a os ok be ee 59a

Sc eeul st Beae ud cs beh Katee eee been 63a

ED Cesk os su ek ORS TELE SO eD Eee oS 65a

TABLE OF CITATIONS

Cases

Page

Anheuser-Busch v. Grovier-Starr Produce Co.,

y ge By Ty le AR.) ee 10

_ Barnebey v. Barron G. Collier, Inc.,

oe fF lle | ee rr re 10

Boeing Airplane Co. v. NLRB,

540 F.26 623 (iG Cor. BDOS) . ccc cc cece. 11

Craftsman Electronic Products, Inc.,

179 NLRB No. 68 (1969), 72 LRRM 1345 ....... 12

Crown Drug Co.,

110 NLRB No. 139 (1954), 35 LRRM 1143 ...... 12

Dayton Bread Co. v. Montana Flour Mills Co.,

126 F.2d 257, at 261 (6th Cir. 1942) ............ 10

E.1. Du Pont de Nemours v. NLRB,

116 F.2d 388, 400 (4th Cir. 1940) .............. 12

Fearn Intl., Inc., 209 NLRB No. 37,

ie re 12

Goodyear Clearwater Mill No. 2,

109 NLRB No. 146 (1954), LRRM 1481 ........ 12

H.J. Heinz Co. v. NLRB,

a a ce ate 9,10

L.L.G.W.U. v. NLRB,

237 F.2d 545, at 551 (D.C. Cir. 1956) ........... 12

International Assn. of Machinists v. N.L.R.B.,

ee De ar ae A G'e b's 8

International Harvester Co.,

180 NLRB No. 158 (1970), 73 LRRM 1331 ...... 13

Jackson Tile Mfg. Co.,

a Ae ee 12

Kisman Transit Co.,

78 NLRB No. 13 (1948) 22 LRRM 1165 ........ 12

il

Page

Las Vegas Sun,

209 NLRB No. 38 (1974) 85 LRRM 1536....... 12

May Department Stores v. NLRB,

es ous is voces % 14

NLRB v. Express Publishing Co.,

a a iene os wise 13

NLRB v. Garland Corp.,

Pe es 11

NLRB v. International Longshoremen’s Union,

283 F.2d 558, at 563 (9th Cir. 1960) ............ 12

N.L.R.B. v. Laney & Duke Co.,

369 F.2d 859, 63 LRRM 2552 (Sth Cir. 1966) ... .13

NLRB v. Link-Belt Co..,

i bt ees 9,10

P & V Atlas Industl. Center,

112 NLRB No. 144 (1955), 36 LRRM 1171 ...... 12

Phelps Dodge Corp. v. N.L.R.B.,

313 U.S. i188, 8 LRRM 438 at 447-448 ........... 15

Pittsburgh S.S. v. NLRB,

180 F.2d 731 (6th Cir. 1950), affd on other

grounds 340 U.S. 1498 (1951) ....... 0.6.0.0... 11

J.P. Stevens & Co.,

e.g os ob be Gb wee eseene 13

Sunset Lumber Products,

113 NLRB No. 115 (1955), 36 LRRM 1426...... 12

Thermalloy Corp.,

213 NLRB No. 26 (1974), 87 LRRM 1081 ....... 12

Tracon, Inc.,

184 NLRB No. 18 (1970), 74 LRRM 1648 ....... 12

Universal Camera Corp. v. NLRB,

ls ae 15

iv

Walgreen Co.,

203 NLRB No. 36 (1973), 83 LRRM 1059 ...

OTHER AUTHORITIES.

Statutes

28 United States Code

By |) rrr rr

National Labor Relations Act as amended

pri (&) Pee

Labor-Management Relations Act

Sections DA ALES) ooo ccccvueseeecnaneeee

Other Authorities

House Report No. 245, 80th Cong., Ist Sess. 11,

1 Legislative History Of The

Labor-Management Relations Act 302 (1947) ....

Veto Message of President Truman,

D Legis. Hs. SEB .. ccc crsccwssssunseneeene

Minority Report on House Report No. 245,

1 Legis. His. 359; 2 Legis. His. 1556 .........

House Conference Report No. 510,

S Legis. Tile. SGD . wwe cccscccegeshaneeeee

2 Legis. Bis. 0606, 1557... cccvcccscuveneuen

3u The

Supreme Court of the United States

OCTOBER TERM, 1972

NO.

DOVER CORPORATION,

NORRIS DIVISION,

Petitioner

Vv.

NATIONAL LABOR RELATIONS BOARD,

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

AND APPENDICES

Dover Corporation, Norris Division, Petitioner, re-

spectfully petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the

Tenth Circuit, entered in the above-styled case on June 4,

1976, in which the Court enforced an order of the Na-

tional Labor Relations Board holding that Petitioner had

strict liability for the unauthorized and repudiated acts

of one of its supervisors.

OPINIONS BELOW

The decision and order of the National Labor Rela-

tions Board are reported at 211 NLRB No. 98 (Appendix

— po

A, infra, pp. la-43a). The opinion of the United States

Court of Appeals for the Tenth Circuit is reported at

___ F.2d __ (Appendix B, infra, pp. 45a-57a), and the

final judgment in accordance with that opinion was en-

tered on June 4, 1976 (Appendix C, infra, pp. 59a-62a).

JURISDICTION

The opinion of the Court of Appeals was filed on

April 12, 1976, modifying and stating the intention to

enforce an order of the National Labor Relations Board.

Before the Court of Appeals entered any order finally

modifying the order of the National Labor Relations

Board, and within the time periods allowable under the

Federal Rules of Appellate Procedure, Petitioner filed its

Petition for Rehearing. Such Petition was denied on May

14, 1976. Thereafter, counsel for Petitioner wrote to the

Clerk for the Court of Appeals requesting clarification

as to the date for final judgment. The response of the

Clerk is set forth in Appendix D, infra, p. 63a. The final

judgment and order were thereafter entered on June 4,

1976.

The jurisdiction of this Court is invoked under 28

U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Whether an employer is strictly liable under the Na-

tional Labor Relations Act for the unauthorized acts of

one of its supervisors, where the employer took all rea-

sonable steps to both prevent violations and to immediately

repudiate the statements when it learned of them?

2. Whether the National Labor Relations Board has

failed to establish an ascertainable standard by which an

employer may disavow unauthorized acts by a supervisor?

ae San

3. Whether the national labor policy is frustrated by the

adoption of strict liability standards and the imposition

of cease-and-desist orders against unpreventable acts?

STATUTES INVOLVED

This case involves the interpretation and application

of Sections 2(2), 2(13) and 10 of the National Labor

Relations Act, as amended (29 U.S.C. §152(2), (13) and

$160). The texts of these statutes are set forth in Ap

pendix E, infra, p. 65a.

STATEMENT OF THE CASE

This case arose out of an organizational drive in

1973 by the Steelworkers Union at the Petitioner’s Rock-

ford Street plant. The Rockford plant had been repeatedly

subjected to organizational attempts during the past

decade,' and both company management and employees

were well aware of the restrictions placed upon manage-

ment in such campaigns.

As was the practice of top management at the start

of each such organizational attempt, a meeting was held

with all plant supervisors in the early summer of 1973.

All of the plant supervisors were informed of the “Do's

and Don'ts” for supervisors, and were reminded that “the

supervisor couldn’t threaten, couldn’t interfere, couldn't

harass, couldn’t spy on the employees.” Several additional

meetings were also held with supervisors, reminding them

of these restrictions, as the union campaign progressed.

The inspection foreman, a Mr. Rike, who was found

to have made certain prohibited statements, was present

during all of the above meetings, as well as supervisory

meetings held during prior organizational attempts. He had

'The record reflected that a total of five organizational attempts

had occurred between 1964 and 1974.

— a

also taken several courses regarding a supervisor’s obli-

gations under the National Labor Relations Act. Rike, a

member of the Machinist’s Union, was not known by

management to have any anti-union feelings, as he had a

standing joke in the plant that “if the Union comes in,

my. job would be easier . . . I'm a working foreman,

and at the Elwood plant,? why, they don’t allow foremens

to do production work.” In none of the prior campaigns

had any of the petitioner’s supervisors, including Mr. Rike,

ever been even accused of the commission of any unfair

labor practices.

The first incident involving Mr. Rike occurred on

July 13, 1973. Mr. Rike apparently told an employee, a

Charles Thompson, that “I have enough on the five of you

to get you discharged for union activities.” Mr. Thompson

was one of the chief union organizers in the plant.*

Shortly thereafter, the Petitioner heard a rumor that

several employees felt that they had been threatened with

reprisals for engaging in union activities. The chief execu-

tive officer at the plant directed the company’s attorney

to investigate the matter. The attorney called the local

union organizer to ask what the problem was. The or-

ganizer identified five employees who had allegedly been

threatened,‘ and also identified several supervisors who

had supposedly violated their rights.

After receiving this information, the Company attor-

ney contacted the supervisors — one of whom was Rike —

regarding these allegations. All of the supervisors denied

the allegations made against them.

The Elwood plant is one of the two other area plants owned by the

Petitioner which haved had long and amicable bargaining relation-

ships with the Steelworkers.

*Rike did not supervise Mr. Thompson, either directly or indirectly,

and had no authority to discharge him.

‘The NLRB only issued a complaint as to the Thompson threat,

as well as a later incident involving a Mr. Curry.

ON le ene i ae A

Ne eee ~—o

—

Because the Company had no way to know whether

the allegations were true, it decided to take precautions to

reassure the employees involved. The Company attorney

and the chief supervisor in the plant went to each of the

five employees and told them that the Company had

heard that:

{[T]}hey had felt like they had been threatened by the

Company supervisors, and that [the Company] wanted

to assure them that this — if they had been, that

they was — this was no doing of the Company

and that they would take action on this thing if it

were true, and that they assured them that they had

a right to organize and could not be interfered with

for trying to organize, could not be fired from the

Company for this.

In addition, in order to quell any rumors regarding

the alleged threats, a notice was placed on the bulletin

boards, which stated in relevant part:

Supervisors are forbidden by law to make any

promises as to future rewards in order to get an em-

ployee to decide to join or not to join a union. They

are also forbidden to threaten or harass any em-

ployee who campaigns either for or against a union.

Our supervisors in the plant, who are named below,

have been informed that they are not to interfere

with the rights of our emplo t

Or against unions. —

Rike’s name, as well as those of other supervisors

supposedly involved in other incidents, was on the list.

Thus, all employees were specifically advised that Rike

was not authorized to interfere with the union activities

of employees.

Mr. Thompson never had any reprisals taken against

him, either before or after the threat. He continued to

engage in union activities, wore campaign buttons, went

—_—

out on a recognitional strike and then semenee, and is

still working for the Petitioner.

The second incident occurred shortly after the above

actions taken by the Petitioner. Mr. Rike apparently told

another employee, Mr. Curry, that “[T]he people who were

pushing for the union, working for the union, would pro-

bably be fired if the union failed to get in.” This statement

never came to the attention of the Petitioner, and it

appears that Mr. Curry simply ignored it. Mr. Curry testi-

fied that he had read the notice regarding the forbidden

activities of supervisors, and that he believed that Mr.

Bechtold, “the boss,” would not allow him to be fired

for union activities.5 Mr. Curry, like Mr. Thompson,

continued his union activities and was never the subject

of any reprisals.

Two members of the National Labor Relations Board

panel found that the Petitioner was responsible for these

statements by Mr. Rike, and that the repudiation of the

threats and delineation of Rike’s authority were legally

inadequate to absolve the Petitioner from liability. Chair-

man Miller dissented, arguing that the employees were

aware that Rike was making such statements outside of the

scope of his authority and was unable to carry out his

threats. Under these circumstances, Chairman Miller stated

that he would not impute these statements to the Peti-

tioner, where Petitioner had taken every action possible

to protect the rights of its employees.

The Tenth Circuit Court of Appeals panel upheld

the order of the Board on the sole ground that the state-

ments were made by a supervisor and could be reasonably

construed as being coercive. The panel made no finding

that the employees construed these statements as having

been made by Foreman Rike with actual og apparent

‘Rike did not supervise Mr. Curry, either directly or indirectly, and

had no authority to discharge him.

ae Pum

authority on behalf of the Petitioner. Indeed, the panel

affirmatively found that the oral and written repudiations

and reassurances were effective in negating the effects of

the statements by Foreman Rike.

The decision of the panel, by ignoring the question

of whether the employees knew that the statements were

unauthorized and would not be carried out, imposed a

standard of strict liability upon Petitioner. The effects of

the repudiations were assessed by the panel solely with

respect to whether a remedial order should be issued,

rather than being assessed as to the question of Petitioner's

liability for the statements. The panel did not discuss

any reasons why a remedial order was necessary, but

simply affirmed the issuance of the order as not being

“clear error.”

Judge Barrett specially concurred, on the sole ground

that the National Labor Relations Act imposes “strict

liability” upon employers for the statements of its super-

visors, even where the statements are known by the em-

ployees to be both unauthorized and unable to be carried

out. While finding that Petitioner did “everything rea-

sonably or practicably possible to avoid a Section 8(a) (1)

violation,” Judge Barrett concluded that existing Board

law imposes “an obligation on the employing company to

insure -®r guarantee” that no violations of the National

Labor Relations Act will occur.

REASONS FOR GRANTING THE WRIT

A. THE DECISION BELOW PRESENTS A

DIRECT CONFLICT WITH THE DECISIONS OF THIS

AND OTHER COURTS AND WITH THE LEGISLA-

TIVE HISTORY OF THE L.M.R.A.

1. When the National Labor Relations Act was

enacted in 1935, it defined an “employer” to be “any

person acting in the interest of an employer.” This defi-

nition led to broad findings of employer responsibility for

unfair labor practices, even though the employer could not

legally be bound to the actions of such persons under

the common-law rules of agency.®

As a result of these decisions, and particularly as a

result of the decision by this Court in /nternational Assn.

of Machinists v. N.L.R.B., 311 U.S. 72 (1940), the

Congress amended the Act in 1947 to define ah “employer” .

to be “any person acting as an agent of an employer,”

and to add a new definitional clause regarding who was

an “agent.” These amendments aroused a great deal of

controversy, as they were clearly intended to insulate an

employer from liability for actions of persons who were

not actual general “agents” of the employer.’

The stated reason for the change, set forth in the

House Report which was later adopted by the Conference

Committee® was:

The old act included in the definition of “employer”

“any person acting in the interest of an employer.”

Under this language, the Board frequently “imputed”

to employers anything that anyone connected with

an employer, no matter how remotely, said or did . . .

By such rulings, the Board was often able to punish

employers for things they did not do, did not author-

*See, e.g., the cases cited in House Report No. 245, 80th Cong.,

Ist Sess. 11, 1 Legislative History Of The Labor-Management Re-

lations Act 302 (1947).

"See Veto Message of President Truman, | Legis. His. 918; Minority

Report on House Report No. 245, 1 Legis. His. 359; 2 Legis.

His. 1556 (Remarks of Sen. Morse in opposition).

*House Conference Report No. 510, 1 Legis. His. 540.

ize, and had tried to prevent. {Citations omitted]

(Emphasis supplied)

The bill, by defining as an “employer” “any person

acting as an agent of an employer” makes employers

responsible for what people say or do only when it

is within the actual or apparent scope of their author-

ity, and thereby makes the ordinary rules of the law

of agency equally applicable to employers and to

unions.® (Emphasis in original)

Even prior to these amendments narrowing the lia-

bility of an employer, this Court had expressed the view

that employers should not be heid liable for the repudiated

and unauthorized acts of minor supervisors. Thus, in

NLRB v. Link-Belt Co., 311 U.S. 585, at 599 (1941),

this Court stated:

If the words or deed of the supervisory employees,

taken in their setting, were reasonably likely to have

restrained the employees’ choice and if the employer

may fairly be said to have been responsible for them,

they are a proper basis for a conclusion that the

employer did interfere. (Emphasis supplied)

Moreover, in H.J. Heinz Co. v. NLRB, 311 US.

514, at 521 (1941), this Court intimated that, even under

the broader wording of the 1935 Act, it would have not

found the employer liable if it had disavowed the un-

authorized acts of its supervisors. This Court stated:

[The employer] took no step, so far as it appears,

to notify the employees that those activities were

unauthorized, or to correct the impression of the

employees that support of the Union was not favored

by petitioner and would result in reprisals. From that

time on the Board could have found that petitioner

*House Report No. 245, 80th Cong., Ist Sess. 11, 1 Legis. His.

302 (1947). See also, 2 Legis. His. 1026, 1537 (Remarks of Sen.

Taft).

a» tan

\

was as responsible for the effect of the activities of

its foremen .. . as if it had directed them in advance.

Under the rationale of the Link-Belt and Heinz cases,

it is clear that this Court believed that employers re-

tained their right under the general principles of agency

law to limit the authority of their supervisors (i.e., “agents”)

to make certain statements or to take certain actions which

did not comport with the policies of the employer (i.e.,

“principal”). This Court has not yet had the opportunity

to squarely address this issue, which is clearly an important

one.

Here, it is undisputed that Foreman Rike did not have

actual authority to make the statements ascribed to him.

Thus, his statements are chargeable to Petitioner only if

made within his apparent authority.'° However, as the

court below expressly found, Petitioner did everything in

its power to immediately inform all affected employees

of their supervisors’ lack of authority to make or to carry

out any reprisals against employees for engaging in union

activities. Thus, Foreman Rike was immediately stripped

of even a semblance of apparent authority. Under such cir-

cumstances, the general common !aw principles of agency

hold that:

Here defendants had actual knowledge of the lack

of authority of the agent. They cannot therefore rely

upon apparent or ostensible authority."'

As will be seen below, these general principles of

agency law have been consistently applied by the Circuit

Courts, as well as the Board, in refusing to punish em-

‘See, e.g. Dayton Bread Co. v. Montana Flour Mills Co., 126

F.2d 257, at 261 (6th Cir. 1942); Anheuser-Busch v. Grovier-Starr

Produce Co., 128 F.2d 146 (10th Cir. 1942).

''Barnebey v. Barron G. Collier, Inc., 65 F.2d 864 (8th Cir. 1933).

aw $3 as

ployers for acts of supervisors which the employees knew

were unauthorized.

2. In addition to significant conflicts with the leg-

islative history of the Act and the decis‘ons of this Court,

there are important conflicts with this decision and other

decisions of the court below, as well as those of other

Circuits and of the Board. Thus, in Boeing Airplane Co.

v. NLRB, 140 F.2d 423 (10th Cir. 1944), the court

below held that an employer who instructs both its em-

ployees and supervisors on the rights of employees under

the N.L.R.A., and who takes all reasonable precautions

to insure that no violations occur, cannot be held liable

for the isolated, unauthorized acts of its supervisors. The

Boeing case is strikingly similar to the instant case, except

that no remedial action was taken in Boeing.

The Court stated therein:

The employer is not responsible for conduct of its

supervisory employees on the strict theory of agency

or respondeat superior . . . When [the isolated threats

are] judged in the setting and against the background

in which these statements were made, we are of the

opinion that the company cannot fairly be held re-

sponsible therefor. (140 F.2d at 434)

Similarly, the Sixth Circuit held in Pittsburgh S.S.

v. NLRB, 180 F.2d 731 (6th Cir. 1950), affd. on other

grounds 340 U.S. 1498 (1951), that an employer, who

communicates to both its supervisors and employees its

policies of strict observance of the N.L.R.A., cannot be

held liable for the unauthorized and isolated misconduct

of its supervisors. Likewise, the First Circuit, in NLRB v.

Garland Corp., 396 F.2d 707 (lst Cir. 1969) held that

isolated statements by minor supervisors — contrary to the

express policy of top management — were not binding on

the employer. The Fourth Circuit reached a similar con-

a 69 ae

clusion in E.J. Du Pont de Nemours v. NLRB, 116 F.2d

388, 400 (4th Cir. 1940)."

Significantly, in none of these other cases did the

employer take the extraordinary measures taken herein to

reassure employees of their rights to engage in union

activities. Thus, this case presents an important and in-

defensible conflict with the decisions of other Circuits,

as well as those of the Board.'*

B. THE CASE RAISES VITAL QUESTIONS

CONCERNING THE INTERPRETATION OF SEC-

TION 2(2), 2(13) AND 10 OF THE LABOR-MAN-

AGEMENT RELATIONS ACT WHICH HAVE NOT

BEEN, BUT SHOULD BE DECIDED BY THIS COURT.

1. The adoption of a standard of “strict liability”

of an employer, regardless of the actions taken by it in

furtherance of the organizational rights of its employees,

presents a vital question concerning the interpretation of

Sections 2(2) and 2(13) of the L.M.R.A. Not only does

such a standard contravene the legislative history of the

'See also, .L.G.W.U. v. NLRB, 237 F.2d 545, at 551 (D.C. Cir.

1956); NLRB v. International Longshoremen’s Union, 283 F.2d

558, at 563 (9th Cir. 1960).

‘Goodyear Clearwater Mill No. 2, 109 NLRB No. 146 (1954), 34

LRRM 1481; Crown Drug Co., 110 NLRB No. 139 (1954), 35

LRRM 1143; P & V Atlas Industl. Center, 112 NLRB No. 144

(1955), 36 LRRM 1171; Sunset Lumber Products, 113 NLRB No.

115 (1955), 36 LRRM 1426; Fearn Intl., Inc. 209 NLRB No. 37,

85 LRRM 1534 (1974); Las Vegas Sun, 209 NLRB No. 38 (1974)

85 LRRM 1536; Thermalloy Corp., 213 NLRB No. 26 (1974), 87

LRRM 1081; Craftsman Electronic Products, Inc., 179 NLRB

No. 68 (1969), 72 LRRM 1345; Tracon, Inc., 184 NLRB No. 18

(1970) 74 LRRM 1648; International Harvester Co., 180 NLRB

No. 158 (1970), 73 LRRM 1331; Kisman Transit Co., 78 NLRB

No. 13 (1948), 22 LRRM 1165; Walgreen Co., 203 NLRB No. 36

(1973), 83 LRRM 1059; Craftsman Electronics Prods., Inc., 179

NLRB No. 68 (1969), 72 LRRM 1345.

am 08 a»

Act, it also presents a clear conflict with the national

labor policy.

Under the rationale of this decision, an employer is

powerless to voluntarily expunge the effects of unauthorized

statements of its supervisors. In essence, the decision holds

that an employer’s voluntary notice to its employees, both

written and oral, and broader in scope than the NLRB

remedial order subsequently issued, is insufficient to

remedy potential violations of the Act. Neither the deci-

sion of the Board nor of the court below explain how

this ruling is in accordance with the national labor policy.

It is, of course, well-established that an employer

is required to give oral reassurances to its employees only

when unfair labor practices are pervasive.'* However, the

broad oral and written reassurances given here were found

to be legally insufficient, even though the court below

found them to be effective, because the court below be-

lieved that the Petitioner was strictly liable for them.

This leads to the incongruous result that, even though

an employer does much more than the NLRB could re-

quire,’ the NLRB treats it in the same manner as an

employer who did nothing. This is clearly contrary to

the national labor policy. Indeed, a pragmatic employer

would seem to be encouraged to take advantage of any

statements that are made, because the end result is the

same. Moreover, by seeking to give reassurances, the

employer may well fear that such actions may be construed

in a later evidentiary hearing as a tacit admission of guilt.

“J.P. Stevens & Co., 157 NLRB No. 90 (1966); Jackson Tile Mfg.

Co., 122 NLRB 764 (1958). See also, N.L.R.B. v. Laney & Duke

Co., 369 F.2d 859, 63 LRRM 2552 (Sth Cir. 1966), wherein the

Fifth Circuit refused to enforce an order to an employer to read

a notice on the grounds that such is ‘‘unnecessarily embarassing

and humiliating to management.’’ (63 LRRM at 2558).

'*See e.g., NLRB v. Express Publishing Co., 312 U.S. 426 (1941).

am (6am

Perhaps the most disturbing and far-reaching aspect

of this decision is, however, the vulnerability with which

it leaves an employer to later contempt proceedings in the

Circuit Court. This Court recognized in May Department

Stores v. NLRB, 326 U.S. 376 (1945) that an employer

has a vital interest in whether a particular activity is

enjoined. As this Court stated:

The scope of injunctions which follow National Labor

Relations Board determinations is important to em-

ployer and employee. While contempt proceedings

can be instituted only by the Board and in the public

interest, the possibility of contempt penalties by the

court for future Labor Action violations adds suf-

ficient additional sanctions to make material the

difference between enjoined and non-enjoined em-

ployer activities. (326 U.S. at 388)

Here, even though the court below found that the

Petitioner had done everything possible to prevent the com-

missions of any violation, the court enforced an N.L.R.B.

order enjoining the Petitioner from future violations. How-

ever, Petitioner is as helpless to protect itself from con-

tempt proceedings as it was to prevent the initial actions.

As Judge Barrett concluded in the decision below, “there

is nothing fair” about such a rule.

2. This Court must establish standards by which the

Board may issue, and the Circuit Courts review, NLRB

cease-and-desist orders. The Board, without any analysis

or explication of the reaons for the need for a remedial

order, seemed to issue a cease-and-desist order as a matter

of course. The court below failed to conduct any mean-

ingful review of the overall necessity for a cease-and-

desist order, considering such to be within the peculiar

province of the Board.

This seems contrary to the requirements laid down

by this Court in May Department Stores Co. v. NLRB,

supra, wherein this Court held that:

a» thx

The test of the proper scope of a cease and desist

order is whether the Board might have reasonably

concluded from the evidence that such an order was

necessary to prevent the employer before it “from

_€ngaging in any unfair labor practice *** affecting

commerce.” Section 10(a). (326 U.S. at 390)

In view of the obligation placed upon the court

below to assess the “reasonableness and fairness of Labor

Board decisions,”'® and the conclusion of the court below

that the order was not fair, the decision below is plainly

wrong.

In the absence of any cogent explanation why a

cease-and-desist order is appropriate against Petitioner,

although its record both before and after this one incident

has been perfect, this Court must reverse. In the alter-

native, this case should be remanded to the Board with

instructions to explicate its reasons for the need for a

cease-and-desist order in cases such as this.

As was noted in Phelps Dodge Corp. v. N.L.R.B.,

313 U.S. 188, 8 LRRM 438 at 447-448:

The administrative process will best be vindicated by

clarity in its exercise. Since Congress has defined the

authority of the Board and the procedure by which

it must be asserted and has charged the federal courts

with the duty of reviewing the Board’s orders (Sec.

10(e) and (f) ), it will avoid needless litigation and

make for effective and expeditious enforcement of the

Board's order to uire the Board to disclose the

basis for its order. We do not intend to enter the

province that belongs to the Board, nor do we do so.

All we ask of the Board is to give clear indication

that it has exercised the discretion with which Con-

gress has empowered it.

'*Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951)

aw the»

_ CONCLUSION

For the foregoing reasons, it is respectfully submitted

that this Petition for a Writ of Certiorari should be granted.

Mary T. Matthies

Charles A. Kothe

KOTHE, NICHOLS & WOLFE, INC.

124 East Fourth Street

Tulsa, Oklahoma 74103

ATTORNEYS FOR DOVER

CORPORATION, NORRIS

DIVISION

APPENDIX A

—ia—

APPENDIX A

MFJ

211 NLRB NO. 98 D — 8560

Tulsa, Okla.

UNITED STATES OF AMERICA

BEFORE THE NATIONAL

LABOR RELATIONS BOARD

DOVER CORPORATION, NORRIS

DIVISION

and Case 16 — CA — 5224

UNITED STEELWORKERS OF

AMERICA, AFL — CIO — CLC

UNITED STEELWORKERS OF

AMERICA, AFL — CIO — CLC

Cases 16 — CC — 467 and

and 16 — CB — 780

DOVER CORPORATION, NORRIS

DIVISION

DECISION AND ORDER

On December 17, 1973, Administrative Law Judge

Ivar H. Peterson issued the attached Decision in this

proceeding. Thereafter, the Company and the Union filed

exceptions and supporting briefs, General Counsel filed a

brief in support of the Administrative Law Judge’s De-

cision and the Company filed a brief in answer to the

Union’s exceptions. .

Pursuant to the provisions of Section 3(b) of the

National Labor Relations Act, as amended, the National

Labor Relations Board has delegated its authority in this

proceeding to a three-member panel.

— 2a —

The Board has considered the record and the aitached

Decision in light of the exceptions and briefs and has

decided to affirm the rulings. findings,' and conclusions

of the Administrative Law Judge and to adopt his recom-

mended Order only to the extent consistent herewith.

To clarify the extent and basis of our decision we

shall briefly recite the pertinent facts. In May 1973 the

Steelworkers began organizing employees at Dover's so-

called O’Bannon plant, one of three Dover plants in the

Tulsa area. The consolidated complaint alleged that, on

July 7, Company Inspector Sutterland told union adherent

Clyde Waid that he had better hope for a union victory.

Otherwise, according to Sutterland, he had been told by

Inspection Foreman Walter Rike that heads would roll.

The complaint further alleged that Rike himself in con-

versations with union adherents Curry and Thompson on

’ July 13 and August 8, respectively, stated that he had

enough on union supporters to have five of them dis-

charged and that the people pushing the Union would

probably be fired if the Union lost. All three conver-

sations allegedly violated Section 8(a)(1).

With respect to the Union, the consolidated complaint

alleged that by its picket line conduct from on or about

August 9 to August 20, 1973, the Steelworkers sought to

induce and encourage individuals employed by the Chief

and Rose trucking companies to engage in a strike or

refusal to handle goods or perform services for their

‘The parties have excepted to certain credibility findings made by

the Administrative Law Judge. It is the Board’s established policy

not to overrule an Administrative Law Judge’s resolutions with

respect to credibility unless the clear preponderance of all of the

relevant evidence convinces us that the resolutions are incorrect.

Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d

362 (C.A. 3). We have carefully examined the record and find no

basis for reversing his findings.

— 3a —

employers. Furthermore, the complaint alleged that by its

conduct on August 13 and 14 the Union threatened,

coerced, and restrained supervisors of Chief and Rose with

the object of forcing or requiring Chief and Rose to cease

doing business with Dover. By the above-described conduct

the Union allegedly violated Section 8(b)(4)(i) and (ii)

(B), as well as Section 8(b)(1), of the Act.

| Finally, the consolidated complaint alleged that the

Union violated Section 8(b)(1) of the Act by reason of

the conduct of pickets, on August 10 and thereafter,

directed against nonstriking Dover employees Myrna

Hinds, Michael Jones, and Cheatam Scott.

The facts giving rise to the 8(b)(4)(i) and (ii)(B) al-

legations of the complaint indicate that on August 9,

following the Company's rejection of a written union

demand for recognition, Union Staff Representative Carl

Oldham visited company offices to renew the demand.

When Dover officials declined further discussion, Oldham

called the strike and that same day established a picket

line at the “O'Bannon” plant. At no time were pickets

established at the two other Dover plants in the area,

both of which the Steelworkers already represented in a

separate bargaining unit.

On August 9, Herbert Clayton, a driver for the Rose

Truck Line, drove to the “O'Bannon” plant to deliver

freight. Clayton’s whereabouts at the time of the hearing

were unknown and therefore the General Counsel pre-

sented Wayne Roy, a nonstriking Dover employee who

testified to certain alleged occurrences and conversation

on that date.”

According to Roy, as he was about to unload the

Rose truck on August 9, the Rose driver stopped him

*Through inadvertence the Administrative Law Judge’s Decision

indicates that the event of August 14, discussed hereafter, occurred

on August 9.

— 44 —

and announced that he would not make the delivery. Roy

testified that when the Rose driver started to get back

into his truck he was approached by about 10 men, some

of whom were carrying picket signs and were known

by Roy to be strikers. The pickets indicated to the Rose

driver that they had taken the keys from his truck

and would not return them until he agreed not to cross

the picket line in the future. Rose further testified that

he saw pickets spread nails under the truck’s tires and

heard them tell the Rose driver that he would be handing

his head to them if he returned. After this the men threw

the keys at the driver and he left.

On August 13, James Mounce, the assistant safety

director of Chief Freight Lines, and John Ayres, Chief's

terminal manager, drove to the “O’Bannon” plant to make

a pickup. Mounce and Ayres were called upon to drive

the Chief truck because Chiefs regular drivers, who are

Teamsters, had exercised their contract right not to cross

what they considered a primary picket line at the Dover

plant.

A brick and a piece of concrete were thrown at the

Chief truck while it was parked at the Dover plant. Also,

one of the pickets allegedly stood near the the truck

yelling, “Boom! I just blew up your truck.” Shortly after

these incidents occurred, Union Representative Oldham in

the company of several pickets walked up to the truck

while it was still parked at the loading dock. Someone in

the group asked Mounce, “You're the first one to break

our picket. Aren’t you Teamsters?” One of the other

pickets who apparently recognized Mounce and Ayres said

that they were supervisors and the pickets walked away

without further incident.

On August 14, Rose driver Clayton accompanied by

Rose’s terminal manager, Clyde Buckner, drove to the

Dover plant to make a pickup. When Clayton and Buckner

— von

crossed the picket line, pickets called out epithets and later

an unidentified person or persons did about $25 worth

of damage to the Rose truck while it was parked on the

Dover premises. Buckner subsequently complained to

Dover officials about plant security and indicated his un-

willingness to make future pickups and deliveries unless

conditions improved.

With respect to the 8(b)(1) charges, the complaint

alleged that on August 10 pickets questioned nonstriking

Dover employee Myrna Hinds as she crossed the picket

line and told her that they knew her husband belonged

toa union. One of the pickets intimated that her husband's

union might take some action if they found out she was

crossing a picket line. Mrs. Hinds was disturbed by this

Suggestion and returned home to discuss the matter with

her husband who told her he did not believe his union

would be concerned. Mrs. Hinds’ husband thereafter es-

corted her across the picket line. On a later occasion

picket Clyde Waid took pictures of Mrs. Hinds and her

husband crossing the line and another picket appeared to

be taking down the license number of their car.

Also on August 10, nonstriking Dover employee Mike

Jones was allegedly warned as he crossed the picket line

that he had better move his motorcycle or it would not

be in the same shape as when he left it. He was sub-

sequently cursed by pickets and sumeone threw coffee

on him as he entered the plant. On leaving work that

day Jones discovered that his motorcycle tires had been

slashed.

Finally, pickets Charlie Thompson and Frank Roden

allegedly followed nonstriking employee Cheatam Scott

to his car after he left work on August 10. Thompson

and Scott engaged in a heated conversation during which

Thompson threatened to assault Scott because in Thomp-

son's eyes Scott had let him down by not joining the

strike. The exchange between the two ended with Thomp-

son telling Scott, “We'll be back to talk to you. Prior

to his conversation with Thompson, Scott told Union

Representative Oldham that the Union had no right to

call the strike and that he would not join it.

On the day after his argument with Thompson, Scott

found that his front porch had been splattered with paint

from a paint bomb made out of a light bulb. Several

days later, on August 15, Scott’s car mysteriously blew

in his garage.

= . sae to the allegations of the consolidated

complaint as detailed above, the Administretive Law Judge

found the three conversations, involving union adherents

Curry, Thompson, and Waid on the one hand and Sutter-

field and Rike on the other, violative of Section 8(a)(1).

Apparently on the basis of Union Representative Old-

ham’s presence during or just after alleged acts of picket

misconduct, the Administrative Law Judge concluded that

the Union could be held liable for the conduct of pickets

at the struck plant. Having found that the activities of

pickets against drivers and supervisory personnel of the

Rose and Chief truck companies attempting to cross the

picket lines constituted illegal secondary pressure, he rea-

soned that the Union by such activities violated Section

4)(i) and (ii)(B) of the Act.

re en ~ Administrative Law Judge found the

damage done to employee Jones’ tires and employee

Scott’s home and car was attributable to the strikers and

hence to the Union. Accordingly, he found that the Union

had violated Section 8(b)(1)(A) as alleged. :

Turning first to the allegations of union unfair labor

practices, we have considered the Union's general defense

that nothing in the record evidences union authorization

of unlawful conduct by pickets and therefore the Union

cannot be held liable for such conduct. We disagree.

— 7a—

In support of its contention that it should not be held

liable for picket misconduct, the Union noted that its only

authorized agent, Carl Oldham, was absent from the picket

line for long periods of time and in fact arrived at the

struck plant only after some of the incidents alleged in

the complaint, including, for example, the rock and

concrete throwing incident involving the Chief truck on

August 13, had taken place.

The short answer to the Union's contention in this

regard is to point out that Oldham was actually present

during some misconduct. For example, the Administrative

Law Judge found that Oldham, in the company of pickets

Thompson, Waid, and Curry, was present on August 10,

during the several incidents of alleged harassment and coer-

cion directed against nonstriking employee Mike Jones.

These incidents included threats by Waid and Curry, as

well as the throwing of coffee on Jones by an unidenti-

fied person as Jones sought to enter the plant.

Nothing in the record indicates that Union Agent Old-

ham did anything to restrain, reprimand, or discipline any

picket in connection with these incidents. In fact it does

not appear that Oldham initiated any measures calculated

to curtail or prevent further misconduct, even though he

was aware that a state court had issued a temporary

restraining order against picket misconduct on August 10

and citations for contempt of the order on August 13.3

*It is well settled that when misconduct takes place in the presence

of a union agent who does nothing to disavow it or to discipline

the offenders, the union assumes responsibility for the conduct.

Food Stores Employees Union, Local 347 (Davis Wholesale Co.,

Inc.). 165 NLRB 264, fn. 1; Local 918, International Brotherhood

of Teamsters, Chauffeurs, Warehousemen and Helpers of America

(Tale-Lord Manufacturing Co., Inc.). 206 NLRB No. 102.

Although in cases where there has been only an isolated instance

of misconduct, the presence or absence of a union agent may be

(continued on next page)

‘

a= (Ran

Furthermore, pickets Thompson and Waid (both of whom

were cao involved in incidents of alleged misconduct

including the picturetaking of employee Hinds and her

husband, the August 9 incident involving the Rose truck,

and the threats to employees Jones and Scott) were promi-

nent in the Union’s organizing campaign and on the picket

line, and both were present on August 10 when Union

Agent Oldham by his silence and inaction in effect con-

icket misconduct.

ee for the substance of the 8(b)(4)(i) and (ii)(B)

violations found by the Administrative Law Judge, we note

at the outset that he failed to advance a specific rationale

for his findings other than the conclusionary observation

that an object of the Union’s picketing at the Dover plant

was to “enmesh” Rose and Chief employees and to cause

them to refuse to make their regular pickups and deliveries.

The Administrative Law Judge was apparently persuaded

that the abusive language and threats directed at Rose and

Chief employees and the damage done to their trucks

while at the Dover premises was sufficient to bring the

(Footnote continued)

crucial issue of union liability, when, as here, there have

been ad incidents of alleged misconduct, some of which has

been observed by a union agent, the union cannot be heard to plead

its lack of knowledge or participation. In fact in instances where

there have been repeated outbreaks of misconduct not participated

in or even observed by the union but the union has failed to take

steps to halt further outbreaks of such misconduct, union liability

has been found. Teamsters, Local 783 (Coca-Cola Bottling Company

of Louisville). 160 NLRB 1776. In this regard we note, contrary

to the Union’s contention, that the unexplained and extended

absence of the union agent charged with overseeing the picket line

from the picket line, after he has reason to believe misconduct

has occurred and may occur again, may itself be reason to draw

the inference of union culpability.

Union’s conduct within the prohibitions of Section 8(b)

(4).* We disagree.

It would indeed be remarkable if a union in es-

tablishing a picket line at the premises of an employer

with whom it had a primary dispute did not have as an

expectation and object the halting of regular pickups and

deliveries by “neutral” employers. In short, the primary

strike is aimed at applying pressure by stopping the struck

employer’s day-to-day operations. Just as Clearly the fact

that employees of “neutrals” honor the picket line and

refuse to pick up or deliver cannot by itself transform

lawful primary picketing into unlawful secondary conduct.

Such is precisely the import of the proviso to Section

8(b)(4) as interpreted by the Supreme Court. Local 76/.

International Union of Electrical, Radio and Machine

Workers, AFL —- CIO v. N.L.R.B., 366 U.S. 667.

Nor is it relevant in the context of an alleged 8(b)(4)

violation that primary picketing may be accompanied by

violence. As the Supreme Court pointed out in United

Steelworkers of America ,Carrier Corp.\ v. N.L.R.B., 376

U.S. 492, 509 (1964): “[T]he legality of violent picketing

must be determined under other sections of the statute

or under state law.” Since in the instant case it is evident

that all picketing occurred at the premises of the struck

Employer and that the attention of the union pickets

‘The Administrative Law Judge failed to make specific findings with

respect to the allegation that the conduct of union pickets with

regard to the employees and trucks of the Rose and Chief com-

panies was violative of Sec. 8(b)(1) as well as Sec. 8(b)(4) of the

Act. In view of the testimony of employee Roy we find the Aug-

ust 9 conduct of union pickets violative of Sec. 8(b\(1). As for

the incidents of vandalism and other alleged misconduct on Aug-

ust 13 and 14, however, we find the evidence of Picket responsi-

bility at best is meager. Accordingly, and inasmuch as findings

of violations as to these incidents would be merely cumulative,

we find it unnecessary to make conclusory findings in this regard.

— 10a —

was directed toward Rose and Chief employees only as

they attempted to cross the primary picket line to make

their regular pickups and deliveries, no violation of Section

8(b)(4) has been made out.®

In addition to his findings with respect to the 8(b)(4)

allegations, as indicated before, the Administrative Law

Judge found that the Union violated Section 8(b)( 1)(A)

by threatening and coercing nonstriking company ¢m-

ployees who cross the picket line, and that the Company

violated Section 8(a)(1) by statements made to certain

employees by a company supervisor.

Apparently through inadvertence the Administrative

Law Judge failed to find specifically that the occurrences

of August 10, and thereafter relating to the attempt of

nonstriking employee Hinds to report to work, violated

Section 8(b)(1)(A). As previously described, these inci-

dents included the questioning of Mrs. Hinds by pickets

with regard to the union affiliation of her husband, as

well as the intimation by pickets (one of whom was known

by Mrs. Hinds to have relatives in her husband’s union)

that his union might react adversely to her conduct in

crossing the picket line. Shortly thereafter a picket photo-

graphed Mrs. Hinds and her husband as he escorted her

through the picket line and a picket appeared to be taking

down the license number of their car. We conclude that

the questioning of Mrs. Hinds, coupled with the picture-

taking and license notation, was calculated to instill in

Mrs. Hinds’ mind a fear of retribution because of her

refusal to join the strike. Accordingly, we find such con-

‘This case is clearly distinguishable from Teamsters Local 695, 204

NLRB No. 139, wherein the Board found the union to have vio-

lated Sec. 8(b)4) by its conduct in following up its demands on

neutrals to cease doing business with the struck employer by dam-

aging trucks and equipment belonging to the neutrals on the neu-

tral’s premises. Compare, Puerto Rico Newspaper Guild, Local 225,

201 NLRB No. 69.

—llia—

duct violative of Section 8(b)(1)(A). Cf. Cleveland Local

prot oe P, agen and Photoengravers Interna-

ion, — |

hea uae ee a (Akron Engraving Company,

We also find, as did the Administrative L

that the Union violated Section 8(b)(1)(A) with at

to the August 10 incidents involving Mike Jones. As dis-

cussed previously, Union Agent Oldham was present

during most of the exchanges between Jones and the

pickets and was across the street, but not more than 15

feet distant, when someone threw coffee on Jones.6 We

also agree with the Administrative Law Judge that the

Union may be held liable for the damage done to Jones’

on With respect to this finding we note that

— was specifically warned by striker Clyde Waid that

had better move his motorcycle or he would not find

2 in the same shape” as when he left it. Union Agent

Idham was standing nearby when Waid issued this warn-

ing. After work that day Jones walked to the employee

lot across the street from the plant where he discovered

that the motorcycle tires had been slashed.

Apparently based on the absence of direct evidence

of the identity of the person or persons responsible for

the misconduct, the Union contends that the finding of

striker responsibility for this act should not be sustained

In view of the strong circumstantial evidence of striker

culpability, however, we are satisfied that the Adminis-

trative Law Judge’s finding is warranted.” In this regard

*From the record it appears that onl i i

rom y union pickets i

vicinity when coffee was thrown on Jones. > the = —

was still carrying on an exchange ith Oldham i

to dissuade him from going to _— t <a ti rie

"Compare, Teamsters } ji

2 Moe 9 695 (Wisconsin Supply Corporation),

— 12a—

we note the concomitant uttering of the warning or threat

of damage to the motorcycle and the occurrence of the

damage, the proximity of the parking lot to the picket

line, the fact that this misconduct was similar in kind to

other acts of vandalism charged against strikers, and finally

the fact that Jones was himself the target of repeated

picket abuse. Consistent with our earlier discussion of the

basis on which the Union may be held responsible for the

misconduct of pickets, we conclude that the Steelworkers

violated Section 8(b)(1)(A) by this and the other coercive

acts directed against employee Jones.

On the other hand, we do not agree with the Admini-

strative Law Judge’s finding that the strikers and hence the

Union can be held responsible for throwing paint on em-

ployee Cheatam Scott’s porch on August 11 and for blow-

ing up his car on August 15. Both of these incidents were

remote from the picket line and, although Scott was in-

volved in a dispute with union picket Thompson on Aug-

ust 10, they were unrelated to any specific threat made

at that time or thereafter. Furthermore, there was no

other probative evidence introduced at the hearing to link

any picket to either event and, insofar at least as the

damage to Scott’s car is concerned, it is not altogether

clear on this record that the damage was not the result

of an accidental explosion.*®

As for the initial confrontation between Thompson

and Scott on August 10, however, we conclude that

Thompson's conduct on this occasion was coercive and we

find it violative of Section 8(b)(1). The evidence with

respect to this incident is that Thompson, accompanied

‘Even were it shown that the explosion was not accidental, in an

instance as here where the particular violent act differs so dra-

matically in kind and degree from the acts of misconduct other-

wise proven against the Union, absent some independent evidence

we are extremely reluctant to draw an inference of union liability.

— 13a —

by another striker, approached Scott as the latter walked

to his car after work. Thompson asked Scott what he was

doing at the plant. When Scott replied that he was working

and that the Union had no right to call the strike, Thomp-

son accused Scott of having let him down (Thompson had

solicited Scott’s signature for the Union during the cam-

paign) and threatened Scott with a physical beating. As

Scott entered his car Thompson and the second striker,

Frank Roden, shouted at him and Thompson said, ‘We'll

be back to talk to you.” The responsibility of the Union

for Thompson’s threats is established by the evidence that

earlier on August 10 Thompson had been present during

picket misconduct directed against another nonstriker,

Jones, and had witnessed Union Agent Oldham’s condona-

tion by silence of such misconduct.

We also agree with the Administrative Law Judge's

finding that the conversations between Foreman Rike

and union adherents Curry on July 13 and Thompson

on August 8 were violative of Section 8(a)(1).® Although

*Chairman Miller cannot agree with his colleagues’ finding that the

Company violated Sec. 8(a)(1) of the Act by remarks made by a

minor supervisor. The supervisor, Rike, allegedly threatened two

employees Curry and Thompson, with discharge for union activities.

However, Rike did not supervise these two employees and ap-

parently had no authority to either discharge them or recommend

their discharges. The Company had no knowledge, or any obli-

gation to know, that the remarks were made. Moreover, it had

made every effort to inform employees that the Company would

protect their right to campaign for the Union. Indeed, prior to the

events in question, upon hearing rumors that the Union felt some

employees had been threatened, the Company made a full investi-

gation. In spite of the fact that supervisors denied threatening

employees, the Company contacted individual employees, including

Curry and Thompson, and specifically informed them that the

Company would protect their rights to engage in union activity.

In addition, notices were posted on the bulletin boards informing

all employees of their legal right to campaign for or against the

Union and that supervisors had been instructed not to interfere

(continued on next page)

~ S iee Br - 9 aS

— 14a —

our colleague chooses to characterize Rike as a “minor”

supervisor lacking any authority over the employees who

were the targets of his threats, the evidence is plainly

otherwise. Thus, for example, Rike himself did not dis-

agree with Curry’s assertion that all employee work re-

quired Rike’s “OK.” Nor was it controverted that in-

spectors under Rike’s control could require employees to

redo their work to the inspector’s satisfaction. Conse-

quently, it is not difficult to understand why employees

might well be apprehensive about arousing Rike’s enmity.

As for the Company’s supposed attempt to counteract the

effects of Rike’s coercive statements, this consisted of little

more than some general bromides by the Company’s

counsel about the Company’s aims and good intentions.

It is significant that Rike was never himself disciplined

or rebuked because of his statements.

We find no probative evidence in the record, however,

to support the Administrative Law Judge’s finding of a

violation of Section 8(a)(1) predicated on an alleged

remark by Company Supervisor Rike to employee Clyde

Waid. The record in fact shows only Waid’s testimony

concerning an alleged statement by employee Sutterfield

to Waid to the effect that Sutterfield understood that

Rike had said that if the Union did not get in some heads

would roll. At the hearing the Administrative Law Judge

assured counsel for the Company that, in view of the

hearsay nature of Waid’s testimony, under no circum-

stances would he make that testimony the basis for an

(Footnote continued)

with these rights. In these circumstances, Chairman Miller cannot

infer that employees would assume that Rike was either speaking

for the Company or in a position to carry out the threats that

he made. Accordingly, he would not find the Company respon-

sible for this minor supervisor’s remarks, made outside the scope

of his apparent authority, and would dismiss the complaint in Case

16 - CA - 5224.

— 15a —

unfair labor practice finding. Despite his assurances the

Administrative Law Judge inexplicably and erroneously

found the violation.

Finally, we find merit in the Company's exception to

that part of the Administrative Law Judge’s recommended

Order requiring Dover to post remedial notices at all its

plants in Tulsa, Oklahoma. The record here indicates that

the Company's misconduct was not pervasive and occurred

only at the struck Rockford Street plant. Furthermore,

there was no evidence that employees at the Company's

other two plants in Tulsa, who are already represented by

the Steelworkers in a separate bargaining unit, were in any

way affected by that misconduct. Accordingly, we shall

modify the Administrative Law Judge’s Order so as to re-

quire the posting of remedial notices only at the Company's

Rockford Street plant.

ORDER

Pursuant to Section 10(c) of the National Labor Re-

lations Act, as amended, the National Labor Relations

Board hereby orders that:

| A. Respondent, Dover Corporation, Norris Divi-

sion, Tulsa, Oklahoma, its officers, agents, successors, and

assigns, shall:

1. Cease and desist from:

(a) Coercively warning employees that if the Union

was successful in its organizational program a substantial

number of union adherents would be dismissed.

(b) Coercively warning employees that if they con-

tinue their union activity the Respondent possessed suf-

ficient grounds for discharging them.

(c) In any other like or related manner interfering

with, restraining, or coercing employees in the exercise of

the rights guaranteed them in Section 7 of the Act.

— 16a —

2. Take the following affirmative action:

(a) Post at its plant at 400 South Rockford Street

in Tulsa, Oklahoma, copies of the attached notice marked

“Appendix A.”!° Copies of said notice, on forms provided

by the Regional Director for Region 16, after being duly

signed by an authorized representative, shall be posted

by Respondent immediately upon receipt thereof, and be

maintained by it for 60 consecutive days thereafter, in

conspicuous places, including all places where notices to

employees are customarily posted. Reasonable steps shall

be taken by Respondent to insure that said notices are

not altered, defaced, or covered by any other material.

(b) Notify the Regional Director for Region 16, in

writing, within 20 days from the date of this Order, what

steps the Respondent Company has taken to comply here-

with.

B. Respondent, United Steelworkers of America,

AFL-CIO-CLC, its officers, agents, and representatives,

shall:

1. Cease and desist from in any manner threaten-

ing, coercing, or restraining employees of Dover Corpora-

tion, Norris Division, or of Rose Truck Lines, in the

exercise of the rights guaranteed them in Section 7 of the

Act.

2. Take the following affirmative action:

(a) Mail a copy of the attached notice marked “Ap-

pendix B”!! to each of its members and post copies thereof

‘In the event that this Order is enforced by a Judgment of a

United States Court of Appeals, the words in the notice reading

*‘POSTED BY ORDER OF THE NATIONAL LABOR RELA-

TIONS BOARD”’ shall read ‘‘POSTED PURSUANT TO A

JUDGMENT OF THE UNITED STATES COURT OF APPEALS

ENFORCING AN ORDER OF THE NATIONAL LABOR RE-

LATIONS BOARD.”’

''See fn. 10, supra.

—17a—

at its business office and meeting hall in Tulsa, Oklahoma.

Copies of said notice, on forms provided by the Regional

Director for Region 16, after being duly signed by the

Union’s official representative shall, immediately upon re-

cepit thereof, be mailed to each member, posted and main-

tained for 60 consecutive days thereafter, in conspicuous

places, including all places where notices to its members

are customarily posted. Reasonable steps shall be taken to

insure that such notice is not altered, defaced, or covered

by any other material.

(b) Sign and mail sufficient copies of said notice

to the Regional Director for Region 16 for posting by

Dover at all locations where notices to employees are cus-

tomarily posted, if said company is willing to do so.

(c) Notify the said Regional Director, in writing,

within 20 days from the date of this Order, what steps the

Respondent has taken to compiy herewith.

Dated, Washington, D.C. June 25, 1974.

Edward B. Miller, Chairman

John H. Fanning, Member _

Howard Jenkins, Jr., Member

NATIONAL LABOR RELATIONS BOARD

(SEAL)

ap (ina

APPENDIX A

NOTICE TO EMPLOYEES

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

WE WILL NOT coercively warn employees that if

the Union is successful in its organizational program a sub-

stantial number of adherents of the Union will be dis-

missed.

WE WILL NOT coercively warn employees that if

they continue their activity in behalf of the Union we have

sufficient grounds for discharging thcm.

WE WILL NOT in any like or related manner inter-

fere with, restrain, or coerce employees in the exercise of

the rights guaranteed them by Section 7 of the National

Labor Relations Act, as amended.

DOVER CORPORATION,

NORRIS DIVISION

(Employer)

Dated ____. By

(Representative) (Title)

This is an official notice and must not be defaced by

anyone.

This notice must remain posted for 60 consecutive

days from the date of posting and must not be altered,

defaced, or covered by any other material.

Any questions concerning this notice or compliance

with its provisions may be directed to the Board’s Office,

Federal Office Building, Room 8A24, 819 Taylor Street,

Fort Worth, Texas 76102, Telephone 817-334-2921.

— 19a —

APPENDIX B

NOTICE TO MEMBERS

Posted by Order of the

National labor Relations Board

An Agency of the United States Government

WE WILL NOT in any manner threaten, restrain, or

coerce employees of Dover Corporation, Norris Division,

or of Rose Truck Lines, in the exercise of the rights guar-

anteed them in Section 7 of the National Labor Relations

Act, as amended. —

UNITED STEELWORKERS OF

AMERICA, AFL — CIO — CLC

(Labor Organization)

Dated By

(Representative) (Title)

This is an official notice and must not be defaced by

anyone.

This notice must remain posted for 60 consecutive

days from the date of posting and must not be altered,

defaced, or covered by any other material.

Any questions concerning this notice or compliance with

its provisions may be directed to the Board's Office, Fed-

eral Office Building, Room — A24, 819 Taylor Street,

Fort Worth, Texas 76102, Telephone 817-334-2921.

JD-749-73

Tulsa, Oklahoma

UNITED STATES OF AMERICA

BEFORE THE NATIONAL

LABOR RELATIONS BOARD

DIVISION OF JUDGES

WASHINGTON, D.C.

DOVER CORPORATION,

NORRIS DIVISION

and Case No. 16-CA-5224

UNITED STEELWORKERS

OF AMERICA,

AFL — CIO — CLC

UNITED STEELWORKERS

OF AMERICA,

AFL — CIO — CLC

and Case No. 16-CC-467

DOVER CORPORATION, NORRIS DIVISION

UNITED STEELWORKERS

OF AMERICA,

AFL — CIO — CLC

and Case No. 16-CB-780

DOVER CORPORATION,

NORRIS DIVISION

Evert P. Rhea, Esq., of Fort Worth, Texas, for the General

Counsel.

Mary T. Matthies, Esq., and Frank B. Wolfe, Ill, Esq., of

Tulsa, Okla., for the Respondent Company. |

James E. Frasier, Esq., of Tulsa, Okla., for the Union.

—21a—

JD-749-73

DECISION

Statement of the Case

IVAR H. PETERSON, Administrative law Judge:

I heard this case in Tulsa, Oklahoma, on October 9, 10,

and 11, 1973, based on charges, as amended, filed by

United Steelworkers of America, AFL CIO CLC, herein

referred to as the Union, against Dover Corporation,

Norris Division (16-CA-5224), consolidated with two other

cases, filed against the Union by the Company (16-CC-

467 and 16-CB-780). In substance, the consolidated com-

plaint alleged that the Company, by the actions of Walter

Rike, inspection foreman and an agent of the Company,

warned employees that if the Union were successful in its

Organizational campaign a substantial number of Union

adherents would be dismissed and that Rike also, on Au-

gust 8, warned employees that if they continued their

union activity he possessed sufficient grounds for their

discharge. In addition, the complaint alleged that Chief

Freight Lines Co., Inc., herein called Chief, and J. H. Rose

Truck Lines, Inc., herein called Rose, both motor freight

lines which made pickups and deliveries at the Company's

plant, were coerced, threatened, and restrained on or about

August 9 to 20, by officers, agents and representatives

of the Union by means of picketing, requests, appeals,

orders, instructions and other means to induce and en-

courage individuals employed by the foregoing employers

to engage in a strike or refusal to transport or otherwise

handle goods or commodities or to perform services for

their respective employers.

The complaint further alleged that on August 13 and

14, the Union, by its officers, agents and representatives,

threatened, coerced and restrained Mounce (a supervisor of

Chief) and Buckner (a supervisor of Rose), and other

— 22a —

persons engaged in commerce, by threatening them with

harm to their persons or equipment if they continued to do

business at the Company's plant. These activities, so the

complaint alleged, were engaged in, in order to force or

require Chief and Rose and other employers to cease doing

business with the Company or other persons. Finally, the

complaint alleged that commencing on or about August 9

and continuing through August 13, the Union, by its of-

ficers and agents and representatives, restrained and co-

erced employees of the Company in the exercise of their

Section 7 rights by various specified forms of conduct.

With respect to the Company, the complaint alleged

that the Company’s activities were violative of Section

8(a)(1) and Section 2(6) and (7) of the Act, and that the

acts of the Union, described in the complaint, were viola-

tive of Section 8(b)(4)(i), (ii)(b) and Section 2(6) and (7)

of the Act.

In its answer, duly filed on September 21, Dover

moved that the cases be severed and that insofar as the

employer was concerned they be dismissed. I denied the

motions. The Union, in its answer, admitted certain juris-

dictional allegations but denied those concerning unfair

labor practices on its part.

Upon the basis of the entire record in the case, in-

cluding my observation of the witnesses as they testified

and a careful consideration of the briefs filed by counsel

for all parties on or about October 10, and a reply brief

filed by the Company on December 6, I make the follow-

ing:

Findings of Fact

The Company, an Oklahoma corporation, maintains

a plant in Tulsa where it is engaged in the manufacture

of oil field equipment. The Company admits and I find that

in the past year it sold and distributed from its Tulsa

— 23a —

plant products valued in excess of $50,000, which pro

ducts were shipped to states other than the State of Okla-

homa, and that it is accordingly engaged in commerce

within the meaning of Section 2(6) and (7) of the Act. I

further find that the Union is a labor organization within

the meaning of Section 2(5) of the Act.

II. The Alleged Unfair Labor Practices

Background

The Union began an organizational campaign at the

Tulsa plant sometime in May. Edwin Bechtold, in charge

of manufacturing, testified that he was familiar with prior

organizational activities at the plant and that he first be-

came aware of the current organizational activity around

the first of July. After picketing began Bechtold on several

occasions met with the supervisors “pointing out what they

could and couldn't do during this period of time.” Some-

time early in August, the Union demanded recognition

and the employer replied, suggesting that the Union file

an election petition. On August 9, Carl Oldham, the Union

organizer, came to the plant in an attempt to see the Chief

Executive Officer, Vice President Bechtold. Prior to that

time Oldham had received approval for a recognitional

strike. Oldham, in company with several plant employees,

sought to see Bechtold but the latter sent word that the

employees should follow the customary grievance pro-

cedure and that Oldham should contact the attorneys for

the Company. After a relatively brief exchange, Oldham

stated “consider yourself struck,” and he and the group

of employees with him walked out. They then proceeded

to make picket signs and began picketing at the various

entrances to the building. According to Oldham, he in-

structed pickets “not to interfere with any trucks that were

coming in or going out, any employees coming in or

— 24a —

going out. They did have a right to talk to the people.

They didn’t have to be a bunch of mummies.”

It was during the period from about August 9 to 21

that the Company allegedly engaged in several violations

of Section 8(a)(1) of the Act, and that the Union engaged

in violations of Section 8(b)(1)(a) and 8(b)(4)(i) and

(ii)(B). So far as appears from the record, all allegedly

illegal activity by either the Company or the Union ceased

on or about August 21.

B. Alleged Violations of Section 8(a)(1)

by Company

James Curry, an employee who had worked as a

turret lathe operator for the Company for approximately

4 years, testified that Walter Rike, a supervisor, spoke to

him on August 8, stating that “the people who are push-

ing the Union, work for the Union, would probably be

fired if the Union failed to get in.” I infer that what Rike

meant by this remark was that if in fact the Union be-

came the exclusive representative of the employees it would

be in a position to protect them from any disciplinary

action by reason of their union activity. Curry wore Union

buttons on his work shirt and testified that he actively en-

gaged in passing out literature and in talking to employees

when he had an opportunity. Rike was present one day

when Curry was passing out Union literature during the

lunch hour. On that occasion, so Curry testified, plant

superintendent William Uto was present and told Curry

and another employee that they were not allowed to pass

out union literature on company property.

Charles Thompson, an employee who had worked for

the Company about 6 years, and who at the time of the

hearing was an automatic turret lathe operator, testified

that Rike was the supervisor over the inspection depart-

ment. According to Thompson, he had a conversation with

— 25a —

Rike on or about July 13. Rike, holding a document

purporting to be a Norris contract in his hand, made the

following remarks: “I don’t see why you guys want a union

in here, because you have better benefits and wages than

the Norris plant does.” Later that afternoon, according to

Thompson, Rike said, “if you guys are going to play this

way, I have enough on five of you to get you discharged for

union activities.” Thompson had worn union buttons and

had attended union meetings. Rike, so Thompson related,

had engaged Thompson in conversations concerning the

Union and had stated on one occasion that if the Union

came in it would be easier on him (Rike).

Clyde Waid, also a turret lathe operator the past 42

years, testified that when employees began exhibiting in-

terest in the Union he “vocally supported the Union, wore

campaign buttons [and] . . . put campaign stickers on my

tool box and on my automobile.” He also solicited em-

ployees to sign union cards. Waid testified that he solicited

an employee named Sam Johnson in the presence of Rike.

According to Waid, Rike has four or five persons directly

under his control.

Mike Jones, an employee, testified that when he drove

up to the plant on his motorcycle on the morning of

August 10, to go to work, he was approached by Waid

and another employee. Waid, so Jones testified, stated that

“if I was planning on crossing the picket line” he had

“better move that . . . motorcycle if I wanted it in the

same shape it was, when I came back out.” Oldham was

present throughout this conversation. Jones did move his

motorcycle and, as he crossed the street to enter the plant,

Oldham asked him if he was going in. When Jones re-

plied in the affirmative, Oldham stated, “You are making a

mistake.” As Jones proceeded into the building, someone

threw coffee on him. Later in the day of August 10,

Jones went out on his lunch break and, when he re-

=o

turned, Oldham and several pickets in his company, came

to the plant entrance and Waid blocked Jones’ access to

the door. When Jones reached around Waid to open the

door, Waid said, “You had better leave that god damn

helmet on if you know what’s good for you.”' Curry, an-

other picket, joined the group and told Jones, “If you go

through that door, you are not coming back out of it again.”

It should be observed that Oldham, Thompson, Waid

and Curry were all placed at the scene during this incident.

And, more significantly, none of these refuted the testi-

mony of Jones.

When Jones left the plant that day, he discovered that

his motorcycle was definitely not in the same shape it was

when he parked it. The front and back tires had been

slashed. This damage to the tires cost Jones almost $50

and he had to replace both tires on the motorcycle, which

he did not own but had borrowed from a friend. As a

result of this incident, Jones decided to stop working for

the Company, stating that he “got tired of being harassed

and cussed and coffee thrown on me.”

About half hour after the incident involving Jones,

Myrna Hinds, a nonstriker, was confronted by Oldham and

a group of strikers as she attempted to cross the picket line.

Oldham asked her if she was going to cross the line and,

when she answered in the affirmative, one of the pickets

asked her if her husband was a union member. Hinds

said that he was and one of the pickets then asked her

what her husband’s union would think about her crossing

the picket line. Hinds, somewhat apprehensive as to what

might happen in regard to her husband, went to her super-

visor and asked if her crossing the picket line would affect

her husband’s job security. Her foreman took her to Bech-

told, who gave her permission to go home and check with

‘At that time Jones was wearing his motorcyle helmet.

— 27a —

her husband on the matter. When she reached home, her

husband assured her that he did not think that his union

would take any action against him if she crossed the picket

line. Thereafter, Hinds’ husband brought her to work every

morning. On one occasion, Waid took pictures of Hinds

and her husband as they drove up to the plant and, as

Hinds’ husband left a picket stepped out behind the truck

and appeared to be taking down the license number of the

vehicle.

Later on August 10, following the incidents involving

Jones and Hinds, Thompson and another picket, Frank

Roden, followed nonstriker Cheatam Scott to his car.

Thompson told Scott, who had signed a union card, that

he had let the Union down by working. When Scott denied

this, Thompson threatened to “whip my . . . ass.” As Scott

started to drive away in his car, Thompson and Roden be-

gan yelling at him and stated that they would be by to

talk to him later. The following morning, Scott found that

his house had been splattered with paint from a paint

bomb made out of a light bulb.? On or about August 15,

some unidentified persons again visited Scott's house. On

this occasion, his automobile was blown out of the garage

and totally damaged; the damage to the garage was ap-

proximately $800. Scott had no insurance on his auto-

mobile. He discussed this incident with a neighbor, who

stated that she ran to the door when she heard the blast

and observed a car matching the description of Thomp-

son's automobile speeding away. Earlier, she had seen

several white men (she and Scott are black) around Scott's

house.

*It should here be observed that about 2 days before these incidents

Scott had told Oldham that a strike would have no effect on plant

operations and that (Scott) would not join in any picketing.

=

Waid further testified that, on July 7, he had a con-

versation with Dallas Sutterfield, an inspector directly

under Rike’s supervision. Waid was “running the auto-

matic” that day, inasmuch as the regular operator was on

vacation. A fellow employee, one Leon, “was questioning

me as to certain aspects of union membership,” and Waid

“was yelling them [the answers] back” while Sutterfield

was in the area. According to Waid, Sutterfield “told me

that I had better hope that the Union got in, because if it

didn’t, Walter Rike had told him that there were going to

be some heads rolling.” According to Waid, in his conver-

sation with Leon he alluded to a pension plan, insurance,

pay rates and the fact that employees did not get time and

a half for overtime on the dual machine operation.

Waid testified that on July 20, shortly after noon,

Attorney Mathias and Mr. Uto told Waid that no dis-

ciplinary action would be taken against him for engaging

in union activity.

C. The Alleged Intimidatory Conduct and

Secondary Boycott Activity

Clyde Buckner, the terminal manager of Rose in the

Tulsa area, testified that on August 9, he and a Rose em-

ployee named Herbert Clayton, a city pickup/delivery

driver, went to the Company’s plant to pick up and deliver

some freight. According to Buckner, he and the driver

backed into the loading dock and loaded the freight.

During that time, about four men were standing around

their truck and “hollering at us,” calling them “scabs,” and

they also asked if Rose was paying for their insurance.

On this occasion, the left rear tail lights were cut and the

right front hydraulic brake line was put out of commission,

but Buckner did not see who was responsible for these

incidents. Also, a nail had been placed in the tread of

— 29a —

one of the truck’s rear tires. After the brake line had been

severed, the truck was “cautiously” moved off the street in

order to repair the brake line. Buckner testified that as he

opened the door on the passengers’ side to remove a clip

board, he discovered that a burning cigarette underneath

the clip board had burned a hole in the seat. He testified

that the cost of repairing the truck was $21.66.3 After

this pickup, no additional pickups were made by Rose

from the Company's plant. Buckner testified that he had

complained to a representative of the Company that addi-

tional security was needed at the Rockford plant, Stating

that he did not wish to make further pickups and de-

liveries under existing circumstances. According to Bech-

told, in view of Buckner’s inability to guarantee that the

some “sort of thing” would not happen in the future,

new shipping arrangements were made. Thereafter, during

the strike period, major shipments were made through

other freight lines which included the rerouting of ship-

ments in order to use the Chief Line. )

The first delivery took place on August 13. This pick-

up was handled by two employees of Chief, namely, James

Mounce, the assistant safety director, and John Ayres,

the terminal manager, inasmuch as the regular drivers had

refused to go to Chief's plant and make pickups because

they had been advised that a picket line was there. When

Mounce and Ayers arrived at the plant at about 4 o'clock,

they found that another truck was occupying the space

where the pickup was to be made. At about 4:30, the

truck was placed at the loading dock and, shortly there-

‘Buckner testified that on an earlier occasion Clayton went out to

deliver some freight, and that as he backed into the dock a **couple

of men’’ came up and told him that they were on strike and that

he should not deliver the freight. Clayton left with the freight

and brought it back to Rose’s yard.

— Wa —

after, Oldham drove up in a car, walked across the street

to where the loading was in progress and held a conference

with about 10 pickets. Oldham stated to Mounce, “you're

the first one to break our picket, aren’t you Teamsters?”

At that time, other pickets identified Mounce and Ayers as

supervisors. The Chief pickup truck was at the plant some-

thing more than an hour, and during that time a brick was

thrown at the truck but missed and a sizeable concrete

chunk was also thrown and struck the truck. According to

Mounce, the strikers kept hollering “boom” and that on

one occasion a striker said, “Boom, I just blew your

truck up.”

Although Oldham was in the vicinity, there is no

evidence that he disapproved of or objected to the conduct

of the strikers. Employee Wayne Ray testified concerning

the conversation during the first attempt by Rose to make

a delivery, as he had been assigned by the Company to

unload the truck. He identified Thompson as being on the

picket line. No unloading occurred, apparently due to the

confusion on the picket line and the interference on the

part of the pickets. After making some effort to unload,

Clayton stated that he would come back later that even-

ing, and testified that about half of the pickets carried

picket signs. According to Ray, Clayton got out of the

truck and went into the plant. Strikers stood around him

and, as Ray testified, they were “trying to get him not to

come in.” He also testified that the keys were taken from

the Rose truck and that the strikers would not let Clay-

ton have them back as he prepared to get into his truck.

The strikers, according to Ray, told the driver that they

would give him his keys if he would not come back. On

cross-examination, the driver was told by the pickets “that

they would hand his head back to him next time, if he

came.”

In the conversation between Rike and Thompson

— 3la—

“something was said about taking a page off of the bulletin

board that was the original page” from the Company's

“blue book.” Thompson asked why Rike had removed the

page and Rike replied that he had taken it down because

in addition to the original printing there was some hand

writing on the page, in somewhat vulgar language. Accord-

ing to Rike, nothing could be posted on the bulletin

board by employees without prior authorization. Rike de-

nied that Thompson told him that he was violating the

law by showing him the contract book, or that Rike told

Thompson that he had enough on five employees to have

them discharged for union activities.

Rike related that Thompson, Curry and Waid had

been active in prior union campaigns, and that he had

learned of the activity of Curry and Waid from their testi-

mony at the present hearing. He denied that he had ever

told any employee that he had enough on five employees

to terminate them for union activity. Rike denied that he

had ever told Sutterfield or anyone else that if the Union

got in heads would roll. He did testify, however, that he

frequently made a “joke” to the effect that “if the Union

comes in, my job will be easier,” because, being a working

foreman, if the Union came in it would not allow the

foreman to perform production work. Rike denied that he

had observed Waid solicit employee Johnson.

Assistant Plant Superintendent Uto, who had oc-

cupied that position for some 18 or 20 months, had pre-

viously been employed as a shop foreman in the machine

shop for some 22 years. In June of the current year Uto

attended a seminar at the Tulsa Junior College for some 5

weeks dealing with labor relations problems, and he testi-

fied that he had been involved in two union campaigns

while employed by the Company. He identified the bulletin

that he had posted, stating he first saw it around the mid-

dle of August. About July 20, it came to his attention that

— 32a —

representatives of the Union had alleged that certain super-

visors of the Company had been engaging in unfair labor

practices. He was informed of this by Mr. Bechtold and the

Company's attorney, Mrs. Matthies. Upon receiving this

information, he went down to the plant and asked one John

Wilkins, an employee, if he would come up to Mr. Bech-

told’s office. Uto went to Wilkins because he had been

informed that Wilkins was “one of the people that felt like

that he had been threatened.” Wilkins told Uto that he

would not come unless the Union representative was

present at that meeting.

During the meeting, Mrs. Matthies told the approxi-

mately five employees that she had heard that they had

felt that they had been threatened by Company super-

visors and that she wished to assure them that this was

no “doing of the Company and that they would take action

on this if it were true, and that they assured them that

they had a right to organize and could not be interfered

with for trying to organize, could not be fired from the

Company for this.”

Uto testified that on August 9, between the hours of

11:30 and 12:30, he was at the Rockford plant site. During

that time he had occasion to see Oldham at about 12:15

in the office lobby. About 12:15 Uto was in Mr. Bech-

told’s office when an office employee, Al Dunn, knocked

on the door. Dunn stated that “there’s a group of Union

people in the lobby,” and Mr. Bechtold called the Com-

pany Attorney. Uto went down to the lobby, introduced

himself and told the employees, “if you have problems, . . .

I suggest you take it through proper channels with your

immediate supervisors; and if this can’t be resolved in this

form, then I will see you as individuals or on individual

terms.” When Uto returned to the place where employees

and Oldham were gathered, he told Oldham what he had

— 33a —

told Bechtold and Oldham stated, “Okay. Consider your-

self struck.”

Foreman Rike, who had worked for the Company a

little over 23 years, and as foreman for the past 9 years,

has been a member of the Machinist Union since 1951.

He testified that in the last 10 years there have been

five attempts to organize the Company's employees and

that, before each of these campaigns, he and other super-

visors attended meetings with the Company's attorney.

He testified that the supervisors were informed of em-

ployees’ rights to organize and that supervisors could not

discriminate against them, or threaten, interfere with,

harass, or spy upon employees. Approximately 2 years be-

fore the hearing, Rike attended a management course in

which the Norris contract was explained and the rights of

employees were outlined. Rike also had taken a corres-

pondence course which dealt with management and cov-

ered the basic rights of unions. For about 8 years he has

been a member of the Tulsa Management Club and has

attended lectures and seminars conducted by that organiza-

tion concerning labor relations. Rike testified that prior to

the present proceeding no labor organization or individual

had filed any charges with the Board alleging that he or

any supervisor of the Company had committed an unfair

labor practice. Rike, who works. under the immediate

supervision of Chief Engineer Nyland Shelton, had three

inspectors under his supervision. He has no supervisory

authority over any employees of the Company other than

the three inspectors.

Rike testified that the Company has a progressive

discipline policy which he described as consisting first of

an oral warning, then a written warning and then suspen-

sion, followed by termination. With respect to the inspec-

tion department, suspensions and discharges require the

— 346 —

approval of Shelton and Bechtold, but no approval is re-

quired for oral warnings.

Rike denied that he told Curry that people who were

pushing the Union or working for the Union would be

fired if the Union failed to get in. Moreover, he stated

that he had never heard any supervisor or member of

management tell Curry or any other employee that union

supporters would be terminated or discriminated against

because of their activities on behalf of the Union. Rike

testified that he and Curry had several things in common

and related that both of them were farm boys and both

own horses and that they talk about horses and farming.

Also, Curry and Rike attended an American Red Cross

course and advanced courses in first-aid. Rike is safety

director for the Company and Curry is a member of the

safety committee. He related that in the foregoing capa-

cities he and Curry enjoyed a very good work re!ationship.

According to Rike, in the early part of August he

had occasion to visit Curry at the latter’s machine. Also

present was Machine Inspector Sutterfield and Leadman

Jimmy Jones. Sometime earlier, Sutterfield had informed

Rike that he was having some quality problems on Curry’s

machine and asked Rike if he would go over and speak to

Curry. Rike answered that he preferred that Sutterfield

work through Jones first and that if the latter could not

take care of the problem Rike would go over there with

the leadman. That is what happened. While at the machine,

Rike spoke mainly to Jones. The incident was not re-

corded in Curry’s personnel file and Rike testified he had

no further “problems” concerning the quality of Curry’s

work. Rike denied that he ever discussed the Union with

Curry.

Concerning the testimony of Thompson to the effect

that Thompson told Rike that he and others thought it was

against the law for Rike to show employees the contract

— 35a —

book and that Rike replied that if the employees were

going to play that way he had enough on five of them

to cause their termination for union activity, Rike denied

that any such incident occurred. He testified, however,

that early in July he did have a conversation with Thomp-

son near his machine.

D. Discussion and Conclusions

Counsel for the Respondent Employer contends that

the Union's strike was a “violent one,” involving “violence

to nonstriking employees, rock throwing, bomb threats,

damage to trucks, the bombing of a nonstriking employee's

car, tire-slashing, and other inconceivable acts.”

After some 37 years in various aspects of labor rela-

tions, representing the Government, employers, unions and

for the last 12 years, in the position I now occupy, I am

unable to categorize the events in this case as amounting to

a “violent” strike. In the preceding sections I have at-

tempted to set forth the testimony in an objective fashion.

In my view what emerges is not a “campaign of terror

against nonunion employees and suppliers,” but a rather

“garden variety” of incidents not unusual in a labor

dispute involving a strike. In substantial part, the incidents

of a “violent” character are not established to have been

committed by representatives or agents of the Union.*

Certainly, a fair appraisal of the evidence does not, in

my opinion, warrant characterizing the Union's charges in

Case No. 16-CA-5224 as “nothing more than fabrica-

tions, designed to cast a smoke screen over the Union's

unlawful actions.” In substance, Respondent Company's

‘For example, the persons who cut the rear tail light of the Com-

pany’s truck on August 9 and put out of commission the right

front hydraulic brake line, were not identified, as Buckner did not

see who committed these acts.

a= Sinan

counsel appears to me to be alleging that the Regional Di-

rector in issuing the complaint, after investigating the

Union’s charges, acted in a “frivolous” manner, with the

result that “costs and attorney fees [should be] granted”

the Respondent Employer.

In my view, the relief sought by the Respondent

Employer — including “either an order barring the Union

from seeking voluntary recognition as the representative of

the affected employees for several years, or an order di-

recting a remedial election to determine the wishes of the

employees as to the representation by the Union” — is not

supported by the facts or appropriate. Nor do I regard

this case as warranting the award to the Respondent

Company of “costs of attorney fees’ under the Tidee rule,*

or backpay for employees “intimidated by the picket line

violence.”

To conclude, I find that Rike told three union sup-

porters that they would be discharged; while I am of the

view that he was talking to them in a friendly manner

and on the basis of his long union background and rela-

tionship with them, I nontheless believe and find that he

made the remarks attributed to him. These remarks, I find,

were violative of Section 8(a)(1) of the Act.

I further find that the Union engaged in an unlawful

secondary boycott, thereby violating Sections 8(b)(1)(A)

and 8(b)(4)(i), (ii)(B) of the Act.

Thus, on August 14 when Buckner and Clayton drove

to the Rockford plant to make a pickup, pickets sur-

rounded the truck, engaged in name calling, and, in what

to me appears a threatening vein, inquired if Rose was

paying their insurance. I think it reasonable to infer that

*Tidee Products, Inc., 194 NLRB 1234 on remad from 426 F(2d)

1243 (C.A.D.C. 1970), cert. den., 400 U.S. 950 (1970). In my view,

the litigation here undertaken was not ‘“‘frivolous’’ or ‘“‘clearly un-

warranted.”’

—37a—

strikers caused the damage to the truck, and I so find.

After Buckner told Bechtold that his concern “would not

return unless” Bechtold “could guarantee that this same

sort of thing would not happen in the future,” new shipping

arrangements were made. Moreover, Chief's rank-and-file

drivers refused to go to the Dover plant to make pickups.

In addition, on August 13, when Chief's supervisors

Mounce and Ayres came to the Dover plant Oldham came

to the plant, conferred with some 10 pickets, came to the

Dover truck and he or another striker stated that Mounce

and Ayres were the first “to break our picket” and, during

the period the truck was there a brick and a concrete

chunk were thrown at the truck. Oldham witnessed some

of this conduct but, so far as appears, made no objection

and took no steps to stop it.

As we have seen, Waid told employee Jones, as he

returned from lunch wearing a motorcycle helmet, that

Jones “better leave that god damn helmet on if you know

what’s good for you.” Further, Curry told Jones, as the

latter was entering the plant, “If you go through that door,

you're not coming back out of it again.”

Finally, I conclude that the damage to Jones’ tires,

amounting to some $51, was caused by strikers and that

the damage to employee Scott's home and automobile

must also be attributed to the strikers.®

As I view the matter a substantial part of the Union's

activity was directed at neutral employers and their em-

ployees, and cannot, therefore, be regarded as lawful

primary picketing. I conclude that an object of the picket-

ing was not only to support a primary picket line but also

to enmesh the employees of secondary employers to refuse

to perform services for their employers and by such means,

*Thus, a neighbor, so Scott testified, told him she had seen some

“‘white guys’’ around his house and one of them drove a car very

similar to Thompson’s.

So

force their employers to cease doing business with Dover,

the primary employer. As we have seen, as a result of the

Union's tactics Rose refused to do further business with

Dover and Chief refused unless security was augmented.

Upon the basis of the foregoing findings of fact, I

conclude that the Union engaged in acts violative of Sec-

tions 8(b)(1 (A) and 8(b)(4)(i), (11)(B) of the Act.

Conclusions of Law

1. Dover Corporation, Norris Division, Tulsa, Okla-

homa, is an employer engaged in commerce within the

meaning of Section 2(6) and (7) of the Act.

2. United Steelworkers of America AFL ClO

CLC, is a labor organization within the meaning of Section

2(5) of the Act.

3. The Respondent Company engaged in unfair

labor practices within the meaning of Section 8(a)(1) of

the Act.

4. The Respondent Union engaged in unfair labor

practices within the meaning of Sections 8(b)(1)(A) and

8(b)(4)(i), (iB) of the Act.

5. The aforesaid unfair labor practices are unfair

labor practices affecting commerce within the meaning of

Section 2(6) and (7) of the Act.

Upon the basis of the foregoing findings of fact

and the Conclusions of law, and upon the entire record

in the case, and pursuant to Section 10(c) of the Act,

I hereby issue the following recommended:’

bs Yn the event no exceptions are filed as provided by Section 102.46

of the Rules and Regulations of the National Labor Relations

Board, the findings, conclusions, recommendations, and Recom-

mended Order herein shall, as provided in Section 102.48 of the

Rules and Regulations, be adopted by the Board and become its

findings, conclusions, and order, and all objections thereto shall

be deemed waived for all purposes.

— 39a —

ORDER

(A) Respondent, Dover Corporation, Norris Divi-

sion, its officers, agents, successors, and assigns, shall:

1. Cease and desist from:

(a) Coercively warning employees that if the Union

was successful in its organizational program a substantial

number of union adherents would be dismissed.

(b) Coercively warning employees that if they con-

tinue their union activity the Respondent possessed suffi-

cient grounds for discharging them.

(c) In any other like or related manner interfering

with, restraining, or coercing employees in the exercise of

the rights guaranteed them in Section 7 of the Act.

(d) Post at its plants in Tulsa, Oklahoma, copies

of the attached notice marked “Appendix A."* Copies of

said notice, on forms to be furnished by the Regional Di-

rector for Region 16 shall, after being duly signed by an

authorized representative, be posted by the Respondent

Company immediately upon receipt thereof, and main-

tained by it for a period of 60 consecutive days there-

after in conspicuous places, including all places where

notices to employees are customarily posted. Reasonable

steps shall be taken by the Respondent to insure that said

notices are not altered, defaced, or covered by any other

material.

(e) Notify the Regional Director for Region 16, in

writing, within 20 days from the date of receipt of this

*In the event that the Board’s Order is enforced by a judgment of

a United States Court of Appeals, the words in the notice reading

“POSTED BY ORDER OF THE NATIONAL LABOR RELA-

TIONS BOARD”’ shall be changed to read “POSTED PUR-

SUANT TO A JUDGMENT OF THE UNITED STATES COURT

OF APPEALS ENFORCING AN ORDER OF THE NATIONAL

LABOR RELATIONS BOARD.”’

— 40a —

Decision, what steps the Respondent Company has taken

to comply herewith.

(B). Respondent, United Steelworkers of America,

AFL-CIO-CLC, its officers, agents, successors, and as-

signs, shall:

1. Cease and desist:

(a) Inducing or encouraging employees of Chief and

Rose, and of any other persons engaged in commerce or

an industry affecting commerce to engage in strikes or

refusals in the course of their employment to use, manu-

facture, process, transport or otherwise handle or work on

any goods. articles, materials, or commodities or to per-

form services for their respective employers.

(b) Threatening, coercing or restraining supervisors

of Chief and Rose, or other persons engaged in commerce

or an industry affecting commerce with harm to their

person or equipment if they continued to do business at

the plants of Dover in Tulsa, Oklahoma.

(c) Inducing or encouraging employees of Rose or

any other persons engaged in commerce or an industry

affecting commerce, by picketing, requests, appeals, or-

ders, instructions or any other means, to engage in a strike

or refusal in the course of their employment to use, manu-

facture, process, transport or otherwise handle or work on

any goods, articles, materials, or commodities or to per-

form services for their respective employers.

(d) In any other manner restraining or coercing said

employees in the exercise of the rights guaranteed them in

Section 7 of the Act.

2. Take the following affirmative action designed to

effectuate the policies of the Act:

(a) Mail a copy of the attached notice marked

—41a—

“Appendix B”® to each of its members and post copies

thereof at its business office and meeting hall in Tulsa,

Oklahoma, copies of said notice, on forms provided by

the Regional Director for the Sixteenth Region, after being

duly signed by the Union’s official representative shall,

immediately upon receipt thereof, be mailed to each mem-

ber, posted and maintained for 60 consecutive days there-

after in conspicuous places, including all places where no-

tices to its members are customarily posted. Reasonable

steps shall be taken to insure that such notice is not

altered, defaced, or covered by any other material.

(b) Sign and mail sufficient copies of said notice to

the Regional Director for the Sixteenth Region for posting

by Dover, Chief and Rose at all locations where notices

to employees are customarily posted, if said companies are

willing to do so.

(c) Notify the said Regional Director, in writing,

within 20 days from the date of the receipt of this De-

cisions and Recommended Order, what steps the Respond-

ent has taken to comply herewith.

Dated at Washington, D. C., Dec. 17, 1973.

s/s Ivar H. Peterson

Administrative Law Judge

*In the event that the Board’s Order is enforced by a judgment of

a United States Court of Appeals, the words in the notice reading

“POSTED BY ORDER OF THE NATIONAL LABOR RELA-

TIONS BOARD”’ shall be changed to read ‘“‘POSTED PUR-

SUANT TO A JUDGMENT OF THE UNITED STATES COURT

OF APPEALS ENFORCING AN ORDER OF THE NATIONAL

LABOR RELATIONS BOARD.”’

— 42a —

JD- 749-73

NOTICE TO

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

AN AGENCY OF THE UNITED STATES GOVERNMENT

WE WILL NOT coercively warn employees that if the Union is successful

in its organizational program a substantial number of adherents of

the Union will be dienuissed.

WE WILL NOT coercively warn employees that if they continue their

activity in Wehalf of the Union ve heve sufficient grounds for

discharging thes.

WE WILL NOT in any like or related manner ioterfere with, restrain,

or coerce employees in the exercise of the rights guaranteed them

by Section 7 of the Fational Labor Relations Act, as amended.

DOVER CORPORATION

___WORRIS DIVISION

(Emp Loyer)

(Representative) (Title)

a

THIS (S AN OFFICIAL NOTICE AND MUST NOT BE DEFACED SY ANYONE

This notice must remain posted for 60 consecutive days from the date of posting and must not be altered. defaced.

OF Covered by any other material Any questions concerning this notice or Comphance with its provissons may be directed

to the Board's Office, Federal Office Building, Room 8-A-24, 819 Taylor Street, Fort Worth,

Texas 65102 (Tel. Mo. 817-334-2921).

— 43a —

NOTICE TO

MEMBERS

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

AN AGENCY OF THE UNITED STATES GOVERNMENT

AVY

eh

* AN

I

y

WE WILL NOT induce or encourage eaployees of CHIEF FREIGHT LINES,

INC., or J. H. ROSE TRUCK LINES, INC., or any other person engaged

io interstate commerce to engage in strikes or refusele in the

course of their employment to use, manufacture, process, transport

or otherwise handle or work on any goods, articles, materials, or

commodities or to perform services for their respective employers,

in order to force Chief, Rose and other employers to cease doing

business with DOVER CORPORATION, NORRIS DIVISION or other persons.

WE WILL NOT threaten, coerce or restrain supervisors or any other

employees, of Chief and Rose, or of other persons, with hare to

their person or equipment if they continued to do business at

the plants of Dover in Tules, Oklahoma.

WE WILL NOT in any other mancer restrain or coerce the said

eaployees in the exercise of the rights guaranteed them in

Section 7? of the National Labor Relations Act, as amended.

UNITED STEELWORKERS OF

AMERICA, AFL-C1O-CLC

(Labor Organization)

~~ (Representative) ir (Titie)

This notece must remain posted for 60 comsecutrve days from the date of posting and must oot be altered. detaced.

Or Covered by any other matenal Any questions concerning this notice or Compliance with .s prowssons may be directed

to the Board's Office, Federal Office Building, Room 8-A-24 819 Taylor Street, Fort Verth,

Texas 65102 (Tel. Mo. 817-334-2921).

APPENDIX B

—_

APPENDIX B

(PUBLISH)

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

NATIONAL LABOR RELATIONS BOARD

Petitioner,

v. NO. 74-1577

DOVER CORPORATION, NORRIS DIVISION,

Respondent,

ON APPLICATION FOR ENFORCEMENT

OF AN ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

(NLRB Case No. 16-CA-5224)

Elinor Hadley Stillman, Attorney, National Labor Rela-

tions Board (William Watcher, Attorney, National Labor

Relations Board, and Peter G. Nash, General Counsel,

John S. Irving, Deputy General Counsel, Patrick Hardin,

Associate General Counsel, Elliott Moore, Deputy As-

sociate General Counsel, National Labor Relations Board,

on the brief) for Petitioner

Mary T. Matthies, Tulsa, Oklahoma (Richard L. Barnes

of Kothe and Nichols, Inc., Tulsa, Oklahoma, on the brief)

for Respondent

Before HILL, HOLLOWAY and BARRETT, Circuit

Judges

HOLLOWAY, Circuit Judge

—_

The National Labor Relations Board applies for en-

forcement of that part of its order entered in Dover Cor-

poration, Norris Division, 211 NLRB No. 98, finding that

the Dover Corporation violated § 8(a)(1) of the National

Labor Relations Act, 29 USCA § 158(a)(1), and entering

an order to cease and desist and to post a notice, inter alia.'

The Board found that Dover violated § 8(a)(1) by

virtue of the threatening statements of a supervisor, Rike,

during an organizational campaign and issued a remedial

order. In opposing enforcement of the order Dover essen-

tially argues that (1) there is insufficient evidence to es-

tablish that coercive statements were made; (2) there is

insufficient evidence to establish that the employees con-

sidered the statements to be authorized by top manage-

ment or capable of being carried out by the supervisor,

Rike, who allegedly made the statements; (3) there is no

evidence to support a finding that employees were re-

Strained in the exercise of protected activities by the al-

leged statements; (4) the Board has failed to establish an

ascertainable standard by which an employer can remedy

unauthorized misconduct; and (5) the order of the Board is

not appropriate for present enforcement. We will first out-

line the facts in our record pertaining to the §8(a)(1)

charge and then address the principal arguments made.

In May, 1973? the United Steelworkers of America

began an organizing campaign at Dover’s Rockford Street

plant, in Tulsa, Oklahoma. At that time Rike was foreman

'The order also concerned charges filed by Dover against the Union

involved in this case, United Steelworkers of America, for viola-

tion of § 8(b)(1) and 8(b)(4). Since the Board received voluntary

compliance by the union as to the part of the order dealing with

the only unfair labor practices by the union found to have oc-

curred, in violation of § 8(b)(1), we are concerned here only with

the findings pertaining to employer practices.

*All dates hereafter refer to 1973, unless otherwise noted.

= 6G <=

of inspection supervising three inspectors at the plant.* On

July 13, Rike approached employee Thompson and en-

gaged him in a discussion, comparing the employee bene-

fits of the Rockford Street plant with the benefits of the

Norris plant, another Dover Facility which was previously

unionized. Rike, holding a document purporting to be a

Norris contract book, said to Thompson that he didn’t see

“why you guys want a union in here, because you have

better benefits and wages than the Norris plant does.”

Apparently the contract book which Rike showed Thomp-

son was an old contract which had expired. Later that day

Thompson told Rike that he and other employees objected

to Rike’s using the old contract. Rike was said to have

replied, “If you guys are going to play this way, I have

enough on the five of you to get you discharged for union

activities.” Rike denies having this second conversation

with Thompson, but the Judge credited Thompson's ver-

sion (A. 17, 19).

Shortly after this incident Mr. Bechtold, a Vice-Presi-

dent of Dover, learned that several employees felt they

had been threatened with reprisals for union activity. He

directed Dover's attorney to contact the employees and to

investigate the matter. On July 20, the Assistant Plant

Superintendent and the company attorney spoke with sev-

eral employees, including Thompson, and assured them

that any threats were not the doing of the company;

that the company would take action on this matter if it

were true; and they assured the employees that they had a

right to organize and could not be interfered with for

trying to organize, nor could they be fired from the com-

pany. Apparently neither Rike nor the prior incident were

specifically mentioned during this conversation. On the

'The status of Rike as a supervisor within the meaning of the Act

was admitted in Dover’s answer to the complaint (A. 50-52).

—

same day, July 20, the company posted a notice in the

plant, which read (A. 55-56):

NOTICE TO EMPLOYEES

There seems to have been some question recently as

to who is a supervisor in the plant and who is an

employee. As many of you who have been here during

past union campaigns will remember, persons who are

supervisors are somewhat limited in what they can

say about unions.

Supervisors are forbidden by the law to make any

promises as to future rewards in order to get an em-

ployee to decide to join or not join a union. They

are also forbidden to threaten or harass any employee

who campaigns either for or against a union.

Our supervisors in the plant, who are named below,

have been informed that they are not to interfere with

the rights of our employees to campaign either for or

against unions. This does not mean that these super-

visors cannot enforce our rules that all campaigning

should be done on non-working time.

Our plant supervisors are:

W. A. Rike

G. T. Boyce

F. R. Hawkins

B. L. Uto

W. H. Mitchell

G. W. Sullivan

Leadmen are not considered by this company to be

supervisors. While they are among our most walushte

employees because of their experience in the way we

work here at O'Bannon, they are not foremen.

Leadmen do not have the authority to hire any em-

ployees, or to transfer, suspend, lay off or recall any

of their fellow workers. Leadmen cannot discharge,

reward or discipline employees, nor may they make

independent decisions as to work assignments of any

other employees.

Therefore, any statements made by any leadmen

either for or against unions are their own opinions.

The only people who can make statements on behalf

of the company are the supervisors named above.

I hope this notice will make these matters clear. If

you have any questions, please come to your super-

visor or to me.

s/s E.L. Bechtold

ELB:ja

Thompson testified that assurances had been given

him by Dover's attorney, with the assistant plant super-

intendent, Uto, present. Thompson agreed he was told they

“were there to assure [him] that there would be no re-

prisals against [him] for engaging in union activity . . .”

Thompson continued his union activity and was still work-

ing at the plant at the time of the hearing (A. 93-94).

Employee Curry testified that Rike approached him

on August 8 at Curry’s work station and told him “that

the people who were pushing the union, working for the

union, would probably be fired if the union failed to get

in.” Rike admitted having a conversation with Curry some-

time in early August, but expressly denied that he ever told

Curry that the people working for the Union would be

fired. The Administrative Law Judge credited Curry’s testi-

mony (A. 6, 19). Curry testified that he had read the

posted notice and, when asked if he believed, it, he re-

plied that he “. . . had no reason to disbelieve it. . .”

(A. 80).

Essentially the Judge found that Rike did tell three

union supporters they would be discharged;* that while

he was talking in a friendly manner and on the basis of

*As noted below, the Board majority accepted the findings of vio-

lations as to only two employees — Curry and Thompson. They

rejected as unsupported the Judge’s finding of a violation as to

employee Waid, pointing out that there was no probative evidence

to support that finding.

his long union background and relationship with them,

he was found to have made the remarks, which violated

§8(a)(1) (A. 19). He also found the Dover's attorney had

met with approximately five employees and gave assur-

ances that threats were no “doing of the company” and that

“they had a right to organize and could not be inter-

fered with for trying to organize, could not be fired from

the company for this.” (A. 14). He nevertheless found an

8(a)(1) violation and recommended a remedial order.

The Board, with Chairman Miller dissenting, agreed

with the finding that the conversations between Rike, and

Curry and Thompson were violative of § 8(a)(1). The

Board rejected as unsupported the finding of an additional

similar incident with employee Waid. Chairman Miller

pointed to the notices and assurances and said he could

not infer that the employees would assume Rike was speak-

ing for the company or in a position to carry out the

threats he made, and would not hold the company re-

sponsible for the minor supervisor's remarks outside his

apparent authority (A. 40).

The Board majority found, however, that Rike’s au-

thority was such that it was not difficult to understand why

employees might well be apprehensive about arousing his

enmity and that the supposed attempt to counteract Rike’s

statements were “little more than some general bromides

by the Company’s counsel about the Company's good aims

and intentions.” (A. 41). The majority found a violation of

§ 8(a)(1) and a remedial order was entered.

I

The §8(a)(1) Violations

If made as the Judge found, we agree that the state-

ments by Supervisor Rike are coercive and threatening and

sufficient under the decisions in Serv-Air, Inc. v. NLRB,

395 F.2d 557, 565 (10th Cir.), cert. denied, 393 U.S. 840

—5lia—

and Betts Baking Co. v. NLRB, 380 F.2d 199, 201-02

(10th Cir.) to sustain a finding of § 8(a)(1)} violation. For

several reasons Dover argues that substantial evidence does

not support the Board's findings.

First, Dover says that the credibility findings made by

the Judge and sustained by the Board should be over-

turned, pointing to several circumstances undermining the

findings. We are not persuaded. Credibility findings are

peculiarly within the province of the hearing officer and

the Board and are ordinarily entitled to acceptance on

review. N.L.R.B. v. Wylie Mfg. Co., 417 F.2d 192, 194

(10th Cir.), cert. denied, 397 U.S. 913. Dover argues for

an exception to this rule, emphasizing that the Administra-

tive Law Judge should not have credited Thompson and

Curry as to occurrence of the threatening incidents since

the Judge did not credit their testimony as it pertained

to the unfair practices charged against the union (see n. 1,

supra). We disagree. The Judge could credit some testi-

mony of a witness although he disbelieved other testimony

from the same witness. See Wylie, supra, 417 F.2d at 194.

Dover also says that the credibility of Rike is strength

ened by the proof that he had previously received detailed

instructions on labor relations which taught him that super-

visors could not interfere with employees during union or-

ganizing campaigns (Brief for Dover Corp., 11-12). The

argument that it is improbable that a supervisor would

violate the orders of his superiors goes to the weight of his

testimony. See Wylie, supra, 417 F.2d at 194. It was for

the Judge and then the Board to weigh the testimony. Ac-

cordingly, we sustain the findings resolving the conflicts

in the prvof.

Second, Dover argues that there was insufficient evi-

dence that the employees considered Rike’s statements to

be authorized by top management or capable of being car-

ried out by Rike (Brief for Dover Corp., 13-20). Dover is

— 52a —

not arguing that Rike is not a statutory supervisor within

the meaning of § 2(11) of the Act, 29 USCA § 152(11),

which it admits.5 Rather, Dover says that Rike did not

have the authority to fire either Thompson or Curry and

that he had no direct supervision over their work so that

therefore there would be no reason for Thompson or Curry

to view any statement by Rike as threatening or intimi-

dating. Furthermore, Dover argues that any coercion or

intimidation caused by Rike’s statements was negated by

the oral assurances against reprisal given to several em-

ployees on July 13 and the written notice of July 20. These

were points made by Chairman Miller in dissent.

Deciding whether particular statements amount to

threats or coercion involves an exercise of judgment and is

a matter initially for the Board. In making that determina-

tion it is the peculiar province of the Board to draw per-

missible inferences from credible testimony. N.L.R.B. v.

Gold Spot Dairy, Inc., 417 F.2d 761, 762, (10th Cir.).

That a supervisor lacks the power to hire or fire does not

preclude the Board from finding unfair labor practices

attributable to the employer arising from the supervisor's

conduct. See NLRB v. Link-Belt Co., 311 U.S. 584, 599.

The employer is responsible for the acts of a supervisor

when employees would have just cause to believe that he

was acting for and on behalf of the company. Furr’s Inc. v.

NLRB, 381 F.2d 562, 566 (10th Cir.), cert. denied, 389

U.S. 840.

The Administrative Law Judge specifically found that

Rike had no supervisory authority over any of the company

employees other than three inspectors. Nonetheless, he

found the statements violative of § 8(a)(1). The Board

‘As noted earlier, Dover’s answer to the complaint issued by the

General Counsel admitted that Rike was a statutory supervisor

(A. 50-52).

—

found that Rike was not a minor supervisor and that he

did have some authority over the threatened employees

(A. 40). The Board noted that Curry testified that all

employee work required Rike’s “O.K.” and that Rike did

not disagree. The Board also noted that the inspectors

under Rike’s control could require employees to redo their

work. Thus the Board concluded that employees might well

be apprehensive about arousing Rike’s enmity.

On this basis the Board found that the statements

made by Rike were coercive and therefore violative of

§ 8(a)(1).6 We accept this conclusion by the Board as sup-

ported by credible and substantial proof on which the

Board could rely.

Dover argues further that any coercive effect of the

statements by Rike was offset by reassurances given to all

employees, either orally or through the posted notice. The

Board rejected these attempts to counteract the coercive

statements as mere “general bromides” by the company

about its aims and good intentions (A. 41).

We feel the characterization by the Board was not a

fair one in view of the extent of the company’s efforts and

their apparently reassuring effect on at least Thompson and

Curry. We are impressed by the fact that the oral assur-

ances given to several employees, whose names had been

furnished by the union, acknowledged reports of super-

visor coercion and gave assurances that remedial action

would be taken and that no reprisals or firing for union

activity would occur. These statements were more specific

than the general statements rejected as inadequate in other

*The Board also noted that Rike was never disciplined or rebuked

because of his statement (A. 41). We do not perceive the evi-

dence in the record which led the Board to make this observa-

tion, but this lack of support does not undermine the other find-

ings and conclusions.

— 54a —

cases.’ Nevertheless, the remarks by Rike found to have

been made were strong ones and it is for the Board to

assess the curative effect of the company’s remedial efforts.

Furr's Inc., supra, at 567. We cannot say its judgment was

“clear error” on the whole record.

Third, Dover argues that neither Thompson or Curry

were actually deterred or coerced in their union activities;

that both remain active union advocates; and that neither

has suffered any reprisal on account of his organizing ac-

tivities. We agree that the actual effect of the statements

on the employees is relevant, but it is not dispositive. See

Boeing Airplane Co. v. NLRB, 140 F.2d 423, 434 (10th

Cir.). “Statements in violation of the Act do not become

permissible because they fail to dissuade some of the em-

ployees from union adherence.” Wylie, supra, 417 F.2d

at 195.

Finally, Dover argues that the Board’s findings de-

part from a previous Board policy announced in Mor-

ganton Full Fashion Hosiery Co., 107 NLRB No. 312,

where the Board found that no remedy was necessary due _

to a few isolated threats by overzealous minor supervisory

personnel.

Morganton concerned alleged unfair practices in the

context of a challenge to a representation election and the

propriety of setting aside the election results. Dover argues

that the Board is more likely to find unfair practices in a

case involving an election challenge than in a case where

the only issue is whether unfair practices occurred, citing

Dal Tex Optical Co., 137 NLRB No. 189. Hence Dover

says that if isolated incidents were insufficient to amount

"See, e.g., Furr’s Inc., supra, 381 F.2d 567: see also NLRB v.

Gerbes Super Markets, Inc., 436 F.2d 19, 21 (8th Cir.); United

States Rubber Co. v. NLRB, 384 F.2d 660 (Sth Cir.); N.L.R.B. v.

Austin Powder Co., 350 F.2d 973, 976 (6th Cir.); A.P. Green Fire

_ Brick Co. v. NLRB, 326 F.2d 910 (8th Cir.).

— 55a —

to unfair practices in Morganton, the isolated instances

in the present case are clearly insufficient to amount to

unfair practices.

We need not go irto the nuances of the rules said

to apply in various situations. In the first place, we are not

persuaded that the Morganton decision of the Board estab-

lished any clear “rule” concerning orders being unnecessary

where isolated incidents or only a small number of im-

proper statements are involved. We are persuaded that the

determination concerning a remedial order turns on the

facts, under Board decisions and controlling court deci-

sions. The Board must decide whether the incidents found

to have occurred — few or many — amounted to unlawful

coercion. Since we cannot say the Board's findings and

its assessment of the need for an order were “clearly in

error,” we uphold the Board’s determinations. Gold Spot

Dairy, Inc., supra, 417 F.2d at 764; A. P. Green Fire Brick

Co. v. NLRB, 326 F.2d 910, 914 (8th Cir.).

Enforcement of the Board's order

Dover objects to enforcement of the Board's order

for several reasons.

First, Dover argues that the Board has failed to estab-

lish an ascertainable standard whereby an employer can

remedy unauthorized misconduct. The complaint of lack of

a hard and fast rule is not persuasive. As noted, for obvious

reasons the finding whether unlawful coercion occurred

and the terms of any remedial order must depend on the

particular factual setting, and the efficacy of notices and

assurances to remedy misconduct must likewise be judged

by the circumstances. See A. P. Green Fire Brick Co. v.

NLRB, supra, 326 F.2d at 914; NLRB v. Gerbes Super

Markets, Inc., supra, 436 F.2d at 21. We are reminded

that “. . . the relation of remedy to policy is peculiarly

a matter for administrative competence . . .” Phelps Dodge

Corp. v. NLRB, 313 U.S. 177, 194; see also Virginia

Electric & Power Co. v. NLRB, 319 U.S. 533, 540. We

cannot agree that the Board's findings and order are re-

pugnant to policies of the Act or unsupported by the

record.

Further, Dover contends that enforcement of the

order is no longer appropriate since the Board consented

to a representation election which has occurred, with certi-

fication of its results adverse to the union, and passage of

time. Dover says that since the Board waived the “blocking

effect” of an unfair labor practice charge, enforcement

would be meaningless. NLRB v. Raytheon Co., 398 US.

25, involved a similar situation and upheld the Board's

judgment that a remedial order was entered after an earlier

order setting aside an election and ordering the employer

to cease and desist from unlawful conduct. Occurrence of

an intervening election and its certification, showing com-

pliance during the latter election, did not render the cause

moot or make enforcement of the cease and desist provi-

sion improper. Id. at 27. We likewise sustain the Board's

determination here, despite the developments that are cited.

We have, however, examined the order in light of the

arguments made by Dover to determine whether any

modification is proper. See May Stores Co. v. NLRB, 326

U.S. 376, 392. In order that its provisions fairly take

account of the fact that the election and certification oc-

curred, a minor modification of the order is made as shown

in the margin. °

As modified, the order will be enforced.

‘Paragraph I(a) of the present order prohibits:

Coercively warning employees that if the Union was successful

in its organizational program a substantial number of union

adherents would be dismissed. (A. 42) Continued on next page

— 57a —

No. 74-1577 — NLRB v. DOVER CORPORATION,

NORRIS DIVISION

BARRETT, Circuit Judge, concurring:

I concur in light of the authorities supportive of the

opinion and the Board's apparent “well settled” rule that

interference, restraint and coercion under Section 8(a)(1)

of the Act does not turn on an employer's good faith, lack

of guilty scienter or motive.

I feel that the employer in the case at bar did every-

thing reasonably or practicably possible to avoid a Section

8(a)(1) violation. The Board's “well settled” test does, in

my judgment, impose an obligation on the employing com-

pany to insure or guaranice that none of its supervisory

personnel shall say or do anything threatening or coercive.

This rule does, in effect, impose the doctrine of strict

liability upon the employer, regardless of good faith efforts

which are evidenced in this record. There is nothing fair

about the application of such a rule leading to a finding

of an unfair labor practice.

Footnote 8 continued

The notice presently prescribed by the Board states:

WE WILL NOT coercively warn employees that if the Union is

successful in its organizational program a substantial number of

adherents of the Union will be dismissed. (A. 45)

Paragraph 1(a) is modified to prohibit:

Coercively warning employees that a substantial number of union

adherents would be dismissed depending on the outcome of a

Union organizational program.

Likewise, the language of the first paragraph of the notice is

modified to read:

WE WILL NOT coercively warn employees that a substantial

number of adherents of the Union will be dismissed depending

on the outcome of a Union organizational program.

APPENDIX C

APPENDIX C

FILED United States Court of Appeals Tenth Circuit,

JUN 4, 1976; HOWARD K. PHILLIPS, Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

v. No. 74-1577

DOVER CORPORATION —,

NORRIS DIVISION,

Respondent.

JUDGMENT

Before: HILL, HOLLOWAY and BARRETT, Circuit

Judges.

THIS CAUSE came on to be heard upon the applica-

The Court heard argument of respective counsel on May

and has considered the briefs and transcript of

filed in this cause. On April 12, 1976, the Court,

advised in

ORDERED AND ADJUDGED by the Court that the

Respondent, Dover, Corporation, Norris Division, Tulsa,

Oklahoma, its officers, agents, successors, and assigns,

shall:

1. Cease and desist from:

(a) Coercively warning employees that a substantial

number of union adherents would be dismissed depending

on the outcome of a Union Organiz4.ional program.

(b) Coercively warning employees that if they con-

tinue their union activity the Respondent possessed suf-

ficient grounds for discharging them.

(c) In any other like or related manner interfering

with, restraining, or coercing employees in the exercise of

the rights guaranteed them in Section 7 of the National

Labor Relations Act.

2. Take the following affirmative action:

(a) Post at its plant at 400 South Rockford Street

in Tulsa, Oklahoma, copies of the attached notice marked

“Appendix.” Copies of said notice, on forms provided by

the Regional Director for Region 16, (Fort Worth, Texas)

of the National Labor Relations Board after being duly

signed by an authorized representative, shall be posted by

Respondent immediately upon receipt thereof, and be

maintained by it for 60 consecutive days thereafter, in con-

spicuous places, including all places where notices to em-

ployees are customarily posted. Reasonable steps shall be

taken by Respondent to insure that said notices are not

altered, defaced, or covered by any other material.

(b) Notify the aforesaid Regional Director in writ-

ing, within 20 days from the date of this Judgment, what

steps the Respondent Company has taken to comply here-

with.

vs William J. Holloway, Jr.

Judge, United States Court of

Appeals for the Tenth Circuit

DATED: June 2, 1976

A true copy

Teste

Howard K. Phillips

Clerk, U. S. Court of

Appeals, Tenth Circuit

By

sis Linda A. Hall

Deputy Clerk

— 61a —

APPENDIX

NOTICE TO EMPLOYEES

POSTED PURSUANT TO A JUDGMENT OF THE

UNITED STATES COURT OF APPEALS

ENFORCING AN ORDER, AS MODIFIED,

OF THE NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

WE WILL NOT coercively warn employees that a

substantial number of adherents of the Union will be dis-

missed depending on the outcome of a Union organi-

zational program.

WE WILL NOT coercively warn employees that if

they continue their activity in behalf of the Union we have

sufficient grounds for discharging them.

WE WILL NOT in any like or related manner inter-

fere with, restrain, or coerce employees in the exercise of

the rights guaranteed them by Section 7 of the National

Labor Relations Act, as amended.

DOVER CORPORATION,

NORRIS DIVISION

(Employer)

(Representative) (Title)

This is an official notice and must not be defaced

by anyone.

This notice must remain posted for 60 consecutive

days from the date of posting -and must not be altered,

defaced, or covered by any other material.

Any questions concerning this notice or compliance

with its provisions may be directed to the Board's Office,

Federal Office Building, Room 8A24, 819 Taylor Street,

Fort Worth, Texas 76102, Telephone 817-334-2921.

Dated ____ By

APPENDIX D

APPENDIX D

order

Supreme

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APPENDIX E

— 65a —

APPENDIX E

SUBCHAPTER II — NATIONAL

LABOR RELATIONS

§ 152. Definitions

(2) The term “employer” includes any person acting

as an agent of an employer, directly or indirectly, but shall

not include the United States or any wholly owned Govern-

ment corporation, or any Federal Reserve Bank, or any

State or political subdivision thereof, or any person subject

to the Railway Labor Act, as amended from time to time,

or any labor organization (other than when acting as an

employer), Or anyone acting in the capacity of officer or

agent of such labor organization.

(13) In determining whether any person is acting as

an “agent” of another person so as to make such other

person responsible for his acts, the question of whether the

specific acts performed were actually authorized or sub-

sequently ratified shall not be controlling. July 5, 1935,

c. 372, § 2, 49 Stat. 450; June 23, 1947, c. 120, Title I,

§ 101. 61 Stat. 137.

§ 160. Prevention of unfair labor practices — Powers

of Board generally

(a) The Board is empowered, as hereinafter provided,

to prevent any person from engaging in any unfair labor

practice (listed in section 158 of this title) affecting com-

merce. This power shall not be affected by any other

means of adjustment or prevention that has been or may be

established by agreement, law, or otherwise: Provided,

That the Board is empowered by agreement with any

agency of any State or Territory to cede to such agency

jurisdiction over any cases in any industry (other than

mining, manufacturing, communications, and transporta-

tion except where predominantly local in character) even

though some cases may involve labor disputes affecting

commerce, unless the provision of the State or Territorial

— 66a —

statute applicable to the determination of such cases by

such agency is inconsistent with the corresponding provi-

sion of this subchapter or has received a construction in-

consistent therewith.

(b) Whenever it is charged that any person has en-

gaged in or is engaging in any such unfair labor practice,

the Board, or any agent or agency designated by the Board

for such purposes, shall have power to issue and cause

to be served upon such person a complaint stating the

charges in that respect, and containing a notice of hearing

before the Board or a member thereof, or before a desig-

nated agent or agency, at a place therein fixed, not less

than five days after the serving of said complaint. Pro-

vided, That no complaint shall issue based upon any unfair

labor practice occurring more than six months prior to the

filing of the charge with the Board and the service of a

copy thereof upon the person against whom such charge

is made, unless the person aggrieved thereby was pre-

vented from filing such charge by reason of service in the

armed forces, in which event the six-month period shall be

computed from the day of his discharge. Any such com-

plaint may be amended by the member, agent, or agency

conducting the hearing or the Board in its discretion at any

time prior to the issuance of an order based thereon. The

person so complained of shall have the right to file an

answer to the original or amended complaint and to appear

in person or otherwise and give testimony at the place

and time fixed in the complaint. In the discretion of the

member, agent, or agency conducting the hearing or the

Board, any other person may be allowed to intervene in

the said proceeding and to present testimony. Any such

proceeding shall, so far as practicable, be conducted in

accordance with the rules of evidence applicable in the

district courts of the United States under the rules of

civil procedure for the district courts of the United States,

— 67a —

adopted by the Supreme Court of the United States pur-

suant to section 2072 of Title 28.

(c) The testimony taken by such member, agent, or

agency or the Board shall be reduced to writing and filed

with the Board. Thereafter, in its discretion, the Board

upon notice may take further testimony or hear argument.

If upon the preponderance of the testimony taken the

Board shall be of the opinion that any person named in the

complaint has engaged in or is engaging in any such unfair

labor practice, then the Board shall state its findings of fact

and shall issue and cause to be served on such person an

order requiring such person to cease and desist from such

unfair labor practice, and to take such affirmative action

including reinstatement of employees with or without back

pay, as will effectuate the policies of this subchapter: Pro-

vided, That where an order directs reinstatement of an

employee, back pay may be required of the employer or

labor organization, as the case may be, responsible for the

discrimination suffered by him: And provided further; That

in determining whether a complaint shall issue alleging a

violation of subsection (a) (1) or (a) (2) of section 158

of this title, and in deciding such cases, the same regula-

tions and rules of decision shall apply irrespective of

whether or not the labor organization affected is affiliated

with a labor organization national or international in

scope. Such order may further require such person to make

reports from time to time showing the extent to which it

has complied with the order. If upon the preponderance

of the testimony taken the Board shall not be of the

opinion that the person named in the complaint has en-

gaged in or is engaging in any such unfair labor prac-

tice, then the Board shall state its findings of fact and shall

issue an order dismissing the said complaint. No order of

the Board shall require the reinstatement of any individual

as an employee who has been suspended or discharged,

— 68a —

or the payment to him of any back pay, if such individual

was suspended or discharged for cause. In case the evi-

dence is presented before a member of the Board, or before

an examiner or examiners thereof, such member, or such

examiner or examiners as the case may be, shall issue and

cause to be served on the parties to the proceeding a pro-

posed report, together with a recommended order, which

shall be filed with the Board, and if no exceptions are filed

within twenty days after service thereof upon such parties,

or within such further period as the Board may authorize,

such recommended order shall become the order of the

Board and become effective as therein prescribed.

(d) Until the record in a case shall have been filed in

a court, as hereinafter provided, the Board may at any time

upon reasonable notice and in such manner as it shall

deem proper, modify or set aside, in whole or in part,

any finding or order made or issued by it.

(e) The Board shall have power to petition any court of

appeals of the United States, or if all the courts of appeals

to which application may be made are in vacation, any

district court of the United States, within any circuit or

district, respectively, wherein the unfair labor practice in

question occurred or wherein such person resides or trans-

acts business, for the enforcement of such order and for

appropriate temporary relief or restraining order, and shall

file in the court the record in the proceedings, as provided

in section 2112 of Title 28. Upon the filing of such peti-

tion, the court shall cause notice thereof to be served upon

such person, and thereupon shall have jurisdiction of the

proceeding and of the question determined therein, and

shall have power to grant such temporary relief or re-

straining order as it deems just and proper, and to make

and enter a decree enforcing, modifying, and enforcing as

so modified, or setting aside in whole or in part the order

of the Board. No objection that has not been urged be-

— 69a —

fore the Board, its member, agent, or agency, shall be

considered by the court, unless the failure or neglect to

urge such objection shall be excused because of extra-

ordinary circumstances. The findings of the Board with

respect to questions of fact if supported by substantial

evidence on the record considered as a whole shall be con-

clusive. If either party shall apply to the court for leave

to adduce additional evidence and shall show to the satis-

faction of the court that such additional evidence is

material and that there were reasonable grounds for the

failure to adduce such evidence in the hearing before the

Board, its member, agent, or agency, the court may order

such additional evidence to be taken before the Board, its

member, agency, or agency, and to be made a part of the

record. The Board may modify its findings as to the facts,

or make new findings by reason of additional evidence so

taken and filed, and it shall file such modified or new

findings, which findings with respect to questions of fact

if supported by substantial evidence on the record con-

sidered as a whole shall be conclusive, and shall file its

recommendations, if any, for the modification or setting

aside of its original order. Upon the filing of the record

with it the jurisdiction of the court shall be exclusive and

its judgment and decree shall be final, except that the

same shall be subject to review by the appropriate United

States court of appeals if application was made to the

district court as hereinabove provided, and by the Supreme

Court of the United States upon writ of certiorari or

certification as provided in section 1254 of Title 28.

(f) Any person aggrieved by a final order of the Board

granting or denying in whole or in part the relief sought

may obtain a review of such order in any United States

court of appeals in the circuit wherein the unfair labor

practice in question was alleged to have been engaged in

— 70a —

or wherein such person resides or transacts business, or in

the United States Court of Appeals for the District of

Columbia, by filing in such a court a written petition pray-

ing that the order of the Board be modified or set aside.

A copy of such petition shall be forthwith transmitted by

the clerk of the court to the Board, and thereupon the

aggrieved party shall file in the court the record in the

proceeding, certified by the Board, as provided in section

2112 of Title 28. Upon the filing of such petition, the court

shall proceed in the same manner as in the case of an

application by the Board under subsection (e) of this sec-

tion, and shall have the same jurisdiction to grant to the

Board such temporary relief or restraining order as it

deems just and proper, and in like manner to make and

enter a decree enforcing, modifying, and enforcing as so

modified, or setting aside in whole or in part the order of

the Board; the findings of the Board with respect to ques-

tions of fact if supported by substantial evidence on the

record considered as a whole shall in like manner be con-

clusive.

(g) The commencement of proceedings under subsection

(e) or (f) of this section shall not, unless specifically or-

dered by the court, operate as a stay of the Board’s order.

(h) When granting appropriate temporary relief or a

restraining order, or making and entering a decree en-

forcing, modifying, and enforcing as so modified, or setting

aside in whole or in part an order of the Board, as pro-

vided in this section, the jurisdiction of courts sitting in

equity shall not be limited by sections 101 to 115 of

this title.

(i) Petitions filed under this subchapter shall be heard

expeditiously, and if possible within ten days after they

have been docketed.

(j) The Board shall have power, upon issuance of a com-

plaint as provided in subsection (b) of this section charging

—7ia—

that any person has engaged in or is engaging in an unfair

labor practice, to petition any United States district court,

within any district wherein the unfair labor practice in

question is alleged to have occurred or wherein such person

resides or transacts business, for appropriate temporary

relief or restraining order. Upon the filing of any such

petition the court shall cause notice thereof to be served

upon such person, and thereupon shall have jurisdiction

to grant to the Board such temporary relief or restraining

order as it deems just and proper.

(k) Whenever it is charged that any person has engaged

in an unfair labor practice within the meaning of para-

graph (4) (D) of section 158(b) of this title, the Board is

empowered and directed to hear and determine the dispute

out of which such unfair labor practice shall have arisen,

unless, within ten days after notice that such charge has

been filed, the parties to such dispute submit to the Board

satisfactory evidence that they have adjusted, or agreed

upon methods for the voluntary adjustment of, the dispute.

Upon compliance by the parties to the dispute with the

decision of the Board or upon such voluntary adjustment of

the dispute, such charge shall be dismissed.

(1) Whenever it is charged that any person has engaged

in an unfair labor practice within the meaning of para-

graph (4) (A), (B), or (C) or section 158(b) of this title, or

section 158(e) of this title or section 158(b) (7) of this

title, the preliminary investigation of such charge shall be

made forthwith and given priority over all other cases ex-

cept cases of like character in the office where it is filed or

to which it is referred. If, after such investigation, the

officer or regional attorney to whom the matter may be

referred has reasonable cause to believe such charge is

true and that a complaint should issue, he shall, on behalf of

the Board, petition any United States district court within

— 72a —

. any district where the unfair labor practice in question

has occurred, is alleged to have occurred, or wherein such

person resides or transacts business, for appropriate in-

junctive relief pending the final adjudication of the Board

with respect to such matter. Upon the filing of any such

petition the district court shall have jurisdiction to grant

such injunctive relief or temporary restraining order as it

deems just and proper, notwithstanding any other provi-

sion of law: Provided further, That no temporary restrain-

ing order shall be issued without notice unless a petition

alleges that substantial and irreparable injury to the

charging party will be unavoidable and such temporary

restraining order shall be effective for no longer than five

days and will become void at the expiration of such period:

Provided further, That such officer or regional attorney

shall not apply for any restraining order under section

158(b) (7) of this title if a charge against the employer

under section 158(a) (2) of this title has been filed and

after the preliminary investigation, he has reasonable cause

to believe that such charge is true and that a complaint

should issue. Upon filing of any such petition the courts

shall cause notice thereof to be served upon any person

involved in the charge and such person, including the

charging party, shall be given an opportunity to appear

by counsel and present any relevant testimony: Provided

further, That for the purposes of this subsection district

courts shall be deemed to have jurisdiction of a labor organ-

ization (1) in the district in which such organization main-

tains its principal office, or (2) in any district in which its

duly authorized officers or agents are engaged in promot-

ing or protecting the interests of employee members. The

service of legal process upon such officer or agent shall

constitute service upon the labor organization and make

such organization a party to the suit. In situations where

such relief is appropriate the procedure specified herein

— 73a —

shall apply to charges with respect to section 158(b) (4)

(D) of this title.

(m) Whenever it is charged that any person has engaged

in an unfair labor practice within the meaning of sub-

section (a) (3) or (b) (2) of section 158 of this title, such

charge shall be given priority over all other cases except

cases of like character in the office where it is filed or

to which it is referred and cases given priority under sub-

section (/).of this section.

Supreme Court of the District of Columbia was

changed to “District Court of the United States for the Dis-

trict of Columbia” by Act June 25, 1936.

Court of Appeals of the District of Columbia was

changed to United States Court of Appeals for the District

of Columbia by Act June 7, 1934, c. 426, 48 Stat. 926.

Effective Date of 1959 Amendment. Amendment of

section by Pub.L. 86—257 effective sixty days after Sept.

14, 1959, see section 707 of Pub.L. 86—257, set out as a

note under section 153 of this title.

Effective Date of 1947 Amendment Effective date of

Act June 23, 1947, see note set out under section 151 of

this title.

Communist Organizations, and Members. Prohibi-

tions placed on Communist organizations, and members

thereof, with respect to labor, see chapter 23 of Title

50, War and National Defense, particularly sections

782(4A), 784, 792a and 841 to 844 of that title.

Legislative History. For legislative history and pur-

pose of Act June 23, 1947, see 1947 U.S.Code Cong.Serv-

ice, p. 1135. See, also, Act May 24, 1949, 1949 U.S.Code

Cong.Service, p. 1248; Pub.L. 85-791, 1958 U.S.Code

Cong. and Adm.News, p. 3996; Pub.L. 86-257, 1959

U.S.Code Cong. and Adm.News, p. 2318.

— 74a —

Cross References

Actions by and against labor organizations, see section

185 of this title.

Rules and regulations of the National Labor Relations

Board, see Appendix of this title.

Strikes subject to injunction, see section 178 of this title.

Time for application for writ of certiorari, see section 2101

of Title 28, Judiciary and Judicial Procedure.

Federal Rules of Civil Procedure

Application of rules, see rule 81, Title 28, Judiciary and

Judicial Procedure.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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