Petition — C-F Air Freight, Inc. v. National Labor Relations Board

—~ ae Se

Apt

80-1127

MICHAEL RODSK

ne etn wae

In THE |

Supreme Court of the United States

Octoser Term, 1980

C-F AIR FREIGHT, INC.,

Petitioner,

Vs.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS FOR THE SECOND CIRCUIT

HERBERT BURSTEIN,

ZeLBY, Burstein, Hartman & BursTEIn,

One World Trade Center,

Suite 2373,

New York, New York 10048.

(212) 432-0940

Counsel for Petitioner.

Adams Press Corp., 130 Cedar Street, N. Y. 10006—(212) 233-1050

Supreme Court, U. 8,

FILED

JAN 5 1981

Questions Presented

1. Whether Draconian measures regularly imposed by

the National Labor Relations Board (“Board”), adopted

by certain Courts of Appeals but rejected by others, are

sanctioned by the decision in NLRB v. Gissel Packing Co.,

Ine., 395 U. S. 575 (1969) and whether this Court man-

dated that an employer who has been found guilty, on

exiguous evidence, of a threat to close a facility must con-

tinue to operate a failing enterprise which, in addition,

has been subjected to violent and illegal strikes by a

union demanding recognition without a Board directed

election.

2. Whether an employer who is found to have unlaw-

fully threatened to terminate operations is foreclosed from

‘subcontracting, irrespective of the nature of adverse eco-

nomic circumstances which dictated the decision to subcon-

tract.

3. Whether the Board and the Court of Appeals for

the Second Cireuit (“Court”) have translated the stand-

ard of “substantial evidence” enunciated in Universal

Camera Corp. v. NLRB, 340 U. S. 474 (1951) into a rub-

ber stamp to be applied, no matter how tenuous the alleged

rational basis for the decision by an administrative agency.

he

Parties to the Proceeding

Petitioner

C-F Air Freicut, Lye.

Respondent

National Labor Relations Board

Parent

Consolidated Freightways, Ine.

(Delaware)

Affiliates

Centron Ltd. (Bermuda)

CF Data Services, Inc. (Delaware)

Consolidated Freightways Corporation of

Delaware (Delaware)

Consolidated Metco., Ine. (Delaware)

Freightliner Corporation (Delaware)

Freightliner Credit Corporation (Delaware)

TABLE OF CONTENTS

QUESTIONS PRESENTED .........-.cceccececseeeee se ctaauansiniehais

PARTIES TO THE PROCEEDING cccocceccccceccccceceeccececceenenaceoecoeee

Appendix:

A—Statement in Lieu of Formal Opinion of the

United States Court of Appeals for the Sec-

Re I ccc incieniainesladits toate detveemnciies

B—Order of the Court of Appeals Denying

BCAROM TO TRCUORTI Rc ccsicincscisecceccsciactsnsorne

ee ea ee TE mR

Cases Cited

ARO, Ine. v. NLRB, 596 F. 2d 713 (6th Cir. 1979) ....

Kohls v. NLRB, 89 LC {12,209 (July 18, 1980) ..........

NLRB v. Appletree Chevrolet, Ine., 608 F. 2d 988

SOE alle RIE cc tchays patcsbicacdosnceeeecdiveretesneanipiiniaaadnadecnieonda

18

la

5a

7a

iv TABLE OF CONTENTS

PAGE

NLRB v. Buddies sanRenacene Ine., 481 F. 2d 714

I Als PEON Kenstesteetccincseeseltbgrhdiewalsincckeewsideessanniousemaisiadinns 16,17

NLRB v. Gissel Packing Co., Inc., 395 U. S. 575 >

DINU cdc niecikinsascicshinastcihed schae-tanintpeesadadeiascncscaigandaeseasaaes i, 8-10, 12-14

NLRB vy. Interboro Contractors, Inc., 388 F. 2d 495

(1967) ........ insindiesiel diction adleastecabsnesialciataicaminisoduiale . 16

NLRB v. Jamaica Towing, Ine. —— F. 2d ——

(October 1, 1980), 105 LRRM 2959 ............................ 12

NLRB v. Northern Metal Co., 440 F. 2d 881 (5th Cir.

Lg 2 A 7S ARIE Se Alec vee en CRT Oe 16

NLRB vy. Rapid Bindery, Ine., 293 F. 2d 170 (2d Cir

SI, a Selle itnl sacha aa ceisilnpcbinsieidininscbaitacistanachinlaie stasis 15

NLRB v. Savair Mfg. Co., 414 U. S. 270 (1973) ........ 16

Red Oaks Nursing Home, Ine. v. NLRB, —— F.2d

— (October 22, 1980), 89 CCH LC, 712,335.. 9-11

Textile Workers of Darlington Mfg. Co., 380 U. S.

CRED sastciceRctnmennnttees 15

United Dairy Farmers Cooperative v. NLRB, ——

F, 2d (October 30, 1980), 89 CCH LC {12,350 11

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

Spee raeal >: pelalandtindunpttateciiessdeaapsiedi pabiviadiaetnceadt oaeninetinndiadool i, 16, 17

Statutes Cited

National Labor Relations Act, as amended:

PS II Eva escah ccs osapoencasabicelabionatblcasaileaadicanl 1, 2,7

RE SIE cacisesatiecavssttnsshedeidlsnlssdahctbsnegelactcceashaasiten 1, 2,7

Bn, Ee | Gihcsaetnncntanesinicansicdianaiaasiensmioptnarin 2

OPEL CHIP -sucacucdannccsianbiasibcercssehapamehsion wlbbescioliensess 2

ea GIN setuid iaacacetinlannets-csainioiintnintsien 2

TABLE OF CONTENTS

28 US.C.:

See. 158(a) (3) os

ES EET

29 US.C.:

SESE

See. 158 ioe Mike :3 OE

See. 158(a)(1) ....... 1S SEES

Other Authorities Cited

Comment, Bargaining Orders since Gissel Packing:

Time to Blow the Whistle on Gissel?, 1972 Wis.

L. R.:

1170

Golub, The Propriety of Issuing Gissel Bargaining

Orders Where the Union Has Never Attained a

Majority, 29 Lab. L. J. (1978):

eae hieteeieeteisctbinirennnsnansccnenenserecenecenes

Platt, The Supreme Court Looks at Bargaining Or-

ders Based on Authorization Cards, 4 Ga. L. Rev.

(1970):

ESSE LEE

PAGE

bo

12

No.

In THE

Su reme Court of the United States

Ocrosrer Term, 1980

- =

—

C-F AIR FREIGHT, INC.,

Petitioner,

Vs.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

»s

a

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS FOR THE SECOND CIRCUIT

Statement of Jurisdiction

On September 30, 1980 the Court of Appeals for the

Second Circuit ordered that an order of the National

Labor Relations Board which held that Petitioner violated

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

Act, as amended, 29 U. 8S. C. $158 (7a-8a) be enforced

(la-4a).*

* The docket at the office of the Clerk of the Court of Appeals

shows that on October 15, 1980 a mandate issued (judgement and

statement of costs) but a copy was not served upon Petitioner

nor upon Respondent and one is not in the files of the Clerk.

Hence, only the order and decision of September 17, 1980 is re-

produced as Appendix A (la-4a). The Clerk advised that the

September 17, 1980 decision was to be deemed a final judgement.

A timely petition for rehearing, filed with Court of

Appeals, was denied on November 7, 1980 (5a-6a).

The jurisdiction of this Court is invoked under 28 USC

§1254(1).

Statute Involved

The following statute which is involved in this case is

set forth in Appendix C infra:

National Labor Relations Act, as amended [61 Stat. 136,

73 Stat. 519, 88 Stat. 295, 29 USC $151 et seq.]

Section 8(a)(1) [29 U.S.C. §158(a)(1)]

Section 8(a)(3) [29 U.S.C. §158(a)(3)]

Statement of the Case

Petitioner, a domestic and international air freight for-

warder, maintained a terminal at John F. Kennedy Air-

port (“JFK”) for the receipt and delivery of airborne

shipments from and to the New York Metropolitan Area.

Additionally, Petitioner operates out of thirty-six terminals

and at some of them, union personnel is employed (A. 272-

273).

Prior to June 1977, Petitioner employed at JFK a small

clerical and sales staff who were not represented by any

labor union (A. 179).

1 The reference to “A” followed by a number is to the Record

on Appeal filed with the Court of Appeals, followed by the page

number. References to the Appendices are indicated by a number

followed by a small letter. A copy of the Record will be lodged

with the Clerk of this Court.

On February 23, 1977, long before there was any union

activity, the Petitioner’s Board of Directors determined

to shut down the JFK terminal unless the serious losses

incurred there were arrested (A. 284-285; 290, 318-319;

322-324, 388). It was conceded by the General Counsel and

the Board, that the JFK facility had sustained aggregate

losses of approximately $900,000 between 1974 and 1977.

(A. 3, A. 367-387, Exhibits “7” and “8”). In an effort to

arrest the losses, Petitioner appointed David Condon

(“Condon”) as a division manager with jurisdiction over

the JFK terminal (A. 3; 177, 212).

On March 15,1977, when Condon was advised that the

employees were interested in joining a union (A. 6; 179,

207), he called a meeting, attended by all clerical and sales

personnel (A, 6; 63-64, 130, 155, 210) to “find out what

the major complaints were” (A. 6; 315). The Board’s wit-

nesses testified that Condon said he knew that the em-

ployees were seeking information about a union and that

there had been “obvious communications problems for

which [he] held [himself] at fault” (A. 7; 211, 64, 118,

142). He then assured them that: “he was trying to make

a go of it at JFK”, that their jobs were safe (A. 7, 64, 97,

142-143, 156, 167, 329); he planned to improve the ter-

minal’s financial status (A. 7; 65, 119, 120, 129, 212);

there “was no need for a union”; and the Petitioner would

close the terminal if a union came in (A. 7; 156, 64, 98,

119, 143, 146).2, Condon then requested the employees to

give him more time to “turn the terminal around” (A. 7;

64, 119, 143) and “in the event that [he was] successful,

that they would be successful because ... increased sales

.. means the jobs would grow, there would be additional

2 This testimony was disputed, but Petitioner is not challenging

credibility findings at this time.

4

jobs, there would be promotions within the terminal” (A. 7;

212-213, 120-121, 166, 171). Condon concluded by announc-

ing that if his plans did not work out and the employees

still wanted a union, he would “drive [them] down to the

Union hall” (A. 7; 156-157, 131). Despite Condon’s efforts,

the Petitioner continued to sustain losses but no em-

ployees were dismissed.

Shortly prior to June 11, 1977, the clerical employees,

led by a supervisor Edward Ryby (“Ryby”) met with one

Michael Hunt (“Hunt”), President of Local 851 IBT (“Un-

ion”) (A. 67) an arm or affiliate of Local 295 IBT (A. 100)

and told him that the employees were thinking of joining

the Union (A. 33-34). On June 12, 1977, Petitioner’s em-

ployees appeared at the Union’s office, signed authorization

eards (A. 35-36; 69-72; 122) and decided to strike (A. 36-

37; 52-53). Hunt then sent a telegram to Condon demand-

ing immediate recognition of the Union (A. 37; 351).

On June 13, 1977 at 6:45 A.M., without notice to the Peti-

tioner, Ryby and the clerical employees arrived at the JFIX

facility and began to picket (A. 38). Ilunt again demanded

immediate recognition of the Union and the execution of

a so-called “standard” labor contract without any negotia-

tion by Petitioner (A. 53) Condon replied that he did not

have the authority to sign a contract or to deliver a letter

of recognition, but he promised to call Petitioner’s main

office for instructions (A. 39; 73). Tlunt would brook no

delay: his response was a campaign of violence (A, 355-

358) conducted by the Union and Local 295. The assaults

on persons and damages to property were enjoined by

the Supreme Court of the State of New York, Queens

County (A. 355-358). Petitioner then filed charges with

Region 29 of the Board, against the Union and Loeal 295.

A complaint was duly issued by the Board (A. 340) which

charged the unions, infer alia, with inflicting bodily injury

oy |

and other harm to employees of Respondent and third

parties, After investigation, the Union entered into an in-

formal settlement agreement with the Board and agreed

not to inflict bodily harm on employees of Petitioner and

to cease engaging in a secondary boycott. On July 5, 1978,

the Board entered a decision and order (A. 359-3863) in

which it directed Local 295 to cease its secondary boycott

activities, one object of which, the Board stated, was to

force or require Petitioner to recognize or sign a collective

bargaining agreement with the Union.

It is noteworthy that until July 5, 1978, Petitioner had

not been charged with any unfair labor practices. On the

contrary, it was the victim of grievous unfair labor prac-

tices, violence and mayhem which seriously disrupted its

business.

On July 10, 1977, the Union sent a telegram to Petitioner

unconditionally offering, on behalf of the employees, to re-

turn to work the following day (A. 353). Condon replied

on July 11, 1977, stating that it would take time to rein-

state normal operations at the JFK terminal but promised

to communicate with each of the employees and to offer

employment as jobs became available and full operations

resumed (A. 353).?

On July 11, 1977, the employees and Ryby appeared with

Hunt at the JFK facility. No one was working at that

time, and the terminal was closed. Thereupon the em-

ployees led by Hunt, filed a charge with Region 2 of

this Board alleging an unlawful lockout by Petitioner and

3 Even where an unfair labor practice strike is terminated by

an offer to return to work, the Board recognizes that the em-

ployer is entitled to a reasonable time to resume operations.

asserted that by that conduct and “other acts”, Petitioner

violated the Act (A. 366).

Three days later, Condon offered reinstatement to two

of the employees and they returned to work for two

weeks, but walked off the job and rejoined the picket

line at the Union’s request (A. 9). Once again, the Union

shut down the JFK facility.

On August 18, 1977, the Regional Director of Region

29 of the Board dismissed the charges that had been filed

by the Union on July 11, 1977 (A. 364-366) finding, inter

alia, that the employees had not been locked-out because

of their Union activities. He ruled that “the investigation

did not establish that the Company violated the Act in any

other manner encompassed” by the charge (A. 364-365).

Clearly, then the Regional Director determined that the

Petitioner was not motivated by any anti-union animus.

Faced with the continued shutdown of its JFK opera-

tion, the persistent demand that all strikers be immediately

reinstated, even if there was no work for them (as a direct

consequence of the Union’s unlawful conduct, enjoined by

a State court), employee participation in the Union's un-

fair labor practices, previously condemned by the Board,

and knowing that unless it was able to immediately em-

ploy all the strikers (which it had stated it could not do

because of the start-up problems), it could look forward

to continual harassment, work interruptions and loss of

business, Petitioner had to, and did, make an economically

motivated business decision to close the JFK terminal. The

decision of its Board of Directors, announced on February

23, 1977, could no longer be avoided or vetoed because the

Petitioner sustained huge losses and faced economie eatas-

trophe.* The Petitioner then engaged Chimento Trucking,

Ine. to perform, with the latter’s personnel, like any other

independent manpower company, certain clerical services

for Petitioner (A. 60, 41, 190, 200, 225-226, 232, 270-271,

280).

On August 29, 1977, the Union filed charges of unfair

labor practices based on the events of March 15, 1976, which

had never been previously raised. The Administrative Law

Judge (relying primarily and improperly on a settlement

conference discussion (A. 27fn. 2) and the Board found

that the Petitioner violated Section 8(a)(1) of the Act by

threatening to close its facility at JFK Airport and vio-

lated Section 8(a)(3) and (1) of the Act by closing its JFK

terminal and subcontracting the clerical work and by fail-

ing to reinstate four employees after they allegedly made

unconditional applications to return to work.

The Court adopted and enforced the Board’s order, in

the main, but denied enforcement of “so much of the Board's

order as relates to promises of benefits” (3a). The nub

of the Court’s decision was that substantial evidence

supported the finding that the March 15, 1977 statement

was made, tha. it was not based on any decision already

*A memorandum from the President of Petitioner dated Feb-

ruary 23, 1977 stated in relevant part: ‘Don, at the February

23, 1977 meeting of the Board of Directors, of C-F Air Freight,

Inc., it was agreed that we will track on the operation of the

JFK facility based on the operating plan submitted in late 1976.

I have attached a copy of the schedule which was submitted to

the Board with an agreement that it will be actual operating re-

sults. . . . I really took more heat about this than is indicated

in Don’s letter. We did buy some time however, and will con-

tinue to report to the Board on the attached schedule. How-

ever, I think we need to start formulating a study approach to

determine how we can wind down in JFK in the event we are

forced to.” (A. 4-5, 388)

8

taken to close the facility down, and that it reflected a

retaliatory intent. Although the Board based its con-

clusion on only one branch of the Gissel test, the Court

added the second test, which was not supported by any

evidence, namely that the March 15, 1977 statement was

not protected as a “prediction... carefully phrased on

the basis of objective fact”, NLRB vy. Gissel Packing Co.

Inc., 395 U. 8. 575, 618 (1969). This conclusion is clearly

controverted by the proofs.

The Court also failed to note that the second strike,

which occurred on July 11, 1977, was not a lockout (A.

564-466), and was not an unfair labor practice strike.

Moreover, the alleged subcontracting was not an oc-

easion for a third strike or any other unfair labor prac-

tice strike. The shut-down of the JFIX. terminal was ac-

complished by the Union and not the Petitioner. The

Board and the Court disregarded the evidence that the

“subcontracting” oecurred after the Union closed down

the JFK terminal and the February 23, 1977 decision by

Petitioner’s Board of Directors to “wind down in JFK”

(A. 4-5, 388).

A judgment by the Court enforcing the Board’s order,

with the modification previously stated, was apparently

entered on October 15, 1980 (see * on p. 1 infra). A timely

petition for rehearing, filed with the Court, was denied on

October 7, 1980 (5a-6a).

Reasons for Granting the Writ

1. It is imperative that the issue raised in question

one he answered because the Courts of Appeals are in

conflict, if not in disarray, about the scope and ambit of

this Court’s decision in NLRB vy. Gissel Packing Co. Inc.,

395 U. 8. 575 (1969). The Board’s views vary with its

changing composition and each new member reads into

Gissel whatever his predilictions are. The consequence

is that the industrial community and the labor law bar

have no reliable guidelines.

2. The issues implicated by questions 2 and 3 can be

resolved only by an explication by this Court of the cir-

cumstances when subcontracting is permissible and by a

restatement of the substantial evidence rule.

A. Perhaps the clearest deseription of the conflict

among the Circuit Courts was provided by the Court of

Appeals for the Seventh Cireuit in Red Oaks Nursing

Home, Inc. vy. NLRB [—— F.2d —— (10/22/80)—89 CCH

LC 912,335]. There the union proved a card majority

and the Board entered a bargaining order, which the

Court rejected ruling:

“Since the Supreme Court’s decision in Gissel, the

NLRB has been obligated to give reasons justifying

the use of a bargaining order, In Peerless of Amer-

ica, Inc. v. NURB, 484 F. 2d 1108 (7th Cir. 1973),

this court explained the importance of the Board’s

obligation to give ‘a detailed analysis’ of the ‘pos-

sibility of holding a fair election in terms of any

continuing effect of misconduct, the likelihood of

recurring misconduct, and the potential effective-

ness of ordinary remedies’ 484 F. 2d at 1118, as

an aid to judicial review. In its brief here, the

Board, citing Gissel, supra, admonishes us that

“(t]he determination of when such a bargaining

order is appropriate has been entrusted to the dis-

eretion of the Board, which “ ‘draws on a fund of

knowledge and expertise all its own. . .’”. Tronic-

ally, even a “cursory examination of the decisions

applying Gissel, supra, in this cireuit and in other

circuits reveals that the Board has declined re-

10

peatedly to assist the courts with this expertise by

revealing reasons for issuing Gissel bargaining

orders. See, e. g., First Lakewood Associates v.

NLRB, 582 F. 2d 416 (7th Cir. 1978); C € W

Super Markets, Inc. v. inNLRB, 581 F. 2d 618 (7th

Cir. 1978); Walgreen Co. v. NLRB, 509 F. 2d 1014

(7th Cir. 1974); NLRB v. Gruber’s Super Market,

Inc., 501 F. 2d 697 (7th Cir. 1974); Peerless of

America, Inc. vy. NLRB, 484 FI. 2d 1107 (7th Cir.

1973); Self-Reliance Ukrainian American Coopera-

tive Association vy. NLRB, 461 F. 2d 33 (7th Cir.

1972); NLRB vy. Henry Colder Co., 447 F. 2d 629

(7th Cir, 1971); NLRB vy. Drives, Inc., 440 F. 2d

354 (7th Cir. 1971); cert. denied, 404 U. S. 912;

NLRB vy. Kostel Corp., 440 F. 2d 347 (7th Cir.

1971;) NLRB y. Appletree Chevrolet, Inc., 608 F.

2d 988 (3d Cir. 1979); Automated Business Sys-

tems v. NLRB, 497 F. 2d 262 (6th Cir. 1974);

Daisey’s Originals, Inc. v. NLRB, 468 F. 2d 493

(Sth Cir. 1972); NERB vy. World Carpets of New

York, Inc., 463 F. 2d (2d Cir. 1972).” (89 LC at

pp. 25,735-25,736).

” cad *

“By not stating separately why the circumstances

of this case require a bargaining order, the Board

appears in effeet to be automatically issuing bar-

gaining orders on the basis of virtually any unfair

labor practice, a policy clearly not in accordance

with Gissel. See NLRB vy. Appletree Chevrolet, Inc.,

608 F. 2d 988, 998 (4th Cir. 1979).” (89 LC at p, 25,

736).

The identical lack of consistently reasoned analysis oc-

eurs in cases like the instant one, where orders are issued

hased on the Board’s misreading of Gissel, compounded

11

by inventive, but incorrect, commentaries by the lower

courts.

Illustrative, too, is an equally recent decision by the

Court of Appeals for the Third Cireuit (United Dairy

Farmers Cooperative v. NLRB, [| I", 2d (10/30/80)

89 CCH LC 712,350] where there was no card majority:

“Our analysis of the authority of the Board to

issue a bargaining order must begin with the Su-

preme Court’s decision in NLRB vy. Gissel, supra.

Since Gissel is factually distinguishable from this

case we must determine whether these factual differ-

ences are sufficiently significant to make the pre-

cepts announced in Gissel inapplicable to the in-

stant case. An additional problem we must con-

sider is whether in Gissel the Supreme Court was

impliedly approving the rationale that the Board

could issue a bargaining order in cases where the

union neither won the election nor had a card ma-

jority.” (90 LC p. 25,811).

After citing from this Court’s discussion of a decision

by the Fourth Circuit, the Third Circuit asks:

“By the above discussion, was the Supreme Court

advising lower courts of their views as to the

Board’s power to issue bargaining orders in excep-

tional eases ‘without need of inquiring into majority

status’, or was the Court’s decision an intellectual ex-

cursion not intended as a sign post giving direec-

tions which lower courts should follow in the fu-

ture? Aithough several commentators did not speci-

fically endorse the issuance of bargaining orders in

the absence of a card majority," virtually every

eourt that has discussed the issue has stated that a

bargaining order may be issued in the absence of a

eard majority.” (89 LC at p. 25,811).

12

The confusion articulated by the Third Cireuit is shared

by the commentators identified in footnote 11 to its opin-

ion: (Golub, The Propriety of Issuing Gissel Bargaining

Orders Where the Union Has Never Attained a Majority,

29 Lab. L. J. 631 (1978); Comment, Bargaining Orders

since Gissel Packing: Time to Blow the Whistle on Gis-

sel? 1972 Wis. L. R. 1170; Platt, The Supreme Court Looks

at Bargaining Orders Based on Authorization Cards, 4 Ga.

L. Rev. 779 (1970).)

We note, too, that another log was added to the fire of

debate by the Second Cireuit in NLRB y. Jamaica Towing,

Inc., [ F.2d (10/1/80) 105 LRRM 2959] when it

declined to enforce a bargaining order notwithstanding a

card majority. This Court, too, embarked on an “intel-

lectual excursion”!

Although the case at bar does not involve a bargaining

order, the Board’s order and the Court’s affirmance draws

its substance from what each reads into Gissel,

The facts in this ease showed that a plan to close down

the JFIX terminal long preceded any union activity or

knowledge by the Petitioner that the employees had any

interest in union organization. This fact was conceded by

the Board but it coneluded that the March 15, 1977 state-

ments by Condon constituted an unlawful threat rather

than a prediction. (A. 12).° But this “threat” was not al-

leged in charges filed by the Union on July 5, 1978. That

the statement was based on objective fact, namely the ex-

perience of the Petitioner, is admitted by a finding by the

5 Condon’s prediction was “carefully phrased on the basis of

objective fact” Gissell at p. 618 and although the Board acknow-

ledged the uncontradicted evidence of losses suffered by Petitioner,

it commanded that additional losses be incurred by continuing its

operations in Metropolitan New York with the employees who

were part of the Union’s warfare.

13

Board that “It is reasonable to presume unionization of

employees at the JIIX facility was viewed by the respond-

ent’s management as an impediment to their efforts to re-

verse the financial losses. The record reflects that the Peti-

tioner dealt with unions at other of its terminals. Thus,

the Respondent had experienced the additional cost of

potential of unionization”. (A. 7). Further, the Board

acknowledged that the words were lawful predictions or,

at least, ambiguous when viewed in isolation. Neverthe-

less, it found there was a violation even “though this issue

is not free from doubt”. (A. 13), because it found that

Petitioner had made unlawful promises. But the Court

found no violation committed by the so-called promises

(App. A, 3a).

Thus, the Court reached two inconsistent conclusions:

it found that in one speech, which cannot he fragmented,

Condon unlawfully threatened to close petitioner’s JFK

facility but made no unlawful promises. To be sure,

a single speech may include both permissible and = im-

permissible statements, but in this instance, the permitted

promise was a “common sense assessment of the con-

sequences” if the financial condition of the JFK terminal

was not improved and a valid prediction of a plant clos-

ing.

Assuming, arguendo, that the threat was made as re-

ported, it was protected unless the decision in Gissel

that:

[A]n employer is free to communicate to his em-

ployees any of his general views about unionism

or any of the specific views about a particular union,

so long as the communications do not contain

‘threat of reprisal or force or promise of benefit’.

Ile may even make a prediction as to the precise

effects he believes unionization will have on his

14

company. In such a case, however, the prediction

must be carefully phrased on the basis of objective

fact to convey the employer’s belief as to demon-

strably probable consequences beyond his control,

or to convey a management decision already ar-

rived at to close the plant in case of unioniza-

tion.” (p. 618)

has a meaning which, as in Alice in Wonderland, each

Court may take it to mean what it elects it to mean so

that a failing enterprise may be compelled to continue

its operations until bankruptcy overtakes it. But in the

reasonable context of Gissel, the statement attributed

to Condon was a reasoned prediction based on objective

facts. Nevertheless, the Board and the Court proceeded

to add their own gloss to Gissel and to rewrite it as

a new rule, namely that once having made a threat of

a plant closure, the offense can never be purged and

an employer must continue to operate a failing enter-

prise even though the threat did not discourage union

organization and the closure was compelled by economic

circumstances aggravated by repeated strikes and work

stoppages.

The Court also disregarded the fact that although the

threat of plant closure was allegedly made on March

15, 1977, no charge was filed until August 29, 1977, and then

only after the initial charge was dismissed. When the

July 11, 1977 charge was filed, the charging party, Ryby,

who invited the Union, either never advised the Board’s

agent about the alleged threat to close down the JFK

terminal or if he did, the Regional Director decided that

Petitioner had not violated the Act when he refused to

issue a complaint. (A. 364-365).

Clearly, the so-called promises did not discourage the

employees from organizing but it was on the basis of the

15

factitious finding of an unlawful promise that the Board

ordered the Petitioner to re-establish its operations in the

Metropolitan New York area. The Court, however, found

that the promises were not proscribed by the Act.

The contrariety of views by the Board and the Courts

will plague the Board, Courts, employers, unions and law-

ers, until this Court provides a clarifying lesson.

B. After it decided to close its JFK facility, the Peti-

tioner engaged an independent company to provide cler-

ical services. This was found to evidence anti-union ani-

mus, but the facts of record rebut this inference. The

law is clear that absent a discriminatory motive, an

employer may partially close his business. [Teztile

Workers vy. Darlington Mfg. Co., 380 U. S. 263, 268-

269 (1965)]. It is equally clear that an employer does

not violate the Act if his decision to subcontract is bot-

tomed on, and supported by, sound business reasons.

(NLRB vy. Rapid Bindery, Inc., 293 F. 2d 170 (2d Cir.

1961)).

The Board and the Court arbitrarily rejected the evi-

dence that the Petitioner’s decision to subeontract the cler-

ical work performed at the JFK facility was motivated

solely by economic concerns. Indeed, the decision to shut-

down and to subcontract was not one eapriciously ar-

rived at by Petitioner. On the contrary, it was dictated

by massive financial losses and by the continuing unlawful

strikes by unions who acknowledged their unlawful activ-

ities by a settlement order and a formal Board Decision and

Order.

The record also showed that Petitioner had a pattern

of subcontracting part or all of its operations in various

cities long before the Petitioner’s employees spoke about a

union. The Board and the Court ruled, however, that the

16

disruptive strikes and violence, and the consequent loss

of business did not justify the decision to shut down the

JFK facility and subcontract a part of the work formerly

performed there. This case, therefore, calls for a reanaly-

sis of an employer’s right to subcontract in the face of

unlawful strikes and picketing. This is not a case where

a previously made threat of plant closure occasioned a

strike. On the contrary, the record shows that a charge,

filed on July 11, 1977 (long after the March 15, 1977 meet-

ing, when the alleged threats were made) of an unlaw-

ful lockout and refusal to rehire alleged discriminatees

(A. 366) was rejected by the Regional Director of the

Board when he determined that the Petitioner had not

“violated the Act in any manner encompassed by your

charge”, (A. 364).

C. No principle in labor cases has been beset with so

irreconciliable a congery of conceptions than “substantial

evidence” which appeared to be so plainly described and

defined in Universal Camera Corp. v. NLRB, supra. A

citation of conflicting decisions would exceed the permissible

limit of this petition. What has occurred is that the Board

issues “magic words” and litany sprinkled with caveats

which the Courts rubber stamp. (NLRB y. Appletree

Chevrolet, Inc., 608 F. 2d 988, 998 (4th Cir. 1979)). Various

Courts of Appeal and, in this case, the Second Circuit,

have disregarded this Court’s teaching that although Con-

gress invests the Board with wide discretion, the reviewing

Courts ought not rubber stamp decisions where “the

Board’s analysis ignored the realities of the situation. . .”

(NDRB vy. Savair Mfg. Co., 414 U.S. 270, 276-277 (1973)).

The criteria have become diaphanous—every Court sees

through the errors of another (NLRB vy. Interboro Con-

tractors, Inc., 388 F. 2d 495, (1967); NIURB vy. Northern

Metal Co., 440 F. 2d 881 (5th Cir. 1971); NERB vy. Bud-

17

dies Supermarkets, Inc., 481 F. 2d 714 (5th Cir. 1973);

ARO, Inc. v. NERB, 596 F. 2d 713 (6th Cir. 1979) and,

most recently by the District of Columbia Circuit, Aohls

vy. NLRB, 89 LC 12,209 (7/18/80)).

In Universal Camera Corp. vy. NLRB, supra, this Court

did delineate the scope of review by the Court of Ap-

peals, and it did not intend to elevate a ecryptie and

inadequate review of evidence by the Administrative Law

Judge or an administrative agency to a model of juris-

prudence. In adopting the Board’s findings, the Court

gave “more weight than in reason and in the light of

judicial experience they deserve.” (Id. at 496).

As for “substantial evidence, which the Court accepted,

we point out that after discussing the history of Peti-

tioner’s horrendous losses, the Board said: “I perceive

the unquestioned poor financial situation of the Peti-

tioner to have been no serious [sic] factor in the deci-

sion to close... JFK...” (A.12). This areane finding

was held by the Court of Appeals to constitute substantial

evidence,

It is respectfully submitted that this ease presents the

occasion for clarification of three critical principles of

labor and administration law and to establish a reliable

norm of permissible conduct under the National Labor

Relations Act.

18

CONCLUSION

For the foregoing reasons, this Petition for a Writ

of Certiorari should be granted.

Respectfully submitted,

Hersert BurstTerN,

ZevBy, Bursrers, Hartman & Bunstern,

Counsel for Petitioner,

One World Trade Center,

Suite 2373,

New York, New York 10048,

(212) 482-0940

Hersert BursteEn,

Of Counsel.

APPENDIX A

Statement in Lieu of Formal Opinion of the United States

Court of Appeals for the Second Circuit”

(Filed—September 17, 1980)

At a Stated Term of the United States Court of Ap-

peals, in and for the Second Circuit, held at the United

States Court House, in the City of New York, on the

17th day of September, one thousand nine hundred and

eighty.

Present:

Honorable Wilfred Feinberg, Chief Judge

Honorable Henry J. Friendly, Honorable James L.

Oakes, Circuit Judges

a

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

—against—

C-F AIR FREIGHT, INC,,

Respondent.

-

—_

*N.B. Since this statement does not constitute a formal opinion

of this court and is not uniformly available to all parties, it shall

not be reported, cited or otherwise used in unrelated cases before

this or any other court.

[la]

2a

Appendia A

This cause came on to be heard on the application

of the National Labor Relations Board for enforcement

of its Decision and Order dated January 18, 1980, and

was briefed and argued by counsel.

On Consiperation Wuereor, it is now hereby ordered,

adjudged and decreed that the order of the Board be

and it hereby is enforced, except as to so much of the

order as relates to promises of benefits.

The National Labor Relations Board petitions for en-

foreement of an order requiring respondent C-F Air

Freight, Ine., among other things, to cease and desist

from threatening to close any of its facilities because

its employees engage in union activities and from promis-

ing the employees economic benefits to dissuade them from

such activities; to offer reinstatement and compensatory

relief to four employees dismissed as the result of un-

lawful discrimination based on their participation in an

organizational strike; and to resume clerical operations

formerly performed at its facility at John F. Kennedy

International Airport but now subcontracted out to an-

other company. The Board’s order adopted in most re-

spects the findings and the recommended order of the

administrative law judge.

The Board found that respondent's manager at the JFK

facility threatened its clerical employees within the mean-

ing of § 158(a)(1), by telling them that if they sueceeded

in efforts to bring in a union the company’s executive

office would close the facility down. Substantial evidence

supports the finding that such a statement was in fact

made, that it was not based on any decision already taken

to close the facility down, and that it reflected a retalia-

tory intent. It was thus not protected as a “prediction

3a

Appendia A

.. . carefully phrased on the basis of objective fact,”

NLRB vy. Gissel Packing Co., 395 U.S. 575, 618 (1969).

The Board also found that the manager had made an

unlawful promise of economic benefits, again in violation of

§ 8(a)(1), in telling the employees that they should give

him time to improve the terminal’s financial condition—it

had been losing substantial sums of money for several

years—and saying that if he was successful in improving

the facility’s financial situation the employees too would

be successful, “because ... increased sales ... means the

jobs would grow, there would be additional jobs, there

would be promotions within the terminal.” We do not find

sufficient evidence in the record to sustain the Board's

finding that this was an improper promise. The manager

gave no indication that he would give the employees a

better deal on wages or employment conditions if they de-

serted the union; he was simply presenting a common-

sense assessment of the consequences of a financial upturn

at the facility, not prohibited by Gissel Packing. Accord-

ingly, we deny enforcement of so much of the Board's

order as relates to promises of benefits.

With respect to the remedy ordered, we find that the

Board did not abuse its discretion in ordering respondent

to resume the clerical operations formerly conducted at

the JFK facility. Substantial evidence shows that respond-

ent shut down its JFIX operations and subcontracted the

work for retaliatory and discriminatory purposes, in vio-

lation of §§ S(a)(8) and (1) of the Act. The resumption

order was an appropriate remedy under the circumstances.

Contrary to respondent’s assertions, the order does not re-

quire resumption of operations at JEN itself; respondent

is free under the order to resume operations at “some

other reasonable location within the New York metropoli-

4a

Appendia A

tan area.” Since it is clear that respondent continues to

need and use the services of several clerical employees

under its subcontract, we do not find this order to be un-

fair or unduly burdensome. See UFI Razor Blades v. Dis-

trict 65, 610 F.2d 1018, 1022 (2d Cir. 1979).

Finally, we see no abuse of discretion in the order inso-

far as it calls for an offer of reinstatement and compen-

sation to the four employees unlawfully discriminated

against by respondent. Accordingly, with the exception

noted, we enforce the order of the Boacd.

WIitrrep FEINBERG

Wilfred Feinberg, Chief Judge

Henry J. Frienpiy

Henry J. Friendly

JAMES L. OAKES

James L. Oakes, Cireuit Judges

ii:

ba

APPENDIX B

Order of the Court of Appeals Denying Petition

for Rehearing

(Filed—October 7, 1980)

UNITED STATES COURT OF AT'PEALS

Sreconp CircuiT

Docket No. 80-4050

At a Stated Term of the United States Court of Ap-

peals, in and for the Second Circuit, held at the United

States Court House, in the City of New York, on the

seventh day of October, one thousand nine hundred and

eighty.

Present:

Hon. Witrrep Fersenc,

Chief Judge,

Hon. James L. Oakes,

Hon. Henry J. FRtmNDLY,

Circuit Judges.

-™

a

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

v.

C-F AIR FREIGIIT, INC.,

Respondent.

.

|

6a

Appendix B

A petition for a rehearing having been filed herein by

counsel for the respondent,

Upon consideration thereof, it is

Ordered that said petition be and hereby is denied.

A. Daniet Fusaro

Clerk

by A. HELLER

Deputy Clerk

7a

APPENDIX C

Statute Involved

§ 158. UNFAIR LABOR PRACTICES

(a) It shall be an unfair labor practice for an em-

ployer—

(1) to interfere with, restrain, or coerce em-

ployees in the exercise of the rights guaranteed in

section 157 of this title;

(3) by discrimination in regard to hire or tenure

of employment or any term or condition of em-

ployment to encourage or discourage membership

in any labor organization: Provided That nothing

in this subchapter, or in any other statute of the

United States, shall preclude an employer from

making an agreement with a labor organization

(not established, maintained, or assisted by any

action defined in this subsection 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 rep-

resentative of the employees as provided in section

159(a) of this title, in the appropriate collective-

bargaining unit covered by such agreement when

made, and (ii) unless following ar election held

as provided in section 159(e). of this title within

one year preceding the effective date of such agree-

ment, the Board shall have certified that at least

8a

Appendix C

a majority of the employees eligible to vote in such

election have voted to rescind the authority of such

labor organization to make such an agreement:

Provided further, That no employer shall justify

any discrimination against an employee for non-

membership in a labor organization (A) if he has

reasonable grounds for believing that such mem-

bership 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 membership was denied or termi-

nated for reasons other than the failure of the

employee to tender the periodic dues and the initia-

tion fees uniformly required as a condition of

acquiring or retaining membership;