Petition — Dover Corp. v. National Labor Relations Board
Supreme Court brief1976
Ask Donna
What actually matters in this document.
Text
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
- mw
record,
the service
Ps
t
Hoy fia lass
i vl s $3 = 3
Om ee Hl
bah a al ie tlie
aH i fing all, iid it
yt Ae ak ae
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.