Opposition — National Labor Relations Board v. Alpers' Jobbing Co.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No. 77-70

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

VS.

ALPERS’ JOBBING COMPANY, INC.,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI

LEWIS C. GREEN

RICHARD D. LAGESON

GREEN, HENNINGS & HENRY

314 North Broadway, Room 1830

St. Louis, Missouri 63102

314-231-4181

Attorneys for Respondent

Of Counsel

JULIUS H. BER™

7777 Bonhotiime, Suite 2222

Clayton, Missouri 63105

314-721-2222

St. Louis Law Printing Co.. Inc., 812 Olive Street 6310) 314-231-4477

a al

INDEX

ccc cee s eet eesesecserreres

Question Presented .........--- 520s e cere eres

ec cer ec ccsceeeescceressoenes

A. Proceedings Below ........----- 5555 errr

1. The Election Proceeding ......----+--+-05>

2. The Unfair Labor Practice Proceeding ........

B. Circumstances of the Election .......-...---

Reasons for Denying the Writ ....-.--- ++ sss ere

1.

This Court Lacks Jurisdiction .....-...------>:

>. The “Question Presented” by the Petition Is Not Pre-

sented by This Record ....-.---+- sss oss ereee

3. Petitioner Is Asking This Court to Review the Evi-

dence and Find the Facts, on Review of a Sum-

mary Judgment .......-------- esse errr?

4. The Case Depends on Its Unique Facts, and Pre-

sents No Important Question of Federal Law Which

Needs to Be Settled by This Court .........-----

es cuca cer cccsesesssesessceseeses

Appendix 1: Letter dated February 2, 1977 from Clerk,

U.S. Ct. of Appeals for Eighth Circuit, to

counsel for National Labor Relations Board

Appendix 2: Order of U.S. Ct. of Appeals for Eighth Cir-

cuit, dated February 18, 1977, directing

Clerk to file untimely petition for rehearing

15

18

20

A-3

“*

CITATIONS

Cases:

Allegrucci v. Uniteu States, 372 U.S. 954 (1963) .... 4

Alson Mfg. Aerospace Div. of Alson Industries, Inc. v.

N.L.R.B., 523 F. 2d 470, 472 (9th Cir. 1975) .... 20

Argus Optics v. N.L.R.B., 515 F. 2d 939 (6th Cir.

DP cc¥-0s chiwdeoes Chdsnas obedient eek 20

Bowman v. Loperena, 311 U.S. 262, 266 (1940) .... 6

Conboy v. First National Bank of Jersey City, 203

a BRR rrr rr ore pee eee 7

Department of Banking v. Pink, 317 U.S. 264, 268

Oe er tt es 2, 6

Excelsior Laundry v. N.L.R.B., 409 F. 2a 1/0, 72 (10th

CEE Sveccusukiviwelbeceeee Tau 20

Fibre Leather Mfg. Corp., 167 N.L.R.B. 393

III as wtih ahaa oe a alr eee ra ee 21, 22, 23

FPC vy. Idaho Power Co., 344 U.S. 17, 20-21, and note 1

(1952)

FTC v. Minneapolis-Honeywell Regulator Co., 344

U.S. 206, 211-212 (1952)

General Shoe Corp, 77 N.L.R.B. 124, 126-127 (1948) 16

Henderson Tr uli Supply Corp. v. N.L.R.B., 501 F.

2d 1224, 1230 (2d Cir., 1974) ................ 20

Isenberg v. Sherman, 286 U.S. 547 (1932) .......... 4

Johnson City Foundry & Machine Works, Inc.. 71

PE Ge GOED |) Sooke es dea viavueieee 22

LaCrescent Constant Care Center, Inc. v. N.L.R.B., 510

F. 2d 1319, 1324 (8th Cir. 1975) ..........----

Marriott In-Flite Services Division of Marriott Corp. v.

N.L.R.B., 417 F. 2d 563 (Sth Cir. 1969) , cert. de-

nied, 397 U.S. 920 (1970) .........---5455 21, 22,

McFarling Bros. Mid-State Poultry & Egg Co., 123

im. My oF, | errr rere Terres 22,

Morgan v. United States, 304 U.S. 1, 14-15 (1938) .

Necco Sales Corp., 119 N.L.R.B. 155 (1957) .....-.

N.L.R.B. v. Bata Shoe Co., 377 F. 2d 821 (4th Cir.

1967), cert. denied, 389 U.S. 917 ............---

N.L.R.B. v. Decoto Aircraft, Inc., 512 F. 2d 758 (9th

Cir. 1975), cert. denied, 423 U.S. 836 ..........

N.L.R.B. v. Griffith Oldsmobile, Inc., 455 F. 2d 867

Prem rr rs her ee

N.L.R.B. v. Janler Plastic Mold Corp., 82 LRRM 2174,

rib, Sahu, .* Ads) See 16,

N.L.R.B. v. Mr. Fine, Inc., 516 F. 2d 60, 63 (Sth Cir.

EP ee ere ee rT PT ET ee. ye ee

N.L.R.B. v. Payless Cashway Lumber Store, 508 F.2d

BA (Othe Cle. 1994) 5 occ ccc ccc ccc ee ccee nsec

N.L.R.B. v. Savair Mfg. Co., 414 U.S. 270, 276 (1973)

N.L.R.B. v. Smith Industries, Inc., 403 F. 2d 889, 893

CUE GD o o.0 545660 690040 ob beens és +s

N.L.R.B. v. Southern Paper Box Co., 473 F. 2d 208, 211

Ce . , Sree rene eerie

N.L.R.B. v. Staiman Bros., 466 F. 2d 564, 567 (3d Cir.

errr errr res Pre er co Ter 19,

N.L.R.B. v. Titche-Goettinger Co., 433 F. 2d 1045,

7“ E, Ve SS .. eeerrer rrr creer

iV

N.L.R.B. v. Tower Co., 329 U.S 324, 330 (1946) .. 15

N.L.R.B. v. White Knight Mfg. Co., 474 F. 2d 1064,

I Cen i eee ek 24

Palm Container Corp., 117 N.L.R.B. 434, 436 (1957) 24

Papanikolaou v. Atlantic Freighters, Ltd., 232 F. 2d 663, .

666-668 (4th Cir., 1956), cert. denied, 352 U.S. 828 6

Pfister v. Northern Illinois Finance Corp., 317 U.S. 144,

EN eet cee Mare an beeen beta ckevense 4,5.6

T & G Manufacturing, Inc., 173 N.L.R.B. 1503, 1504

a a rk ir he i er ht i at 22

Teamsters Local Union 679, etc. v. N.L.R.B., 532 F.2d

Ss ED wns oecanwecdceunce 17

Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399,

I eee. sieht Soe nt 2

V. LaRosa & Sons, Inc., 121 N.L.R.B. 671 (1958) .. 22

Wayne United Gas Co. v. Owens-illinois Glass Co., 300

SR ey MD 6 ai Safeco at bx aks bb cas 6

Other Authorities:

ree eee ee |

ee es EE Oo cic escee spaive tice ties |

Se: ec en eign 9,10

Rule 40(a), Federal Rules of Appellate Procedure .... 3,5

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No. 77-70

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

VS.

ALPERS’ JOBBING COMPANY, INC.,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI

JURISDICTION

Petitioner seeks to invoke this Court's certiorari jurisdiction

under 28 U.S.C. 1254(1). However, this Court lacks jurisdic-

tion, because the petition for certiorari was not filed within ninety

(90) days after the entry of the judgment, or even within the

maximum 150-day period which may be authorized for good

cause under 28 U.S.C. 2101 (c).

The petition correctly states (p. 1) that the judgment of the

court of appeals was entered on December 30, 1976. Accord-

te

ingly, the time to file a petition for certiorari expired on March

30, 1977; since the petition was not filed until July 12, ap-

proximately 342 months later, it w«s filed out of time, and

“must . . . be denied for want of jurisdiction.” Department of

Banking v. Pink, 317 U.S. 264, 268 (1942). See Toledo Scale

Co. v. Computing Scale Co., 261 U.S. 399, 418 (1923). -

| It is true, as the petition implies ¢p. 1), that a timely peti-

tion for rehearing, filed in the court below, would have sus-

pended the running of the 90-day period. However, contrary

to the assertion in the petition (p 1), no timely petition for

rehearing was filed.

The rele ant chronology of events is as follows:

1976

12 30 Judgment entered.

1977

1 13 Time for filing petition for rehearing expired.

114 Time for filing petition for rehearing purportedly

extended to »a.\uary 27.

1/27 Time for filing petition for rehearing (pursuant to

purported extension of January 14) expired.

| 31 Petition for rehearing received by clerk of court of

appeals for the sixth circuit, who forwarded it to

clerk of court below (App. 1, p. A-1, infra).’

_ | Matters set forth in the appendix to this brief m opposition ar

cited herein as “App. ..."; matters set forth in the es to the

petition for certiorari are cited as “Pet. App. ...”; matters set forth

in the appendix to petitioner's brief in the United States Court of

Appeals for the Eighth Circuit (which apparently has been filed with

this Court) will be cited as “R. ...” :

petition for certiorari. --y following the form used in the

i)

tu

Petition for rehearing received by clerk of court

below: clerk “decline[s] to file the untimely petition

for rehearing” (App. 1, p. Al, infra).

2 18 Order of court of appeals “that the Clerk of this

Court is directed to file the untimely petition for

rehearing” (App. 2, p. A3, infra).

3 15 Petition for rehearing en banc, also considered as

a petition for rehearing, denied (Pet. App. 29).

3 30 Time for filing a_petition for a writ of certiorari

expired.

6 6 Order signed by Mr. Justice Blackmun, purport-

edly extending time to file petition for writ of cer-

tiorari to July 13.

7 12. Petition for writ of certiorari filed.

It is apparent from the above chronology that the petition for

rehearing was not timely filed. It was not lodged with the

clerk of the court below until February 2, six days after expira-

tion of the (previonsly extended) time for filing a petition for

rehearing,” and was not even lodged with the clerk of the wrong

(Sixth Circuit) court until January 31, four days late. It was

not in fact filed until the court below ordered the clerk to file

it on February 18, 21 days after expiration of the allowed time.

In a motion for leave to file the petition for rehearing, petitioner

requested leave to file the petition “out of time.” The court's

order of February 18, directing that it be filed, described the

petition as an “untimely petition” (App. 2, p. A3, infra). The

petition cannot properly be described as a “timely petition for

rehearing.”

2 It would appear that the purported extension of time to January

27, ordered on January 14, was a nullity, because the time to file had

previously expired on January 13. FRAP 40(a). However, because

the petition was not filed within the time as purportedly extended,

that point need not be developed here.

Any suggestion that this petition for certiorari is nevertheless

timely, on the theory that the running of the 90-day period was

suspended by the filing of the untimely petition for rehearing

below, would be devoid of merit.

“[W]here out of time petitions for rehearing are filed and

the referee or court merely considers whether the petition

sets out, and the facts—if any are offered—support grounds

for opening the original order and determines that no

grounds for a re-examination of the original order are

shown, the hearing upon or examination of the grounds

for allowing a rehearing does not enlarge the time for re-

view of the original order.” Pfister v. Northern Illinois

Finance Corp., 317 U.S. 144, 150 (1942).

Cf. FTC v. Minneapolis-Honeywell Regulator Co., 344 US.

206, 211-212 (1952); Isenberg v. Sherman, 286 U.S. 547

(1932) (untimely petition to recall remittitur, argued, briefed

and denied, did not extend time for petition for certiorari).

The order of February 18, directing the clerk of the court of

appeals to file the untimely petition for rehearirg, does not sus-

pend the running of the 90-day period for certiorari. Cf. Alle-

grucci v. United States, 372 U.S. 954 (1963) (time for cer-

tiorari not suspended by entertaining of untimely petition for

rehearing and denial “after due consideration”). If the petition

for rehearing is not timely, the running of the Statutory period

will be suspended only if the court in fact re-examines the basis

of the original order. See Pfister, supra: “When such a [un-

timely] petition for rehearing is granted and the issues of the

original order are reexamined and an order is entered, either

denying or allowing a change in the original order, the time for

review . . . begins to run from that entry.” 317 U.S. at 149.

The mere denial of a motion to dismiss the petition for rehearing

as Out of time, or granting of a motion permitting the filing of the

petition for rehearing, is not sufficient to suspend the running of

the time for review. 317 U.S. at 151.

aa, eee

In this case there clearly was no such re-examination of the

basis of the original order. In order to determine whether or

not there was such a re-examination, one must inspect the order

denying the rehearing. “It | the order] would show either a re-

fusal to allow the petition for rehearing or a refusal to modify

the original order.” 317 U.S. at 150-151. In this case, the

order denying rehearing (Pet. App. 29) shows simply a refusal

to allow the petition for rehearing.

While the terms of the order itself are controlling, under

Pfister, it is noteworthy that the circumstances support this in-

terpretation of the order denying rehearing. Rule 40(a),

FRAP, provides in part: “No answer to a petition for rehearing

will be received unless requested by the court, but a petition

for rehearing will ordinarily not be granted in the absence of

such a request. If a petition for rehearing is granted, the court

may make a final disposition of the cause without re-arguiment

or may restore it to the calendar for re-argument or resubmis-

sion or make such other orders as are deemed appropriate under

the circumstances of the particular case.” Respondent was

never requested, or even given an opportunity, to file an answer

to the petition for rehearing. It is inconceivable that the Eighth

Circuit would have in fact re-examined the basis of the original

order, and made a new final determination of the merits of the

case, without permitting counsel for respondent to file some

form of answer to the petition for rehearing.

rT urther, it should be recalled that Rule 40(a), FRAP, re-

quires that the petition for rehearing “shall state with particu-

larity the points of law or fact which in the opinion of the peti-

tioner the court has overlooked or misapprehended .. .” Yet

the petition for rehearing merely re-argued the merits, without

stating any point of law or fact which the court of appeals

allegedly overlooked or misapprehended. It is small wonder

that the petition was simply denied, without more.

These circumstances reaffirm the conclusion that the court

of appeals did no more than “examine . . . the petition for

pon

rehearing and determine.. . . that [petitioner] had had full

Opportunity to present [its arguments]” and therefore denied

the petition. Pfister, supra, 317 U.S. at 151.

It follows that the court below “did not re-examine the basis

of . . . the original order . . . and that time for filing: the

petition . . . [for certiorari] was not extended.” 317 U/S. at

151. Compare the analysis of this problem in Papanikolaou v.

Atlantic Freighters, Ltd., 232 F. 2d 663, 666-668 (4th Cir.,

1956), cert. denied, 352 U.S. 828.

In this respect the case is quite different from Wayne United

Gas Co. v. Owens-Illinois Glass Co., 300 U.S. 131, 138 (1937),

in which case, on supplemental petition for rehearing, the

merits were fully re-examined, and the court made findings

and announced conclusions of law with respect thereto. By

the same token, the case is quite different from Bowman vy.

Loperena, 311 U.S. 262, 266 (1940), in which the court

entertained an untimely petition for rehearing of the denial of

a petition for review of a bankruptcy order, conducted a hear-

ing thereon, and issued an order reciting that it had conducted

a hearing on the merits, and denying the basic petition for

review of the bankruptcy order. This fact also distinguishes

FPC v. Idaho Power Co., 344 U.S. 17, 20-21, and note 1

(1952), in which the court of appeals re-examined the merits

and entered a new and different judgment; this Court noted

that, “If the court did no more by the second judgment than

to restate what it had decided by the first one, Department of

Banking v. Pink, 317 U.S. 264, would apply and the 90 days

would start to run from the first judgment.”

Nor can it be seriously suggested that the order of Mr. Jus-

tice Blackmun on June 6, purportedly extending the time to

file a petition for certiorari to July 13, resuscitated this litiga-

tion. The order was entered more than two months after the

time for filing a petition for certiorari had expired, and this

.

—

Court at that time lacked jurisdiction to entertain a petition

for certiorari, much less to extend the time for filing one. Cf.

Conboy v. First National Bank of Jersey City, 203 U.S. 141,

145 (1906).

QUESTION PRESENTED

The question purportedly presented by the petition for cer-

tiorari (p. 2) is not presented by this record, as will be shown

below.

STATEMENT

The statement in the petition (pp. 3-8) does not adequately

present the facts. They will be restated below.

A. Proceedings Below

Although this case came to the court of appeals on the em-

ployer’s petition to review an order of the National Labor Re-

lations Board, directing the employer to bargain collectively

with the union, the issue presented arises out of the underly-

ing election proceeding.

1. The Election Proceeding

Alpers’ Jobbing Company (respondent here) is a shoe ware-

housing company in St. Louis, Missouri, with approximately

15 employees as of April, 1975 (R. 46; Pet. App. 45). On

February 25, 1975, Teamsters Local Union No. 688 filed a

petition for election at Alpers’ (R. 1). A consent election was

conducted on April 4, 1975, at which three voters were chal-

lenged by the union (R. 8). The tally on the election day

showed six votes for the union, three votes against the union,

one void ballot, and three challenged ballots (R. 8).

Affidavits of the three challenged employees were taken to

determine their eligibility to vote (R. 2-7). They were sub-

sequently determined eligible (R. 12), and their ballots were

opened. lwo of their ballots were counted against the union,

and one for the union, resulting in a final tally of seven votes

for the union and five against (R. 14).

The employer filed timely objections to the conduct of the

election, pointing out the facts set forth below, upon the

grounds indicated below (R. 15). Simultaneously, the em-

ployer filed affidavits of Irvin Alper, the president of the com-

pany, and Sharon Sacus, an employee, and granddaughter of

one of the three challenged voters (R. 19, 26). The Board's

Field Examiner thereupon took affidavits of the three challenged

employees (R. 29-38). The three employees in question,

being dissatisfied with the refusal of the Board’s Field Exami-

ner to include in their statements the facts which they wanted

to present, and especially the facts that they wanted to vote

against the union, and did the best that they could to vote

against the union, and felt strongly that they wanted their

votes counted against the union, submitted further affidavits

(R. 39-44).

The Regional Director recommended that the employer's

objections to the conduct of the election be overruled (R. 45:

Pet. App. 43). The employer filed timely exceptions to the

Regional Director’s Report and Recommendations presenting

the arguments indicated below, and pointing out that the

Regional Director’s Report did not even purport to apply the

applicable rule of law (R. 52-61).

The Board thereupon, without conducting a hearing, on

August 4, 1975, upheld the Regional Director's Report, with-

out discussion of the issues, and certified the union as the col-

lective bargaining representative (R. 62-64: Pet. App. 52-54).

er eo

2. The Unfair Labor Practice Proceeding.

On or about August 27, 1975, the employer told the union

that the employer believed that the certification was invalid,

and that the employer was very much dissatisfied with that

certification, and with the failure of the National Labor Re-

lations Board even to hold a hearing, or to acknowledge the

employer's brief before the Board or the cases cited in the brief,

or to give any weight to the desires of the employees, and that

the employer would like the union to cooperate in accelerating

an appropriate proceeding to obtain judicial review of the

certifications. Following further communications between the

union and the employer, the employer respectfully declined

to meet with the union, and to recognize the union as the ex-

clusive bargaining agent for the employees, in order to estab-

lish a procedure by which to obtain judicial review of the

certification (R. 72).

On September 19, 1975, the Union filed a charge under § 8 (a)

(5) of the National Labor Relations Act, 29 U.S.C., § 151

et seq., charging that the employer had refused to bargain in

good faith (R. 65). A complaint was promptly issued on Sep-

tember 29, 1975, alleging a refusal to bargain in violation of

§ 8(a(S5)(R. 66-69).

The employer filed an answer admitting the above details,

and alleging the matters set forth below, and alleging that the

true and correct result of the election was “no union” (R. 73-

74). Specifically incorporated in the answer by paragraph 14

thereof (R. 73) were supplemental affidavits of the three chal-

lenged employees (R. 75-80).

Subsequently, at the invitation of the Board agent, in order

to clarify erroneous allegations of the complaint, and simplify

the papers fir review, the employer filed an amended answer,

reaffirming and incorporating all of the matters set forth in

its original answer, including the attached affidavits (R. 81).

= we

Without any hearing, or any further filing of any papers,

the General Counsel filed a motion for summary judgment (R.

83). The Board ordered the proceeding transferred to the Board,

and gave the employer notice to show cause why summary

judgment should not be granted (R. 85). The employer filed a

response to that order, pointing out that the employer had neVer

been given a hearing respecting its objections to the conduct of

the election: that the employer was entitled to a hearing: that

the motion for summary judgment did not even attach the

affidavits which were filed with the Regional Director prior to

the certification, in conjunction with the objections; that denial

of a hearing deprives the employer, and the employees, of due

process of law, in violation of the Fifth Amendment; that the

certification was invalid and incorrect for the reasons indicated

below, and resulted from an unconstitutional procedure which

deprived the employer and the employees of a hearing, and

various other objections (R. 86-87).

On February 9, 1976, the Board issued its Decision and

Order, rejecting the employer's defenses without considering

them, on the ground that the employer is not entitled co relitigate

in an 8(a)(5) proceeding issues which were litigated in a prior

representation proceeding (R. 91; Pet. App. 31, 34).

On February 19, 1976, the employer filed a petition for re-

view in the court below (R. 99). After oral argument, the court

below granted the petition for review and denied enforcement,

on the ground that the totality of circumstances demonstrated

that “the election procedure did not assure the fair and accurate

expression” of the true desires of the employees (Pet. App. 17,

22, 25). The chronology of the subsequent untimely petition for

rehearing is set forth at pages 2-3, supra.

ax £8 <u

B. Circumstances of the Election

Among the !5 employees of its shoe warehousing business,

Alpers has maintained several elderly men, who work sub-

stantially less than a 40-hour week (R. 9-10). Three of these

elderly men are the subject of this controversy.

Sam Melinas is 69 years old, and works approximately 29

hours per week (R. 10). He is totally unable to read or write

English (R. 20, 44, 79), and has only a limited understanding

of spoken English (R. 20). Indeed, when he first signed an

affidavit for the NLRB Field Examiner, it was necessary to read

the affidavit to him, and his effort to make his signature (R. 3)

is totally illegible in English, although it presumably resembles

his name in Yiddish, of which he reads only a little, if any (R.

20). His signatures on other affidavits are equally illegible (R.

34, 44, 80). His comprehension of anything outside his daily

experience, communicated even in Yiddish, is extremely limited

(R. 20). Before the election Mr. Alper explained to him that

“Yes” has three 'etters and “No” has two letters, but it is ques-

tionable whether he understood (R. 20). He is highly nervous

and excitable, and has never voted for or against anything, or any

person, in his life (R. 20, 80). He was told before the election

that he could vote against the union by placing a mark on the

right-hand side of the ballot, and he did that to the best of his

ability (R. 44, 79). If the ballot was handed to him upside

down, he would still put the X on the right-hand side of the

ballot, because he wanted to vote against the union (R. 79).

Louis Sacus is 63 years old, and works approximately 29

hours per week (R. 10). He cannot read or write very well, and

cannot see very well without his glasses, which he forgot and left

at home on the day of the election (R. 21, 27, 75). His under-

standing is extremely limited. His granddaughter, Sharon Sacus,

explained to him approximately three times in the week before

the election what “yes” and “no” meant on the ballot, and which

—_—

-~

side of the ballot was “yes” and which was “no,” but she didn’t

know whether he really understood it or not after she had

explained it to him (R. 32). He is virtually illiterate (R. 21).

Notwithstanding repeated explanations of the form of the ballot,

on the day before the election Louis Sacus was still so confused

that he thought that “no” was on the left side of the ballot (R.

21). He has virtually no understanding of the election process,

and virtually no ability to cope with written documents (R. 22).

Mr. Alper also explained to him two or three times before the

election that “yes” has three letters, and “no” has two letters

(R. 35), but it must be questioned whether that explanation

was really effective. He was very confused at the time of the

election, and attempted to put an X on the right side of the

ballot, but if the ballot was handed to him upside down, he would

still put the X on the right side (R. 75-76).

Marshall Dubinsky is 66 years old, and works approximately

24 hours per week (R. 9-10). He is not so illiterate as Sam Me-

linas and Louis Sacus, but he has a very limited command of the

English language, ana very little understanding of the election

process (R. 22). He is a very excitable person, and is easily

upset (R. 22, 32, 40, 77-78).

All three of these men believed that they had nothing to

gain by having a union in the shop, and were firmly opposed to

the union from the beginning of the organizational campaign (R.

26-27, 39, 41, 43, 75-76, 77-78, 79-80). They are all on

Social Security, Medicare and Medicaid, and are confident they

will be replaced by younger workers if the union comes into the

shop (R. 76, 78, 79). Indeed, Marshall Dubinsky, a man of ex-

tremely limited understanding (R. 22, 29), but able to write a

little, felt so strongly that he refused to sign his affidavit of June

4, 1975 until he was permitted to write in, in his own hand-

writing, “I don’t want no union” (R. 40). All three were de-

termined to vote against the union as best they could, and they

were distressed when the Board’s Field Examiner declined to

a

include these facts in the statements he took from them on June

3 (R. 40, 42, 44, 76, 78. 80).

Prior to, and at the time of, the election, the Board did noth-

ing to enable these three men to express their free choice ac-

curately (R. 30). No allot was provided in Yiddish. No effort

was made to assist them in voting, so that the ballot would

in fact reflect their desires.

The election was held, in part, in a relatively open area

towards the rear of the shop at 1419 Martin Luther King Drive

in St. Louis (R. 27). When Marshall Dubinsky went to vote,

the union observer challenged him in a very loud voice, which

could be heard throughout the shop. Dubinsky was very ex-

cited, nervous, and upset by the union observer's loud and bel-

ligerent conduct (R. 28, 37, 40, 78). He did not understand

what a “challenge” meant in the context of a union election,

and thought that the union observer was challenging him to

fight (R. 37, 77). Dukinsky turned and put up his fists, and said

“wait till I come out” (R. 77, 32, 37). When order was restored,

Dubinsky proceeded to attempt to vote, but he was very con-

fused and upset (R. 78).

Sam Melinas heard this altercation, didn’t understand it (R.

34, 38), and was upset and frightened by it (R. 23, 44). He

went in to vote right after Dubinsky (R. 34). He, too, was chal-

lenged by the union observer, and there was a lot of talk, and

he did not understand what it was all about, and didn’t know

what a challenge meant (R. 33). With all the confusion, even if

he could read or write English, he would have been mixed up,

because he is a very nervous person and has never voted in his

life (R. 80, 44).

Louis Sacus was very nervous, confused, and upset at the

time he voted (R. 42, 75). Not being able to read well at best,

he forgot his glasses on election day (R. 21, 27, 75). The union

—

observer also challenged him, but Sacus didn’t understand what

the union observer was talking about (R. 30).

All three men did the best that they could, with their lim-

ited abilities and understanding, to vote against the union (R.

40, 77-78: 42. 75-76; 44, 79-80). But all three were bewildered

by the challenge and the manner in which it was made, and

did not understand it (R. 23). When the three challenged bal-

lots were opened, one ballot had an X within the square under

the “yes” (R. 47).

it te

15

REASONS FOR DENYING THE WRIT

There are at least four good reasons for denying the writ.

1. This Court Lacks Jurisdiction.

This point is explained under the heading “Jurisdiction” at

pages 1-7, supra. If the writ should nonetheless be granted.

it will have to be dismissed eventually, as improvidently granted.

This small employer should not be put to the further expense

of briefing and arguing the merits; the writ should simply be

denied.

2. The “Question Presented” by the Petition Is Not Presented

by This Record.

“[T]he duty of the Board [is] to establish the ‘procedure and

safeguards necessary to insure the fair and free choice of bar-

gaining representatives by employees. ” N.L.R.B. v. Savair Mfg.

Co., 414 U.S. 270, 276 (1973). See also N.L.R.B. v. Tower

Co., 329 U.S. 324, 330 (1946).

This Court went on in Savair to acknowledge that, of course,

the Board has a wide discretion in this area. But the Court em-

phasized that special precautions are required where “two op-

posed groups are in contention: one composed of those who

want a union and the other, of those who prefer not to have

one.” 414 U.S. at 277. “Any procedure requiring a ‘fair’ elec-

tion must honor the right of those who oppose a union as well

as those who favor it.” /d. at 278.

As this Court stated in N.L.R.B. v. Tower Co., 329 U.S. 324,

331: “{T]he board must adopt policies and promulgate rules

and regulations in order that employees’ votes may be recorded

accurately, efficiently and speedily [emphasis added].” “An elec-

tion can serve its true purpose only if the surrounding condi-

—

tions enable employees to register a free and untrammeled choice

for or against a bargaining representative .. . it is the Board's

function to provide a laboratory in which an experiment may

be conducted, under conditions as nearly ideal as possible, to

determine the uninhibited desires of the employees.” General

Shoe Corp., 77 N.L.R.B. 124, 126-127 (1948). See also N.L.

R.B. v. Payless Cashway Lumber Store, 508 F.2d 24 (8th Cir.

1974). j

In determining whether this standard has been met, as the

court below recognized (Pet. App. 17, 22), it is necessary to

consider the cumulative effect of all of the circumstances bear-

ing upon the election, or the “totality of the circumstances.”

LaCrescent Constant Care Center, Inc. v. N.L.R.B., 510 F. 24

1319, 1324 (8th Cir. 1975); N.L.R.B. v. Decoto Aircraft, Inc.,

512 F. 2d 758 (9th Cir. 1975), cert. denied, 423 U.S. 836.

N.L.R.B. v. Janler Plastic Mold Corp., 82 LRRM 2174, 2176-

77 (7th Cir. 1972).

Thus, the question presented by the employer's objections to

the conduct of the election (R. 15-18), and the only question

which could be presented or decided below, was whether the

totality of circumstances, as shown by the record, indicates that

this rigid standard has not been met. The “totality of circum-

stances” includes far more than simply “that a voter may have

made a mistake in marking his ballot,” as the question is stated

by petitioner (p. 2). That totality of circumstances includes:

1. The extremely limited capacity (borderline at best) of

the three elderly men in question;

2. The loud, belligerent conduct of the union observer,

which upset and confused the men, pushing one of

them over the borderline;

3. The fact that the Board gave no assistance to the men

in attempting to register their preference;

= fon

4. The undisputed fact that the men were strongly op-

posed to the union, did everything they physically could

to vote against the union, and are outraged to find that

one of their ballots is being counted for the union; and

5. The fortuitous segregation of their three ballots, so that

it can easily be demonstrated that one of them is an

. error.

All of these circumstances are shown by this record, and all

are a part of .he “totality of circumstances.”

From the beginning, the Board has persistently refused to

recognize what the issue is. In his Report on Objections and

Recommendations (Pet. App. 43-51) the Regional Director in-

sisted upon separating the limited capacity of the three men

from the loud, belligerent conduct of the union observer, treat-

ing each point separately, and conclu‘ing that neither point

alone justified setting aside the results. The employer, in its

Exceptions to that Report (R. 52), bitterly protested this separa-

tion of the circumstances into two separate, independent pigeon-

holes, and this refusal to consider the totality of circumstances

(R. 55). Nevertheless, the Board affirmed that Report without

written opinion, refusing to acknowledge the existence of the

principal cases cited by the employer in its Exceptions, and re-

fusing to apply, or even to acknowledge the existence of, the

applicable rule of law (R. 63; Pet. App. 52). This alone

would require that enforcement be denied. E.g., Teumsters

Local Union 679, etc. v. N.L.R.B., 532 F. 2d 1385 (D.C. Cir.

1976).

In the unfair labor practice proceeding which followed, the

Board again refused to consider the applicable rule of law in

any way, simply ruling that the issues litigated in the representa-

tion proceeding may not be relitigated in the unfair labor prac-

tice proceeding (R. 91; Pet. App. 31, 34). It was not until the

case reached the court of appeals that the employer was able

aw 18 a=»

to persuade any governmental official or tribunal to apply to

this case the applicable rule of law. That court expressly recog-

nized the applicable rule (Pet. App. 22), and pointed out the

various circumstances which constituted the “totality of circum-

stances,” including the limited capacity of the men (Pet. App.

18, 23), the strong opposition of the men to the union (Pet.

App. 18-19, 22-23), the loud, belligerent and upsetting conduct

of the union representative at the election, in the presence of at

least two of the men (Pet. App. 19, 23, 25) and the certainty

that one of them made a mistake (Pet. App. 20, 22-24, 25).

In light of the history of the litigation, the Board’s persistence

in willfully misstating the issue is sheer flummery.

3. Petitioner Is Asking This Court to Review the Evidence

and Find the Facts, on Review of a Summary Judgment.

From a reading of the argument portion of the petition, one

would never guess that this case was decided by the Board on

summary judgment. Petitioner patronizingly observes that the

court below “chose to credit the post-election affidavits” (p.

13); petitioner quibbles about “the most that legitimately can

be inferred from the Union’s challenges” (p. 13); petitioner

apparently draws some (mysterious) inference from the fact

that the ruckus at the polling place lasted “about two minutes”

(p. 15); petitioner complains that some statements in some

affidavits allegedly “are contradicted” by other statements and

other affidavits, apparently asking this Court to conclude that

one is correct and the other incorrect (p. 14); and petitioner

complains that statements made in some affidavits did not ap-

pear in earlier affidavits from the same persons, apparently

suggesting that the later affidavits should be discredited (p.

14, n. 7).

(The latter point is explained by the affidavits themselves.

The three men in question politely explained that the Board

— ee

agent who took the earlier affidavit “did not include the fore-

going facts in that statement” (R. 40, 42, 44). They could

have said more precisely, and would say if they could ever get

a hearing, that the Board agent refused to include those facts,

even though he was requested to do so.)

The place to resolve disputed facts, and to explore the pos-

sible inferences to be drawn therefrom, is at a full and fair

hearing, including oral testimony and cross-examination. This

is what the employer, and the three men in question, have

been pleading for, for more than two years. The Board has

persistently refused to conduct a hearing.

When the Board denies a hearing, of course the facts pre-

sented in the respondent’s affidavits must be taken as true on

appellate review. Due process requires no less. Morgan v.

United States, 304 U.S. 1, 14-15 (1938); N.L.R.B. v. Stai-

man Bros., 466 F. 2d 564, 567 (3d Cir. 1972); N.L.R.B. v.

Bata Shoe Co., 377 F. 2d 821 (4th Cir. 1967), cert. denied,

389 U.S. 917. The petition for certiorari makes it clear that

the Board in fact chose to discredit the affidavits; that alone

is sufficient to require that enforcement of the bargaining or-

der be denied.*

This Court need not spend its time attempting to unravel

allegedly disputed factual questions and inferences, when the

Board has repeatedly refused to hold a hearing to establish the

facts. Nor need this Court grant certiorari in order to teach

the Board what a summary judgment is; the courts of appeals

are steadily pounding that lesson home.’ As the courts of ap-

3 If it be suggested that the court below might have remanded the

matter to the Board with instructions to hold a hearing, as was sug-

gested by the court below in oral argument, it should be noted that

the Board’s counsel flatly refused to accept such a remand, stating in

substance that the Board would not hold a hearing on remand.

4+ A sampling (not inclusive) of recent cases in which the courts

of appeals have set aside the Board’s persistent abuse of the summary

——_

peals continue their vigilant oversight, it may be expected that

the Board will eventually conclude that the summary judgment

procedure may not lawfully be used as a biudgeon with which

to subdue those employees who choose not to support the

union.

4. The Case Depends on Its Unique Facts, and Presents No

Important Question of Federal Law Which Needs to Be Settled

by This Court.

As the court below pointed out, this case presents “unique

circumstances surrounding the election” (Pet. App. 18), or

“unique facts” (Pet. App. 23). Accordingly, the ruling below

“is a narrow one” (Pet. App. 25). These are understatements;

in fact, this case is a freak.

When one considers the totality of circumstances (as the

Board has persistently refused to do), they are freakish. It is

only the circumstance that the union challenged these three men

that led to the segregation of those three ballots from all the

others; it was that fact which demonstrated that one of these

three men had, in fact, utterly failed to record his preference.

None of the lawyers who have worked on this case in the last

two years has found any similar case.

Putting aside that unique fact, the remaining facts are some-

what analogous to those in two reported cases, where the cir-

judgment procedure includes Henderson Trumbull Supply Corp. v.

N.L.R.B., 501 F. 2d 1224, 1230 (2d Cir., 1974); N.L.R.B. v. Stai-

man Bros., 466 F. 2d 564, 567 (3d Cir., 1972); N.L.R.B. v. Smith

Industries, Inc., 403 F. 2d 889, 893 (Sth Cir. 1968); N.L.R.B. v.

Mr. Fine, Inc., 516 F. 2d 60, 63 (Sth Cir. 1975); Argus Optics v.

N.L.R.B., 515 F. 2d 939 (6th Cir. 1975); N.L.R.B. v. Janler Plastic

Mold Corp., 82 LRRM 2174, 2176-77 (7th Cir. 1972); N.L.R.B.

v. Southern Paper Box Co., 473 F. 2d 208, 211 (8th Cir. 1973);

Alson Mfg. Aerospace Div. of Alson Industries, Inc. v. N.L.R.B.,

523 F. 2d 470, 472 (9th Cir. 1975); Excelsior Laundry v. N.L.R.B.,

409 F. 2d 70, 72 (10th Cir. 1968).

21

cumstances have merely suggested that the voters were not able

to cope with the written ballot. In both cases, the election was

set aside. In Fibre Leather Mfg. Corp., 167 N.L.R.B. 393

(1967), the Board had even provided bi-lingual observers, but

had failed to notify the foreign language employees of the avail-

ability of assistance from the bi-lingual observers, and the em-

ployees failed to request assistance. The Board held:

“(W]e are not satisfied that the conditions under which

the election was conducted were such as to assure the

effective and informed expression by all employees of their

true desire.” 167 N.L.R.B. at 393.

In Marriott In-Flite Services Division of Marriott Corp. v.

N.L.R.B., 417 F. 2d 563 (Sth Cir. 1969), cert. denied, 397

U.S. 920 (1970), the Board failed to provide ballots in Spanish

for an election in which approximately one-third of the eligible

employees spoke only Spanish. Even though the Board had

provided bi-lingual election notices, and Spanish-speaking of-

ficials at the polls, and even though the union won the balloting,

299 to 203, the Fifth Circuit set aside the election. “An election

in which one-third of the electorate has no access to ballots in

language that it can understand necessarily falls below the mini-

mum laboratory standards of fairness . . . what comprises fair-

ness to the minority in the one case [political elections] does not

necessarily define fairness to the minority in the other [NLRB

elections] . . . [The Board] must adopt policies and promulgate

rules and regulations in order that employees’ votes may be

recorded accurately, efficiently and speedily.” 417 F. 2d at 567,

568.

If the court below had ruled against the employer, its ra-

tionale would inevitably have conflicted with the Fibre Leather

and Marriott decisions. But that is not the case.

Petitioner states that the Board conducted 8,899 elections in

a recent fiscal year (p. 15). In the !ast 44 years, one may suppose

—~ ae

that the Board must have conducted hundreds of thousands of

elections. If the decision below really constituted “a serious de-

parture from established principles” (Pet. p. 8), out of all those

elections surely petitioner could have found at least one circuit

court decision in conflict with the decision below. Significantly,

petitioner has found none. That is because the decision below

correctly applies the established rules of law.

Petitioner contends that “the Board has adopted the gen-

eral principle that clearly-marked [sic] ballots may not be

impeached by post-election statements or other evidence indi-

cating that the voter made a mistake or acted under a mis-

understanding” (p. 9). If this means that the probability, or

certainty, that the ballots failed to reflect the true intent of the

voters accurately is not relevant on post-election objections,

then this contention is repudiated by the Fibre Leather and

Marriott decisions, supra, and is not supported by the cases

cited by petitioner at page 9, note 3.° Clearly an election

° In McFarling Bros. Mid-State Poultry & Egg Co., 123 N.L.R B.

1384 (1959), several employees presented affidavits generally to the

effect that they had not taken the election seriously, and that they

would vote differently if they had it to do over again; the Board

simply held that the affidavits were insufficient “to rebut the pre-

sumption that all voters expressed their true choice by their cleariy

marked ballots” (123 N.L.R.B. at 1385); the implication is that

more persuasive :vidence would have rebutted the presumption. In

V. LaRosa & Sons, Inc., 121 N.L.R.B. 671 (1958), the Board simply

found that an allegedly confusing designation of the union on the

ballot was not really confusing; there was no contention that a dis-

turbance in the polling place had so upset the voters that they were

unable to vote their true preference. In Johnson City Foundry &

Machine Works, Inc., 71 N.L.R.B. 825 (1946), the Board again

emphasized that the employer in that case did not even contend that

any conduct on the part of the Board’s agents or the union’s agents

caused any mismarking of the ballots, stating that “no circumstances

have been presented here to warrant departure from our normal

policy” (71 N.L.R.B. at 828). In T & G Manufacturing, Inc., 173

N.L.R.B. 1503, 1504 (1969), the union and the employer by stipu-

lation attempted to withdraw a ballot which had been put into the

ballot box, thereby depriving the employee of his vote, and in addi-

tion thereby imposing on the Board the impossible task of attempting

peer LR ein Ore

— Pa

should be set aside if the totality of the circumstances estab-

lishes that the tally probably does not reflect the true intent

of the voters, as is shown by Fibre Leather and Marriott; that

rule alone would be sufficient to dispose of this case. This record

adds additional proof that the tally certainly does not reflect

the true intent of the voters; surely that additional proof can-

not cause the election tally to be validated.

Apparently the Board is arguing here, as it did below, that

statements regarding how an employee voted or intended to

vote may not ever, under any circumstances, be admitted as

evidence in support of objections to the conduct of election.

The cases cited in support of that proposition are adequately

distinguished by the court below (Pet. App. 24-25). In fact,

no such blanket rule exists. For example, in Necco Sales Corp.,

119 N.L.R.B. 155 (1957), the statements of the employees

as to how they voted, and how they intended to vote, were

accepted and considered; the election results were upheld, not

because such evidence is inadmissible, but because “there is

no indication that the voters were unduly rushed or handi-

capped in casting their ballots” (119 N.L.R.B. at 156). And

in N.L.R.B. v. Titche-Goettinger Co., 433 F. 2d 1045, 1048

(Sth Cir. 1970), the Fifth Circuit denied enforcement of the

Board's order to bargain, relying in part upon the affidavits of

two voters declaring their intention to vote against the union.

In other cases the Board and the courts have lamented the

absence of such evidence. For example, in N.L.R.B. v. Grif-

fith Oldsmobile, Inc., 455 F. 2d 867 (8th Cir. 1972), the

court enforced the Board’s order against the employer, em-

to determine which of the ballots in the box was the one cast by that

employee; for once, the Board protected the employee and refused

to let the union and the employer jointly dispose of his vote by stipu-

lation. None of these cases establishes the proposition that an em-

ployee may not be heard to complain that his ballot is not being

counted as he attempted to vote. (The LaRosa and Johnson City

cases are being cited here for the first time in this litigation. )

csi 0 ie

phasizing the shortcomings of the employee affidavits on which

the emplover relied: “Nor did they state that they had voted

for the union in the election” (455 F. 2d at 871). In N.L.R.B.

v. White Knight Mfg. Co., 474 F. 2d 1064, 1068 (Sth Cir.

1973), the Board upheld the election tally, emphasizing the

lack of evidence that any of the voters “were unable to vote

their personal preferences in the election.” In the McFarling

case cited at page 22, n. 5, supra, the employee affidavits

were substantially to the effect that they wished that they had

voted differently; in upholding the election tally, the Board

emphasized the lack of evidence “to rebut the presumption

that all voters expressed their true choice by their clearly

marked ballots.” 123 N.L.R.B. at 1385. In Palm Container

Corp., 117 N.L.R.B. 434, 436 (1957), the Board overruled

objections to the election based upon failure to explain the

nature of the balloting to Spanish-speaking employees and

illiterates, emphasizing again that “there is no evidence what-

ever of any employee who has claimed that his ballot, as

marked, did not express his true intent.”

Of course the employer should not be permitted to coerce

the employees to state that they had voted against the union.

If any such coercion occurs, it may be assumed that the Board

will vigilantly protect the employee. But here there was no

coercion. There was not even any questioning by the employer.

In this case the employee has come forward voluntarily, and

is insisting that he be heard. When all of the surrounding cir-

cumstances demonstrate that he has made his anti-union views

known to all concerned from the very beginning, and his bal-

lot has been so segregated that it is clear that his ballot does

not reflect his true intent, and the disturbance at the polls

pushed him across the boundary of incompetence, there is no

rule of law that prevents him from testifying.

CONCLUSION

The decision below is clearly correct. It rests upon a unique

set of facts, as petitioner implicitly acknowledges by arguing

that the affidavits must be discredited. On this unique set of

facts, the decision resolves no important question of federal

law with any significance for the future.

In any event, this Court lacks jurisdiction, and the “ques-

tion presented” in the petition for certiorari is not in fact pre-

sented on this record.

For the foregoing reasons, the petition for a writ of certi-

orari should be denied.

Respectfully submitted,

LEWIS C. GREEN

RICHARD D. LAGESON

GREEN, HENNINGS & HENRY

314 North Broadway, Room 1830

St. Louis, Missouri 63102

314-231-4181

Attorneys for Respondent

Of Counsel

JULIUS H. BERG

7777 Bonhomme, Suite 2222

Clayton, Missouri 63105

314-721-2222

APPENDIX

fae ee

APPENDIX 1

United States Court of Appeals

For the Eighth Circuit

St. Louis, Mo. 63101

February 2, 1977

Robert C. Tucker, Clerk

Mr. Elliott Moore

& Ms. Carol A. DeDeo

National Labor Relations Board

1717 Pennsylvania Avenue, N.W.

Washington, D.C. 20570

Re: 76-1131. Alpers’ Jobbing Co. v. NLRB

Dear Counsel:

I have today received, from the clerk of the United States

Court of Appeals for the Sixth Circuit, petition for rehearing,

presumably in this case. The petition is entitled “In the Sixth

Circuit” and was obviously sent to the clerk of the Sixth Cir-

cuit in error.

An order was entered in this case on January 14 providing

that the Board might have to and including January 27 in which

to file petition for rehearing. The petition bears a “received”

stamp showing that it was received by the clerk of the Sixth

Circuit on January 31.

Under the circumstances I decline to file the untimely peti-

tion for rehearing.

a ~ wen ae ee

You may, if you like, file some sort of appropriate motion

with us seeking to have the petition for rehearing filed out of APPENDIX 2

time.

; Very truly yours, | United States Court of Appeals

For the Eighth Circuit

Robert C. Tucker

Clerk

76-1131 September Term, 1976

dl

copy ; Alpers’ Jobbing Company, Inc., )

Mr. Lewis C. Green Petitioner, Petition for Review

Mr. Clyde C. Craig . VS. of Order of the

Mr. Joseph H. Solien National Labor

National Labor Relations Board, Relations Board

| Respondent.

;

For cause it is now here ordered that the Clerk of this Court

is directed to file the untimely petition for rehearing tendered

by counsel for respondent in this cause.

February 18, 1977