Petition — Local 259, United Automobile, Aerospace & Agricultural Implement Workers v. National Labor Relations Board

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Supreme Court, U. S.

FILED

SEP 27 19/7

In The MICHAEL RODAK, JR.. CLERK

Supreme Court of the United States

October Term, 1977

No. 77 7 4 x ()

LOCAL 259, UNITED AUTOMOBILE, AEROSPACE

AND AGRICULTURAL IMPLEMENT WORKERS OF

' AMERICA,

Petitioner,

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

RICHARD DORN

Attorney for Petitioner

380 Madison Avenue

New York, N.Y. 10017

(212) 867-2100

Of Counsel:

SIPSER, WEINSTOCK, HARPER,

DORN & LEIBOWITZ

380 Madison Avenue

New York, N.Y. 10017

Printinghouse Press — Bar Ass'n Steno Serv. (Appeals Section) 212-687-0384

TABLE OF CONTENTS

Opinions Below ..«e«eceeecee

Jurisdiction ....+«.e-«-e+-c¢e-e.

Question Presented .... +e -«

Statutes Involved . . .. +++. «

Statement Of the Case . ....e. «

The Decision Of The Administrative

Law Judg@ . «cece ce eee e

The Decision And Order

Of The Board a - J ~~ * a . o 7 a.

The Court Of Appeals Decision...

Reasons for Granting The Writ

1. The Decision Of The Court Of

Appeals Is Contrary To Public

Policy And Past Precedent In

That It Restricts The Consti-

tutional Right Of Unions To

Express Opinions Concerning

Employer Representatives In

The Absence Of Threats And

Coercion And Fails To Meet

The Requirements Of The Sub-

‘stantial Evidence Test ...

(i)

a) Local 259 Did Not Re- | Appendix

strain Or Coerce The

Employer Within The | Judgment of Court of oe

Meaning Of The Act. | Appesie «© «© «6 6 6&6 © @ © «6

R | *

Se gr gp wt tor Decision and Order of the National

Opinions Concerning The | Labor Relations Board .... A-5

Employers’ Representa-

tives Were Engaging In

Free Speech Guaranteed TABLE OF AUTHORITIES

By The Constitution And |

§8(c) Of The Act. .... 10 cases:

b) The Substantial Evidence Airporter Inn Hotel, 215 NLRB 156... ll

T * 7 * 7 a J * o . .

— ss Amalgamated Meat Cutters & Butcher

The Board To Establish 26 GR A A960). 2 0s oe we # ee 19

Die gr mage ee ad ne Board of Publication of the Methodist

ES EE, oe ae ae 17 | Church v. N.L.R.B., 297 F. 2d 379

(CA 6 1962) . 7 a. > — . - oe*- © 7 . — 17

2. The Instant Case, In Which

The Court Of Appeals Up- | Boeing Co. v. Shipman, 411 F. 2d 365,

Draw An Adverse Inference

From The General Counsel's | Boyles Famous Corned Beef Co. v.

Failure To Call As A Witness N.L.R.B., 400 F. 2d 154

An Individual With Knowledge (CA 8 1967) 2. 2 ee ee ee ee 27

Of The Facts, Presents An

Important Question Of Law

Which Was Not Heretofore

Business Development Corp. of North

Carolina v. U.S., 428 F. 2d 417

Passed Upon By This Court. . 26 | (CA 41970) 2 ee ee ew ee ee ws 16

Conclusio : o & a ae al a ee 2 Clothing Workers (Hamburg Shirt Corp.)

pie 4 ) v. NLRB, 365 F. 2d 898 (CADC 1966) 11

(ii) (iii)

Communication Workers of America,

Local 2550, 195 NLRB 945 ...e.- 13

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

305 U.S. 197, 229 7 - . 7 7 . . ° . 15

Dubin-Haskell Lining Corp. v.

N.L.R.B., 375 F. 2d 568, 578

(CA 4 1967) o + >. - >. o . . - . . 7 15,22

Farmers Cooperative Co. v. N.L.R.B.,

208 F. 2d 296, 304 (CA 8 1953) .. 25

Fontanec Aviation, Inc. v. Beech

Aircraft Corp., 432 F. 2d 1080,

Gee Ge ve eevee eee eenoee ee 16

Garchell v. Kantar, 56 F. Supp. 866,

868 7.6. Minn. 1944) . 7 . _ . . a 28

H.K. Porter Co., Inc. v. N.L.R.B.,

397 U.S. 99 7 > . - >. - > a - > _ >. 20

ILGWU (State Belt Apparel Contractors’

Ass'n.), 122 NLRB 1390, 1391, enfm't.

den. other grounds 274 F. 2d 376

(CA 3 1960) ° . . e + . . ° ° . ° - 14

International Typographical Union,

86 NLRB 951 - * 7. - * . * 7 7 . . * 13

International Typographical Union

Local 38 v. N.L.R.B., 278 F. 2d 6

(CA 1 1960), aff'd. by an equally

divided court, 365 U.S. 705... . 14

International Union (UAW) v. N.L.R.B.,

459 FP. 2d 1329 (CA DC 1972) .... 28

fiv)

a ee

Page

Interstate Circuit v. U.S., 306

U.S. 208, 226 ae Pe * °* ere 8 @ 27

Kean v. C.I.R., 469 F. 2d 1183,

3188 (GA 9 'apree e°6.0 6 6.6.4 6 26

Local 80, Sheet Metal Workers

(Turner-Brooks, Inc.), 161 NLRB

229, 235° J o J . — * _ 4 _ — o . 20

Local 423, Laborers’ Int. Union of

N. America (Mansfield Flooring Co.),

195 NLRB 241 > o . >. oe o * * . _ 13

Los Angeles Cloak Joint Board, ILGWU

(Helen Rose Co.), 127 NLRB 1543 . 13

Magnat Corp. v. B. & B. Electro-

plating Co., 358 F. 2d 794, 797

(CA 1 1966) . ° ° oe . o ° ° . . . 16

N.L.R.B. v. Amalgamated Meat Cutters

& Butchers, 202 F. 2d 671, 672

(CA 9 1953) > > o _ . _ 7 ee 8 * 7 24

N.L.R.B. v. American National

Insurance Co., 343 U.S. 395... 20

N.L.R.B. v. Columbian Enameling &

Stamping Co., 306 U.S. 292, 300. 16

N.L.R.B. v. Drivers, Chauffeurs,

Helpers Local Union No. 639,

International Brotherhood of

Teamsters, Chauffeurs, Warehouse-

mean and Helpers of America (Curtis

Bros., Inc., 363 U.S. 274, 290. . 12

(v)

N.L.R.B. v. Ford Radio & Mica Corp.,

258 F. 2d 457 (CA 2 1958) .... 24,28

N.L.R.B. v. Gissel Packing Co.,

395 U.S. 575 . . > * > — 7 >. _ . 11,12

N.L.R.B. v. Grease Co., 94 LRRM

3197 (CA 2 March 30, 1977) ... 16,25

N.L.R.B. v. Insurance Agents In-

ternational Union, 361 U.S.

477 — e * > > > * a _ * 7 * * . > 20

N.L.R.B. v. Local 964, United Bro.

of Carpenters, 447 F. 2d 643

(CA 2 1971) _ > . > * > > _ oo * _ 13

N.L.R.B. v. Majestic Weaving Co.,

355 F. 2d 854, 859 (CA 2 1966). . 20

N.L.R.B. v. Martin A. Gleason, Inc.,

534 F. 2d 466, 474 (CA 2 1976). . 17,22

N.L.R.B. v. McGahey, 233 F. 2d 406,

413 (CA 5 1956) *-_ 2e« se © © © @# @ 24

(CA 3 1970) . > . * > . > * . = . 15

N.L.R.B. v. Monroe Auto Equipment

Co., 368 F. 2d 975 (CA 8 1966). . 15

N.L.R.B. v. Plastics Products, Inc.,

354 F. 2d 66 (CA 6 1965) .... 25

N.L.R.B. v. Prince Macaroni Mfg. Co.,

329 F. 2d 802 (CA 11964) .... 27

(vi)

Packers, Inc. 2ll F. 2d 289

(CA a 1954) oe ae a a oe a ee 15

N.L.R.B. v. Virginia Elec. & Power

CC., 314 U.S. 469 * * —s o 7 *-e 10

Northern Petro-Chemical Co. v.

N.L.R.B., 426 F. 2d 50

(CA 5 1970) . 3. . ° o o - - a . a 15

Plumbers, Local 83 (Power City

Plumbing & Heating), 228 NLRB No.

27, 94 LRRM 1428 ... cc © « @ 18

Rafael Igartha, 174 NLRB 615, 619 . 15

Sakrete of Northern California, Inc.

v. N.L.R.B., 332 F. 2d 909

(CA 9 1964) cert. den. 379 U.S.

961 > 7. o > 7 2 * > o . * _ > 7 * 14

Southwest Latex v. N.L.R.B., 426 F.

> & ES .. Bee eee ee ee 15

Stemun Mfg. Co., 423 F. 2d 737

(CA 6 1970) «-'c we ee oe eee 17

Teamsters Local 427 (Edward D. Sultan

Co.), 223 NLRB No. 202, 92 LRRM

1144 . : - 7. * 7 om > > 7: o . _ 7 13

Torrington Co. v. N.L.R.B., 506 F.

2d 1042, 1047, 1049 (CA 4 1974) . 22

Universal Camera Corp. v. N.L.R.B.,

340 U.S. 474, 496 _ > o * 7 * + >. 19

(vii)

Wellington Mill Division v. NLRB,

330 F. 2d 579 (CA 4 1964) ....

Statutes:

Section 8(b) (1) (B) of the National

Labor Relations Act [29 U.S.C.

§158 (b) (1) (b) ] . . . . . . ° 7.

Section 8(c) of the National Labor

Relations Act [29 U.S.C. §158(c)]

(viii)

2,3

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No.

LOCAL 259, UNITED AUTOMOBILE, AEROSPACE

AND AGRICULTURAL IMPLEMENT WORKERS OF

AMERICA,

Petitioner,

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF AP-

PEALS FOR THE SECOND CIRCUIT

Petitioner, Local 259, United Automo-

bile, Aerospace, and Agricultural Imple-

ment Workers of America, hereby requests

that a Writ of Certiorari issue to review

a judgment of the United States Court of

Appeals for the Second Circuit, entered in

this case on June 30, 1977.

@-2=-

OPINIONS BELOW

The opinion of the Court of Appeals

was rendered orally on June 3, 1977. The

decision and order of the National Labor

Relations Board are reprinted in the Appen-

dix annexed to this petition at page A 4,

and reported at 225 NLRB No. 55.

JURISDICTION

The judgment of the Court of Appeals

was entered on June 30, 1977 (Appendix A,

p. 1). The jurisdiction of this Court is

invoked under 28 U.S.C. §1254(1).

QUESTION PRESENTED

Whether the finding of the National

Labor Relations Board that Local 259

violated §8(b)(1)(B) of the Act by re-

straining and coercing an employer to dis-

charge its representative for the adjust-

ment of grievances unlawfully restricts

the constitutional right of unions to ex-

press opinions that are non-coercive in

nature?

STATUTES INVOLVED

Section 8(b) (1) (B) of the National

Labor Relations Act [29 U.S.C. §158(b) (1)

(B)] provides as follows:

"Section 8(b): It shall be an unfair

labor practice for a labor organiza-

tion or its agents -

=<_=

(1) to restrain or coerce ... (B) an

employer in the selection of his

representatives for the purposes of

collective bargaining or the adjust-

ment of grievances."

Section 8(c) [29 U.S.C. §158(c)] provides:

"(c) The expressing of any views,

argument, or opinion, or the dissem-

ination thereof, whether in written,

printed, graphic, or visual forn,

shall not constitute or be evidence

of an unfair labor practice under any

of the provisions of this subchapter,

if such expression contains no threat

of reprisal or force or promise of

benefit."

STATEMENT OF THE CASE

After an election conducted by the

National Labor Relations Board (herein-

after “Board") on January 17, 1975*, Local

259, United Automobile, Aerospace, and

Agricultural Implement Workers of America

(hereinafter sometimes referred to as

"Local 259" or “Union") was certified as

the collective bargaining representative of

the service department employees employed

by Atherton Cadillac, Inc. (hereinafter

sometimes referred to as “Employer” or

"Company". (A. 5,31-33)** During the

*All dates refer to 1975 unless otherwise

indicated.

**This designation refers to the printed

Appendix in the Court below.

campaign Anthony Dazzo, the Employer's

Service Manager, engaged in anti-union

activity at the behest of the Employer.

He laid off several employees, announced

that further layoffs would occur, and indi-

cated that he intended to reduce an em-

ployee's wages (A. 5, 38, 98, 99, 144, 153,

156).

On January 20 Louis Salvatore, Local

259's business representative, and Steve

Elliott, Union representative requested

that Dazzo recall the laid off employees.

When Dazzo refused Salvatore replied that

"this [was] a declaration of war" (A. 5,6,

16,42). The next day Salvatore and Elliott

met with the Employer's President Atherton,

Sr. in a further attempt to have the em-

ployees recalled to work. Their quest

again proved futile and Salvatore informed

Atherton, Sr. that "Dazzo is creating

trouble" (A. 6,44,45).

Several days later Robert McDonald,

an employee, observed that potential cus-

tomers were being turned away and were

being told that the service department was

"booked up” even though the employees were

still on layoff status (A. 6,16,144-146).

McDonald informed the other employees of

his observations. The employees, on their

own initiative, and without the knowledge

of Local 259, engaged in a two hour work

slowdown to protest the turning away of

work which adversely affected their earn-

ings (A. 6,16,46-49,146).

The following day, and prior to the

commencement of negotiations on February 3,

Richard Atherton, Jr., the Employer's Vice

President attempted to discover the reasons

for the slowdown. He asked McDonald and

Edward Zegilla, another employee, to iden-

tify the problem. McDonald replied that

the “problem is Dazzo; lighten Dazzo up;

he is harassing and threatening the men;

« « « turning away work; and... the men

{are] upset by the proposed layoff" (A. 6,

17,78,147,148,163,164). Atherton, Jr. then

asked McDonald and Zegilla whether they had

“any recommendations for a new service man-

ager". They suggested Ernie Barter, a

service writer, for the position (A. 6,7,

14,148,163,164).* No Union official was

present during these discussions which were

initiated by Atherton, Jr. (A. 56,163,164).

In the meantime on January 22, Elliott

had met with the employees to formulate

contract proposals. The employees included

as one of their demands that all laid off

> se aaa employees be recalled (A. 45,

’ .

On January 31 the employees voted to

strike on March 1 if a contract was not

agreed upon by that date (A. 47). The

strike vote was unrelated to the work stop-

page previously engaged in by the employees

and was taken to conform with the Inter-

national Union's Constitution (A. 49,50).

The problem of work being turned away was

not discussed during the strike vote

(A. 50,51).

* Barter informed the employees on Feb-

ruary 19 that he had been offered the

service manager's job (A. 56,57).

Negotiations commenced on February 3.

The parties met approximately six times’,

including March 3, on which date a contract

was agreed upon (A. 7,17). During these

meetings Local 259 never suggested, let

alone threatened, that it was seeking to

have Dazzo discharged. Neither did Local

259 ever condition. any bargaining con-

cession or the signing of a contract upon

his discharge (A. 7,17,60,61,125,129,149).

The Union's demands remained basically

the same until the last bargaining session.**

The reason, as explained by Salvatore at

either the February 11 or February 20 bar-

gaining session, was that the Employer's

"manager is making things tough, harassing

the committee, this is why the men are not

being flexible, and why they want the con-

tract terms that have been proposed” (A. 8,

17,54,55). Zegilla testified that because

of Dazzo's actions, the men wanted as much

money as they possibly could obtain, be-

cause their income was being affected

(A. 169).

At the bargaining session held on

February 27, Local 259 indicated that there

would be no change in its proposals at that

time. The Employer's attorney, Lewis Stone

adjourned the meeting for a half hour,

stating he wanted to confer alone with

* Negotiating sessions were held on Feb-

ruary 3, ll, 20, 25, 27 and March 3.

** It is also a fact that the ultimate

settlement did not depart, in large

measure, from the Union's original pro-

posals (A. 58-60).

8 he ~

TNS ome.

aFe

Atherton, Sr. When bargaining resumed,

Stone announced that Dazzo had been dis-

charged "based on what [Atherton, Jr.] had

found out through [his] investigations".

He also stated that "we feel that this is

the problem and we are going to get rid of

the problem forever" (A. 8,9,17,18,71,130,

131,149,155,167,168). Salvatore replied

that he was not there "to discuss...

Dazzo's discharge, I'm here to discuss a

contract and I want to discuss a contract,

not . . . Dazzo's discharge, that is not my

cup of tea” (A. 9,17,18,71,131,150,156).

That evening the Union officials met

with the employees who had previously ex-

pressed their dissatisfaction with the slow

progress of the negotiations and with con-

ditions in the shop caused by Dazzo. When

they heard that Dazzo had been discharged,

they urged the Union negotiators to lower

the demands and settle the contract as soon

as possible (A. 9,18,71,72,131). There was

never any discussion prior to the 27th that

the demands would not be modified unless

Dazzo was removed (A. 169).

At the next negotiating session the

Union reduced its proposals somewhat and a

contract was consummated (A. 10,58,59).

Dazzo testified that on February 11 he

was told by Atherton, Sr., that “union

agents . . . demanded that [he] be termina-

ted; [that] they wouldn't negotiate a con-

tract; [and that] if [he] wasn't off the

premises that day they would strike" (A. 9,

18,104).* The General Counsel failed to

* The actual date of Dazzo's discharge is

in dispute. Dazzo claimed he was dis-

-8-

call Atherton, Sr. as a witness. Instead

he offered a letter of reference purported

to be signed by Atherton, Sr. whick stated

that "a union dispute arose and to avoid a

strike, Mr. Dazzo became the focal point

of the dispute that made it necessary to

relieve Mr. Dazzo of his duties” (A. 9,18,

19,26) o

THE DECISION OF THE

ADMINISTRATIVE LAW JUDGE

The ALJ dismissed the complaint (A. 13).

He noted that Dazzo's testimony was hearsay,

and was thus of no probative value. The

letter was also hearsay and could not be

availed of to corroborate Dazzo's testimony.

Atherton, Sr. could have corroborated the

testimony but he was not called. Therefore,

an inference shculd be drawn that had he

testified, he would not have corroborated

Dazzo, but would have instead given testi-

mony favorable to the Union (A. ll).

In response to the argument of the

General Counsel that the Union's modifica-

tion of its bargaining proposals after

Dazzo's discharge together with various

charged on February 1l. The Union

asserted the discharge occurred on Feb-

ruary 27. Neither the Administrative

Law Judge ("ALJ") nor the Board resolved

the dispute, although the former noted

that "in view of the sequence of events

it is more likely that Dazzo was dis-

missed on the latter (February 27),

rather than the former date” (A. 7, fn.

15,4,181).

~~ ee nat

-Ge-

statements by agents of the Union led to

an "inescapable inference" that the Union's

bargaining position was adopted to cause

the discharge, the ALJ decided that the

"more oe inference" was that the Union's

wh egg oe rd bargaining was a response

o the layoffs and expected cuts in salary.

The ALJ concluded that the easing of the

Union's bargaining position after the dis-

charge created at best "a suspicion that it

was the Union's purpose to cause (Dazzo's)

discharge by refusing to do so earlier.

But, as has been held countless times, sus-

age Fag not a substitute for proof"

A. 12).

THE DECISION AND

ORDER OF THE BOARD

The Board, without disturbing the

ALJ's findings,* and in the absence of a

Single supporting citation, nevertheless

reversed the ALJ and held that there was

sufficient “circumstantial" evidence to

establish a violation (A. 19-21). The

Board's order required the Union to make

Dazzo whole for any loss of earnings and to

cease and desist from demanding of the Em-

ployer the discharge of Dazzo and from re-

straining and coercing the Employer or any

other employer in the selection of repre-

sentatives for the purposes of collective

ee or the adjustment of grievances

(A. 23).

* The Board did not agree that an adverse

inference should be drawn because

Atherton, Sr. was not called to testify

as he was a witness equally available to

both parties.

-10-

THE COURT OF APPEALS DECISION

The Board applied to the Court of

Appeals for enforcement of its order. The

Court, in an oral opinion enforced the

order with the exception of striking from

it any reference to “any other employer" as

Local 259 was not found to have engaged in

violations against any employer other than

Atherton.

REASONS FOR GRANTING THE WRIT

1. THE DECISION OF THE COURT OF

APPEALS IS CONTRARY TO PUBLIC

POLICY AND PAST PRECEDENT IN

THAT IT RESTRICTS THE CONSTITU-

TIONAL RIGHT OF UNIONS TO EX-

PRESS OPINIONS CONCERNING EM-

PLOYER REPRESENTATIVES IN THE

ABSENCE OF THREATS AND COERCION

AND FAILS TO MEET THE REQUIRE-

MENTS OF THE SUBSTANTIAL EVI-

DENCE TEST.

a) Local 259 Did Not Restrain Or Coerce

The Employer Within The Meaning Of

The Act. Representatives Of Local

259 In Expressing Opinions Concerning

The Employers's Representatives Were

Engaging In Free Speech Guaranteed By

The Constitution And §8(c) Of The Act.

When the Act was still in its embryonic

stages, this Court held that employers had

a constitutional right to express opinions

that were noncoercive in nature. NLRP v.

Virginia Elec. & Power Co., 314 U.S. 469.

In 1947 the Act was amended to specifically

provide that the “expressing of any views,

in ae.

elle

argument, or Opinion. .. shall not con-

stitute or be evidence of an unfair labor

practice . .. if such expression contains

no threat of reprisal or promise of ben-

efit.” 29 U.S.C. §158(c)

Both the Board and courts have been

assiduous in protecting the free speech

rights of employers. For example, one Court

found that the following statement was not

violative of the Act:

"Our sincere belief is that if the

Union were to get in here it would not

work to your benefit but would in the

long run itself operate to your

serious harm. It is our intention to

oppose the union and by every proper

means to prevent it from coming into

this operation." Clothing Workers

(Hamburg Shirt Corp.) v. NDURB, 365 F.

2a 898 lexpe 15966). See also Well-

ington Mill Division v. NLRB, 330 F.

CA 4).

In Airporter Inn Hotel, 215 NLRB 156,

the Boar e that a statement in letter

sent by an employer to employees during a

union's organizational campaign to “refuse

to sign any union authorization cards and

avoid a lot of unnecessary turmoil” was not

an “instruction or direction" but was pro-

tected by §8(C) as “views, argument or

opinions" of the employer.

The same protection must be accorded to

unions especially in view of the fact that

employees are economically dependent on

their employers and thus have a “tendency”

to be more easily coerced than would those

more “disinterested”. NLRB v. Gissel

ol2e

Packing Co., 395 U.S. 575. Unions do not

possess any degree of control over employ-

ers, and thus noncoercive statements by

unions can not form the basis for a finding

of a violation of the Act.

Prior cases involving §8(b) (1) (B) took

cognizance of this fact and found violations

Only where coercive conduct was involved.

This Court in interpreting §8(b) (1) (A) held

that:

"Section 8(b) (1) (A) is a grant of

power to the Board limited to author-

ity to proceed against union tactics

involving violence, intimidation, and

reprisal or threats thereof - conduct

involving more than the general

pressures upon persons employed by the

affected employers implicit in eco-

nomic strikes." N.L.R.B. v. Drivers,

Chauffeurs, Helpers Local Union No lI

639, International Brotherhood of ~

Teamsters, Chauffeurs, Warehousemen

and Helpers of America (Curtis Bros.,

Inc.), U.S. 274, 290.

Inasmuch as the “restrain and coerce”

clause of Section 8(b)(1) applies to both

Sections 8(b) (1) (A) and 8(b) (1) (B), the

Board under Section 8(b) (1) (B), as under

Section 8(b) (1) (A), is limited to authority

to proceed against union tactics involving

“violence, intimidation, and reprisal or

threats thereof". There was no evidence

that the Union engaged in any of these

tactics as a means of coercing the Employer

to discharge Dazzo.

The only direct testimony in the case,

which was expressly credited by both the

@13<

ALJ and the Board, consisted of statements

by all those present at the negotiations

that the Union did not, during those

sessions or at any other time, seek Dazzo's

discharge. Nor did the Union ever condi-

tion the signing of a contract upon his

discharge (A. 7,17,60,61,125,129,149). The

Board's reliance on certain statements made

to officials of the Employer, and the lower-

ing of bargaining demands after Dazzo's dis-

charge to support its finding that a vio-

lation occurred are not supported by sub-

stantial evidence.*

In prior cases in which a violation of

§8(i:) (1) (B) was found, there was compelling

evidence that the union resorted to coer-

cion by striking or picketing or threaten-

ing to take such action in order to dic-

tate the Employer's choice of a grievance

representative. See e.a. Local 423, La-

borers' Int. Union of N. America (Mansfield

Flooring Co.), 195 NLRB 241; Communication

Workers of America, Local 2550, 195 NLRB

945; International raphical Union, 86

NLRB sets Los Angeles Steak sane pogrd

ILGWU (Helen Rose Co.),

N.L.R.B. V. Local 964 einen "he. oF. ass

penters, 447 F. 2d 643 (CA 2 1971).

this case there was simply no proof Bs any

such threat. See Teamsters Local 427

(Edward D. Sultan Co.), 223 NLRB No. 202,

92 LRRM 1144.

Although there was no evidence that

the Union even sought to persuade the Enm-

* This aspect of the case is discussed in

detail, infra, p. 17 et seq.

-14-

ployer to discharge Dazzo, such a request

would not constitute a violation of the

Act. The Board in ILGW (State Belt

Apparel Contractors’ Ass'n.), 122 NLRB

L350. 1391, entm'’t. den. other grounds

274 F. 2d 376 (CA 3 1960) found that a

violation had occurred because the unions:

". . . were not content merely to re-

quest or seek to persuade the em-

ployers to eliminate the selected re

presentative, but refused to perform

their statutory duty of representing

the employees in the settlement of

grievances and strikes. Thus, such

a withdrawal from participating in

negotiations of this nature ‘was de-

signed to exert some restraint or

coercion . . . over and above a mere

attempt at persuasion in a free

market place of ideas. ...‘"

In Local 80, Sheet Metal Workers

(Turner-Brooks, Inc.), 161 NLRB 229, 235,

the Board held in a Like manner, that in-

sistence upon the inclusion of a non-

mandatory subject of bargaining, while

possibly a violation of §8(b) (3) (refusal

to bargain), was not a violation of 8 (b)

(1) (B) because “mere insistence is not to

be equated with the restraint or coercion

required by the statute to establish an 8

(b) (1) (B) violation." Cf. International

T raphical Union Local 38 v. N.L.R.B.,

rae: or Sa 6 (CA 1 1900), aff'd. by an

equally divided court, 365 U.S. 705

(Union violates §8(b)(1)(B) by striking to

force an employer to hire only union mem-

bers as foremen) with Sakrete of Northern

California, Inc. v. N.L.R.B., F. 09

(CA 9 1964), cert. den. 379 U.S. 961 (union

can lawfully propose that supervisors be

Set ae ee

eee eee

-15-

covered by the collective bargaining agree-

ment).

b) The Substantial Evidence Test

It is the hornbook law that suspicion

is not a substitute for proof and may not

serve as substantial evidence. Rafael

qgartha, 174 NLRB 615, 619; N.L.R.B. V.

Shen-Valley Meat Packers, Inc., 211 F. 2d

289 (CA 4 4); N.L.R.B. v. Mears, 437 F.

2d 502 (CA 3 1970); N.L.R.B. v. Monroe

Auto Equipment Co., 368 F. 2d 975 (CA 8

; Northern Petro-Chemical Co. v.

N.L.R.B., 469 F. 2d 352 (CA 6 1972);

Southwest Latex v. N.L.R.B., 426 F. 2d 50

(CA 5 1970). The Board, it is true, may

rely on indirect or circumstantial evidence.

However, such findings must themselves be

Supported by substantial evidence. Dubin-

Haskell Lining Corp. v. N.L.R.B., 375 F.

2d 568, 573 (CA 4 GF

While the courts have defined sub-

stantial evidence in various ways, the

basic test is the same. Substantial evi-

dence has been defined as "'evidence fur-

nishing a substantial basis of fact from

which the fact in issue can reasonably be

inferred. . ..'" Dubin-Haskell Linin

Corp. v. N.L.R.B., supra, at 573. This

Court has stated that "[{s]ubstantial evi-

dence is more than a scintilla. It means

such relevant evidence as a reasonable

mind might accept as adequate to support a

conclusion". Consolidated Edison Co. v.

N.L.R.B., 305 U.S. 197, 229.

To satisfy the test the evidence "must

do more than create a suspicion of the

existence of the fact to be established

ol6—-

» « « « It must be enough to justify, if

the trial were to a jury, a refusal to

direct a verdict when the conclusion sought

to be drawn from it is one of fact for the

jury". N.L.R.B. v. Columbian Enameling &

Stamping Co., 306 U.S. 292, 300. See also

N.L.R.B. v. Grease Co., 94 LRRM 3197 (CA 2

March 30, . A motion for a directed

verdict should be denied "if there is sub-

stantial evidence opposed to the motions,

that is, evidence of such quality and

weight that reasonable and fair-minded men

in the exercise of impartial judgment might

reach different conclusions". Boeing Co.

v. Shipman, 411 F. 2d 365, 374 (CA 5 1569).

See aiso Magnat Corp. v. B. & B. Electro-

lating Co., F. ’ {CA 1

Fee); Business Development Corp. of North

Carolina v. U.S., 428 F. CA 4

1970); Fontanec Aviation, Inc. v. Beech

Aircraft Corp., 432 F. 2d 1080, 1084 (CA

7 1970).

The evidence relied upon by the Board

was not “of such quality and weight that

reasonable" people "might reach different

conclusions". The only conclusion that

may reasonably be drawn from the evidence is

that the Board did not establish that the

Union violated Section 8(b)(1)(B). For

the Court to enforce such an order violated

its responsibility to search the record and

to uphold the Board only when its findings

are based on substantial evidence. The

court abdicated its responsibility in this

case when it permitted Board findings,

based upon surmise and speculation, to

stand.

@lJ@

c) The Inferences Drawn By The Board To

Establish A Violation Were Not Based

On Substantial Evidence.

While the Board may draw reasonable

inferences from proven facts, these in-

ferences to have conclusive effect must

be drawn from the undisputed basic facts.

Board of Publication of the Methodist

Church v. N.L.R.B., 297 F. 2d 379 (CA 6

1962). The Second Circuit itself recently

discussed the Board's Power to draw in-

ferences:

"In the fact finding process a trier

is authorized to draw reasonable in-

ferences from known or proven facts.

But the inference, to qualify as a

fact found, must be reasonable, and,

in the context of the known facts, be

one that springs readily and logicaily

to mind and not one of two or more in-

ferences, both or all of which are

about equally probable." N.L.R.B. v.

Martin A. Gleason, Inc., 534 F. 2d

466, 474 (CA 2 1976).

Tu this case the inference drawn by

the Board was not itself equally probable

with the one drawn by the ALJ who had dis-

missed the complaint. The Board could not

credit the testimony of all of the witnesses

for the Union, discount the hearsay evidence,

and nevertheless, reach the conclusion that

a violation of the Act had occurred. See

Stemun Mfg. Co., 423 F. 2d 737 (CA 6 1970).

The Court of Appeals in enforcing the

Board's order, departed from its prior

holding in the Gleason case, supra, and

other Court of Appeals' decisions. *

* See cases cited on pp. 22-25, infra.

@}] §-

The Board based its conclusion on

certain statements by Union representatives,

and most particularly on the fact that the

Union lowered its bargaining demands after

Dazzo had been discharged. Viewed separate-

ly or in conjunction these facts do not

amount to substantial evidence of union

coercion or restraint.

The statements referred to by the Board

were those by Salvatore that the Employer

had “declared war", that "Dazzo is creating

trouble", and that the men wanted the pro-

posed contract terms and were not being very

flexible because of the layoffs and other

conduct which caused the employees to lose

money (A. 5,6,8,16,17,42,44,45,54,55). The

Board also relied on the remark of McDonald

that the "problem is Dazzo ... and...

the men [are] upset by the proposed lay-

offs" (A. 6,17,78,147,148,163,164).

Taking the latter statement first,

there is no evidence in the record that

McDonald or any other employee had any

authority to act as agents of the Union for

the purpose of putting pressure on the Em-

ployer to get rid of Dazzo, and the Board

did not so find. See Plumbers, Local 83

(Power City Plumbing & Heating), 228 NLRB

No. 27, 94 LRRM PER In fact the Board

found that the work stoppage engaged in by

the employees to protest the turning away

of work was done on their own initiative

without union knowledge or support (A. 16).

Moreover, McDonald's comment came in re-

sponse to a question of Atherton, Jr. in

the absence of any union officials, and

prior to the commencement of negotiations.

In addition, reliance on all or any

-19-

of the statements presents the same basic

flaw. That the employees were disturbed

and angry because of the layoffs and the

cuts in pay may be surmised; that the

Union threatened or coerced the Employer

to discharge Dazzo is mere speculation.

It is at least as likely an inference

that both the statements and the Union's

bargaining position were based on the em-

ployees' justified fears and concern about

their jobs and wages.* That those concerns

involved Dazzo does not prove that the

Union caused his discharge by coercing the

Employer. The employees simply wanted as

much money as they possibly could obtain in

view of the fact that their income and job

security had been affected by the layoffs

(A. 169).

That the ALJ draws a different in-

ference than the Board from the undisputed

facts cannot be ignecred. While the Board

is not bound by the determination of the

ALJ, where there is disagreement between

them, “the evidence mist be examined with

greater care than where both are in agree-

ment". Amalgamated Meat Cutters & Butcher

Workers v. N.L.R.B., 276 F. 2d 34 (CAL

. in its landmark decision, Univer-

sal CameraCorp. v. N.L.R.B., 340 U.S. 474,

496, this Court noted that "[e]vidence

supporting a conclusion may be less sub-

stantial when an impartial, experienced

examiner who has observed the witnesses and

lived with the case has drawn conclusions

different from the Board's than when he has

* The ALJ found that this was the "more

‘likely inference" (A.11l).

-20-

reached the same conclusion". The ALJ's

conflicting determination "carried weight

against the existence of substantial evi-

dence to support the Board's conclusion"

even when the issue does not turn on credi-

bility, “but on the inference reasonably to

be drawn from conduct not in serious dis-

pute". N.L.R.B. v. Majestic Weaving Co.,

355 F. 20 654, 659 (CA 2 1966).

The Board's position and finding on

the Union's bargaining stance completely

ignores the fact that the Union is privi-

leged to engage in hard bargaining without

any adverse inference being drawn. The

Court of Appeals unenlightening affirmance

ignores prior decisions of this Court to

that effect. N.L.R.B. v. American National

Insurance Co., 343 U.S. 395; N.L.R.B. v.

Insurance Agents International Union, 361

U.S. 477; H.K. porter Co., Inc. v. N.L.R.B.,

397 U.S. 95. Section 8(d) of the Act it-

self provides that the obligation to bar-

gain in good faith does not compel either

party to agree to a proposal or require the

making of a concession. The Board has held

that "mere insistence is not to be equated

with the restraint or coercion required

. « « to establish an 8(b) (1) (B) violation".

Local 80, Sheet Metal Workers (Turner~

Brooks, inc.), Lol NURB 229, 235.

Finally, against the speculative evi-

dence relied upon by the Board and the

Court is arrayed a great deal of contrary

direct, probative evidence credited by both

the ALJ and the Board which negates the

Board's finding that the Union coerced the

Employer to discharge Dazzo. This evidence

consists of:

a2le

a) A finding that the Union never

suggested that Dazzo be discharged. Nor

did any of the employees make such a re-

quest. Similarly the Union never condi-

tioned any bargaining concession or the

signing of a contract upon Dazzo's dis-

charge (A. 7,17).

b) Five witnesses unequivocally

testified that the discharge of Dazzo was

never discussed at any time with the Em-

ployer (A. 60,61,124,125,129,149,168).

c) The employees, prior to the start

of negotiations, and on their own initia-

tive, engaged in a work slowdown which did

not have as an expressed purpose the remov-

al of Dazzo (A. 6.16,46-49,146).

d) Also, prior to the start of nego-

tiations, Atherton, Jr., on his own, soli-

cited the views of the employees concerning

the problems in the shop and sought their

views on a replacement for Dazzo (A. 6,7,14

148,163,164). eT

e) The decision to strike on March l

if a contract could not be negotiated by

then was unrelated to the work slowdown and

the layoffs. Dazzo was not an issue in

fone with the decision to strike (A.

£) The Employer had made the decision

to discharge Dazzo prior to the February 27

bargaining session. Ernie Barter, who sub-

sequently replaced Dazzo, informed the em-

ployees on February 19 that he had been

offered the job (A. 56,57).

g) The Employer's attorney made the

~220

announcement that Dazzo had been discharged

"based on what [Atherton, Jr.] had found

out through [his] investigations” (A. 8,9,

17,18,71,130,131,149,155,167,168). There

is absolutely no proof in the record that

the Union played any part in this decision

made by the Employer.

h) When the discharge was announced

at the February 27 negotiating session

Salvatore's reply was that “he was not

there to discuss . . . Dazzo's discharge"

but “to discuss a contract" (A. 9,17,18,71,

131,150,156).

In the face of all this direct evidence

squarely contradicting the inference drawn

by the Board, it is impossible not to con-

clude that the Board based its decision on

what it believed were suspicious circum-

stances. But as prior cases reveal, that

does not amount to substantial evidence.

Nor can the Board rely on evidence “which

gives equal support to inconsistent in- .

ferences". Dubin-Haskell Lining Corp. Vv.

N.L.R.B., 375 F. ’ CA °