Petition — Safeway Trails, Inc. v. National Labor Relations Board

IN THE

Supreme Court of the Uni

October Term, 1979.

No.

_%9-741

SAFEWAY TRAILS, INC.,

Petitioner,

Uv.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT.

BERNARD G. SEGAL,

Joun H. Leppy,

PauL R. LEwis,

Attorneys for Petitioner.

SCHNADER, HARRISON, SEGAL & LEwIs,

1719 Packard Building,

Philadelphia, Pennsylvania. 19102

Of Counsel.

International Printing Co., 711 So. 50th St., Phila., Pa. 19143 — Tel. (215) 727-8711

Oprnions BELOw ...... RET Cee Be er ee erry 2

EEE SE ee eee 2

QUESTIONS PRESENTED ..... Scene een eee e ee eeeeeeeeseees 3

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ...... 3

So DEAE GT AG SRA ONHS oe as on neees 4

REASONS FOR ALLOWING THE WRIT ............5-- ceceuk een 9

CONCLUSION eeee seen eee eee eeeewne eee eeereeereeeeeeeeeeeeae 15

TABLE OF CITATIONS.

Cases: Page

Baldwin County Electric Membership Corp., 145 N. L. R. B.

Re eee re eee eee eee 12

General Electric Co., 150 N. L. R. B. 192 (1964), enforced,

418 F. 2d 736 (2d Cir. 1969), cert. denied, 397 U. S. 965

RAR a Pee oe eee Sey ern 11, 12

Milbin Printing, Inc., 118 N. L. R. B. 223 (1975), rev'd on

other issues, 538 F. 2d 496 (2d Cir. 1976) ............. 12

NLRB v. Cascade Employers Association, Inc., 296 F. 2d 42

SE Sk at i eee gk 10

NLRB v. General Electric Co., 418 F. 2d 736 (2d Cir. 1969),

cert. denied, 397 U. S. 965 (1970) .............005. 11, 12,15

NLRB v. Gissel Packing Co., 395 U. S. 575 (1969) ......... 9

NLRB v. Insurance Agents’ International Union, 361 U. S. 477

hs we i aaa belles Gunes alten 3, 4, 5, 9, 10, 11, 12, 13

NERD v. Kate, S60 U.S. THB (IGGB) onc. css vcceecaces 10

NLRB v. Movie Star, Inc., 361 F. 2d 346 (5th Cir. 1966) .... fe)

Procter & Gamble Manufacturing Co., 160 N. L. R. B. 334

PRN Cis ce saacd Ve dhn kets ced ue x Cne eee a wuee ss 9,14

Stokely-Van Camp, Inc., 186 N. L. R. B. 440 (1970) ........ 14

Wantagh Auto Sales, Inc., 177 N. L. R. B. 150 (1969) ...... 14

Statutes:

Constitution of the United States:

ee as wns baw ee oh wee 3, 5, 14, 15

National Labor Relations Act:

Section 8(a)(1), 29 U. S. C. § 158(a)(1) ............. 6, 8

Section 8(a)(5), 29 U. S.C. § 158(a)(5) ...... 3, 5, 6, 7, 8, 11

Section 8(b)(3), 29 U. S. C. § 158(b)(3) ............. 10, 13

Section 8(c), 29 U. S.C. § 158(c) ............ 3, 4, 5, 9, 14, 15

Section 8(d), 20 U. S. C. § 15B(d) ......cccccccsees 4,10, 13

A ee ooo hs oon exe se 2

IN THE

Supreme Court of the United States

OcTOBER TERM, 1979.

No.

SAFEWAY TRAILS, INC.,

Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT.

Safeway Trails, Inc. petitions for a writ of certiorari to

review the judgment of the United States Court of Appeals

for the District of Columbia Circuit entered in the above

case on September 18, 1979.

2 Petition for a Writ of Certiorari

OPINIONS BELOW.

The original Decision and Order of the National Labor

Relations Board (Al) is reported at 216 N. L. R. B.

951. The first opinion of the United States Court of

Appeals for the District of Columbia Circuit (A52)

is reported at 546 F. 2d 1038. The Supplemental Decision

and Order of the Board on remand from the Court of

Appeals (A58) is reported at 233 N. L. R. B. No. 171,

96 L. R. R. M. 1614. An Order Clarifying Supplemental

Decision and Order was issued by the Board on March 31,

1978 (A80) and is reported at 233 N. L. R. B. No. 171A,

97 L. R. R. M. 1542. The second opinion of the Court of

Appeals (A87) has not yet been officially reported, but

is reported at 102 L. R. R. M. 2328.

JURISDICTION.

The judgment of the Court of Appeals was entered

on September 18, 1979.

The jurisdiction of this Court is invoked under 28

U. S. C. § 1254(1).

Petition for a Writ of Certiorari 3

QUESTIONS PRESENTED.

1. In light of the identical duty to bargain in good

faith which is imposed upon both employers and unions

by the National Labor Relations Act, are not an employer's

non-coercive communications to its employees during

negotiations entitled to the same protection as this Court

accorded to comparable extra-bargaining conduct of a

union in NLRB v. Insurance Agents International Union,

361 U. S. 477 (1960)?

2. Does not the First Amendment right to free speech,

which is implemented in the labor relations context by

Section 8(c) of the National Labor Relations Act, preclude

a finding that an employer's truthful, non-coercive com-

munications to its employees during negotiations are, by

themselves, violative of Section 8(a)(5)?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED.

United States Constitution, Amendment I:

“Congress shall make no law . . . abridging the

freedom of speech. . . .”

National Labor Relations Act:

Section 8(a)(5), 29 U. S. C. § 158(a) (5):

“(a) It shall be an unfair labor practice for an

employer-

(5) to refuse to bargain collectively with the

representatives of his employees. . . .”

4 Petition for a Writ of Certiorari

Section 8(c), 29 U. S. C. § 158(c):

“(c) The expressing of any views, argument or

opinion, or the dissemination thereof, whether in writ-

ten, printed, graphic, or visual form, shall not con-

stitute or be evidence of an unfair labor practice under

any of the provisions of this subchapter, if such ex-

pression contains no threat of reprisal or force or

promise of benefit.”

Section 8(d), 29 U. S. C. § 158(d):

“(d) For the purposes of this section, to bargain

collectively is the performance of the mutual obliga-

tion of the employer and the representative of the

employees to meet at reasonable times and confer in

good faith with respect to wages, hours, and other

terms and conditions of employment, or the negotia-

tion of an agreement, or any question arising there-

under, and the execution of a written contract incor-

porating any agreement reached if requested by

either party, but such obligation does not compel

either party to agree to a proposal or require the

making of a concession. .. .”

STATEMENT.

This petition presents the question whether, during

negotiations for a new labor agreement, an employer has

the same right that this Court accorded to unions in

NLBB v. Insurance Agents’ International Union, 361 U. S.

477 (1960), to engage in activity away from the bargaining

table which is protected by the National Labor Relations

Act (“NLRA”), where there is no evidence that such activ-

ity reflected a failure of the employer to conduct its at-the-

table bargaining in good faith. The United States Court

of Appeals for the District of Columbia Circuit refused to

Petition for a Writ of Certiorari 5

apply the Insurance Agents’ holding to the company in-

volved here, choosing instead to follow dictum in a deci-

sion by the NLRB to the effect that non-coercive speech

by the company away from the bargaining table, by itself,

could be proof of a refusal to bargain in good faith.

Also at issue is whether the free speech protections

of the First Amendment and Section 8(c) of the NLRA

will permit inferences drawn from an employer's non-

coercive statements to its employees, critical though they

may be of the union’s conduct of the negotiations, to serve

as the sole basis for a finding that the employer’s actual

bargaining was in bad faith.

In this case the National Labor Relations Board

(“Board”) initially found that petitioner had committed no

violation of its bargaining duty under Section 8(a)(5) of

the NLRA when it made statements critical of the union’s

negotiator. The United States Court of Appeals for

the District of Columbia Circuit vacated that decision.

Contrary to the principles established by this Court in

Insurance Agents, the Court of Appeals held that bad faith

bargaining can be proved without any showing that the

employer's conduct during the actual negotiations was

inadequate or even suspect. On remand, the Board, on

the basis of the identical record, reversed itself and found

that petitioner had indeed violated Section 8(a)(5). The

Court of Appeals affirmed per curiam.

The sole basis for the Board’s ultimate finding was a

series of non-coercive away-from-the-table communica-

tions from representatives of petitioner to bargaining unit

employees. The Board did not consider any evidence of

the actual bargaining in reversing its original finding that

petitioner's bargaining had not been in bad faith. Rather,

it inferred solely from the away-from-the-table communi-

cations that petitioner had no intention of reaching agree-

ment with the chief negotiator for its drivers’ union,

6 Petition for a Writ of Certiorari

United Transportation Union, Local No. 1699 (“Union”).

The Board held that bad faith could be found, despite

the total lack of evidence that petitioner's extra-bargaining

communications had any adverse impact on the negotia-

tions or petitioner's participation therein.

This matter had its genesis in negotiations between

petitioner and the Union which commenced in February,

1972, for an agreement to take effect upon expiration of

the then-existing agreement on March 31, 1972. Petitioner

had bargained with the Union or its predecessor for 35

years up to that time and there had been a series of con-

tracts between them. However, agreement on a new

contract was not reached, and the Union struck on April

2, 1972, having rejected petitioner’s offer to extend the

existing contract and to make any changes retroactive to

April 1. Such extensions had been utilized in negotiations

for previous contracts.

When the strike began, petitioner discontinued its

operations. After notice to the Union and the striking

employees, petitioner resumed limited operations approxi-

mately eight months later, in January, 1973. Nevertheless,

negotiations continued on a regular basis from the date of

the strike until the end of January, 1974, when they were

broken off with the parties hopelessly deadlocked over

basic economic issues. There had been 79 formal nego-

tiating sessions up until that time, during which petitioner

made numerous proposals and concessions. The strike

continued until March, 1975, when it was abandoned by

the Union.

The Union filed a charge with the Board on February

20, 1973, which was amended on March 30, 1973, to aver

violations of Sections 8(a)(1)* and (5) of the NLRA based

1. No separate 8(a)(1) violations were found, and they played

no part in this case in the Court of Appeals. See note 2 infra.

Petition for a Writ of Certiorari 7

upon petitioner's alleged conduct both at and away from

the bargaining table. The Regional Director declined to

issue a complaint based on the 8(a)(5) allegations. The

Union appealed to the General Counsel, who directed that

a complaint should issue alleging that petitioner violated

8(a)(5) by its statements away from the table regarding

John Lantz, the Union’s chief negotiator.

Significantly, however, the General Counsel specifi-

cally excluded, as being without merit, the claim that peti-

tioner’s at-the-table conduct was unlawful. At a pre-

hearing conference before the Administrative Law Judge

(“ALJ”), counsel for all parties agreed that petitioner's

conduct in the actual negotiations was not under attack

and evidence thereof was not part of the General Counsel's

case. This agreement was manifested by the exclusion of

all evidence regarding events at the bargaining table and

by the discussion in the ALJ's decision concerning the

pre-hearing conference and the scope of the allegations

against petitioner. (A7-A8)

On June 26, 1974 the ALJ issued his Decision and

Recommended Order (A3) dismissing the complaint

against petitioner in its entirety. On March 10, 1975, the

Board adopted the findings and conclusions of the ALJ

in toto and dismissed the complaint.

The Union sought review before the Court of Appeals

which, on December 9, 1976, in an opinion by Wright, J.

for a panel consisting of himself and Bazelon, C. J. and

Robinson, J., vacated the Board’s Decision and remanded

the case for reconsideration. The Court of Appeals based

its remand on two grounds. First, the court reversed the

determination of the ALJ and the Board that the General

Counsel had conceded at the pre-hearing conference that

petitioner’s conduct at the bargaining table was in good

faith. (A53-A55) Second, the court determined that the

ALJ and the Board had incorrectly required some evi-

8 Petition for a Writ of Certiorari

dence of bad faith conduct by petitioner in the actual

negotiations—evidence which was wholly lacking—in

order to sustain an overall bad faith charge. The court

held that, standing alone, an employer's away-from-the-

table statements which are critical of the union’s spokes-

man can be sufficient to demonstrate a lack of good faith,

and rejected the notion that overall bad faith must be re-

flected in the employer’s conduct at the bargaining table.

( A56-A57 )

Upon reconsideration, the Board, on December 9,

1977, issued a Supplemental Decision reversing its previous

findings and concluding that petitioner had indeed violated

Section 8(a)(5). Adopting the Court of Appeals’ view of

the governing decisional rule and relying solely upon peti-

tioner’s non-coercive statements and letters to its em-

ployees,* the Board found that petitioner had sought to

undermine Lantz and had thereby refused to bargain in

good faith. In so concluding, the Board relied on peti-

tioner’s statements to the effect that Lantz was preventing

accord, and applied its own inference that petitioner was

attempting thereby to destroy Lantz’ credibility and to

induce the employees to replace him.

On review, the Court of Appeals, on September 18,

1979, affirmed the Board’s Supplemental Decision and

clarifying order.*

2. The Board in its original decision reviewed each of the

communications that were alleged in the complaint to have been

coercive and in violation of Section 8(a)(1) of the NLRA. The

Board concluded that each was non-coercive and was beyond re-

proach under 8(a)(1). (A2 n. 1, A32-A41) In its Supplemental

Decision, the Board adopted its original rulings in this regard.

( A67 n. 8, A71 n. 12)

3. An Order Clarifying Supplemental Decision and Order was

issued by the Board on March 31, 1978, denying petitioner's request

to toll the accrual of Board-ordered backpay for all periods pre-

ceding the Board’s Supplemental Decision, in which petitioner for

the first time was found to have violated Section 8(a) (5).

Petition for a Writ of Certiorari 9

REASONS FOR ALLOWING THE WRIT.

The critical error committed by the Court of Appeals

and the Board is that they have exalted a Board opinion’s

dictum, never followed heretofore, over the direct holding

of this Court in NLRB v. Insurance Agents’ International

Union, 361 U. S. 477 (1960). In so doing, they have im-

posed restrictions upon the activities of employers engaged

in collective bargaining which were explicitly rejected,

with respect to similar union activities, both by this Court

and by the Court of Appeals itself in Insurance Agents.‘

The decisions below also overturn long-established

principles recognizing and protecting an employer's right

to communicate with its employees during negotiations

with their bargaining representative. Heretofore, an em-

ployer was permitted to inform his employees of the status

of negotiations, explain positions previously advanced by

him to the union, and present his version of a breakdown

in negotiations including criticism of the bargaining

strategy and related tactics of the union leadership, with-

out being held in violation of the NLRA. See NLRB v.

Movie Star, Inc., 361 F. 2d 346, 349 (5th Cir. 1966); Procter

& Ga able Manufacturing Co., 160 N. L. R. B. 334, 340

(1966). Indeed, Congress, in Section 8(c) of the NLRA,

explicitly validated an employer's “expressing of any views,

argument or opinion, or the dissemination thereof . . . if

such expression contains no threat of reprisal or force or

promise of benefit.” Congress thereby forbade the Board

from considering such expressions to constitute or be evi-

dence of unfair labor practices. See NLRB v. Gissel Pack-

ing Co., 395 U. S. 575, 617 (1969).

4. The decision of the Court of Appeals for the District of

Columbia Circuit in Insurance Agents is reported at 260 F. 2d 736

(D. C. Cir. 1958).

10 Petition for a Writ of Certiorari

Review and correction of the decisions herein by this

Court is imperative, because they represent the resurrec-

tion of a view of the Board’s role in the bargaining process

that was rejected by this Court in Insurance Agents. In

that case, the Board found that, solely by virtue of a series

of away-from-the-table job actions, the union had demon-

strated an intent inimical to good faith bargaining. The

Board inferred from such harassment of the employer that

the union could not have been negotiating in good faith.

However, the Board there, as here, considered no evi-

dence whatever of the union’s actual conduct at the bar-

gaining table in finding it to have violated Section 8(b)(3).°

In affirming the refusal of the Court of Appeals for the

District of Columbia Circuit to enforce the Board’s order,

this Court described the inquiry necessary to establish a

breach of the bargaining duty. Under the Court’s holding,

a party's conduct away from the table has significance only

insofar as it is reflected by, or reflects upon, deficient or

questionable participation in the actual negotiations.

Simply stated, where a party’s extra-bargaining conduct

does not constitute a per se violation of the duty to bargain

(e.g., unilateral changes in wages or benefits, or direct

dealing with bargaining unit employees), such conduct,

standing alone, will not sustain an inference or a finding of

» lack of good faith. 361 U.S. at 490. Certainly, the same

rationale which this Court applied in evaluating conduct

by a union in Insurance Agents should be applied to con-

duct by an employer which, as in this case, is directly

comparable.

5. As this Court noted in NLRB v. Katz, 369 U. S. 736, 747

(1962), Section 8(b)(3) is the union counterpart of Section 8(a)(5)

which, together with Section 8(d), imposes on employers the duty

to bargain in good faith. Hence, the analysis of the bargaining

duty set forth in Insurance Agents is equally applicable to the con-

duct required of employers. See NLRB v. Cascade Employers

Association, Inc., 296 I’. 2d 42, 47-48 (9th Cir. 1961).

Petition for a Writ of Certiorari 11

Although it had initially decided the instant case

correctly, the Board, under the prodding of the Court of

Appeals, repeated the error for which it was reversed

twenty years ago in Insurance Agents and found a failure

to bargain in good faith, based solely upon petitioner's

communications to its employees. No consideration what-

ever was given to petitioner's performance at the bargain-

ing table, or, for that matter, to that of the Union. Without

even attempting to justify this approach in light of the de-

cisional rules established in Insurance Agents, the Court of

Appeals and the Board on remand seized upon dictum in

the Board’s decision in General Electric Co., 150 N. L. R. B.

192 (1964), for their sole precedential support.

In General Electric, the Board considered the contro-

versial approach to bargaining known as “Boulwareism,’

which combined a carefully researched employer bargain-

ing proposal, characterized as “firm and fair” and pre-

sented to the union on a take-it-or-leave-it basis, with a

massive public relations campaign aimed at the employees

and the general public for the purpose of “selling” the

proposal, much as a consumer product is sold. The com-

munications campaign included criticism of the union and

appeals to the employees to pressure the union into ac-

cepting the company’s proposal. After finding a number

of per se violations of 8(a)(5), the Board concluded that

General Electric had not bargained in good faith based

upon this two-pronged approach to the negotiations.

The General Electric decision was reviewed by the

United States Court of Appeals for the Second Circuit.

NLRB v. General Electric Co., 418 F. 2d 736 (2d Cir.

1969), cert. denied, 397 U. S. 965 (1970). The court of

appeals enforced the Board's order and, citing Insurance

Agents, based its analysis specifically on this Court's

direction to consider the totality of circumstances in evalu-

12 Petition for a Writ of Certiorari

ating an alleged lack of good faith bargaining. Id. at 756.

The court recognized that the Board’s decision was based

on the confluence of the company’s at-the-table and away-

from-the-table conduct, not solely on the latter, id., and

affirmed on the basis of that holding, id. at 762.

Clearly, the holding of the Board and the Second

Circuit in General Electric is consistent with the teaching

of this Court in Insurance Agents, since the totality of the

companys conduct, both at and away-from-the-table, was

considered and served as the basis for the finding of overall

bad faith bargaining. However, the Board’s dictum in

General Electric, upon which the decisions below in the

instant case relied, just as clearly is not consistent with

Insurance Agents. This dictum suggests that statements

by an employer to its employees that are critical of the

union can, standing alone, warrant the conclusion that the

employer is not bargaining with the union in good faith.

General Electric, supra, 150 NLRB at 194-95. (A90-A91)

But, in Insurance Agents, this Court held that union

conduct which is potentially far more disruptive of the

bargaining process, i.e. sudden, unpredictable job actions,

could not, without reference to the actual bargaining, sup-

port such a finding.® This Court said:

6. In its Supplemental Decision in the instant case, the Board

recognized the absence of evidence regarding the bargaining and

acknowledged the difficulty posed by such a record for determinin

a party’s good faith. The Board stated: “In most cases, the Seed

can more accurately evaluate a party’s conduct by examining the

conduct at the table in light of the conduct away from the table,

and vice versa.” (A60)

Compounding its error in nevertheless proceeding with its

evaluation of petitioner’s overall conduct on an abbreviated record,

the Board drastically reduced the burden of proof on the General

Counsel. Under prior Board decisions, he was required to show

affirmatively that petitioner's conduct at the table was at least

ambiguous, in order to give weight to the away-from-the-table

communications. Baldwin County Electric Membership Corp., 145

N. L. R. B. 1316, 1318 (1964); Milbin Printing, Inc., 218 N. L. R. B.

Petition for a Writ of Certiorari 13

“The scope of § 8(b)(3) and the limitations on Board

power which were the design of § 8(d) are exceeded,

we hold, by inferring a lack of good faith not from

any deficiencies of the union’s preformance at the

bargaining table by reason of its attempted use of

economic pressure, but solely and simply because

tactics designed to exert economic pressure were em-

ployed during the course of the good-faith negotia-

tions.”

361 U.S. at 490.7. There simply must be bargaining-table

actions which will support an inference of bad faith.

Aside from the total disregard manifested in the de-

cisions below of this Court’s teaching in Insurance

Agents—that the conduct in the actual negotiations must

be the focal point of an overall bad faith claim—the de-

cisions below are even more insidious when one considers

the type of conduct on which petitioner's bad faith 8(a)(5)

violation was deemed to be founded. As noted, such con-

6. (Cont'd. )

293, 224 (1975), rev'd on other issues, 538 F. 2d 496 (2d Cir. 1976).

Here, rather than according petitioner a presumption that its con-

duct at negotiations had been in good faith, as it should have in the

absence oF evidence to the contrary, the Board treated the nego-

tiations as a “neutral factor, favoring neither sustaining nor dismiss-

ing the allegations of the complaint.” (A60) This, we submit, is

patently improper and violates petitioner’s right to due process.

7. In his separate opinion in Insurance Agents Justice Frank-

furter stated, 361 U. S. at 503:

“From the respondent's conduct the Board drew the inference

that respondent’s state of mind was inimical to reaching an

agreement, and that inference alone supported its conclusion

of a refusal to bargain. The Board’s position in this Court

proceeded in terms of the relation of conduct such as respond-

ent’s to the kind of bargaining required by the statute, without

regard to the bearing of such conduct on the proof of good

faith revealed by the actual bargaining.”

ustice Frankfurter said as to this: “I agree that the position taken

the Board here is not tenable.” Id. at 504. See also footnote 5

P| the majority opinion. Id. at 482-483.

14 Petition for a Writ of Certiorari

duct consisted solely of non-coercive communications to

employees regarding contract negotiations, communica-

tions which the Board has repeatedly sanctioned as being

protected by Section 8(c) and the First Amendment. See,

e.g., Stokely-Van Camp, Inc., 186 N. L. R. B. 440, 449-50

(1970); Wantagh Auto Sales, Inc., 177 N. L. R. B. 150, 154

(1969); Procter & Gamble Manufacturing Co., supra.*

In none of petitioner's communications was there even

the hint of coercion, i.e., a promise of benefit or threat of

harm. Each represented nothing more than an expression

of petitioner’s view of the negotiations and its view of the

reason for the stalemate. More importantly, as far as the

Board knew, without examining the negotiations, every-

thing said by petitioner about Lantz and his blame for the

impasse and lack of an agreement was absolutely accurate.

How, then, can petitioner be held to have bargained in bad

faith when, in truthful, non-coercive terms, it advised its

8. Merely reciting the five statements upon which the Board

and Court of, Appeals placed principal reliance demonstrates the

alarming portent of their decisions.

The first was a letter to the drivers transmitting a contract pro-

posal previously submitted to the Union but rejected by it. The

supposedly opprobrious comment in the letter was that “the time

for action . . . is past due” and that each employee should “act

in the interest of [his] own personal welfare and aid in getting an

early settlement.” (A65, A66; A91) The second was contained in

a letter to a number of senior drivers and noted how puzzling it

was for long-term employees to have permitted a seven-year em-

ployee, Lantz, to take over. The letter asked the drivers to give the

contract offer “serious consideration and then let Lantz know how

you feel as a body of men.” (A67; A91-A92) The third was an

off-the-cuff remark by petitioner's president to the wife of a striking

driver in response to her b psaggeoe . The president stated his

belief that the dispute could be settled with any drivers other than

Lantz. (A67-A68; A92) The fourth was a remark made by the

president to a senior driver to the effect that he could not under-

stand why the older men could not do something to get the strike

settled. (A68; A92) The last was a comment on the picket line to

several employees by petitioner’s vice president to the effect that he

felt that the strikers were following the wrong man. (A68; A92)

Petition for a Writ of Certiorari 15

employees of its perception of the cause of the strike and

bargaining stalemate and virtually pleaded with them to

talk with their bargaining representative about it?

If the First Amendment and Section 8(c) do not pro-

tect such remarks, something is profoundly wrong. Clearly,

however, they do offer such protection. As the Court of

Appeals for the Second Circuit observed in NLRB v.

General Electric Co., supra, 418 F. 2d at 756: “In circum-

stances such as these, the interest in free speech and in-

formed choice must prevail over the slight possibility that

the representatives’ positions might be undermined. . . .”

In order to insure proper administration of the NLRA and

proper Board oversight of the collective bargaining proc-

ess, and to safeguard the integrity of the free speech

guarantees of the First Amendment and Section 8(c),

this Court must review and correct the patently miscon-

ceived decisions below.

CONCLUSION.

For the foregoing reasons, the petition for writ of

certiorari should issue to the United States Court of Ap-

peals for the District of Columbia Circuit.

Respectfully submitted,

BERNARD G., SEGAL,

Joun H. Leppy,

Pau R. LEwis,

Attorneys for Petitioner.

SCHNADER, HARRISON, SEGAL & LEwIs,

1719 Packard Building,

Philadelphia, Pennsylvania. 19102

Of Counsel.

Dated: November 8, 1979.