Petition — Solboro Knitting Mills, Inc. v. National Labor Relations Board

| ad Supreme Court, U.S.

FILED jj

i

) = JUL 24 1978 |

| MICHAEL © DAK, JR., CLERK

IN THE

Supreme Court of the United States

October Term 1978

So.soro Kwnittine Mus, Inc.,

Petitioner,

v.

NationaL Lasor Revations Boarp and Loca 107,

INTERNATIONAL Lapies’ GARMENT WorKERS UNION,

AFL-CIO,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

Martin H. ScHer

Bruce R. MimuMan

Rains, Pogrebin & Scher

210 Old Country Road

Mineola, New York 11501

Attorneys for Petitioner

INDEX

|

Jurisdiction ................ [LTE ee

ESE ee

Statutes and Regulations Involved ...............2.............-

Statement of the Case .....

Reasons for Granting the Writ

1.

IT.

The decision of the Court of Appeals for the

Second Circuit upholding the order of the Na-

tional Labor Relations Board requiring peti-

tioner to bargain with the Union is inconsis-

tent with the Court’s decision in NLRB vy.

Gissel Packing Co., 395 U.S. 575 (1969) and

conflicts with decisions in other circuits inas-

much as the Court failed to require the Board

to explain whether and why present conditions

are still so contaminated by petitioner’s alleged

unfair labor practices as to prevent the hold-

ing of a fair and untrammeled election among

employees despite the passage of time and

large turnover of employees since the occur-

rence of those unfair labor practices ..............

The decision of the Court of Appeals for the

Second Circuit upholds the ruling of the Na-

tional Labor Relations Board that petitioner

violated Section 8(a)(5) of the National

Labor Relations Act, 29 U.S.C. §158(a)(5),

where no such violation had been charged

against the petitioner is in conflict with the

decision of the United States Court of Ap-

peals for the Eighth Circuit in Drug Package,

Inc. v. NLRB, 570 F.2d 1340 (1978) ; operated

to deprive petitioner of due process of law;

and is inconsistent with the principle that ad-

ministrative agencies adhere to their own

rules

12

15

i

PAGE

III. The decision of the Court of Appeals for the

Second Circuit upholding the ruling of _the

Board that petitioner had violated Sections

8(a)(1) and 8(a)(3) of the Act rests on an

erroneous conclusion of law that statements

of a person not a supervisor are binding on

petitioner; is in conflict with decisions of the

Courts of Appeals for the Eighth Cireuit and

Fifth Cireuit; and is erroneous in failing to

require the Board to follow the principle that

like cases should receive like treatment .......... 18

i a eee pe REN ee 21

Appendix (will be bound separately)

Opinion of the United States Court of Appeals—

Second Circuit

Judgment of the United States Court of Appeals—

Second Cireuit

Decision and Order of the National Labor Rela-

tions Board

Decision and Proposed Order of the Administra-

tive Law Judge

Authorities Cited

Cases

Drug Package, Inc. v. NLRB, 570 F.2d 1340 (Sth Cir.

a ETI ALE. SE 15, 17, 18

Elling Halvorson, Inc., 222 NURB 534 (1976) ............ 17

Fire Alert Co., 223 NLRB 129 (1976) ...................--.scesseee 16

M.S.P. Industries, Inc. v. NLRB, 568 F.2d 166, 97

LRRM 2403 (10th Cir. 1977) 14

NLRB vy. American Cable Systems, Inc., 427 F.2d 446,

73 LRRM 2913 (5th Cir. 1970), cert.den., 400 U.S.

IE CD cicsccissstnessicnenivenssstsnnnceivinnerneniendiictintiniaanianintnanpiiiinn 14

NLRB vy. Armcor Industries, 535 F.2d 239, 92 LRRM

2374 (3d Cir. 1976) ... ; 14

ill

PAGE

NLRB y. General Stencils. Inc., 438 F.2d 894, 76

TsaRREERE SEBS (Ded Cir. 1971) cnn ncn cececeeneeeeeeeesenee ene 20

NLRB v. General Stencils. Inc., 472 F.2d 170, 82

iF fT: Le. : RRC ema ORE ONEN 14

NLRB vy. Gissel Packing Co., 395 U.S. 575 (1969) ..12, 13, 14,

15, 17

NLRB v. Gibson Products Co., 494 F.2d 762, 86 LRRM

RU I, I tes 14

NLRB vy. Gruber’s Star Market, Inc., 501 F.2d 697, 87

Fs & ie te | | Reece eae nea 13, 14

NLRB vy. Pacific Southwest Airlines, 550 F.2d 1148, 94

Po Bee BE ty 5 OREN eee 14

NLRB vy. Sayers Printing Co., 453 F.2d 810, 79 LRRM

SI I a I attach ates ecceciceaenplnbatveniennen 19

Paoli Chair Co., 213 NLRB 909 (1974) . 19

Peerless of America, Inc. v. NLRB, 484 F.2d 1108,

83 LRRM 3000 (7th Cir. 1973) eect ccee eee 13, 14

Redwood Constr. Co., 192 NLRB 15 (1971) -.00....... 20

Rowand Co., 210 NLRB 95 (1974) .. . 19

Sarzen v. Gaughan, 489 F.2d 1076, (1st Cir. 1973) ...... 16

Shulman’s Inc. vy. NLRB, 519 F.2d 498, 89 LRRM

2729 (4th Cir. 1975) .................. 14

South Station Liquor Store, Inc., 223 NLRB 1115

(1976) ..... ~_ 17

Steel Fab Inc., 212 NLRB 363 (1974) 17

Stewart & Stevenson Services, Inc., 164 NLRB 741

(1967), mod. on other grounds, 414 F.2d 232, 70

LRRM 2719 (5th Cir. 1969) 19

Trading Port Inc., 219 NLRB 298 (1975) 17

Western Saniple Book & Printing Co., 209 NLRB

384 (1974) 20

White Pine, Inc., 213 NLRB 566 (1974) 17

Universal Camera Corp. v. NLRB, 340 U.S. 474

(1951) 21

iv

Statute

PAGE

National Labor Relations Act, as amended (61 Stat.

136, 73 Stat. 519, 29 U.S.C. §151, et seq.) -...........

Section 2(11) -......-...-.--ssssessssssessenensccensessnsecsesensenenses 3

ethane F eccecsiccisreseeeninncnaemnnnan : 3

Section 8(a)(1) -......... a Seika 3, 4, 18, 18

SJoctiiom 8m) (BS) —aaaaaaannennm---2nnn-nveneessseensenenonecnsnecesoos 3, 4, 18

Bocthow Bla) CG) eccccecrccctsccnneesenemnnons 2,5, 11, 15, 16, 17, 18

Secticm DC) eananececeenecceeesnncnsncscsensnssesssnessennansceensnssens 12

Rules and Regulations

Rules and Regulations of the National Labor Rela-

tions Board, 29 CFR § 1QB15 ...............-.-.-0cceee.ecs0e-2-2- 5

299 CFR § 102.17 ............. x 6,15

IN THE

Supreme Court of the United States

October Term 1978

ei aiiciileinniicss

>

Sotsoro Kyitrtine Mitts, Inc.,

Petitioner,

Vv.

Nationa Lasor Retations Boarp and Locat 107,

INTERNATIONAL Lapius’ GARMENT Workers Union,

AFL-CIO,

Respondents.

TOO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

To the Honorable, the Chief Justice and the Associate

Justices of the Supreme Court of the United States:

The Petitioner, Sorsoro Kyirrinc Mitts, Inc., prays

that a writ of certiorari issue to review the decision of

the United States Court of Appeals for the Second Cir-

cuit issued in this ease on March 8, 1978, insofar as and

to the extent that decision granted the application of the

Nationa! Labor Relations Board (the “Board’’) to enforce

its order herein dated January 7, 1977.

Opinion Below

The opinion of the United States Court of Appeals for

the Second Cireuit (Appendix, infra,), modifying the deci-

sion of the National Labor Relations Board, is reported

2

at 97 LRRM 3047, but, as of the date of this Petition, has

not been officially reported. The Judgment of the Court

of Appeals (App., infra,) was filed on April 25, 1978. The

Decision and Proposed Order of the Administrative Law

Judge and the Decision and Order of the National Labor

Relations Board affirming in part and modifying in part

his decision and recommended order (App., imfra,) are

reported at 227 NLRB 738.

Jurisdiction

The jurisdiction of this Court is invoked pursuant to

28 USC § 1254(1).

Questions Presented

1. Whether Solboro was properly ordered to bargain on

demand, with Local 107, [LGWU; where the Board

failed to explain whether and why present conditions

are still so “contaminated by Solboro’s alleged unfair

labor practices as to prevent the holding of a fair and

untrammeled election among the employees to decide

whether or not they wish to be represented by Local

107,” despite the passage of time and large turnover

of employees since the occurrence of those alleged

unfair labor practices.

Whether the Board could find that the petitioner had

violated section 8(a)(5) of the National Labor Rela-

tions Act, 29 USC §$158(a)(5) [i.e. had failed to bar-

gain in good faith with Local 107, on demand] where

no such violation had been charged against the Com-

pany, nor litigated, nor found by the Board’s Adminis-

trative Law Judge.

bo

3

3. Whether statements not authorized by petitioner, and

which were made by an employee of petitioner who

was not a supervisor, were nevertheless attributable to

petitioner, so that petitioner could be found to have

violated §§ 8(a)(1) and 8(a)(3) of the National Labor

Relations Act, 29 USC §§ 158(a)(1) and (3), by virtue

thereof.

Statutes and Regulations Involved

The relevant provisions of the National Labor Rela-

tions Act, as amended, 61 Stat. 136, 73 Stat. 519, 29 USC

$$ 151 et seq. are the following

National Labor Relations Act §2(11), 28 U.S.C.

§152(11):

Definitions

Sec. 2. When used in this Aet—

(11) The term “supervisor” means any individual

having authority, in the interest of the employer, to

hire, transfer, suspend, lay off, recall, promote, dis-

charge, assign, reward, or discipline other employees,

or responsibly to direct them, or to adjust their

grievances, or effectively to recommend such action,

if in connection with the foregoing the exercise of

such authority is not of a merely routine or clerical

nature, but requires the use of independent judgment.

National Labor Relations Act §7, 28 U.S.C. §157:

Rights of Employees

Sec. 7. Employees shall have the right to self-

organization, to form, join or assist labor organiza-

tions, to bargain collectively through representatives

of their own choosing, and to engage in other con-

4

eerted activities for the purpose of collective bar-

gaining or other mutual aid or protection, and shall

also have the right to refrain from any or all of such

activities except to the extent that such right may be

affected by an agreement requiring membership in a

labor organization as a condition of employment as

authorized in section 8(a) (3).

National Labor Relations Act §§8(a)(1), (3) and

(5) 29 U.S.C. §§$158(a) (1), (3) and (5):

Unfair Lavor Practices

Sec. 8. (a) I$ shall be an unfair labor practice for

an employer—

(1) to interfere with, restrain, or coevce employees

in the exercise of the rights guaranteed in section 7;

(3) by discrimination in regard to hire or tenure

of employment or any term or condition of employ-

ment to encourage or discourage membership in any

labor organization: Provided, That nothing in this

Act, or any other statute of the United States, shall

preclude an employer from making an agreement

with a labor organization (not established, main-

tained, or assisted by any action defined in section

S(a) of this Act as an unfair labor practice) to

require as a condition of employment membership

therein on or after the thirtieth day following the

beginning of such employment or the effective date

of such agreement, whichever is the later, (i) if such

labor organization is the representative of the

employees as provided in section 9(a), in the appro-

priate collective-bargaining unit covered by such

agreement when made; and (ii) unless following an

election held as provided in section 9(e) within one

year preceding the effective date of such agreement

the Board shall have certified that at least a majority

5

of the employees eligible to vote in such election have

voted to rescind the authority of such labor organi-

zation to make such an agreement: Provided fur-

ther, That no employer shall justify any discrimina-

tion against an employee for nonmembership in a

labor organiaztion (A) if he has reasonable grounds

for believing that such membership was not available

to the employee on the same terms and conditions

generally applicable to other members or (B) if he

has reasonable grounds for believing that member-

ship was denied or terminated for reasons other than

the failure of the employee to tender the periodic

dues and the initiation fees uniformly required as a

condition of acquiring or retaining membership:

(5) to refuse to bargain collectively with the rep-

resentatives of his employees, subject to the provi-

sions of section 9(a).

Rules and Regulations of the National Labor Rela-

tions Board, 29 CFR $§ 102.15 and 102.17:

Complaint

§ 102.15 When and by whom issued; contents;

service—After a charge has been filed, if it appears

to the regional director that formal proceedings in

respect thereto should be instituted, he shall issue

and cause to be served upon all the other parties a

formal complaint in the name of the Board stating

the unfair labor practices and containing a notice of

hearing before an administrative law judge at a

place therein fixed and at a time not less than 10

days after the service of the complaint. The com-

plaint shall contain (1) a clear and concise state-

ment of the facts upon which assertion of jurisdiction

by the Board is predicated, and (2) a clear and con-

cise description of the acts which are claimed to con-

stitute unfair labor practices, including, where

6

known, the approximate dates and places of such

acts and the names of respondent’s agents or other

representatives by whom committed.

§ 102.17 Amendment—<Any such complaint may

be amended upon such terms as may be deemed Just,

prior to the hearing, by the regional director issuing

the complaint; at the hearing and until the case has

been transferred to the Board pursuant to section

102.45, upon motion, by the administrative law judge

designated to conduct the hearing; and after the

ease has been transferred to the Board pursuant to

section 102.45, at any time prior to the issuance of

an order based thereon, upon motion, by the Board.

Statement of the Case

A. Background

Petitioner, Solboro Knitting Mills, Ine. (herein “the Com-

pany”, or “Solboro”) is a New York corporation engaged in

the manufacture of knitted sweaters. Murray Harkavy,

president, and Rita Harkavy, secretary-treasurer, manage

the Company and supervise its daily operations.

During the 1974 fall season, the Company employed

approximately-thirteen employees to operate its machinery

and perform related unskilled tasks. The employer-

employee relationship at Solboro is informal. The Secre-

tary-Treasurer of the Company spends her day at the plant,

in the shop, personally directing the production force,

actually assisting in the work herself, alongside the other

employees (e.g., R.356, 388, 471, 920). She has constant

1. “R” references are to pages of the printed Record, i.e., the

Appendix in the Court of Appeals, which Petitioner has requested

that Court to certify and transmit to this Court.

7

contact with her employees regarding their work (A.920) ;

she frequently asks employees, especially the older employ-

ees, “Whats going on” (R.471, 480, 968). P

The Company’s operations are seasonal. Business con-

ditions in the apparel industry were depressed in the fall

of 1974, and the Company’s shipments or orders were

already dwindling (R.794-797) when the Company received

a telegram on September 30 cancelling a complicated, labor-

intensive Sweater-Bee order. Less than one week earlier,

the Company was told by its accountant that it had lost

$15,000 during the previous year.

Just a few days later, Union representative Gaspar

Sciacca came to Mr. Harkavy claiming that Local 107,

ILGWU, represented a majority of his employees.

Mrs. Harkavy inquired of Anna Nemee why she had not

told her about the Union campaign. Later that day, Mr.

Harkavy addressed the employees assembled in the shop.

He said he understood that some of the people wanted

to be represented by the Union. He then spoke of the gen-

eral economic situation of the Company and the industry,

that expenses would rise due to Union benefits, that a major

order had been cancelled, that he had just been told by his

accountant that tl; Company had lost $15,000 for the pre-

vious fiscal year, that Hong Kong competition was on the

rise, and finally, that he didn’t see how Solboro could sur-

vive if all these economic conditions persisted or if there

were an additional economic expense. He told his em-

ployees that it was their decision to make, but that he

wanted to make them aware of the Company’s and the in-

dustry’s financial condition (R. 798-90, 845-47).

Mr. Harkavy’s recollection was corroborated by every

employee who testified about the speech, including witnesses

for the Union who were found “very impressive” by the

finder of fact. (R.330, 532-33, 567-68, 764-67, 622, 629-30,

37, 4, 655).

8

Nevertheless, the Board found that the employees could

reasonably have inferred that the Company had threatened

plant closure for their support of the Union, in violation

of §8(a)(1) of the Act, a finding affirmed by the Court of

Appeals.

The Board, with Court approval, also found that Solboro

violated §8(a)(1) of the Act by virtue of anti-union state-

ments and threats to employees attributed to Mrs. Harkavy,

and by virtue of Mrs. Harkavy having interrogated em-

ployees about their union activities and support.

The record is clear that Solboro’s business is seasonal;

that the season’s end was at hand when the Union arrived

on the scene; that the Company’s knitting machines were

already limited to turning out samples and new designs

weeks before the Union’s demand for recognition, thus

creating the production fall-off which justified the layoffs

that followed; that the Company had experienced the can-

cellation of a major in-production order, the first in its ex-

perience, on September 29, just days before the Union busi-

ness agent appeared; that some employees, by the end of

September, were being given make-work, and were either

finishing wp orders for shipment or already working on

material that would stay on the shelf and not be shipped

out at all; and that October was a very slow month (R.192,

459-63, 476, 556-57, 627, 680-84, 689, 708-10, 725-29, 792-802

820-24, 835, 869-71, 922, 932-33).

However, the Court of Appeals found ample evidence in

the record to support the inferences drawn by the Board

that “the layoffs of the four union supporters were ex-

pedited on the basis of discriminatory considerations in

violation of section 8(a)(3) of the Act”, (Appendix, infra.)

as well as the Board’s conclusions that the company refused

to reemploy them at the beginning of the next season for

the same reasons.

B. Josephine O’Connell

The Board devoted considerable attention to alleged

threats, promises of benefit and coercive statements of

Josephine O’Connell, who on October 5 began circulating a

petition among employees repudiating the Union.

Mrs. O’Connell worked like other employees, at different

jobs, including floor work, steaming and packing (R.370,

685, 716). She had no dealings with employees regarding

their wages, time off, hiring, firing, or transfers; she had

no authority effectively to recommend any of the above such

actions; she did not answer questions for employees con-

cerning their work (R.718-720, 908). Rather, O’Connell

worked on an hourly basis, and was paid time and a half

for overtime (R.717). Her rate of pay, $2.40 an hour

(R.717), was even less than the rate for Grace Rugolo, the

Union organizer and a recent hire (R.663).

Mrs. O’Connell had no independent authority to issue

instructions or directions to employees concerning their

work. She could relay instructions to employees, but only

those which she received directly from Mrs. Harkavy

(R.511, 718, 906). Even those instructions were limited be-

cause O’Connell was not competent to tell employees how to

do their work (R.977-79).

Mrs. Harkavy specifically told the employees that

O’Connell was not a forelady (R.513-515); and contrary

to the conclusion of the Board (R.39) and the unsup-

ported assertions of General Counsel in its Court of

Appeals brief, the record clearly reveals that the em-

ployees did not consider her to be a person of authority

or an agent of management. For example, Margaret

Passannante, one of the alleged discriminatees, testified

that she never received instructions from Mrs. O'Connell

and never had reason to (R.370). Mary White, another

witness for the Board, testified that she received instrue-

10

tions about her work from no one other than Mrs.

Harkavy (R.423). Other employees testified that they

knew that Jo O’Connell was not a forelady (R.510, 631,

642, G85).

Finally, employees, including witnesses for the Board,

consistently testified that whenever Mrs. O’Connell spoke

for Mrs. Harkavy (known in the shop as Mrs. Murray),

she would preface her remarks with words such as: “Mrs.

Murray wants you to do this”, or “Mrs. Murray said for you

to do that” (Carmella Cacoperdo, R.525; Donna Moravec,

R.616-17; Julia Delfino, R.682). Mrs. O'Connell also testi-

fied that whenever she would relay instructions from Mrs.

Harkavy, she would preface her remaks to indicate that

the instructions came from “Mrs. Murray” (R.717-18, 749)

because this was the easiest way in which she could get

employees to respond to those instructions.

The uneontroverted evidence clearly demonstrates that

Mrs. O’Connell, who was neither a supervisor nor agent

of the Company, undertook to cireulate the petition

repudiating the Union without the knowledge of the Com-

pany; that those employees who signed the petition did

so knowledgeably, without being coerced, and of their

own free will (Mrs. O’Connell, R.735-38; Donna Moravec,

R.583, 602-04; Anna Nemec, R.456, 473-76; Cacoperdo,

R.492-93, 515); that Mrs. O'Connell typed the letter her-

self at home without ever discussing it with management;

and that management first learned of the letter, with sur-

prise, when O’Connell showed the signed, fait accompli

to Mrs. Harkavy (R.737-38, 912, 973-74).

Nevertheless, the Board held that Mrs. O’Connell’s

activities were attributable to the company and that

Solboro violated the Act by virtue of her activities.

——— ee

11

C. The § 8(a)(5) Violation

Throughout the entire proceedings before the National

Labor Relations Board, at both the Administrative Law

Judge level and on review by the Board itself, Solboro

was never charged with having violated § 8(a)(5) of the

Act.

Nevertheless, at the time of its review of the ALJ’s

decision, the Board raised sua sponte and without prior

notice to Solboro, the allegation that it had violated

§ 8(a)(5). The Rules and Regulations of the Board pro-

vide that a complaint may be amended upon motion. How-

ever, the Board did not comply with its rules and did not

give the Company notice of this alleged § 8(a)(5) viola-

tion by properly amending the complaint.

The Board itself in its brief to the Court of Appeals,

acknowledged that “almost” every element of a § 8(a) (5)

violation was litigated. The Administrative Law Judge

specifically noted: (a) the absence of any 8(a)(5) against

the company contention, (b) that respondent had asserted

the inadequacy of the bargaining demand at the hearing,

and (c) that while respondent appeared to ahandon this

position in its brief, the issue was irrelevant in the absence

of any 8(a)(5) contention (R.49, n. 76).

12

REASONS FOR GRANTING THE WRIT

decision of the Court of Appeals for the Sec-

bi Circuit upholding the order of the National

Labor KXelations Board requiring petitioner to

bargain with the Union is inconsistent with this

Court’s decision in NLRB v. Gissel Packing Co.,

395 U.S. 575 (1969) and conflicts with decisions

in other circuits inasmuch as the Court failed to

require the Board to explain whether any why

present conditions are still so contaminated by

petitioner’s alleged unfair labor practices as to

prevent the holding of fair and untrammeled

election among the employees, despite the Passage

of time and large turnover of employees since the

occurrence of those unfair labor practices.

It is well established that the preferred method for

ascertaining whether a union has majority support is a

secret ballot election conducted by the Board through its

procedures under §9(c) of the Act (29 U.S.C. § 159(¢).

NLRB vy. Gissel Packing Co., 395 U.S. 575, 596-7, 602-3

(1969).

Thus, this Court has established two categories of cases

where bargaining orders may issue without the holding of

an election. = .

In cases marked by “outrageous” and “pervasive unfair

labor practices, where the Board may issue a bargaining

order without prior showing of majority support, a bargain-

ing order is appropriate only if the unfair labor practices

are of such a nature that their coercive effects — be

eliminated by the application of traditional remedies, _—

the result a fair and reliable election eannot be had.

However, the Board may issue a bargaining order

requiring an employer to bargain with a Union which has

obtained authorization cards from a majority of its em-

ployees, in the absence of an election, where an employer

13

has committed less pervasive independent unfair labor

practices which have made the holding of a fair election

unlikely. NLRB v. Gissel Packing Co., supra.

Of course, there is a third category of cases where less

extensive unfair labor practices has oceurred. This case

should be treated as a “third category” case. Josephine

O’Connell’s anti-union conduct apparently is the major

basis for the Board’s finding that the company committed

serious unfair labor practices consisting of threats,

promises of benefit, soliciting employees to repudiate the

union, ete., in volation of section 8(a)(1) (R. 39-41)

(Board brief to Court of Appeals at 7-8, 17-21, 41).

There is no basis in law or fact for holding that the Com-

pany committed unfair labor practices on the basis of

conduct of employee Josephine O’Connell (infra, pp. 18-21).

But even if this is characterized as a first or second

category case? a bargaining order is inappropriate

because the 3oard failed even to consider whether a free

and untrammeled election could have been held at the

time the Board issued its order, in view of the seasonal

nature of Solboro’s business, the high rate of employee

turnover (A. 29, 193-235) and the passage of time since

the case had arisen,

“Since it is the present work force that stands to

be deprived of exercising its free choice in the pre-

ferred election process, the fact that it is substan-

tially different from the one which existed at the

time of the misconduct militates against issuance

of a bargaining order...”

Peerless of America, Inc. v. NLRB, 484 F.2d 1108, :

83 LRRM 3000, 3010 (7th Cir., 1973), NZRB vy. Gruber’s

2. The Board did not choose to characterize the case as one or

the other.

14

Star Market, Inc., 501 F.2d 697, 87 LRRM 2037 (7th Cir.

1974). But see, contra, NLRB vy. Pacific Southwest Air-

lines, 550 F.2d 1148, 94 LRRM 2772 (9th Cir. 1977).

In Gissel the Court made it plain that a bargaining

order should be issued only when “the possibility of .. .

ensuring a fair election . . . by the use of traditional

remedies, though present is slight.” 395 U.S. at 614.

Compare, e.g., M.S.P. Industries, Inc. v. NLRB, 568 F.2d

166, 97 LRRM 2403 (10th Cir., 1977), where it was found

that the Board properly refused to enter a Gissel bargain-

ing order despite “pervasive” unfair labor practices since

certification and a duty to bargain already existed by

virtue of an election among employees.

The Second Cireuit Court of Appeals failed to remand

this ease to the Board to consider and make specific find-

ing on this issue, despite the fact that other Cireuit Courts

of Appeal have done so in similar cases involving seasonal

business, high employee turnover and passage of time.

NLRB vy. American Cable Systems, Inc., 427 F.2d 446, 73

LRRM 2913 (5th Cir. 1970) cert. den. 400 U.S. 957 (1970),

NLRB vy. Gibson Products Co., 494 F.2d 762, 86 LRRM 2637

(5th Cir. 1974), Peerless of America, Inc. v. NLRB, supra,

NLRB vy. Gruber’s Star Market, Inc., supra, Shulman’s, Inc.

v. NLRB, 519 F.2d 498, 89 LRRM 2729 (4th Cir. 1975),

NLRB vy. Armcor Industries, 5385 F.2d 239, 92 LRRM 2374

(3rd Cir. 1976). Indeed, the Second Circuit has also

recognized this principal in prior cases, though it did not

apply it here. NDRB vy. General Stencils, Inc., 472 F.2d

170, , 82 LRRM 2081, 2084 n.5. (2d Cir. 1972).

As the Fifth Cireuit stated in American Cable Systems,

Inc., supra,

We think it clear from the foregoing that the Court

in Gissel clearly contemplated that no bargaining

order should be issued unless at the time the Board

ee ie iy ae oe oote een eee

15

issues such an order it finds the electoral atmosphere

unlikely to produce a fair election.

Thus the Court remanded the matter to the Board to deter-

mine whether the employer’s “1965 violation of §8(a) (1)

and (3) have a 1970 existence.”

The failure of the Second Cireuit to require the Board

even to consider whether a free election could have been

held at Solboro at the time of its bargaining order and to

make specific findings with respect thereto, in conflict with

decisions of other Cireuits and in disconsonance with this

Court’s Gissel decision, should compel the Court to grant

certiorari herein.

The decision of the Court of Appeals for the Sec-

ond Circuit upholding the ruiing of the National

Labor Relations Board that petitioner violated

section 8(a)(5) of the National Labor Relations

Act, 29 USC § 158(a) (5), where no such violation

had been charged against the petitioner, is in

conflict with the decision of the United States

Court of Appeals for the Eighth Circuit in Drug

Package, Inc. v. NLRB, 570 F.2d 1340 (1978);

operated to deprive petitioner of due process of

law; and is inconsistent with the principal that

administrative agencies adhere to their own rules.

The Board erred in raising, sua sponte, at the time of its

review of the Administrative Law Judge’s decision, the

allegation that Solboro violated section 8(a)(5) of the Act.

The Rules and Regulations of the NLRB, section 102.17,

state that a complaint may be amended by the Board, upon

motion, at any time prior to the issuance of an order by

the Board (emphasis added). In the case at bar, the Board

did not comply with its rules: It did not move to amend

the complaint, nor did it amend the complaint without

16

making a motion. Indeed, the Board never gave the peti-

tioner any notice that a section 8(a) (5) charge was pending

against petitioner, or was being considered by the Board,

and thus the Company did not have full and fair oppor-

tunity to refute this charge. Compare, e.g., Fire Alert Co.,

223 NLRB 129, 130 n. 5 (1976).

This is not a procedural technicality, because not all ele-

ments of an 8(a)(5) violation were litigated? The Admin-

istrative Law Judge specifically noted: (a) the absence of

any 8(a)(5) contention, (b) that respondent had asserted

the inadequacy of the bargaining demand at the hearing,

and (c) that while respondent appeared to abandon this

position in its brief, the issue was irrelevant in the absence

of any 8(a)(5) contention (R. 49, n. 76) (emphasis added).

Thus Solboro was in fact denied a full and proper hearing

on one major aspect of an S(a)(5) violation. Respondent

did not fully develop its contention as to the inadequacy of

the bargaining demand at the hearing, in its brief to the

Administrative Law Judge, nor in its appeal to the Board,

because at no time was that issue relevant to the charges

the Company was on notice to defend.

It is axiomatic that since petitioner was not fully

appraised of the charges against it and did not have an

opportunity fully and completely to defend itself, petitioner

was denied due process. Sarzen v. Gaughan, 489 F.2d 1076

(1st Cir. 1973). The statements by the Board and the

Court that the §8(a)(5) violation was fully litigated are

contradicted by the Administrative Law Judge, who was the

actual trier of fact.‘

3. The Board admitted as much by stating in its brief to the

Court of Appeals that “almost” every element of the § 8(a)(5)

violation was litigated.

4. The ALJ’s suggestion that even if fully litigated he would

have determined this issue against the Company merely indicates

that he had made up his mind before hearing full and complete

argument. It indicates greater, not lesser, prejudice to the petitioner

by virtue of the conduct of the proceedings.

17 -

The Board erred in blindly following the rulp tom Trad-

ing Port, Inc., 219 NLRB 298 (1975). Ue Board neglects

to note that, in contrast to the porse at bar, the original

charge in Trading Port did: allege an 8(a)(5) violation.

Moreover, Steel-Fah,- Inc., 212 NLRB 363 (1974), and

White Pine, Inc. 213 NLRB 566, 567, reflected the status

of Board law when the complaint against Solboro was

served and the matter tried. Compare, e.g., South Station

Liquor Store, Inc., 223 NLRB 1115 (1976). The policy

expressed in those cases, that the injection of “artificial and

superfluous” findings of 8(a)(5) violations are not neces-

sary for a bargaining order under the rule of NLRB vy.

Gissel Packing Co., supra, should apply to a ease where no

8(a)(5) violations are charged. Therefore, while the

employer vigorously contends, supra, that a Gissel order

is not appropriate, the Board’s finding on the Gissel ques-

tion is not a justification for finding an 8(a)(5) violation

where none had been charged or litigated. Accord, Ellina

Halvorson, Inc., 222 NLRB 534, at n. 6 (1976).

The decision of the Second Circuit upholding the Board’s

finding of a §S8(a)(5) violation in these circumstances, con-

flicts with the decision of the 8th Cireuit in Drug Package,

Inc. v. NLRB, 570 F.2d 1340, 97 LRRM 2851 (1978). The

Kighth Cirenit reversed the Board’s decision that Drug

Package, Ine. had violated §8(a)(5), noting that (a) the

complaint, as amended, contained no allegations of an.8(a)

(5) violation; (b) that the Administrative Law Judge made

no finding of a section 8(a)(5) violation; (¢) the exceptions

to the Administrative Law Judge’s decision filed by the

Union as the charging party did not press a elaim for an

8(a)(5) violation; (d) the hearing was conducted prior to

the Board’s decision in T'rading Port. As the Court therein

stated, “Had the Company been given notice of the pos-

sibility of an 8(a)(5) violation and the resulting additional

18

penalties, it might have litigated the matter differently.”

The identical factors are present in the instant case.

While Solboro faces no “additional” penalties by virtue of

the §8(a)(5) finding, that finding is an independent basis

for the bargaining order which is “the most serious remedy

imposed in this matter” (ef. Drug Package, Inc., supra, 97

LRRM 2854) and which Solboro seeks to overturn.

The decision of the Court of Appeals for the

Second Circuit upholding the ruling of the Board

that petitioner had violated sections 8(a)(1) and

8(a)(3) of the Act rests on an erroneous conclu-

sion of law that statements of a person not a

supervisor are binding on petitioner; is in conflict

with decisions of the Court of Appeals for the

Eighth Circuit and Fifth Circuit; is inconsistent

with other decisions of the Board; and is errone-

ous in failing to require the Board to follow the

principle that like cases should receive like treat-

ment.

The Board concedes that Ms. O’Connell was not a super-

visor (R. 39, 53). The Board cites not an iota of evidence

that employees viewed her as a forelady or management

representative—the evidence is to the contrary. There is

not a shred of evidence that O’Connell spoke for manage-

ment or that employees thought her statements about union

activities originated with management. Nowhere in the

record does it appear that Mrs. O’Connell invoked Mr. or

Mrs. Harkavy when she made any of her allegedly coercive

statements (i.e., p. 6, supra. E.g., R.523). There is no

evidence that she acted at the behest of management. There

is no evidence that management knew of her activities and

statements. Nor is there any evidence that the employees

etna ea. —

19

were led to believe that she was acting on behalf of manage-

ment in these activities. The Board cities no record evi-

dence to support its conclusion to the contrary, which is

mere conjecture.

Yet, even in cases where the “nexus” between manage-

ment and the employee has been substantially greater than

here, and where the evidence of such a nexus has been

substantially more convincing, the Board, with approval of

various Courts of Appeal, has held that the employer

was not responsible for the anti-union conduct of those

employees. NLRB v. Sayers Printing Co., 453 F.2d 810,

79 LRRM 2129 (8th Cir. 1971) (Company could not be

charged with responsibility for two employees’ actions

during union election campaign which consisted of threaten-

ing loss of employment, loss of bonuses, and discharge,

where substantial evidence on record as a whole did not

support determination that they were supervisors and

record was void of evidence that they acted at request or

direction of management). Stewart & Stevenson Services,

Inc., 164 NLRB 741, 742-43 (1967), modified on other

grounds, 414 F.2d 232, 70 LRRM 2719 (5th Cir., 1969),

(employees had no power to hire, fire or recommend change

in status of employees, worked alongside other employees,

and acted merely as a conduit for the foreman when giving

orders) ; Paoli Chair Co., 213 NLRB 909 (1974), (employee

received instructions from the overall supervisor, relayed

them to the other employees in the lumberyard routinely,

and guided them in their work, but had no power to hire,

fire, discipline or recommend such action, was hourly paid

and did not attend meetings of supervisors, nor responsibly

direct any of the other employees or possess any super-

visory indicia); Rowand Co., 210 NLRB 95 (1974),

(employee relayed routine instructions from foreman to

20

laborers as a conduit, did not exercise independent judg-

ment nor have authority to impose or recommend discipline

of employees, performed the same type of work and

received same as other employees, was neither a super-

visor nor agent of the Company); Western Sample Book

& Printing Co., 209 NLRB 384 (1974). (employee was not

closely allied with management, nor intimately involved in

effectuating policies, was merely a senior experienced

employee, was considered a supervisor by only one

employee, and two of Board’s witnesses as well as Com-

pany General Manager considered him rank and file) ;

Redwood Construction Co., 192 NLRB 15 (1971). (Com-

pany not responsible for anti-union activities of two

employees who subsequently advised office manager, an

admitted supervisor, who remained silent concerning the

incidents: This was not ratification by Company, making it

liable for employee’s activity. They were not agents of

Company within the meaning of the Act. Employees did

not hold themselves out as spokesmen for Company. Con-

duct of two employees was neither authorized nor ratified.)

Thus, Solboro should not have been held responsible for

circulation of the “deauthorization” petition.

As the Second Circuit has said in a previous case,

While the Board has wide discretion in framing

remedies, the agency has a correlative duty to explain

its imposition of a remedy in one case and its failure

to do so in a seemingly similar—or even stronger

one on a basis reviewing courts can understand.

NLBB v. General Stencils, Inc., 438 F.2d 894, 905, 76 LRRM

2288 (2d Cir. 1971).

However, in this case, that Court has indeed “abdicated

the conventional judicial function,” which includes “prevent

[ing] capricious determinations by administrative agencies”

Fa neti Cees ta m

21

by failing to require the Board to explain its conflicting

determinations, to the prejudice of petitioner. Jd.; Uni-

versal Camera Corp. v. NLRB, 340 U.S. 474, 490 (1951).

Conclusion

For the reasons set forth above, the petition should be

granted.

Dated: Mineola, N. Y.

June 16, 1978

Martin H. Scuer, Esq.

Bruce R. Muouman, Esq.

Of Counsel

Respectfully submitted,

Rains, Pocresin & Scuer

210 Old Country Road

Mineola, New York 11501

Attorneys for Petitioner