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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 439 U.S. 864

## Text

| 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1411%3A1. Public record. Not legal advice.