Petition for Writ of Certiorari — Lincoln Rochester Trust Co. v. United States

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‘I Office-Supreme-Court, U.S.

pEIARY FILED

ORE COURT. UB “APR. 9 1962

- JOHN F. DAVIS,’ ciemn

IN THE ,

Supreme Court of the Bnited States

OCTOBER TERM, 1961

No. 8 5] 1

WHITELIGHT PRODUCTS DIVISION OF WHITE

METAL ROLLING AND __—— CORP.,

Petitioner,

“v.

_ NATIONAL LABOR RELATIONS BOARD,

é Respondent.

————

| PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

» -.. FOR THE FIRST CIRCUIT _

——

-Rosert ABELOW,

Attorne y for Petitioner,

60 East 42nd Street,

New York 17, N. Y:

Of Counsel: °

~ MarsHaut C. BERGER,

Wituam J. ABELow,

WeiL, GotsHaL & ManceEs

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- Intermediate Report of the Trial Examiner

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DU RISDICTION 24.02. ececee eee cece cccceneee reneeseceecenees aes Dhiasciee 2

QUESTIONS PRESENTEI 0.002 n-ne cece terecntee reer eeceecennnee ‘i

Sratute Isvotvep 220 hake 2°

. see 35a-39a

STATEMENT —. 3

Basis oF JURISDICTION OF Feornat Covers 0.» D

Reasoxs ror Grantixe THE Weir. 6"

1. The decision of the Court heluw ix in conflict |

with the provisions of the National Labor Relations *

, a eee LER nt a ee

‘2 The decision ef the First Cireuit is in conflict.

with decisions of the © -cond Circuit —. 11

3. Pilix case presents an important question of

Federai labor law not previously considered by this

COI nce engenseornencncecavncneticonenees peek Ye rae}:

CONCTATBION 622000022 aceceseeccesnnene wehooeeree 2s <n neigigagminonetccer 1

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Decision and Order of the National Labor Rela-

Rie NO og cen cecnnseactes comgpesrnnstotenss dese pmgheas ae

° 97

. _

: bas ow PAGE.

Aprennix B ©....2..-.0-----0--+--4 buhpiisensease Pea tt ee ER Reni 9 . Da

Opinion of the United States Court of Appe als

for the First. C ireuit SEBS At Nirncleanie Be no

Aprespix C tere SES heal threes ge ie

Applicable ‘provisions of the National - Labor

Relations Act 0... silviooee LEE NOCD EOS,

:" TABLE OF AUTHORITIES

Cases: ;

Firestone ‘Tire & Rubber Co.,,.76 XLRB O_(1948) 10

Franks Bros. Co. 8. NLRB, 321. U2. 702 (1944). GMT

Gene val Box Co., 82 NLRB Ges (1949)... eels aaa -. 10

International Ladivs s Garment < Workers E'nion “ee ee

NLRB, 366 Ue S. 751 (1961). ea ee

~ NLRB x. Adhesive P roducts C id SI F “2 Si-ena

, Cir. 1960) metas WA

NLEB v. Marcus Trucking: Pe. “286 KF KF. Od 583 (2nd

| ee ane 12>>

NERB v. Philamon Laboratori x, hnc., 20s F. 2d 176

(2nd Cir, VMG2) + eee leet pert 12

ONL RB vy. Sev Seren-E p Bottling G 0., d44.U. 4 (195: 6.

- VERB v. Superior Fireproo} dor & sa Co., er :

F. 2d 713 (2nd Cir. 2 Eanes Be ag atehiaes See 28 Me

Pérry Coal Co. N. eh id

Statutes: .

National Labor Relations Act 2-38, Ba-BMa, passim

"Congressional Reports:

House of Represe ntatives Committee Report No.’

245, SOth Congress, First Sess on sieeeoeadrecanibes m4 ©

°°

ALL LLL AO

Supreme Court of the United States.

' OCTOBER TERM, 1961

Na -

° - a

W HITELIGHT Prope cts Division or Ware Merat Rowing

AND STAMPING Carp.,

° 8 Petitioner,

Natioxat Lasor ReLatioxs Boar,

; Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

. White light, Products Division of White Metal Rolling. a

= Statping Corp. prays that a writ of certiorari issue

iv w the judgment of the United States Court of +

she als for the First Cire uit entertd in the alyste entitled

(sition on January 15, 1962.

* Citation to Opinions Below .

The inte rinedist report of the Trial Examiner and the

decision and order of the National Labor Relations Board

< reported in 131 NLRB No. 158 and is printed in Appen-

ix X hereto, infra, p. la. The opinion of the United -

States Court of Appeals for the First Cireuit-is re ported —

208 F, 2d 12 and‘is printed in Appendix B hereto, infra,

Jurisdiction

The judgment of, the Court of Appeals for the First

Cireuit was entered on January 15, 1962. if

The jurisdiction of this Court is invoked under 28 USC

Section 1254(1) an ion 10(¢) of the National Labor

Relations Act, 29 USC Section 160(e). —

° ;. . : oe : .

-Questions Presented

|. Ix an ofder of the National Labor Relations Board

ordering an employer to. bargain with a particular union

enforceable as effectuating: the policies of the National

Labor ReJations Act wher rieither the employer had

previously recognized the unio as the vollective bargain-

ing representative for his -faployees nor. the employees

of the employtr had selected the union as their collective

_ bargaining representative at an NLRB conducted collective

hargaining election? | ° .

J Is an employer guilty of the unfair labor practice

of refusing to bargain collectively where he does not bar-

‘gain with a union whose only proof of majority status

_,__eomsists of authorization cards.,signed. hy a majority of

the employer's employees: in, a one morning “whirlwind |

campaign” and where a good faith doubt of majority

- status exists?

Statute Involved

The National Lahor Relations Act as amendéd, 29

USC Section 151 ef. seq., 49 Stat. 449 as amended, by

G1 Stat. 136. = | ,

Because of the length of this Act and the inapplieability

of most of the provisions thereof to the instant case we will

“reprint in Appendix © hereto, infra Yo Sew, only. such

_ portions of the Act as we deem pertinent to the ‘con-

sideyation of tie instant case.

‘Petitioner Whitelight Products Division of White Metal —

_ Rolling and. Stamping Corp. (hereinafter referred to as

the “Employer”), operates a plant in North Walpole.

X4w Hampshire for the asxemblying of various types of

magnesium and aluminum ladders and other items from

extruded materials ‘imanufactured, and shipped frou

Employer's Brooklyn plant (Consolidated Joint Appendix

in the court below, pages 27-28, 69-70 hereinafter referred

tous CAA). By Aucust 1960. there were twenty-four or

twenty-five employees in the production and maintenance

_ departments at the North Walpole Plant (CJA 167). ,

7 On August 15, 1960, the Employer's 3.000 ton ‘extrusion

press in its Brooklyn plant, upon which the North Wal-

pole plant Was dependent, burst itx main water eylindér

resulting ino a complete stoppaze of output from that

machine (CAA 29-22). Ax a recult of this breakdown the -

Employer had to revise its plans for its North Walpole

plant, beth because of the anticipated shortage of mate:

rials to be processed at the North Walpole plant and the

necessary reallocation of the Emplover’s budget to pay

for the repair of the Brooklyn press. Thi< change of plans

‘ueant that the Employer had to reduce its work fore

in the North Walpole plant (CAA 32-34, 38-39, 73-75).

“The news of the breakdown was told to at least one

production employee, Mr. Arthur Fair, as well as the

2 three, supervisory emplosees at North Walpole (CJA

104-106). It ean be presumed, because of the small, closely -

knit character of the North Walpole plant that news of

, 4 5 | Ke

‘the breakdown quickly spread to the other production

employees. This background is essential to appreciate

the subsequent action of these, employees. .

On the night. of August 16, 1960, one day after the press

breakdown, one of the North Walpole vfint employees,”

Mr. Donald Belden, met with an organizer for the United

Electrical Radio and. Machine Workers of America, Loéal

918, the charging party herein. (hereinafter referred to”

as the “Union”) (CJA 6, 13-14). The next day, Augiist’

_ 17, 1960, Belden and one other employee obtained sixteen .

signed Union ‘autliorization cards from. -his fellow. em:

ployees during the brief period between the stdrt of -work

and 12:30 PM. (CJA 1S). presumably the greater number

" between 12 and 12:50 P.M: the lunch period. +

At 12:30 Belden, the Union organizer, Mr. Hugh Har-

ley and a hastily ‘formed Unjort committee, unannouneed

- and without previous appointment. walked into the office

of the plant manager Mr. Earl Records at whieh time the

Union demanded reedgnition (CJA 77). This demand was

the first indication of any sort to the Knurployer that a

union was conducting an organization drive (CJA 77).

Mr. Records told the Union that he was not in a posi-

tYon give an answer to its demand at that. time but

that he would answer their request no later than Friday - .°

of that week—two days later (CJA 7, 19-21, 93-95).

Thereafter, the Union filed’a petition for an NLRB col-

lective bargaining election. . Mr. Records, , true to his

word, gave Mr. Harley thy answer to his request on -F ri-

day, August 19, 1960,’by rejecting the Union's demand for

recognition _ based upoy the filing of the Union ‘petition

-for an NLRB election (CJA 107). eng

-+ [Tt-should be borne in mind. that. several, employees

shortly .after they ‘sighed: Union authorization ecards, had

second thoughts about ‘the Union and on théir own volition

decided to oppose the Union- (CIA A), 102). |

The Union thereafter filed. charges with the NLRB

‘ against the Employer for certain alleged unfair labor ,

’ practices. .including a refusal to bargain charge under

Section. 8(a)(5) of, the National Labor Relations Act.

We need not set forth at length the disposition of these _

charges other than the S(a)(5) charge sineé they are not

in issue in this petition, We need only state that the

reviewing court found the Kanplover guilty of “evrtain ,

. ‘

charges | (the discharge of one employee and unfair

interrogations of: its emplayees). innocent of others (thie

discharge of another employee and unfair. surveilhanee

of union activities). apil remanded still others to\ the

‘Board for’ further proceeslings (the layoff of four em

‘ ployees). Both the Board and the First Circuit, the ~

- eevjewing court of | the XLRL enforceinent petition,

however, found «the Kanployer. guilty of a refusal to

bargain. Further, tf» Board order as enforced ,by_ the

Court of Appeals for the First Cireuit ordered the Em-_

ployer to bargain with the Union although the only proof

of the Unisn’s majority status was the authorization. cards

signed by a nfajority of the plant’s employees in wat

was’ characterized by” the First Cirenit gpinion as a

“whirhwind campaign.”

_. Basis of Jurisdiction of Federal Courts

The basis of jurisdiction of the United States Court of

- Appeals for the ‘First Cireuit is Section 10(¢) of the

National Labor Relations Act quoted in full text below,

page ia. : a eee

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. REASONS FOR GRANTING THE WRIT

1. The decision of ‘the Court ‘below is in conflict

' with the provisions of the National Labor Relations

«Act. ener ak a |

| As /pointed out .by this Court in NLRB. v. Seven-Up

mae Bottling Co., 344 U. S. 344 (1953), an order of the

National ‘Labor Relations Board is subject to judicial

modification unléss it meets the ‘requirement of Section ~

10(c) of the National Labor Relations Act that it “will 8

effectuate the policies of this Act.” It is our-basie con-

‘tention that the order herein not only fails to effectuate

any policy of the Act but aetually thwarts the most funda-

mental policy of the Act. “oe pas

‘In its order, the Board required the Employer to recog-

~~ nize\and bargain with the Union. This in effect gives the

Union virtually all the rights, and beriefits of an NLRB

certification. The Union is placed in almost exactly the -

— same position as jf, a majority ofthe plant’s employees |

had voted for it as their collective bargaining agent in an i

NLRB election, . . .

-. To prove this point we need only quoté the opinion of

‘this Courtiin Franks Bros. Co. v. NLRB, 321 U.S. 702,°704-.

-T05* (1944) where this Court set forth the effett of an ~

NER 3 order to bargain made as a result of an 8(a) (5)

* charge. — ps

ve of * the Board has = © © jp thie case

and in similar cases [adopted] a form ‘of remedy

which requires that) an employer bargain exclu-

sively with the particular union which represented

‘a majority ef the employes at the time of the

wrongtul refusal to bargain despite’ that union’s -

- subsequent: failure ie its majority. .

collectively through representative

wo * * But, as the remedy here in question

recognizes, -a bargaining relationship once right-

fully established must be permpitted to exist and

function for a reasonable peridd jin which it) can

be given a fair chance to succeed.”

Thus for this indeterminate: period the employees “will

be obligated to have the Union act as their collective

bargaining representative without airy opportunity’ to

change this status. > Regardless of the effect of such ‘an

order on the Employer, it must of necessity shave a pro-

found effect on its employees. ‘They avill find, regardless of

‘their own’ wishes and desires, that. the Union has been

made their spokesman at the colbeetive bargaining table

“fora reasonable period” and that the Union has. been |

viven all of the power over them and their-rights that this

implies, And all thix without adequate proof, as we will

show below, that the Union was a choice of the majority

of - the eruployees. oe

This contrasts with the fundamental policy of the

National. Lalor Relations Act asvexpressed in: Section iF

Section 7 specifically vives employees the right.“to bargain

= of their‘own choosing”

and “to refrain Erom gny or all of the activities pro-

tected by Section 7. Phe entire. balance of the National

Labor Relition Aer exists to further these rights. In

short, if an order of the NLRB deprives any group of

employees of tir rights under Sec.ion 7 it cannot effee-

tate the poliey of the Neto. a

In thig ease however the Board ordered an employer to

bargain with a union wher the only proot of the union's

majority status was that a majority of employees signed

= . 2 ‘ P ae e ss ie - a

authorization cards after a whirlwind campaign.” The

natural wareligbility of such evidence ix heightened by the

fact that several employees jhad second thoughts about

joining the Union. almost as soon as they signed the cards

(CJA 50, 102) and that throughout the brief Union or-

ganizing campaign the employees’ imirids mist have been

pre-occupied by the impending dislocations which would be — -

caused by the breakdown of the Brooklyn press. =f.

We will demonstrate below that under, the National Laa-

bor Relations Act the’ Board has no power to determine

whether .or not a union represents a anajority -of the

plant’s employees by any other means but a collective bar-

gaining election held under Section 9% But ii any event

the basic thrust of the First Circuit's opinion is that the

inadequacy of this proof of the Union's majority status is

outweighed hy the unfair labor practices of the Employer. -

The: First .Cireuit holds tha although. the Employer,

could have forced the Union to prove its claim of ma- -

jority status at a Board election had it leon innocent of”

unfair labor practices, the Bmployer's guilt emoved this

right. In effect, -this means that the employees’ fights are

dependent upon thie innocence of their employer and their

rights could be ordered violated by the Soard to. punish

their employer for violating their rights. “Thus the em- .

ployees would lose their right to bargain’ collectively

through representatives. of their own choosing and have to

bargain with, representatives of the Board's ‘choosing.

They would lose their right to refrain from bargaining

and would have ote hargain collectively whether they

wanted to. or not whenever the Board desired to punish a

‘guilty employer. Obviously, punishing ay employer by

abridging the rights of his emplovees which the Aet ix de-

signed to. protect Gan inne sense be considered an effectu-

‘ation of the policies of the Act.

y *

a °

Indeed, the Board's order herem may be an erder for

the Employer to do: precisely what this¢Court in Taterna

tional Ladies’ Garment Workers Union v. NLRB, 366 me

731 (1961), lield*to be an unfair labor practice if done by

an employer on his own volition that is to reegynize a

Union not representing a. majority of employees as the

collective barguming representative for his employees.

This is not the place to Slaborate on the ‘factual inade- -

‘quacies of thy proof of the nion’s Inajority status hereim

but we must emphasize that any proof of this ottey than

an NLRB election was specifically disapproved by. the

explicit ‘provisions of the Taft-Hartley "Act Amendinent=

te the Wagner Aet and their legislative. history.

In the original Wagner Net, Spetion. 9(e) read aa

follows: . (pees

ete) Whenever a qtlestion affecting commerce

arises concerning the representation of employees,

the Board may investigate such controversy. anid

certify to the parties. in writing, the mame or naites

of the representatives that have been designated or

<elected.(: Invany such investigation, the Jonna shall. .

provide’ for an appropriate hearing upen duc notice,

either in conjunction ‘with a’ proceeding under sec-

tion 10 or otherwise, and may take a secret ballot of

employees, or utilize auHy other suitable method ‘aD

ascertain such representative x. (Bangihasis sayy

plied. )

Under this original wording the, Board could use any

method it considered ~uitable to determine majerity: statis

of aunion. Such cases as Franks Bras. @o. %. NLRB OS

VS 702 C14). decided vader the Wagner Neto are this.

~. completely inapplicable here, as the NLRB in stich -Apse=

could rely upon its former power to nseertain majority

status by “any other suitable inenps. Likewise tmapyl

cable are other cases where the union majority was recog-

nized either by the employer or by Board certification.

Still other cases, although decided under the ‘Faft-Hartley

Act rather than the Wagner Act, did’not consider the

changes the Taft-Hartley Act made in Boatd power.

In 1947, Congress amended the Wagner Act by the Taft-

Hartley Act: In doing so, they completely eliminated all

other methods of -ascertaininganajority status except col-

lective bargaining elections. are a

The fratmers of the Taft-Hartley Act) specifically dix-

trusted checks of authorization cards. Thus, in the’ House

Committee Report on the Hartley Bill, Seetion Ch) ef

that bill, which later, was adopted: verbatim as Section

§(¢)(1) of the Taft-Hartley Act, was deseribed as follows :

“Section: O(h)—The present act does not, by its

_terms, provide for so-called ‘consent elections’ but

the Board frequently holds them. The bill permits

parties to waive hearings lefore the Board (provid-

ing no other interested person intervenes and ob-

jects). but when the parties waive a hearing, the.

Administrator must conduct a_ secret ballot, wot

heck membership cards vas the Board sometimes

has done in the past.” (Kimphasis supplied.) ——

House of ‘Representatives Committee Report No.

245, 80th Congress, First Session, Page 39.

This was recognized by the NLRB itself in General |

Bor Co.. 82. NLRB 678 (1949) cand Firestone Tire &-°Riuh-

ber Co. TOA NLRB 2266 | 148). o 9 @. .

“AS pointed out above, the effyet of the order herein is

to give the Unio all the henetits of a. certification “for

a reasonable period”. “Thus the NLRB is seeking to do

through Section 10(e)) what it has been speeitically pro-

hibited from doing through: Section We). It is selecting

a collective bargaining representative without a collective

4 oe

> 11

bargaining election or otherwise consulting the employees’.

desires except by a complete acceptance of authorization

cards obtained, through a “whirlwind eanipaign™ under the

shadow of a temporary major dislocation in the Employ-

ers business. , i

We submit that for these. reasons the Board's order is

in violation of the provisions and intent of the National

Labor Relations Act.

2. The decision of the First Circuit is -in conflict

with decisions of the Second Circuit. |

We submit that the Court's decision herein ix in con-

flict with the decision of the Second Circuit in NLRB v...

Adhesive: Products Corp. S1 EL 2d 89 (2nd Cir. 1960).

in that ease the Court was faced with a similar NLRB

order. The Court began its discussion of the problem by

asking the only question awhich can possibly he’ relevant (

in considering the validity-of any NLRB order.

caleulated toe give te the employees the right to

which they are entitled?” (at page 91).

a i

Its answer, we submit, applies’ equally well te this

“First, they should not be made the pawns of any

union, the company, or of the Board. ‘Seeond, they

: should have an-opportunity: to express their choice

in the manner provided by law" Cat page UT).

Pouaseed Upred. these cide posts, that Court nioditied the

NERB order as fellows:

“Keeping in mind the poliey af the Act, namely,

to encourage bargaining through representatives of

the Muiplovees’ own choosing (Seé. 7) the Board -

se ndtercthese ctrenmstanees, what — solic! ix tent

. and this court should endeavor to make this goal

attainable. The most feasible procedure would

appear to be that suggested by Judge-Learned Hand

in NLRB vr. National Licorice Co. (104 FL 2d 655

(2nd Cir. 1939)) and followed by Judge A. N. Hand .

in NLRB vr. American Mfg. Co. (106 F, 2d 61 (2nd

Cir. 1939)) namely, * * * to make the order ‘egn-

ditional upon thé Board's ascertaining by a new

election whether the union is now the choice of the

majority.” da this away the current Wishes of the

employees can manifest themselves under the aegis

of the Board's -supervision™ (at page 92).

» See also NLRB vy. Marcus Trucking Co., 286 B. 2d 583

(2nd Cir. 1961); NLRB v. Superior Fireproof Door &

- Sash Co., 289 F. 2d 713 (2nd Cir. 1961); Perry Coal Co. v.

NLRB, 201 F. 2d 126 (3th Cir, W961). }

It-is precisely such relief which should have been ordered

~ here so, as to prevent the employees at North’ Walpole

from being made “the pawns of the Board.” ;

These decisions were distinguished on their facts by the

Second Cireuit in. NLD y. Philamon Laboratories, Ine.

os F.2d 176 (2nd Cir. 1962)'——but these attempted dis-

tinetions cannot remove the soundness: of the reasoning

of the Idhesire Products case and the. cases which fol-

lowed it. They point out basie considerations which must

govern.all orders of this type and we submit: should he

applied herein. | |

3. This case presents an important question of

Federal labor law not previously considered by this

“At the oral argame wfore the First Circuit. counsel

for the Board stated thag the argument. set forth im 1.

1 We have been advised by counsel for Philamen Laboratories,

Inc., that he intends to petition for a writ of certiorari in that case.

above based upon -_ legislative history of the Taft- |

Hartley Act was being” prese nted to a Court of “Appeals -

for. the first time. Thus, this case presents to this Court

for the first time the same question, that’ is whyther the +

Taft-Hartley Act Amendments to Section 9 in effect ‘re- me

versed Franks Bros. Ci. vs. NLRB, "321 U.S. 702 (1944). | ..

In any event this Court sai never reconsidered its action

in Franks Bois. after the Taft- Hartley Act ane mdinents.

The importance of this issue in theory is obvious from

our diseussion in 1. aheve. “Tt practicnl importance can GRO as

he seen by the large number of cases in whieh the STR -

attempts to impose ord: rssiniilar to the one at bar. We

submit’ that’ \the importance of. these questions merits a

reconsideration by this Court of .the entire problem of

“remedies for ‘S(a)() violations in view of the Taft- |

Hartley. Act aun fulments, this Court's decision in luter-,

national Ladi Garment W orkers Union 6. NLRB, 266

CYS. ‘731 (1961) and above all the asic philosophy of the

OXER Net as a remedial rather thansa painitive statute

‘designe “l te protect employers" rights. ; iy ae

‘CONCLUSION

For. the foregoing reasons this petition for a writ

a certiorari should be granted.

Kexpo “ ‘fully subn itted,

4 Sh

Ronentr’ Anevow,

* Atfornen for Pe Aitioner,

BLL Kast 42nd sph

New York 17. N =.

Of Counsel:

Varsnacs (. Berger.

Wroam J. Aberow,

Wei. Gorsian & Maxces.

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APPENDIX A ts

‘ Intermediate Report. of the Trial Examiner

STATEMENT OF THE CASE

Charges having been filed and duly served, -a complaint

and notice of hearing thereon having bech issued and

served by the General Counsel of the National -Labor Re-

lations Board; and an answer having been -filed by the

: above-named Respondent, a hearing involving allegations

of unfair labor practices in violation of Section S(a)(1).

(3) and (5) ot the National Labor Relations Act, as

amended, wax held in Bellows Falls, Vermont, on Novem: -

ber 14, 1D and 16, 1960, before the undersigned Trial bX-

aiuiner. : ) ;

At the hearing all parties Were represented, and were

aiforded full opportunity to present evidence pertinent to

the issues, to argue orally and to file briefs. Oral argu-

went was waived. Briefs have been received from General

Counsel and the Respondent. - _-

After the hearing was closed, and. pursuant to an under:

standing reached by the parties at the hearing, a stipula-

‘tion of fact.-relating to corpain telephone records, Wax re-

ceived by the Trial Mxaminer. Said stipulation is hereby

made a part of the record in these proceedings,

Disposition af the Respondent's motion to dismiies the

complaint, upon which ruling was reserved at the hearing,

is wade hy the ‘following findings. conclusions and recom-

‘mendations. cae: abs tae

— Vpon the record thus made, and from: his observation of,

the witnesses, the Trial Examiner makes the following:

‘8

Appendix A

_Fixpines or Fact

1. The business of the Regpondent

_, The Respondent is a New York corporation. [ts princi-

pal office and "place of business is in Brooklyn, New York,

with a Division located i in North W alpole, New Hampshire,

which plant is hef#inv olved. At this plant the Respondent -

is engaged in the manufacture, ‘sale -and distribution of?

extruded, rolled and finished products of magnesium *and

aluminum alloy and related products.

In the course of its operations at the North Walpole

plant the Respondent reeeived materials valued at more

than $50,000 annually. from points outside the State of

New Hampshire, and has ‘shipped products valued at niore

than $50,000 annually to points outside that State.

The complaint alleges, the answer does not deny, and

the Trial Examiner conelndés and finds that the Regpond-

ent is engaged in commerce within the meaning of the Act. .

I. The Charging Union °

U nited Electric al, Radio and Machine Workers of Amer-

ica, Local 218, is.a labor organization admitting to metn-..

bership employees of the’ Respondent.

If. The unfair labor practices

A. Setting and issuer

The chief itenis of conduct claimed by General Counsel .

to he violative of the “Aet oceurred during the week begin-

ning August 15, 1{W00). In substance it ix his contention

that almost immediately upon being confronted: with a

request for recognition, submitted by a representative of

3a”

* amt Appendix A

the Charging Union which at the ‘time represented a ita.

jority of the Respondent's, employees, the plant nlanager

unlawfully discharged two employee leaders of the organ-

| izational movement and laid off four other employees. By

such unlawful discrimination and by other interference,

restraint. and coercion, General Counsel urges, the Re-

jspondent also violated Section S(a)(5) of the Act in re-

fusing to bargain collectivgly with the Union as the ma-

jority representative of “all euiployecs in an appropriate

unit. 4

The Respondent’s answer merely enters a gene ‘ral denial.

At the hearing and through its witnesses the Respondent

claimed ¢ertain affirmative reasons for its actions which

will be discussed below. -

y “B. Facts .

Because of the interrelationship both of the issues here

presented and the pertinent events, the Trial Examiner

‘will summarize in this section and in chronological order

certain findings of fact relating to General Counsel's case.

Discussion of evidence adduced by the Respondent to sup-

port its. affirmative claims will be ryse rved for a later

section.

The Trial xainer finds ax follows: ..

(1) On Monday, pum 1h, «: uployee Donald Belden

met with Organizer Hugh Harley, Jr.. of the Charging

inion, avd from bim obtained union authorization ecards.

He distri ited them among the production and tmainte-

mance employees during the next 2 days. }

(25 Phe Réspondent concedes, and it ix found, that on

August 15. 16. and 17. eighteen’ of the employees in a unit

4g :

¥ mittee. .

P Appendix A Pee

admitted to be appropriate signed cards authorizing the

.. Union to represent,them in collective bargaining.

(3) While the record reveals a minor dispute as to

e .

whether there were 24 or 25 employees on the payroll in

~ the unit on August 17, there can| be no dispute that 1S cards

established a majority representation as of that date.

(4) During the lunch period on’ Wednesday,’ August 17,

many of the employees who, had sigped cards: anet aim

selected a committee of seven to accompany Harley to de-

mand recognition from Plant Manager Records, Donald

Belden was selected as chai rman of the employes group.

(5) That noon, Harley, and the committee went to

Record’ office. Harley introduced himself ax the ‘union

representative and Belden ax head of the. eryployee com-

‘ ,

° *

(6) Harley claimed majority representation, and offered

to prove this-claim by the cards then-with him, by a come

munity election, or any other suitable method. THe de-

manded recognition. Records raised no question indicating

doubt of such claim, but said he would not grant recogni-

tion then. He .promixed to give Harley his answer the

following Friday.’

1. The findings as to this interview rest. upon the credible, testi-

mony of Harley and Belden whieh in large part is corroborated, by”

Records. or reasons set oat at Jength in a later section, however,

the Trial, Examiner can place no reliance upon any of the plant

manager's testimony. Such unreliability is alsa made plain by’ the

fact that on direct examination Records admitted that Harley “had:

cards to show that the CE represented a majority.” but on cross-

examination, when-asked if Harley had cards, he replied: would

_ say no... . TP don't remember” sIn-any event, he finally admitted, m

- effect, that he had*no doubt of the anion nfajority that day. ’

‘

“3

ova

Appendix A

(7) At the same meeting Harley asked Records net te

interfere with the employees’ right to organize and the

plant managér. promised that he would not.

(8S) Shortly after Rvcords had given thix promise, how

ver, Belden was sent into his office, where the polant

“nanager warned: thy employee that the Union was’ Com

“qnunist and he would be branded for life if he continued

in it., Records also insisted that there was ne need for

acunion in the plant, and threatened thatoif “it cnn: in the

employees, would no longer receive monthly raises and all

would have to go through another 30-day trial period.

The manager alse told Belden that he had “a fairly de:

cont potential” and “had qualities for a good worker.”

Records obtained Belden’x agreement that he would re

consider and would present the jnanager’s point of view

t» the eniployee committee which was to meet that night

at the home of Sylyeer Smith, an employee.

(9) Late the saine afternoon Poreman Lemp interto |

gated eniployee Benjamin about his union svinpathies, and

warned him that if the Union got in he thought the plant

would close...” .

(10) That night, having previously been informed where,

the iveting was to er Jed, and within a period of some

15 or 20 minutesydtecords twice drove slowly by Smith's -

home, each time looking in.”

(11) The nest morning, Thursaiy, August IS. a) mun

ler of Cinployees infortned Bélden that Foremen Leni and

Humphrey were calling them aside and ‘interrogating ther

phout the Union. As spokesman for theeunion commit

rlden (went inte Records’ office and protested against

. -

tin %

A ppendia.A

this conduct whieh the manager had _bromised would, not

‘be engaged in. ~

(12) Reckdi. gave the employee this reply only: “Do :

‘you realize You are jeopardizing vour job by coming in. ’-

here?" He ordered the employee hack to work, .

(13) Later during - ‘that day Harley returned to the

office, asked for but was denied pe rmission to have Beldén

aecompany him, and then voiced: his protest against

Records’ failure to comply. with his promise of-the

before. He again asked for recognition. Records denied

that there had been any interferenesy_and told Harley he

would get his answer on: recognition the following day.

(14) Also on Thursday employee Benjamin went in to

ask Records: for. a raise.” Reeoyds told him that if the

Union ‘got in “there wouldn't be but one raise a year.”

(15) The same day Foremen Humphrey and Lemp in-

terrogated eae LaDuke regarding his feeling about

the Union. Leyip told. him that if he: would -vote “no,”

they would be “better - in the’ shop,” and warned that

if “the Union comes in” they would be working only

months a year.” Lemp asked. the conperee to give him

his. answer that night. ;

(16) Late that afternoon: both Donald: Belden and Syl.

vester were summarily and without previous Warning dis-

charged, and employges Maurice Brodeur, Clinton Pecor,

o Roland Prouty and Bernard Smith were laid off until fur-

ther notice. |

(17)sAs" noted heretofore, «Belden was the emiateses

leader of the organization—admittedly known to bessuch

g *

gat

, ppendix A—

bh. Reeords, Sylvester Sinith was on’ the employee com

“mittee and it, was by hix house whieh Records had driveti

slowly the night before, an act of surveillance. Emplovees

~ Peeor, Prouty and Bernard Smith were on the émployee

committee which had been in Records’ office. Wednesday

noon.” Although Brodeur was not’a member of the commit-

tee, he had®signed.a union card and ‘had reeently been

employed at a nearby plant which had been organized by

the sane union local. - ¢ : , |

(18) These six employees (except Prouty, who was not

a Witness) were told upon their discharge or lavoff, as

follows :° - “

a. Belden was first asked by Records: “Do you

remember what EF told you early this morning about

jeopardizing your job?" Belden concedéd his recol-

lection... Records then ‘said: “As of this moment

vou are fired.” He gave the employee two reasons:

(1) vou haven't beentattending to your work and

i +4 eee vow falsified your application form.” The

plant manager then ordered Foreman Humphrey to

~ escort Belden off the premises within 10 minutes and

notte permit him to return to the shop. ;

”

hb. Svivester Smith, the first employee hired by

the Respondent when opening the plant in the late

fall of 1959, was told as he ‘eame from the toilet by

Plant Engineer Wickberg to “keep on going” —out of |

the shop. When Surith asked why, Wiekberg replied

that he was spending too much. time in the toilet and

his work Was unsatisfactory. As the two proceeded

to. the office, apparently to get the employee's dis--

2 4 * .

charge check, Wiekhers said: “You know what Mr.

_hawson, (general mimager ‘of the Respondent) said

about the upion. bfisiness?. .. His first words. were,

. ‘Ha, Ha, Ha.”

Appendix A

e. Bernard. Smith, who .had_ told Records that

- morning that he would continue to “go along” with

the ofhers despite.the manager's efforts to dissuade

him, was merely informed .by Foreman Lemp that

he was laid off “due to preduetion.”

- ds Maurice Brodeur. also Jaid off by Lemp, was”:

told by this forenran “we are cutting production™

‘and while he was satisfied with his work he had “got

to lay” him off. The foreman added, “Probably,.

when this blows over, they will hire you hack.”

was told it was “due to things that are happening

here.” a |

(19) On Friday, August 19, Foreman Leurp asked em-

ployee Shafer while at work what he thought of the Union.

Shafer evaded “the question. .Lemp then told him that if

the Union came in the employees would have to pay the

@ost of insurance then being borne by the Company. The

foreman also told Shafer: “I hate to fire anybody, but

when I get the word from the bigger boss, | got to do it.

You see what happened here yesterday.” He also said

there were “7 or 8 people out on the street now that would

- yote for the Uggon.”

(20) Also on Friday Records told employee A. Fair that

if the Union came in the employees would get but one

raise a year, and asked him to change his mind about the

organization. . }

2. Lemp was not a witness, and all remarks attributed to him are

‘uncontradicted. Plant Engineer Wickberg, a witness, did not dis-

pute Smith's account of the discharge interview, although he gave a

somewhat different version which the Trial Examiner does not credit.

eas

e. Clinton Peeor, upon being laid off by Lemp. ,

‘Mat

Appendix A +

(21) At noon that day when Harley returned for

Records’ answer to his demand for recognition, the plant

manager dismissed him by refusing recognition and point

ing out that the organizer had provided his own answer

* by filing a petition with the Board for an election.

C. Conclusions

The foregoing, facts, based upon credible testimony

largely unchallenged or undisputed. establish a prima facie *

_ease supporting all allegations of thie complaint and which,

in the opinion of the Trial Examiner, may successfully be

counterpoised only by a most convincing presentation of

} credible evidence warranting other condusious.

“In quick summary, the Respondent would hage it found

that: (1) Belden was discharged, because he “falsified”

his application for employment several weeks’ earlier:

(2) Sylvester’ Sinith was discharged because he had deen

an unsatisfactory employee over since he had been em-

ployed: and (3) the four layoffs were made necessary Ihe-

‘cause of an accident at the Brooklyn plant on August 15,

where certain materials were prepared for shipment te

the’New Hampshire plant and assembly there.

By a considerable measure, In the opinion of the Trial

‘Examiner, the Respondent has failed to provide the neces-

sary éounterbalance to General Counsel's case on each of

the issues.

As to the layotfs, the testimony of General Manager

Lawson and Plant Manager Yecords ix not bniy mutually .

contradictory on exsential points but lacks support in com.

pany records. The following examples of contradiction are

P noted: 4 4 | a

IHa

Appendix A

(1) Lawson testified that following \ accident to

a Brooklyn press.the morning of Augiist 15 he. tele-.

phoned to Records and instructed him to “eut his im

mediate work force 24 per cent.” Records, however,

has flatly denied that Lawson so instriic ted him.’

(2) Records testified that Lawson “knows every

Single person up here” and that through him “tries

“to be acquainted with the individuals and skills of

the. people up here in North Walpole.’ Lawson,

however, declared: “I dén’t know the situation with -

respect to the qualificas#ons of the individuals.”

As to company records—or documents purporting to be

such (rio primary records were produced at the hearing)

the Trial Examiner is at'a loss to determine which of two

documents, if either, is correct and accurate. Both were |

prepared by the Respondent, one being submitted to the .

_ Regional Office before the hearing and the other introduced

by the Respondent at the hearing. Varianées are not

minor, as the following comparison shows. The items pur-

port to be the total poundage of “extrusions” received at

the North Walpole plant from Brooklyn Pe the months

- noted:

> : Oanuvai Counsel's Ex. 4 Resp. Ex. 3

pn 30,284 : 44,711

re ... 36,738) ~ 43,330

August .......... 25,463 ria 21,398.

3. -It. would appear to be difficult to. conceive of a more direct

denial than here quoted from Records’ testimony :

(). For that matter, didn’t Mr. Rawson tell you on Mont

day to reduce the force by 25 percent ? \)

A. No. .

Q. Didn't he? :

A. “No. °

ay At

Appendix A

It appedrs to be Lawson's claim that. because of the

breakdown at Brooklyn, no more than 40,000 pounds of

“extrusions” could be provided. monthly to News Hainp-

Shire for some months after August 15.0 Since one set of

figures produced by the Responde nt shows that in neither

of the two preceding months, had the receipts attained t

figure, it cannot be reasonably maintained, in the opinion

‘of the Trial Examiner, that a reduction in force was re-

quired to assemble 40,000 pounds.

_ Finally, Lawson admitted. that there was-10 ~Feduction

in force at the Brooklyn plant, where the accident occurred,

The ‘Trial Examiner concludes and finds that there is no

merit to the Respondent's clain, that “the saccident made

necessary reduction in force at the New Hampshire plant

and that this was the reason for the layoff of the four

employees. ,

As to Sylvester Smith, it ‘appears needless to review in

detail the plainly exaggerated’ and colored testimony of -

both Records and Wickberg regérding their dissatisfae-

tion with:him. According to them he had been a poor

workman and wholly unsatisfactory ever since he had been

’ hired. He- was the first employee at this plant, and it is

undisputed that ‘he had received two raises Within the

period of somewhat less than a. year of his employment.

Both Records and Wickberg finally admitted that Snuith,

‘had never been warned or cautioned that unless he did

better work he would be‘either discharged or suspended.

Under such circumstances, the Trial Examiner finds ne

merit in the aun reac contentions as to Simith:

As to Belden.“Only Records téstified as to the claimed

reason for his discharge. The manager's insistence that

ehe had taken this action because of “falsification” of the

e - ®

;

aep.

Ke!

Lae

Appendia Ao

employte’s application for employment appeared early in

his testimony to have, some degree of merit. - While exami-,

nation of the document, in evidence, shows that “falsifica-

tion” is an ‘unduly strict characterization, it is established,

and Belden did age dispute the fact, that he accredited

himself with some 2 years more of military service than

he actually had. He did not “falsify,” but merely left

blank, a —- of the application calling for a listing

of “arrests.” Connotation of the word is not in issue

here, however, but only ee testimony as ‘to what he

did about it.

The manager repeatedly stated ‘that during the few

weeks of Belden’s employment he had queried loc “al insur-

ance, and real estate agents, a police chief and’ a judge,

concerning “rumors” of Belden’s character and past.

Although he said it had “occurred”. to hit to ask the

employee himself, he admitted that he lad never done. x0.

Finally, he claimed, he telephoned4oa V ermont probation

officer in a nearby fown, pn the morning of August WW,

and learned from this official that the voung man (only 25)

Was on probation from an offense committed in the State

of New Hampshire sometime before Ids employment by

the Respondent. ‘ Records was not only emphatie in’ his

claim that this tele ‘phone call was made on August 16, but

insisted that, the informatjon he then received caused his

- tnnediate decision to. discharge Belden.

* vestigation’

None pe ge ‘testiunony regarding his previous “ine

ax the “sfightest corroboration in. the evic-y

dence, J. VL Moevkens, pinging officer called as a rebut-

tal witness by General Cou.sel, admitted that someone

at the plant had called him, but he could not decurately

fix the date. a,

see ee «

Iba

Appendix A

As a witness Records attempted to bolster lis recellee-

fini of the precise date bos testifsime that die. hard a diary

“N hie h contained anventry refreshing his recuflertion. The

diary wits net. prreaditerd.

» Shorth before “the hearing closed General Counsel ap-

pr for a subpoena cing tes telephone recoids. 1 was

eranted. Counsel for both parties then agresd that within .

a specified period a joint ietion Lor reape Wing of the hear

ine would be subtniited te the Trial K Saniner or a stipu-

lation of fact as to what seh records disclosed would bn:

forwarded.

Bearing inomind the obvious jieint that if Reeords hid

in fact made the-call on Ausust 16— the day before he had

‘know ledees of Belden’s union feadership, the Respondent's

contentions ax to his dixeharge might have possessed ~one

merit, the following stipulation is revealing :

It ix hereby stipulated by and between the Counsel

for General Counsel and Counsel for Whitelight

Products Division of White Metal Rolling and

Stamping Corp. that the records of the New

‘

cate that on Thursday, August. 18, 1960 a teleplione

call was placed from Whitelight Products Division

‘of White Metal Rolling and Stamping Corp., North

Walpole, New Hampshire, whose telephone number

ix Willerest 5-551) to Mr. Julius Vl Moeykens,

Brattleboro, Vermont, whose telephone number t=

Alpine 4-590) at 35. AM. Said) telephone call

was of nine (8) monutes durzition. The above tele-

phone minibers ar the respective and only numbers:

for each parts. No other tele pilone calls: were

placed between the above-two nutbe vs in the month

of August.

England Telephone and Telegraph Company indi-

- «+ Ida

. | Appendix As * e

‘No motion for reopening the hearing has been received. 7

Further comment upon Records’ credibility as a wittiess

appears hardly necessary.’

In final summary, the Trial Examiner coneludes and

finds ax follows:

/ VU) AME production and maintenance employees of the

Respondent employed at its North Walpoi- plant. exelu-

sive of office clerical employees, professional employees,

suards and all supervisors as defined in the Aet constitute

a unit appropriate for the purposes of collective bargain- -.

ing within the meaning of .Nection 9(b) of the Act.”

(2) On August 17, 1960, and at all times since that date,

the Charging Union has been and -is now the exclusive

representative of all employees in the said-unit for. the

purposes of collective bargaining

(3) On August 17, 1960, and at all times since then, the

Respondent has refused to bargain collectively with the

said Union, not only by refusing to’ reeognize jit as the

representative of its employees but also by its disclitrge ,

and layoff of the employees named herein and the inter--

ference, restraint and coercion herein described.

. (4) On August 18, 1960. the Respondent) diserimina-

torily and to discourage membership in the Charging Union

discharged and laid off the six employees as found above.

4. The Trial Examiner notes frere that he does not believe that

either of the Respondent's two cgunsel—Robert Abclow or his aon

“William—were aware of Records’ obvious alteration of dates.

Abelow, senior, readily agreed to join in the proposed stipulation as

soon as he had an opportunity to check the Respondent's own tele-

phone records—records which of course had been available to

Records since August, 1960. In short, the Trial Examiner attributes

no bad faith to either counsel.

Appendix A | ~.

(5) Under the cireumstanees found herein, the interro- _°

vation of employees as to their wien <vmpathies and the

surveillance engaged ino by Records constituted coercion

Within the meaning of Section S(apcl) of the Aet.

(6) By. such) interrogation: and surveillance, by the

threats of reprisals ang promises of. benefit as deseribed

herein, by the diseriminatory- discharges and layoffs; and

hy the refusal to liargain with the Charging. Union, the

Respondent interfered with, restrained and coerced em-

ployees in the exercise of rights guaranteed by the Act.

IV. The effect 6f the unfair labor *

practices upon commerce

The activities of the Respondent, set forth in Section IT,

above, occurring in-connection with the operations of the

Respondent deseribed in’ Section 1, above, have a close,

intimate, and substantial relation to trade, traffie. and

commerce among the several States, and tend. fo ®ad to

labor disputes burdening and obstructing commerce and

--the free flow of commerce.

Upon the basis of the foregoing findings of fact and

upon the entire record in the case, the Trial Examiner

makes the following: rae im

CoxeLvsions or Law

. o

1. United Electri¢al, Radio and Machine Workers of

America, Local 218, is a labor. organization within. the

meaning of Section 2(5) of the Aet.

2. By discriminating in regard to the hire and tenure

of eniploydes, thereby discouraging membership ine the

Rs lta

Appendix. A

above-named labor organization. the Respondent has en-

gaged in and is engaging in unfair labor practices within _

the meaning of Section 8(a) (4) of the Act.

3. All production and maintenance employees ot the

~ Respondent employed at its North Walpole plant, exclu-

sive of office clerical employees, professional employers,

guards and all supervisors is defined in the Act constitute

a unit appropriate for the purposes of collective bargain-

ing within the meaning of Section 9% h) of the Aet.

4. At ald times sinee August 17, 1{Ma), the above-named

labor organization, by virtue of Section O(a) of the Act.

has been and is now the exclusive, representat ge of all

employees in the said unit, for-the purposes of collective

bargaining in respect to rates of pay. wages, hours of em-

ployment, or other conditions of employment.

5. Om August 17, 19th, and at all times sinee then, the

Respondent refused and continues to refuse to bargain col-

lectively with the said labor organization within the mcan-

ing of Section S(a)(5) of the Act’ : . .

io By interferiitg with, restraining and coercitig em-

ployees in the exercise ef rights guaranteed in Section 7

“of.the Act, the Respondent has engaged in, and is engeging.-

in, unfair laber practiees within the meaning of Section

S(a)(1) of the Act.

7 The aforesaid unfair labor practices are unfair labor

practices affecting commerce within the meaning of See-

fion 2(6) and (7) of the Act. \

a ; |

174

App ndet A

Tue. Remeny ” Roe :

Having found shat the Respondent as engaged in and

ix engaging in unfair labor practices, the Trial, Espiner

will recommend that itease and desist therefrom arkl take

aflirniativ © action to effectuate the policies of the’ Act.

«It will be recommended that. the Reexpondent offer te

each of the six emploxves named herein and found te have

beyn discriminated against uimediate and full geinstate-:

ment to his fornfr or substantially equivalent’ emyptoy-

ment, and that the Txpondent make-each of the nm whole

tion by payment to him of a sum of money equal to that

which he would ‘normally Jhavé earned ax wages sinee

August 18. 196, to the date of the offer of reinstatethent,

less his net earnings aluring said period and in a wanner

@nsistent with Board policy set out in FP. W. Woolworth

Company, OO NLRB 289. and Crogsett Lumber Compan.

S NLRB 440. , ;

. Recosme NDATIONS

. Upon ‘the heats ot the foregomg findings of fact and con-

‘elusions” of law, and upon the entire record; the Trial

"_Examiner recommendsthat Whitelight Products Division

at of White Metal Rolling and Stamping Corp., its officers,

agents, Te and assignse shall:

a vase dexist f rom: ; e

(2) Discouraging membership in “United Electri-

e = eal, Radio and Machine*Workers of America, Local

218, or in -other labor organization, by discharg-

ing, laying off. refusing to reinstate, or in any other

manner discriminating in regard te hire or tenure

of employment, or any term or condition of employ:

ment :

for any loss of pay, suffered by reason of the diserimina- ”

Trial

* Act:

_ Sa

Appendii 0° 6 6° Jen

(b) Threatening employees with economic repri-

sals or promising bénefits, ty discourage membership

in any labor organization, or interrogating ¢m-

ploys ees regarding their union® meimnbe rship or activi-

ties in.a manner violative of Section S(a)(1) 6f the

Act; .

straining, or coéreing employees in the exercise of

the right to self-organization,.to form labor organi-

zations, to join or assist the above-named or any

other. labor organization, to bargain collectiv ely

through representatives of their own choosing, and

to engage in other concerted activities for the pur-

pose of collective Hargaining or other mutual aid or |

protection, or to refrain from any or all sueli activi-

_ ties, except to the extent that such right may be

affected by an agreement requiring me mbership in

- a labor organization as a condition of emplovinent

as authorized by Section 8(a)(3) of the Act, as

modified by the. Labor Manage ment Reporting and :

Diselorure Act of 1959... ‘

Take the "following affirmative action, which the,

Examiner finds will effectuate the policies of the

(a) Upon request, bargain ‘cdlllectively with

United Electrical, Radio and Machiné Workers of

America, Lecal 218, as. the exclusive representative

of the Respondent's employees in’ tp abov

scribed unit and, if an understanding is reached,

embody such understanding in a signed agreement:

(b) Offer employees Donalll Belden, Sylvester

Smith. Maurice Brodeur, Clinton Pecor, Roland

Prouty and Bernard Smith immediate ‘and: fall re-

instatement to their former or substantially equiva

‘lent positions without. prejudice to their seniagjty or,

other rights and privileges, and make them whole

™~

ore

‘

Any wilis af +

ter any loss of earnings the vy omay have suffers d his

renson of the disarimination in the nuainner set forthe

above in the section entitled “The Remeily”;

Te) Preserve and, upon\reqt make available te

the National Labor Neate Board or its agents,

for examination and copying all records necessary

for the determination ‘of he amount of backpay

‘due-and the right of reinstaty ment under t terms of

these Recomime ndations ; bs, a

”

(d) Post at its” plant in North Walpole, New

Hainpehire, copies of the maice attached hereto a-

“Appendix.” Copies of said notice, to be furnished

by thy Resional Director*for Mie First Region, shall.

after Awing dply signed by the Responde nt, be posted

immediately pen reevipt, thereof, “in conspicuous

places, and dn maintained for a period of sixty (60)

conseeutive days, Reatonable steps shall be taken

to insure tliat said Mlicex are not altered, defaced,

or covered by any other material;

‘o) Notify the Regional Director for the First

Region, in writing, within twenty (209° days frome

the date of the receipt of this Intermediate Report.

what steps it has taken to comply with the fore-

going Recommendations, - , ,

‘ ee . ; ‘ . E

It ix further recommended that. unless within the pre-

. seribed period, the Respondent notifies the said RegionaP

Director that it will comply, the National Lalor Relations

toard issue its order requiring complianee with the afore.

said Reconimendations. : ‘

Dated at Washington, D.C. January 5, 1961.

(x) C. W. Wairrestonn *

C. OW. Wartrersors,

Trial Examiner

(Appendix te Intermediate Report omitted. J

20a_ =

‘ : Appendix A

‘ e. « e 7 é

Decision and Order of the National Labor

ce ' .Rela¥fons Board - ©

On January 5, 1961, Trial-Exaiminer C. W. Whittermore

issued his Intermediate: Report in the above-entitled prov

-cooding tinding that the Respondent had engaged in and

Was engaying.in certain unfair labor practices and recom.

mending that.it cease-and desist’ therefrom, and. take cer-

tain affirmative action, as sef forth im the “copy: of the

Intermediate Report attached hereto, Therefore, the

Responde nt and the, Ades ger! Couisel filed exeeptions to

the Intermediate Report and briefs in support thereof.

Pursuant to the provisions of Section 3(b) of the Na-

tionad Labor Relations Act, the Joard. has delegated its

powers in connection. with this’ case - to a three-member

ganel. | a, . :

The, Board has reviewed the rulings of the Trial’ lex-

amined made at the hearing and finds that no prejudicial

error was committed. * The rulings are hereby’ affirmed.

The Board has considered th® Intermediate Report, the.

exceptions and briefs, and the entire record in this case,’

and hereby. adopts the findings, conclusions, and recom-

inendations Gf the Trial Mxaminer with the following modi-

fications.” ‘ pegs

a” «

1. The request by Respondent for oral argument is hereby’ denied

hecause, in Gur opinion, the record and the briefs adequately present” |

the issues and the positions of the parties.

2, The Trial Examiner found, and, it is herein adopted, that

Respondent, th: ough its agent Records, engaged in unlawful surveil-

lance within the meaning of Section 8(a)(1)./ This violation was not,

remedied in the recommended: order and notice to be posted by

Respondent. The General Counsel excepted to this omission. We

find merit in the exception and shall therefore amend the order and

ynotice to conferm with this alte of violation.

. , vi

Apyy udix a6

“Contrary to the conclusion of the Trial Examiner, we.

find that the General Counsel failed to meet his burden of

proof in establishing that Respondent discharged. Donald

| Belden fora discriminatory reason.; Ln filling out his job

-application in June, Belden. falsified his military experi-

enee and the fact that he was: not honorably: discharged,

guid left blank the request for information relative to his

record for arrests, At the bottom.ot this page on. the

application form there appears the following statement :

The information on this application is accurate and

subject to cheek. | understand that any misleading

or incorrect statements may render the. application

_ void and would be eause for immediate dismissal in’

the event of emplosiment,

‘Althougy Respondent discharged Beiden og the day fol-

lowing the Union's ‘uppearance and demand for reeogni-

tion, the discharge occurred’ on the very day Respondent

confirmed the fact that Belden had an undisclosed crini-

‘inal record... Absent a showing that Respondent condoned

the above noted misrepresentations, “in the circumstances

Jere we eannot say that Belden*was discharged for other

thitn wovalid reason. Accordingly, we shall disiniss that

portion, of the confplaint whieh alleges a Seetion S(i) (3)

Vielation with “respect to Belden,

+ c

Upon the entire record in this easy, and pursuant to.

Section Weer of the National Labor Relattons Act, as

inended. the National, Labor Relations Board hereby

orders that the Respondent, Whitelight Products Division

of White Metal Rolling and: Stamping Corp., North Wal-

Append ix A a

‘pole, New Hampshire, its officers, agents, successors and

assigns, shall:

”

Cease and desist from:

(a) Discouraging membership: jn United > Elee-

trical, Radio and Machine» Workers of Anieriea,

Local 2ZIS, or in any other labor organization, by

discharging, daying off, refusing to reinstate, or

in any other manner discriminating in regard to

hire or tenure of employment, or any term = or

condition of cmployinent;

(hy) Threatening emplovees with economie re-

prisals or promising benefits to discourage lene

Cbership in any labor organization, or engaged in

surveillance of employees’ union activities, or inter-

rogating cmiployees regarding their union meniber-

ship or activities: in a manner Vielative of Section

S(a)(1) of the Act;

(¢) In vany othe manner interfering with, re-

straining, or coercing employees in the exercise of

the right to self-organization, to form labor organi-

- gations, to join or assist the above-named or any

other labor organization, to bargain collectively

through representatives of their own choosing, and

to engage in other concerted activities for the pur.

pose of collective bargaining or other imutual aid

or protection, or to refrain from any or all such

activities, exedpt to the extent that such right may.

be affected by an agreement requiring -inembership

in a labor organization as a condition or cuples

ment as authorized by Seetion S(aj¢3) of the, Net,

as imedified by the Labor Management, Reportine

and Disclosure Act of 1959. |

‘

aby welts all

“effectuate the policies of. the: Act:

(a) pon request, bargain — collectively with

United Kleetrieal, Radio and) Machine Workers of

Ameriea, Loéal JIS, as the exelusive representative

> oof the Respondent's enployees in the appropriate

- unit deseribed*in the Intermediate Report and. if

an understanding ix reached, embody pail under-

‘standing ina signed agreement:

(th) Offer cmplevees Sylvester Smith, Maurice

Brodeur, Clinton “Pecor, Roland Prouty and: Ber-

nard Smith immediate and full) reinstatement to

their former or substantially equivalent. positions

Without prejudice to their seniority or other rights

and privileg ges, and make them Whole for any loss

of earnings they may have suffered by reason of

the discrimination in-the manner set forth in the

_ section of the Intermediate Report entitled “The

Iie meds 5° cs

(e) Prose ‘rve, and upon request, make available to

the National Labor Relations Board. or its agents,

for examination and copyi@g, all records necessary

for the determination of the amount of backpay due

and the right of -reinstatement under terms of this

Order; Sten

td) -Post at its plant in) North’ Walpole, New

Hampshire, copies of the notice attached hereto as

“Appendix.” Copies of said notice, to be fur-

Nished by the Regional Directer for the, First Re-

wien, shall, after being duly cigned by the Respond-

3. In the event that this Order. is cntorced by a decree of the

lL nited Mi ites Court of Appeals, there shall fe substituted for the

words “PURSUANT TO A DECISION AND-ORDER.” «the -

words “PURSUANT TO A DECREK OF THE UNITED

STATES COURT OF APPEALS, ENFORCING AN ORDER.:

2. Take the following action, whieh the Board finds will

“

Fle “4a

al ppendir al

ent. be posted immediately upon receipt ‘thereof, .

in conspicuous places, and be maintained for a

period of sixty (60) consecutive days. Reasonable

steps shall-be taken to insure that said notices are

‘not altered, defaced, or covered by any other ma-

* terial: ae

(e) Notify the Regional Director for the First Re- .

- gion of the National Labor Relations Board, in writ-

ing, within’ 10 days froni the date of this Order,

what steps the Respondent has taken to coinply

herewith.

Ir Is Ferruer Orverep that the complaint, be, and it,

hereby is, dismissed insofar as it alleges that the Respond-

ent violated Section S(a)(3) of the Act by° the discharge °

of Donald Belden. ~

“Dated, Washington, D.C. Jun 27 1961 °

ss Par Fraxk W. MeCrrnocu, Chairman

Prue Ray Ropaers, Memln r

Joun TH. Fannin, Member

ne — Natrionar Labor Recarions Boarp

(Appendix to order omitted.)

aa TT |

APPENDIX B

U NITED 8 STATES COURT OF APPEALS

For THE First Circvit

No. 5870

Natrionat Lanor Ret ATIONS Boarp,

a Petitioner,

Wiareuicur Propvers Division or

Wire Merav Rotuixa axp Srastping Correoration,

Pea +» adeiaiecastmetiag Respondent.

No. 5877

: Unsiren Kiectrican, Rapio

Ye,’ & Macutxe Workers or America, -

2 Petitioner,

Natioxat. Lator Retations Boarp,

SC ipeeaeonete Respondent.

ON PETITION FOR ENFORCEMENT ANU ON PETITION TO REVIEW AND

SET ASIDE-AN ORDER oF THE NATIONAL LABOR RELATIONS BOARD

Before——Woopsrry, Chief Judge, and Hartigan and

ALDRICH, Circuit. Judges.

Mevvin J. Wecres, Attorney, with whom Srvart

‘Rorpman, General Counsel, Dominick — L.

Manout, Associate General Counsel, and Marcet:

Mauurt-Prevost, — General Counsel,

_ + were on brief, for National Labor Relations

hol ' Board. .

Roserr Asecow, with whom Marsuatu C. Bercer,

Wittuam J. Apetow, and Welt, GotsHaL &

_ -Manées, were on brief, for respondent: in No.

“5870: =% : | ae,

AtLAx R. Rosexserc for petitioner in No. 5877

Appendix B’

- Opinion of the Court

January 15, 1962

Aupric Hu. Cireuit Judge, These two matters were heard

° tuapetlee’, The first is a petition for enforcement of a La-

bor Board order against Whitelight Products Division of

White Metal Rolling and Stamping Corp., a New York cor

poration, hereinafter employer, following a charge by the

United Electrical, Redio & Machine Workers of America,

hereinafter the union. The second is a, petition by the

union to review the dismissal of a portion of the com-

plaint. All of the immediately significant events took place

in North Walpole, New Hampshire, between Monday ‘and

Friday, August 15 to 19, 1960. | '

For many years employer had operated a mill in Brook-

lyn, New York. In 1959 it opened a plant in North Wal

pole to assemble various types of ladders from magnesium

extrusions it produced in Brooklyn. Active ope ration com

menced in Mareh 1960. .At this time the workers were-

inexperienced. By August 15 there were some twenty-

four employees in the production and maintenance depart

ments, having varying seniority. The morning of that

day the largest of. the three Brooklyn extrusion presses

suffered a serious breakdown, forecasting a production

shortage of several months. North Walpole was informed

by telephone and advised to make plans for a reduction in

personnel, Word of the Breakdown spread through the

plant. That afternoon one Belden, a production employee.

telephoned the union, and on Tuesday and Wednesday

morning eighteen of the eniplovees signed authorization

Jia o

Appendix kh

cards, Wednesday noon the union organizer and a eom

mittee of the Guployvees, with Belden as chairman, ealled

upen the plant manager and demanded recoznition. "The

Board found that the organizer offered to show the eards,

jut that the manager's reply was that he would vive an,

answer on Friday. He agreed to take no step *interfere

with the anion in the meantime. That aftercon the nian

ager stmimened Belden te his offices amd TO ec

legitimate inquiry about the union, and seme that was i:

vitinate. He was informed that there would be ames ting

of the connuittee at the home of one Smith, that eveming,

That evening he twice drove by Smith's house. Wis testi

mens as? te his reagyis for deingGso was net specifically

contradicted or imypenehed.

On Thursday morning the manager engaged in what the

trial examiner found to be highly Mmapereperr Neves gins

union activity. Thursday afternoon he disé¢harged Belden

anmed Smith, ane lai ott four other eonnipelers eres, hive of

these six were Members of the committer. That scare das

the union filed a petition for certifieation. Om Friday the

manager stated that sinee the union had recuested: an

election, this ~was its “answer.” and that lu® would’ net

recognize the union without the election. The: tamten then

filed the present charges, distuissing the certifieation pre

coodings. . ‘

After a thtetday hearing the trial examiner found that

the employer had discouraged membership in the union in

Violation of section S(a)(3). had refused te bareain in ae

cordance with-S(ajyi5). and had engaged in unfair laher

practices within the nieaning of seetion S(aycti. Me ree

ommended an order compelling the emploved te bargain

with the tinion and to reinstate the two discharged and

23a

A ppendix BR

four laid-off employees with back paygy The Board affirmed

all findings, exeept as to Belden. it us the employer

criticizes many of the findings and all of the conclusions,

and particularly attacks the order that it should bargain

with the union ‘in the absence of any prior certification.

The union complains because the trial examiner’s finding

in faver of Belden was rejected by the, Board. ;

'. The underlying basis ‘for the trial examiner’s decision

was his opinion that the plant manager's testimony was

wholly unreliable. In large measure we are not unsy npa-

thetic with that determination, but we believe that the ex-

aminer allowed hix not unnatural distaste to get the better

_of his judginent. This caused him to disregard what seen,

to us inescapable facts,.and to .make findings either not’

supported by the evidence or in some instances .contrary

thereto. However, we cannot at all accept the employer's

vontention that it engaged inno improper activities. Te

do so we would have to say that the Board, as matter of

law, must treat statements Such as there will be no merit

raises if the union comes ineand instead of monthly raises

a single raixe once a year which will be five cents, and that

the plant wo Id operate only ‘sight months instead of

twelye, as benign. observations of fact. There .is no evi-

denee that they had any faetual basis. The employer over-

estimates our credulity." —_ ;

1. The employer seems correct with respect to one small matter

of no particular importance except that it was reflected in the pro-

posed order. We agree that the finding of “surveillance” of the

Weslnesday evening meeting was something blown up out of propor-

tion. The examiner. found that the manager “drove slowly by

Itwice], each time loeking in.” No one testified he looked in. One

of the two witnesses who saw him pass stated that he appeared to

he “just driving “around waiting for somebody.” This was not evi-

° ,

Sth

Appendix B : ;

Furthermore, the Board was warranted in finding that

the manager's refusal te recogtize the union on Wednes

day, when it offered the card cheek, was a violation of see-

tien Scape). NLAB ov. Hamilton, VW Cir, Was 2200 Bek

492: NLRB VV. Scott d Scott, 9 Cir WT, 24 Fiz 926,

It did not ceise. to boeve-eodanee stich lay the union's filing al

certification petition, or by its*dismifsing it. NLRB vy.

Kobrit:, 1 Cir. SSI, 198 F.2dS: NLRB vy. Sunrise Lumber

A Trim Corp. 2 Cin. WT, 241 Red 620, ccrt, den. 305

U.S. SIS. ten bona fide doults by the employer, which -

the Board did-not find, that this was a “true” majority,

rather than the result of a “whirlwind eampaign” which

would not be the final, considered view of its employees,

aire not the sort of doubt» that wenulkd peertnit au tailore to

deal in the meantime. NLRB vy, Lorrorn, + Civ, WAI, V2

Reva 25. This latter elatn i particularly bellow coming

from an emplover whe sets upoa whirlwind eampaign of

its own. comprised of substantial unfair labor practices.

In the faceset along history of decisions tw the contrary,

the employer takes the position that ordering it te barsain

witha union which hax not been certified or recounized, as.

matter of law thwarts, rather than effectuates, the policies

of the Act... It is true that in International Ladies Gar-

moult Pasherd Ini \. NLRE. W961, 06 TUS CTBL. the

“court held that it was an unfair labor practice even in

good faith to recognize and hargain with a. union whiclr-

dence of apprehension, There was ne contraliction of the testimons

that this was a street on which it w: is natural to be. In the case

which the Board cites, VNLAB v. Verniont American. Furniture Corp..

_2 Cir... 1950, 182 F.2d 842, there’ was a substantial surveillance

which the Board found was for the purpose of discovering the identity

of the active employees. . ere the manager had already been given

this information, On the record before us there is ne reason for

interpreting this casual passing as surveillance, a

Appendix: B

proved not to represent the majority of the employees.

In that case, ax in this one, there wax no competing union.

but the court held that the-actions of the anion and the

_conpany deprived the employee majority of its right not

to be represented. There ix a substantial factual differ.

ence here where eighteen of the twenty-four employees had

signed cards. The employer's seeming solicitude for those

who wanted to “refrain” from unionization,“based on an’

unproven suspicion that a majority would conclude todo:

xo after they had realized their preeipitancey, cannot

change black into white, It has been held that even where

the employer’s suspicions afterward prove correct, in that

the anion lost its majerity without any other mducement

or activity on the part of the employer, the Board may

still remedy the employer's unfair haber practice in ini-

tially refusing to bargain with the displaced union by an

order to do so. NLRB vy. Armco Drainag & Metal

IS. SOS: NLAB ve Stow Mra. Ca.. 2 Cir. 1054. 317 Fite

HM, cont, din: 348 _ 1S. Mid bat ot, NLRB ov. Adhesis:

Products Corp. 2 Cir, Vi, 281 Ftd st: NERE y.

Supertor Fireproof Door d Sash Co. 2 Cir. Wil, 2se

Pid 713. Mis ix part and parcel of the doet rine that the

employer Wust be gewerned by the situation as it exists at

the moment. Of. International Ladies Garment Workers’

Union v. NLRB, supra. The employees’ right ta refrain

from joining any union cannot be twistes! inte a right on

He part of the emplover to say, when they de join, that

they did not really mean it. Cf. NLRB vo Geiqy Co., 9

Cir., 1954. 211 Ftd 553. 1 fortiori, the eniplover exinnet

avoid an order to deal with the union hy fsserting its los

of majority when that Joss (if it occurred at all) fo ZI

“

maining e¢om

2 9

:) ; Appendix B z

unfair labor practices by the employer directed to that

very end. NLRB y. Hamilton, supra. :

__, We turn to more specific fiatters. The trial examiner -

found that the discharges of Belden and Smith on Thurs

day were unfair labor practices. The finding ax to Smith

was fairly warranted, and requifes no diseussion. The

Board: reversed,as to Belden. We will treat thix subse

quently. - Spine

wv examificr found that the lave? of three of the re-

ittee members and one other was a further

unfair labor practi¢e. The employer counters by saying.

that these layoffs were because of anticipated loxs of Nncasier”

material from the Brooklyn mill due to the breakdown of

the extrusion press, and that each of thesé fou employees

“was the junior in point of service in bis respective depart.

ment. It was known-Trom the beginning that repair of the

press would take months. In point of faet it required

nine. Ax we read the trial examiner's repokt, recognizing

his obligation to weigh the employer's explanation, NLR

vr. Whitin Machine Works, 1 Cir. 1955, 204 \F2d So, he

did so by meeting it head on by a determination that: ne

ayeffs were necessary. He gave three reasema The first

wax a certain difference in’ testimony” between \the North

Walpole manager and the responsible official in \Brooklvar.

Thix difference existed. Possibly it was relevant. to the

exatt timing of the layoffs, but we see no other rélevaney.

The examiner's finding was not rested on the timing.

2.) Af there had been a finvelinage Ici se! upon the employer's choosing

. 7 . s°

that particular Thursday, we might have supported it. However.

such a condusion would tiave invelved dispated: questions of fact.

We will not resolve them ourselves. Consequently, we cannot sup:

port a finding lased on another-gronnd simply becatse it could have

rested on this une. Furthermore, this change of ground nnght affect

Appendizc B

Secondly, the examiner “noted discrepancies in the figures

relating to previeus shipments from the Brooklyn plant.

Even resolving all dixarepancies against the employer does

not, in our opinion, support the examiner's conclusion,

Thirdly, the exaniiner found that it was “admitted that

-there was_no reduction in force at the Brooklyn plant.”

Even were this true, we would see no possible relevance.

However, there was in fact no such admission. On the

contrary, the undisputed evidence was that in lrooklyn .

there wax one layeff, and that five employees and two

ALOT, isors —_ were not replaced. But of paramount

importance, iggtoPed by the examiner, ix fle faet, that in ad-

dition to the two discharges and four layoffs at North

Walpole now in question, four othér employees left and

were not replaced. The finding that production did not

warrant any layoffs, not only is without supporty®but, is

totally contradicted. Whether the. layoff< were Deverthe-

less an unfair labor practice for some other reason may’ be

given further c@nsideration by the Board.

The final matter is the discharge of Belden? Belden had

‘been employed 2). months. In his application for em-

ployment he represented that he had been honorably dis-

charged from the Air Force after four yetirs’ servier. In

-faet he had served fourteen month?>and his discharge bad

been less than honorabla, possibly dishonorable, Hy bet

‘blank the answer to the question, “Records of all arrest

(date, place of arrest. ofty mse charged, disposition of

case) :” although agreeing that “any misleading or, any

the relief: If these men, lacking seniority in their jobs. were about

to be laid off legitimately, anyway, they are not now ,entitled to full

‘hack pay. Cf. NLRB v. Corning Glass Works, 1 Cir., 1961, 293

F.2d 784: :

«<

° what

Appendix B

incorrect statements ... would be cause for immediate a

missal....” In fact he had been in a reform school for”

"one conviction of breaking and entering and was ya probit:

tion following a second. The employer discovered the -

falsity of the military history shortly before August 1. ,

and received information sufficient to pursue the other mat-

ter. On August 18 it learned the facts as to the criminal ,

record.” The trial exaininer found that Belden’s misrepre-

sentations and criminal record were a pretest fer his dix

charge, and that the real reason was hix chaifnianships of”

the union committee. The Board, however, concluded, “We

cannot say that Belden wits discharged for other than a’

valid reason.”

It is earls to believe that any employer w oud want

to discharge Belden, not just for his rather significant

criminal record, which might be overlooked if jie was %.

good prohationer, but for his deceit, which gave added,

, testimony to the continued mornb risk, We think the trial

exaniner treated thix matter too lightly. At the same >

it ix not altogether vasy to acres with the Board's qed |

language. In the light of the discharge of Smith it ee N

_ Seon reasonable: te infer that Belden would have fevvo-g) ofits

charged even if no lezitimate reason existed. Om the other

hand it hax been held: that some valid re Asis aire ser stron

ax to override any other, NLRB vy. Miele f pd Paper

Corp., & Cir. 1900, 279 F. Od 660: bat of. NLRB y. James

Bs Actually, the manger te tified in great detail that he learned’

“af the criminal record on August 16 gud made np bts snvisied conn theet

date that Belden should be discharged?” Phre-putpuce of thi testimony

was to support the claim that the discharge was inceniected vith

the union's activities, which-were unknown on August {6 The comm-

plete falsity of this testimony was established by the te sphere

comngeny 's records.

°*<

— Appendix B

town Sterling Corp., 2 Cir., 1954, 211 F.2d 725. In this

‘ease we do not feel that we must make fine, distinctions, nor

explore the degr ee to which we may reverse findings of the

Board. The Board asks that if we reverse as to Belden we

do not require that it order financial relief and reinstate-

ment hegause ‘of the unreasonableness of requiring the em-

ployer to re-employ him. Under the circumstances we

thik justice will be adequately ace omplished by not dis-

turbing the Board's finding.

In No. 5870 a decree will be entered enforcing the order

of the Board except as to the provision with respect to

surveillance and except as to the four laid-off employees.

The case is returned to the Board with réspect to said em-

ployees for further proceedings not inconsistent with this

“opinion. ,

In No, 5877 a decree will be entered denying the petit ition

to’ review and set aside.

op,

eel ad

PENDIX C

eg APPENDIX C

Applicable Provisions of the National Labor

‘Relations Act

Section 7. 20 USC, 157, 40 Stat. 402, as amended by 61

Stat. 140: | .

* Employees shall have the right to self-organization, to

fort, join, Or assist labor organizations, to bargain collee.

lively through. representatives of their oavn choosing, and

te gage in other concerted activities for the purpose of

collective bargaining of other mutual aid or protection,

and shall also havé the right to refrain from any or all of

sued; activities Ags ter eo 2 ‘ f

‘Section 8. ZO USC, 443, 40 Stat. 492 as amended by 61

Stat. 1405, oe :

c 7

an) dt shall begin unfair labor practice for an

ehiplover : .

(1) to interfere awith, restrain, or coerce el

plovees in the exercise of the rights ciaranteed in

section Tow. .

(3) by discrimination in regard to hire or tenure of

employment or any {ernror condition of eniplovinent

to encourage or discourage membership imany labor

organization... >

(3) to refuse to bargain collectively with the rep

resentatives of his employees, subject to the prove

sions of section Ya)”. .

* * -

Section 9, 29 USC $159, 49 Stat. 453 as amended by 61

Stat. 145: z

stint

Appendix C

“(a) Representatives designated or selected for

the purposes of collective bargaining by the major-

ity of the employees ina unit appropriate for such

purposes, shall be the exelusive representatives of

all the employees in such unit for the purposes of

collective bargaming in respect. te rates of pur,

wages, hours of emplovinent, or other egnditions of

eniplowine nt: tg as “PE

* . *

“e)(L) Whenever a petition shall have been filed,

in accordance with such regulations as tay be pre-

seribed by the Board.

_ (A) by an employee or group of employees or

any individual or labor organization acting in their

behalf alleging that a substantial nuthber of em-

plovees (i) wish to be represented for collective

bargaining and that their eniployer declines to ree-

ognize their representative “as the representative

defined in section O(a). or (ily assert that the indi

vidual or labor organization, which. hax been eerti

fied oras being currently recognized by their em

plover as the bargaining re Presentative, ix ne iggild

i representative as-defined in section 9(a); 0

(B) by an employer, alleging that one Or more

individuals of labor organizations have presented te

hin ct claim te he recognized as the repens ntative

defined in section Oa: ;

the Board shall sn seh petition’ and if it

hax reasonable eause to believe that a question of

representation siffectinng commerce exists shall pro.

Vide for an appropriate hearing upon die. notice,

Such hearing tay be comlblucted by an officer or

employee of the resional offiee, whe shall not make

any recommendations with respeet thereto. Tf the

ave |

; . Appendix C

, me

Board finds upon the record of such hearing that

such a question of representation exists, it) shall

direet an election by seeret ballot and shall certify

the results thereof...

» Seetion 10, 20 USC) 160, 49 Stat. 455 as amended -by 61

“Stat. 146: ;

“(a) The Board. ix empowered, as hereinafter

provided, to prevent-any person from engaging in

any unfair Jaber: practice (listed in’ section 8)

affecting commerce

ad * tad e

“(ey .2. . Hf tipen the preponderance of the

testimony taken the Board shall be of the opinion

that any person named in the complaint has en

caged in or is engaging in any such unfair labor

epractice, then the Board shall state its, findings of:

faet and shall issue and cause to be served on

surh person an order requiring such person to cease

and desist’ from such unfair labor practice, and to

take such ‘affirmative action including reinstatement

- of employees with or without) baek pay, as will

‘ (Veetunte the policies of this Act. .

. . ee

“(e) The Board shall have’ power to, petition any

court of appeals of the United States. or if all the

courts of appeals to which application may be made

. are on vacation, any district court of the United

States, within any cireuit or distriet, respectively,

wherein the unfair. ‘labor practice in question,

occurred or wherein such person resides or trans-

acts business, for the enforcement of: such order

aes 38a

: ' « Appendix C

and for appropriate temporary relict or restraining

order, and shall file in the court the regord in the

proceeding, as provided in section 2112 of title 28,

United States Code. Upon the filing of sue ‘h peti-

tion, the court shall cause notice thereof to be served

upon sucly person, and thereupon shall have juris-

diction of the proeeading and of the question deter-

mined therein, and ~hall have power‘to grant such

temporary relief or festraining order as it deems

just- and proper, and to make and enter a deeree

enforeing, modifying, and enforcing asso modified.

or setting aside in whole or in part the order of

the Board. No cobjection that has not been urged

before the Board, its member, agent, or agency,

‘shall be considered by the eburt, unless the failure

or neglect to urge such objection shall be exeused

hecause of extraordinary circumstances, The find-

ings of the Boar! with respeet to questions of fact

if supported by substantial evidence on the record

considered as a whole shall be conclusive. If either

party shall apply to the court for leave to adduce.

additional evidenc@e-and shell show to the satisfac-

tion ef the court that such additional evidence is

-material and that there’ were reasonable grounds

for the failure to adduee such evidence, in the hezr-

ing before the Board, its member, agent or agency,

the court may order such additional evidence to he’

taken before the Board, its member, agent, or

agency, and to be made a part of the record. The

Board may modify its findings as to the facts, or

make new findings: by reason of additional evidence

so taken and filed, and it shall file such’ modified or

new findings, which findings with respect to ques-

tions of fact is supported by substantial evidence

on the record ‘considered as a whole shall he con.

elusive, and shall file its recommendations, if any,

oni

Appendix C ‘

for the modification ow setting aside of its original

‘order. Upon the filing of the record with: it the

jurisdiction of the court shall die exelusive and its

judgment and decree shall be final, execpt that the

sume shall be subject tor te \aew by the appropriate

United States court ofsappeals if application was

Inade to the distriet court as hereinabove provided,

and by the Saprene Court of the United States

upow writ of certiorari or certification as provided

In section P24 of tithe 2s",

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.