Petition for Writ of Certiorari — Walls Manufacturing Co. v. National Labor Relations Board

Supreme Court brief1963

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IN TH

SUPREME Coun OY THE L) NITE oT, ATES”

OCTOBER TERM 19e

WALLS MANUFACTURING 1 6 ee fa . .

Be oe Cee

Mi : © NATIONAL LABOR RELATIONS BOARD

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bad es ¢ ‘i . %. F , -? . - ~ . . : : . 5

Petition For-A. Writ. Of Certiorari To The “

United States Court Of Appeals For the District

: ‘ _ OF Columbia

e sete

; : JOHN EDWARD PRICE

i> > HAMESSHENLEY MORGAN

Me JOHN BERNARD INELSON a

; > CHARLES L. MORGAN ~

Attorney. tor Petitions et

100) Equitable Savings Bide

S$?1 Lamar Street

- Fort Worth. Texas

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E ss INDEX. . \ :

ae Page

Opinions- Below ........................B.-0...0.: aatsral bes See ae ee 1

Jurisdiction... Recreate ee ee Sarit “2

s (Question eee a > Pata Ti Seto ni

IN NON ee eee

Statement of the Case ee eee ‘

4 Jurisdiction in the Court of First Instance Sadia, <a

- Il. Facts pe: geo Kaasednabysiveinny ssnarblsrneste TERED DP uiviekincnesicitatace —

Decisions Below ~..... Se ee Fe dl 8 9 Con ale tape Sikcaaean 9

: Specification of Errors to be’ Urged EIT ek As ees Net ‘8

: Reasons for Granting the W rit . BAAR WAL pest ale eee. ISK 8

C ae Oe ee Paes us 21

_ Certificate of Service Zcuasigs renter asm: 22

" Appendix. A—Opinion Below ey aera fae ‘ 233

Appendix B—Applicable Statutes ia Beers: 27

Appendix “C—Opinion Below in Related co so, eases ee,

: ms CITATIONS ;

pee Casco ¢

Albrecht v. NLRB, 181 F20 652 (CA 7) oe eee

‘ Auto Workers v..Wisconsin Board, 336,U.S. 245 00... 13

Hornisehfeger Corp., 9 NLRB 676... Pa . wi | ate

Joanna Cotton Mills Co. v. . NLRB, 176 F2d 749 (CA 4) 5.

Labor Board v. Fansteel Corp., 306 WS. 240, ss 13

Labor Board y.Jones & Laughlin, 301 U.S. 1 - 3

Maryland Drydock Company Ses “ai

1B Pe 6e eens Asst es a aerate

NLRB vy. Bineoe Inc... 219: F2d 796 (CA 5). 15

NL RB v. Local Union. 1229, IBEW, &Jeéfferson

Standard Broadcasting Company), $46 US. 4640 7° 13,14, 15

NLRB v. Longview Furniture Co., 206 F2d 274 wc ne »d 1D -

NERB v. MeGahey, 233 F2d 406 (CA 5) “ote

" ‘NLRB vw. Office Towel Supply Co., Inc.,

201 F2d 838 (CA. 4 eens

~!]

wer

= ; ? ise ” é ii

SITATIONS (Continued) es

: as . Page

- NLRB v. Rey solide ‘International Pen Company, Harel 75d 3

SN I a caneencmwenninies geasiqne SD °

‘NLRB vy. Shen-Valley Meat Packers, Ine. - oe

Peet F2d 289° (CA Rape akin eal ie nk ioak haat gcse hala sdasaekaaencibess 18

NLBB ‘v. Sunset Minerals, Inc., 211 F2d 2 24 (CA 9) ......18

NLRB. v. Tennessee Coach Co., 191 F2d 546 (CA 6) 2.22. 13. .

. NLRB ¥e ‘Washington Aluminum Co., 370 U‘S. -9............ 15, 16

_ NLRB © “Westinghouse Electric Corp., as a RE

179 Ped 07 atin EER en arnbinea anor 18

Progressive Mine Workers v. NLRB, 187 F2d 289 (C A 2)...

: Universa! Camera Corp. N. NLRB, 340 U. Ss. 474 peas 2..:...18, 19

JW ‘yman-Gordon v. NLRB, 153 F2d 480 (CA 7) ahi H, ‘12, 1B

Statutes: ee

National Labor RefAtions Act; as amended (61 Stat.

136, 73 Stat. 519, 89 U. S. C., Secs. 151 et seq.).

Section 7 _.... iidsetaatletockiskaleones sees tinsan eae 9, 10,.17,27-—

Section 8(a) (1) =... BPE OALERENE TSE SP NORE Cen

I I isn Sastlencesesceeped a tatensdmncponcamtans 9, 10, 16, 27.

eeetom TOtS) ....2...............:..- abs aC en et ree Sass

Section 10(f) _.... Ane A oh SS A SF ale Ek a Patol 28

Jurisdiction and venue of the. Supreme Court of \ eae bali

the renee States — 1254) Riicciscesertaseicieee bes i 28

MiseeTlancons: Se far

H.R. Reo. No: 510, 80th Cong., Ist ; Sess. 38-29 (1947) 22:.......10

H. R. Rep. No. 510, 80th Cong® Ist Sess. 39, ‘BS (1947)....10, 11

H. R. 3020, See: 12, in Legislative History of |

the Labor, Management Relations Act, pp. 204, 207 04... 10 |

No-

IN THE

SUPREME Count OF THE Uniren Grat ES

5 OCTOBER TERM, 1963 .Y

. See MANUFACTURING C0, ANC. —

aes ee ea .

J os _LABOR nitarig&s to BOARD

. vA ‘

Petition For A Writ Of Cértiorari To The

United States Court Of Appeals. For the District

Of ‘Cotambia |

‘s 4 : vt My at

-Your petitioner prays that.a W rit of c ertiorari issue.

to review the decision of the United States Court of

Appeals for the District of Columbia Circuit entered

on.June 6, 1963 (printed in full as Appendix A to

this Petition which enforced an order of the National

Labor Relgtions Board (hereinafter called the Board)

Sef requiring reinstatement with back pay of a. discharge d

employ ee and other affirmative relief.

Opinion Below

~The opinion of the court below (Appendix A here-

_in) has not yet. been officially reported. The Board's.

decision and order (JA 183-185)’ is-reported as 128

‘NLRB No. 60. A previous opinion of the court ‘below.

yA refars to joint appendix. References preceding a semicolon are to the

Tria! Examiner's Intermediate Report, succeeding references are to tlie

supp vorting eV idence.

° ?

“th

~~ yeversing and remanding the Board's decision and

order, Supra, is reported at 112 App. D. C. 30, 299

_ F2d 114. The Board’s supplementary decision and or- . .

‘der VA 186- aa is 5 aa as lod —— No. 134...

‘ . J urisdiction

The judgment »f the court. below was entered on

June 6, 1963. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254, and under Seétion 10(e). of

> the National Labor Relations Act, as amended (Ap- 2

pendix B). |

Question Presented

Whether the court below’ properly upheld the Board |

in finding that an. employee who wrote a:‘letter con-

taining false statments concerning her employer to-

the State Departmerit of Health and was discharged |

by the employer for that act was entitled to -rein-

statement and back pay under Sections: 7, 8, and 19

-of the National Labor Relations Act, as amended.

-* ¢;

_'Statute Involved:

The Pertinent provisions s of the National Labor -Re-

‘lations Act, as amended (hereinafter called “the

Act”), (61 Stat. 136, 73 Stat. 519, 29 U.S.C., Sees> 151

et seq.), are e set forth in Appendix B herein.

- ,

& -

| Statement. of the Case’

I. Jurisdiction in the Court of First Instance.

i etitioner. is a company incorporated under the laws

of: the State -of Texas. and’a party aggrieved by an

‘order of the Board and was ‘granted review below

under Section 10(f) of the Act." ; :

11. Facts Ase anc ve

In the Jatter part. of May, 1958, Henrietta Le-

Danois, an employee at petitioner's Cleburne, Texas

plant complained to production manager Pou that the

restroom was dirty, emphasizing primarily the em-

‘i condition} was the Company's. fault. I thought it Was.

the employees’ fault” ( JA 49). LY

ployees’ failure to use the boxes provided for trash

(JA.47). As she later testified, “I didn’t think it (the

Responsive to this limited complaint, petitioner’ s

- plant manager and pr ‘oduetion manager reviewed, the .

larger questfon of restroom facility needs (JA 148).

On June. 4, 1958, petitioner’s Board of Directors au-

‘thorized and ‘initiated the renovation of the existing’

women's restroom facilities -and the new construction

of additional facilities at its. Cleburne, Texas plant

(JA 175; 148, 149, 150). Work began on the new

restroom’ in late July (JA 173; 24, 51, 150). The

old one was remodeled and. enia ‘ged and both were

equipped with covered” trash cans in each commode

stall (JA 173; 47, 54, 55,94, 125). LeDanois, who

was called: as a Witness for the General Counseh” of

the Board, testified that she. was “very satislied”

°o

“employees “discussed’’ among themselves in June

. f cat

_ Apparently unaware of-the company’s plans to ims ,

prove the restrooms, several of petitioner’s wom

1958 the same. general deficiencies which petitioner

already had commenced action to correct ‘(JA 14, 60).

Choosing not to.inform the company of her complaint,

Mary Akey, on July.2,.1958, wrote a letter .to_ the

State Department of Health about the ‘“unhealthy-and

unsanitary condition”.in thé plant “(JA 6: D). The

letter stated, inter alia, that the writer was” ‘acting

at the request of several employees and requested that . '

her authorship be kept éonfidentiat. The only specific /

complaints made in this letter were the unclean ‘con- | *

dition -of the restroom and | its “intense heat” (JA

“. 165)¢ 7

Akey’s .letter was forwarded to Dr. Yater, the

County Health Officer,-who notified the company that

-a Complaint had*been made (JA 92). At'no time did

Dr. Yater show ‘Akey’s letter to officials of thé com: |

~ pany, nor did he reveal the name of Akey as its au-

thor (JA 96). Indeed, the company. was first’ made

awaré of the contents of this Jetter at the Board hear:

ing (JA 172; 150-151). Dr. Yater inspectéd the plant.

in late July or early August and later stdted that: it

‘‘was in'very good condition” and that the company |

. had ‘made. ali the corrections and weve ‘cooperative -

in eVery way” (JA 94- 95). Akey, herself, admitted

(JA 104): ;

“The company’ corrected all. the sanitary con-

-o

with the eondition of the restrooms after the improve- J

— were made (JA 89).

3 os

‘ditians which I brought to the attention ofthe

Department ‘of Health in. my letter of ‘July 2%

_ 1958, except’ that no heating facilities, at all

were. sia ided in either of the two restrooms,”

On Jasnasy 6, 1959; after construction of a new

rest room and comptete renovation of the old, Akey

-again wrote. the Staite Department. of Health concern-

ing the “sanitary conditions vat Walls (JA 173 166-

" l67): f |

. “Your. letter of July 16, 1958; in answer to

mine in regards to above subject. |

I believe that Walls have had ‘ample timé to ©

make an effort to correct the unsanitary condix

tions now existing .in this establishment.® How- ~

ever _ little has been done in that direction’

Walls ‘only: action was te build a toilet, There

are no heating facilities in the toilet, and recently

_ the température was below freezing in this toilet.

‘There’ are no covered disposal receptacles for

~ lunch ‘sacks, ete. There is no sanitary place for

employees to eat their lunch. The toilet is cleaned

once each Ww eek. No hot water, no dressing rooms.

There (are) appr oximately two hundred (200)*

' females working i in this plant, and it is apparent

- that. Walls is financially équipped to: comply with

Occupational Health Regulation No. ee

; Yours truly,: fe

Mrs. Mary Akey,

On this’ océasion, the letter was for ‘warded: to the

City Health- Officer, Dr’ 0. T. “Smith, Jv., who in-

) spected the plant , and concluded that it met the stand.

ards set forth in-Health Regulation No. 2 (JA 97,

98). During his‘visit.to the plant, Dr. Smith showed:

Akey’s January "6 letter t6 officials of the: company

(JA 99). On January, 13, Dr. Smith w rote the State

Department of Health that the company was‘in com-

pliance with the regulations and a copy of his letter

_ Was sent. to Walls (JA-1750.. |

“At ‘the close of work on Jeary ‘14, Vi ice President:

Finnell called Akey to the office and in the presence

of his assistant, Hazel Whitt, and of Akey’s immediate

supervisor, Clara Nickell, discharged Akey (JA 176).

When red asked the reason, Finnell told her that

(JA 192): 0 7 - :

. ‘ Aapently she wasn’t satisfied with our facili-_

ties and it didn’t look like she was ever going to

be and she, had written a-letter to the Health

Department in’ Austin in which she had.madé

_ some’ statements that were certainly not true and.

“we just couldn’t stand for that kind of business

at ali, is i : s

4“

; hes admitted that she had writen the letter but

told Finnell that she had ‘written it “for” others as

well-as her€lf (JA 153). When Finne!l asked Akey

to name others, she refused (JA 153). According to

Akey, Finnell also’ pointed out that the factory. had

“been inspected twice and approved. both times (JA

Fae

; ee :

‘ ae Decisions Below ;

In the initial procendiog underlying the present

case, the Trial Examiner: found that the discharged

employee “had removed herself from the protection

-of the’ Act” and that Petitioner “had. no reason to

believe that Akey’s letter writing activity was for or.

on behalf ‘of anyone other than herself” WA 181).

In its decision and order, the: Board also found that -

petitioner had not violated Sec. S(a)1 of the Act.by + \’

reason of an absence of knowledge of any concerted

raspegt to the letter writing activity, but the’.Board—

failed to reach the question of whether the activity

Was “protected*/tnder the Act. 128 NLRB: No. 60

(JA 184-185). j

On \appeal brought by the International Ladies’

Garment Workers’ Union,: AFL-CIO, the case was)

remanded to the Board for further consider ation of |

the question of employer knowledge and far deter-

mination of whether the activity was within the pro-

tection of the Act. 112 App: D.C.-30, 299 F2d 114.

By a supplementary decision and order, the Board,’

upon reconsideration, reversed its orginal ruling with

respect t violation. of: Section. ‘$(a)1 and found that

‘the employer did have, know, dge and that the activity

was “protected” by the Act. 157 NLRB No. 134 (JA >

188-190), ar: oak

Upon appeal brought by your petitioner, the court

below adopted the. finding of the Beard’ s suppleme n-

' tary decision andor der and ordered its. enforce ment

(Appendix A herein).

_ SPECIFICATION OF ERRORS TO BE URGED ©

The Court below .erréd:

I. In holding that the writing by an employee of an»

-untruthful letter concerning her employer’s san-

‘itary facilities to the State Department of Health

‘was a coricerted and protected activity within

the meaning of Section 7 of the Act and in

failing to hold that the discharge of that em-

ployee was “for-cause” within the meanitig of

Sec. 10(c) of the Act.

Ii. In adopting a finding of the Board attributing.

to an emploger knowledge of a concerted nature

of an employee’s letter writing. activity upon

grounds which have no evidentary basis, and

which, therefore, was in conflict with the rule re-

quiring that a finding of the Board must be sup-

. ported by substantial evidence considering the

record as a whole.

REASONS FOR GRAN TENG THE WRIT

Point of Error | Restated:

The Court below evel: in holding that the writing

. by an employee of an untruthful letter concern- .

ing her employer’ s.sanitary facilities to the State

Department of Health was a concerted and pro-

tected activity within the meaning of Section 7-

' of the Act and im failing‘ to hold that the dis-

charge of that employee was “for cause” within

the meaning of Sec. 10(c) of the Act. .

fer)

In cur national induStrial society, the right of an

emplover to hire and discharge his employees is Just

us Vital as the employees’ right to be free from inter-

ference when engaging in concerted “activities. The

problem of balancing these ights is a recurring one

and is of fundamental! importance in the operation of ,

the statute, Because of the. manifest importance of

the question and because; as we will show, the hold-

ink below is in conflict w ith decisions of this Court’

and courts of appeals, the issue should be author Ita-

tively resolved. :

. Petitioner’ s managerial decision tc en Afey.

for writing a letter containing fulse statements ubout

her emplover Was consistent with the reciineacians

of Congress and decisions of this Court as well :

decisions of the courts of appeals with respect to ce

meaning and effect of both Section 7 and Section

10(c) of-the Act. Section 7 of the Act guarantees to

empovees the right to engage In “concerted activities

for the purpose of collective bargaining or othér mu-

tual aid or protection,” and Section LO(e): prohibits

the Bonrd from requiring “the reinstatement of any

andividual as an employee Who'has been suspe nded or

discharged for cause” (Appendix B),-

Congress corisidered: the language. of Section 10(€)

of the Act against a background of some confusion

over. Whether certain sfecifie acts of employees were

of sufficient seriousness ws to warrant the denial! of

the emplovees’ ‘veinstatement. Under these’ cireum-

2The court below fuled fo make a findme on the effect of Section LO: «

of the Act although it was one of two stipulated issues upon whack the

he aring below Wats held. JA 204

10 ‘ . .

stances Congress adopted the merle language quoted

above in Section 10(¢).

The House, -in considering the 1947 amendments

testhe Wagner Act, originally passed’ a. provision ex- -

pressly withdrawing statutory protection from cer-

tain enumerated concerted activities. H. Rt 3020, Sec.

12, in Legislative History of the Labor-Management

Relations: Act, 1947. pp. 204-207. The House Confer-

ere Committee succeeded in persuading the “House

to eliminate this provision and to accept the text of

Section 7 as proposed by the Senate on ground? ister

alia, that. the inclusion of such a p¥eovision might have:

a limiting effect “and make improper, conduct, not

specifically: mentioned, subject to the protection of ‘the

Act. H. Rep. No. 510, 80th Cong., Ist Sess., p. 38

(see alsc? 336 U.S. at pp. 260-263). The report of the

conference committee included discussions of the stat-

utory language quoted above in its comments concern-

ing both Sections T-and 10(¢) of the Act. CH. R. Rep

No. 510, Supra,-at 39,.55): ~ let

“In addition) other provisions of the con-

ference agreement deal with this particular

problem in general terms. For example. in the’

declaration of policy to the amended Natinal La-

bor.Relations Act adopted by the conference com-

mittee, it-i8 stated in the new paragraph dealing

with improper practices of labor organizations,

their* officers, and members, that the “elimina-

« tion’ of such practices is a necessary condition

tothe assurance of the rights hérein guaranteed. om

This in ane of itself demonstrates a clear’ intention

that these undesirable concerted activitic” are not

to have any protection under the Act, and to the

os.

; és :

extent that the Board™in the past has accorded -

protection to Such activities, the conference agree-

ment makes such protection no longer possible. +

Furthermore, in Section 10(c) of the amended -

act, as proposed in the conference ayreement, it is

specifically provided that no order of the Board >

shall require the’reinstatement of any individual

or the payment to him of any back pay if such. in-

dividual was suspended or discharged for cause,

and this, of course, applies with equal force:

whether or not the acts constituting the cause for

discharge were committed in connection With ix

concerted activity . Caria , 7

“(10) The House ill aiso ineiuded, in section

10(c) of the amended act, a provision forbidding. .

the Board to order reinstatment or back pay for

any employee who had been. suspended or dis-

¢ havyed,, unless the weight of the evidence 8 ed

that the employee Was not suspended or dis-‘,

charged for cause. The Senate amendment con-

tained no corresponding provision. The. confer--

ence agreement omits the “weight of evidence” -

language, sinee the he Board, under the. generat pro-—

. Visiotis of Seétion 10, must act on a preponderance “=~

of evidesre, and simply. prevides that no_ order

of the Board shall require’ reinstatment or back -

pay for any. individual who was suspended or dis-

. charged for cause. Thus; employees who'are dis-:

‘charged or suspended for interfering. with otner

employees: at work, whether or not .in order to

transact union business, or for, engaging in ac-

tivities; whether of net union activities, contrary

to shop rules, or for Communist activitiés, or tor

, other cause (see W yman-Gordoy ® NLRB, 153

F2d 480), wills not be entitled” to reinstatment.

The effect of this provision iS also discussed. in

connection with the discusion of section 7."°

Kay

4. z

-Asoan example of prohibited reinstatment orders,

‘the ‘Conference .- Committee. chose to single out the

Ww yman-Gordon case, ‘supra, .wherein the opinion:

“(with its accompanying footnote ). states:

“The Board, in response to petitioney” s contention

that Baker’s union activities inter rupted: produc-'

tion, makes the astounding denial that * ‘Baker's

union activities caused a serious interruption of

production,” In other words, the. Board appears

’ to concede that Baker caused some interruption

but that it Was not serious.’

: “s

The Board an it ‘sAwiel In response to peBtioners argument that

Bakers misconduct was “gutstanding . as foumd! bi th Pn Ft

aminer, a¢ doin support of its contention that his discharge-was *

discriminatory. argues that bis conduct Gid not “sermousle interterc” .

with the werk of other emplovees. that hiss anterterence atid net

Cause a “serous” loss of production’ that-he did not Cause “under

spoilage ot maténats. and that petitioner didtpet prove that Bakes

was “enormously ~ de ee think this argument is “withon!

: —— serbstanice and rfiust be rerected:

In the present case, in resp onse to the petitioner ‘sg

argument that ‘Akey’ s January 6 letter contained .

misleading statements, if not deliberate untruths, and

~ when considered in the light of Responderit’s action fo

improve and. correct its sgnitation facilities some ”

months previously, Was anly calculi ited--to- heap em-*

barrassment upon Responde nt, as found by the Trial .

- examiner (JA I8i), the eourt below adopted the

- Board's findings that:” There Was no cogent evidence

that the allegations were made with intent to falsity

cA . or that they were manifestly destructive of dis-

cipline” and that, “notwithstanding the inaccuracy, of

any allegation, ‘the activity was. protected conduct

within the meaning of Section 7 of the Act (emphasis

added)... (see Appendix A). | .

| BS Ge

°e

Six vears after enactment of. the FaftHartley

‘ amendments, this Honorable C ourt in NLRB v. Local:

Union {229 IBEW, ¢ Jetlersov Standard Broadcasting

Company), 3A6 U.S. 464, reversed ‘the holding of the

Court of Appeals for the District of Colurnbia Circuit

that to avoid protection cf: Section 7 of the. Act x

concerted ‘activity must be unlawful - = found that

_ the publication of hand bills attacking the quality

of an employer's product.zbut containing no reference —

to a labor ¢ontroversy, Was notva protected aclivity

within the meaning of Section 7, of the “Act. In soo

holding, this Court, ‘affirmed that the “for ease?

- language am ending. Section -t07ET was declaratory’

of an implied limit: rem this Court had previ- |

ously Peer in Sectidn 7. Lahor Board *. Jones &

Lauahtin, a01 US-t ‘Aahor board + Faiisteel Corp.,

206 TS 24h. renee orkers vo W atoes Board , 336-

U.S. 24 5,, Sinew the Je tte rsoy ‘Standard Broadcasting

Company case? supra, Cor ivts-of appeals have heid that,

an employer may. discharge an employee for. good.

cause oy bad cduse..so long as suck cause is not merely

a pretext to circumvent prohivitions of the: Act. te-

ward organizational activities. NLRB ve Tennesse:

Coach ca On: 191 F2d 546. (0A 6): NLRB. vv. MeGahey.

O33 F 1466 (CA 5)... ee ; - “as

_, Inthe Wy wan-Gordor Case, supra®* cited by the Cong-

ference Committee Report. the Board had projected the

| circular argument. that an employee's ‘discharge. Was

proof of af anti-f pion anmumus which caused the dis.

charge. Tn the present case-this difficulty ix not pres-

Sent because the Board has long since abi ndoned

original] charges’ under Section 8(a) (3). That legal -

obstacle was also obviated in the Jefferson Standard

Broadcasting Company case, supra, _ wherein it was

clear and undisputed that a Stroup of employees was -

; acting in concert. for a valid objective, namely, an in- -

'. crease in wages. This Court there held that the means

‘chosen by employees to implement attainment of their

objective was such an act of disloyalty as to remove

the activity from beneath the mantle of protection of

Section 7 of ‘the Act and announced the doctrine of

“indefensible conduct” suggested 13 years earlier .by

the Board in. Harniseh feger Corp., 9 NLRB 676.

In the Jefleresy Standarit Boadéasting Company

case, supra, thé disloyalty of the employees was man- °

ifested by the publication of a series of derogatory,

_but essentially truthful, statements concerning their

employer's shorteomings in the opexation of the busi-

“néss wherein they held employment.. The object was

‘to harrass and embarrass ‘an*employer im areas for-

eign to the arena of the actual dispute and thus gain

concessions from the consequent wounds. The facts in

the present case differ from the facts in the Jefferson

Standard Broadcasting Company case,’supra, in that

-an employee published. untruthful statements which

could serve no valid 6bjective except, as the trial ex- |. -

miner found, “to heap public embarrassment” upon

her employer (JA 181). =

The” ‘idcciéton below is in since conflict with the

Court's s decision in the Jefferson Standard -Broadvast-

ing Compan y..case in that it condones: an overt and

injurious act of disloyalty which could have no pro- °

tected purpose since the employee daily enjoyed the

facilities and services which she falsely and knowingly

claimed were absent.

The decision below is-in conflict not only with’ this

-Court’s Jefferson’ Standard Broadcasting Company

decision, supra, but also with Maryland Drydock Com-

pany vs National’ Labor Retdtions Beard, 183 F 2d

538 (CA 4)- (circulation of literature “insulting to

‘these in charge of management and destructive: of

discipline”); Albrecht 7. NLRB, 181 F.2d 652 (CA 7)

/ (involving a cocerted refusal of supervisors, employées

under the controlling Wagner Act, to perform the

work of strikers-to protect the plant); Joanna -Cottén

Milts. Co. v. NLRB, 176 F-2d 749 (CA 4) (ciculation

of petition calling for the removal of supervisory em-

ployee): NLRB v. Reynolds International Pen Com-

pany, 162 F 2d 680 (CA 7) (concerted- esse ts

‘protest promotion of foreman): NLRB Shiehell

Tie, 219 F 24 796 (CA 5) (falsely: nsaeking: unre-

paired goods as “renaired’): NERB v. Lonqview Fur-

“niture Co., 206 F 2d 274° é A 4) (use by pickets of

profane ‘language to disuade non- strikers, from w or k+

ing; court pointed out that the privilege, to engage

in concerted activity ceuld no more infringe the rights:

' of other employees than the rights of an-employer)»

Recently, this Court again considered the comple-

mentarity of Sections 7 and 10¢¢) in NLRB. va Wash-

ington, Aluminum Co., 370° U.S. 9. In that case a

group of werkers who had’ previously complained

about. the cold working conditions to thé company's

_ foreman left their place of employment in a group

when working conditions became so bitterly cold that

_the company’s own foreman expressed the opinion |

that the men should go home... ~

In complete - accord with previous decisions, this

Court there held that the employer’s pretext of a rule”

against jeaving work could mt, unter the -circum-

stances, alter the naturé of the protest or the accuracy

of its stated reason and -retieve te employer of re-

sponsibilities imposed by the Act. The Washingtén,

Aluminum case might have been somewhat analagous

to the present case if the stated reason for-the walkout.

had not actually existed; i.e. if the temperature out- °

side. had actually been a balmy seyenty degrees. :

the present case, the onus of “inaccuracy” is not on

the employ er, , but on the employ ee.

Thus, the decision of the court ine is in. conflict

with the intent of Congress in enacting the statute and .

the authoritative..degisions of this Court and the:

. courts of appeals interpreting it. Petitioner submits

that the discharge gf Akey in this case for writing a

letter containing false statements concerning: petition-

er was a discharge ' ‘for cause” within the meaning of»

. Section 16(¢) of the Act. A holding to the contrary.

deprives Section 10(c) of any real substance.

a“

‘Point Il Restated:

. The Court below erred 5 in adopting a. finding of

the Board attributing to an employer knowledge

of.a concerted nature ‘of an- _employee’ s letter.

writing os upon grounds which have no

evidentiary basis, and which, therefore, was in

conflict with the rule requiring ‘that a finding of

the Board must be supported by substantial: evi- .

dence — record as a whole.

Section 7 of the Act guarantees to’ # enplapess the

right to engage .in “concerted activities for the pur-

pose of collective bargaining or other mutual aid. or

protection.* This Court has never detérmined whether

or not employer kntwledge of the concerted nature

-of the activity. prompting the discharge is a necessary .

element in finding a violation of Section 7, but the

courts of appeals shaye considered knowledge to. ». be a

necessary- ele ment. ;

The Court°of Appeals for-the Second Circuit has

held that. an employer did not violate Section 7 by |

discharging an employee who remarked “Oh, this is

a hell of a place to work,” even though the remarks

were made in a discussion: with others over the need

fora union since the employer did not know of such

discussions at the time of the discharge. NLRB ».

Office Towe! Supply Co., ‘Tne. -201 F 2d 838. (CA°2).

In that decision the Court stated “doubtless employee’s

remarks which otherwise would justify discharge, may .

. be made in a éontext of concerted activity. with the

result ‘that, the discharge of that employee for that

“A

ar 18 wae

, di

remark is unlaw ful under the Act—pr ov ‘iding the em-

ployer knows of that context at the time of the dis-

charge, but not otherwise.” ‘Likewise, the Court of

’ Appeals for the Fourth Circuit has held that a finding

that an employer violated the Act was not supported

where theré was no direct evidence that the employer

knew. of this activity. NLRB v. Shen-Valley Meat

Packers Inc., 211 F-2d 289 (CA 4). The Sixth Circuit,

has held that the concer ted nature of an employee's ~

activities was no defense where there was no ev ‘idence -*-

that the discharging foreman knew of the employee's ;

participation -in such activities. NLRB v. Westing-—

house Electric Corp., 179 F 2d 507 (CA 6)..This prin-

cipal.has likewise been upheld in- the 7th and 9th:

Circuits. Progressive Mine WV ‘orkers v. NLRB, 187 -

F 2d 289 (CA 7); NLRB v. Sunset Minerals Inc." 211 -

F 2d 224 (CA 9). - 2, :

. This Court has approved and adopted the standard °

set up by the Congress in requiring. that findings of

, the Board must be supported, by ‘substantial ev idence

upon the record considered as a whole in Unive) rsal

Camera, Corp. v. NLRB, 340 U.S. 474, -and therein

stated: oho : : a ent

. The substantiality. of evidence must take.

ee account: whatever in the record fairly .de-

- tracts from its weight. This is the clear meaning

of the reference . . ..to the ‘whole record.’ ... .

(340. U.S. at p. 488). . ;

— _ * . . ose . .

® dl : -

:«This Court will intervene only in what

sng to be the rare iristance when the standard

appears to have been rnisapprehended or grossly

pes rc ” (340 U.S: at ‘a 491. eo

: 19 -

" Pétitionter, su>mits hat this .case is one of those -

rare instances where the standard appears to have

been grossly misapplied. Thus, the cout iwlow de-

ferred to the Board's supplementaf decision ‘and or-

der: MBy. that degision and order the Board conéh ded

that it was satisfied from.the ev idence: ‘assuming the .

need: for showing knowledge of the offense at the time.

of the discharge, that®at the time of the ‘discharge in-

_terview the Respondent Knew of the concerted nature

or ;

termination on this point is’ found as a footnote to the’

: Board's supplementary decision and order: “the fact”

the employee's] ‘activity.” The Board’s: own de-

that tivo other employees had approved Akey’s le ther

Was veported | ‘to Respondent immediately after its,

words of discharge of Akey had been uttered and be-

fore *: any other action was tiken to effectuate the ter-

mination’ (JA 188): The: ditfienlty is that no suclr

statement is to bé found«anywlhere in the eridence: in

this case. - fe ..

" Both ny Triak Examiner pe the. Poar “tin, the

original decision and ofder) found that: at emptoever

was Withcut such knowledge’ (JA ESI, 184-185, 1X7) ),

_ The findings of the Trial Examiner are to. be given —

some weigh t in -corisider ing the whole record, U'nire’-

sal Camera Corp. r. NLRB, supra. In its’ brief the

present Petitioner pointed out to the court heloss that

the record was complete ‘ly devoid of any claim by.

any witness that such -a- statement h: id’ ever been

made. (Brief for Petitioner-pp. 31-32). The Board's

reply brief declined to give evidential support for the

purported statement but conjectured s “it is more than

. ‘ ‘ *,

20. °

likely that - -many of them’ etaonee) would pale

been... not hesitant in joining into the concerted °

activity of discussing and approving . ee eee

letter” (Brief for Bourd p. 7). On ‘oral argument;

Counsel for General Counsel admitted .the Board’s

inability ‘to tind evidence. supporting the supposed ap-

proval by two other employees, much Tess that such

appr oval had ever been reported 8% the discharged

employee to her employer. The ‘substantial’ evidence

standard has, therefore, been grossly mi isapplied if not

completely ignored. . PP es

In view of the consistent findings in other circuits

Ww ‘ith respect to the necessity for employer's “know ledge, -

the court below chose to avoid the issue by its de-

cision, but if the question: @« thus avoided, the issue

of its avoidance“is per ‘haps more fundamental: than

the. question itself Knowledge has been- imputed to

un employer through specifie words. which the record

fails to disclose. In this respect the question of wheth-

er or not_an employer's knowledge of a concerted.

nature in an employee's activity is germain to the.

present case and is respectfully stibmitted as an im-

portant question now ¢a ist in doubt and worthy of this

Court! s consider at ion. ;

‘=, 21

Conclusion be ay ae

‘

The issues presented are of substantial importance

in the administration of: the Act, and the decision be-

low conflicts in principle and result with the decisions

of this Court and courts of- appeals. It is respectfuily

submitted that this petition for a writ of certiorari

should be granted.

JOHN FLOW ARD PRICE

JAMES: HENLEY MORGAN

JOHN BERS ARD NELSON

CHARLES TL, MORGAN

Attorneys for Petitioner,

Walls Manufacturing Co., Inc. ~

-360 Equitable Savings Bldg.

Stl Larnar Street

Fort Worth, Texas

ED 2-525

Of Counsel:

Charles L. Morgan

idated at Fort Worthy Texas”

this day of

—_—,

Certificate of Service

_T, Charles L. Morgan, an attorney for W alls Manu-

facturing Co, Inc., petitioner herein, and a member

‘of the Bar of the Supreme Court of the United States, .

hereby certify that: ‘on the -day of ;

1963, I served copies of the foregoing Petition for a .

Writ of Certiorari té the United States Court of Ap-.-

peals for the District of Columbia Cireuit on the sev-

eral parties thereto as follows:

1. On the United States, by mailing a copy, in a

duly addressed. envelope, with air mail postage pre-

. paid, to The Solicitor General, Department of Justice,

Washington 25, 'D. C.

2. On the National Labor R elations Joara, by mail-

‘ing a copy, in a duly addressed envelope, with air”

mail’ postage prepa ud, to Mr. Arnold Ordman, Esq.,:

its General Counsei, at the offices Gf the Board, Wash-

ington 25, D. ef

~ Charles i: Morgan |

"Attorney for &

» Paria — Walls Manu fac turing Co. tac.

300° Equitable Savings Bldg

811 Lamar Street

“Fort Worth, Texas-

-92

Appendix A

UNITED STATES COURT OF APPEALS

- For the District of Columpii

No. 17,267 .

W AL LS MANUFACTURING INC

| er

: v. :

3 ook. NATION AL LABOR RELATIONS BOARD

| - ! Respondent — ,

On Petition to Review and Set Aside and on Cross

‘Petition to Enforce an Order of the National Labor

Relations Board after Proceedings Pursuant to Re-

mand on. 5

Decided June 6, 1963 ;

Mr. John Edward Price for petiftoner.

Miss “Marion L. Griffin, Attorney, National Labor

Relations Board, of the bar of the Supreme Court of -

Ohio, pro hae vice, by special leave of court, for iv-

spondent. Messrs, Stuart Rethman, General Counsel

‘at the time of argument, Dominick #&. Manoli,, Asso-

ciate General Counsel]. Marcel Mallet-Prevost, Assis-

tant General Counsel, and Alian I. Mendelsehn, At- |

torney, National Labor Relations soard, were on the

brief, for, responde nt. Mr: Hermar Lery, Attorney,

National Labor Relations Hoard, : also- entered ‘an “ap-

Pee)

penranice for respondent. ‘| :s.

. Before BASTIAN, BU RGER wal which: Cir-

cuit Judges.

RASTIAN, Cirew't Judge: This ease was before the

court on a prior oecasion. See Intervational Ladies’

Garment Workers U, NAR B., V2 U.S.App.D.C.

20, 2990 F 2d 114 (1962). The facts are set forth in .

detail in that opinion: but, briefly, the charge against

Walls Manufacturing Company, Ine. was that it had

Violate, Secticn &(a)¢1) ef the National Labor Re-

lat iyns Act, ax amended, by discharging an employee,

Mrs. Mary Akey. This court; in’ remanding the case

to the Board, stated: : er

“It will thus be seen that we agree with the

Board’s conclusion that Mrs. Akey’s conduct with

respect to the second letter was concerted activity,

but disagree as to the manner in which the

Board's general rule as to employer knowledge

Wus applied, One further issue remains, however

whether, Mrs. Akey’s conduct with respect to

that fetter was ‘protected,’ a* matter on which

the Board expressly declined to rule. Whether an

activity is protected or not depends not only on ’

the wording and purposes of the Act, but on-the

precise nature and effect: of, the employee's con-

duct. The question is accordingly one for the

soard to decide in the first instance, and we ex-

press no opinion’ on the ‘subject at the present -

‘ stage. No doubt, however, the Board will wish

"to. consider -whether “Mrs, cfey's second letter

contained false informat ion, and, if so, Whether

_ the falsehoods were such as to remove the writing

from. any ‘protected’ status it might otherwise

possess.” 112 -U.S.App.D.C. at da, 299 F 2d at

116.

The Board reopened the case and, &n re-e ‘Xumination

of the record and evidence in the light of this court! s

opinion, filed its. supplement: al decision and order. hy

that decision and order the Board concluded that it~’

Was satisfied from the -evidence, issuming the neo]

for showing knowledge of the offense at the time of *

discharge; that “at the time of the dischares intorviow

the Respondent: knew of the concerted nature of fthe —

elaployee’s] activity.” The Board farther. om dthzt = =~

there was “no cogent’ evidence that the allewat! iONis

were made with intent to falsify or maliciously ind?

jure the Respondent, that they were defamatory or —-- —

insulting in characters or that they _ware- smanitesty |

| dé #Puctive of discipline.” The Boar A conelided that,

notwithstanding the Inaccuracy of apy allegaticn, t

activity Was protected condnet within the mernine

of Section 7 cf the Act. Therevpon, the Board ordere 4

petitioner to cease 2nd desist from certain violations’

of the Act and to reinstate the employee with, bac’ ”

pay, and other affirmative action.

Petition to review, set aside and reverse th ve sippy e-

een decision and order was duly filed: amd the

soard answered, and prayed enforcement.

While the matter is not free from doubt, and

might well have reached a view contrary to that of

the Board, we cannot say, having in mind the narrow

199 0° 8.4" 8 fos 158° “Ernplove es shall have the right te selt-organi

. : ® .

Jitror tea bierty Hepary r .tss at lahe: orwanyzaf pops fry oe rata ¢ Veretine a *

thronah represe pitt ives of thie u" OWT! choosi nar ane fo engage in oth H

concerted | tasigtu yr s for the purpose of dieting bargamung or other:

roatual aidoor protection and Shall ailso have theenght to vefram: frond

any OF = at such rctivittes except te , the extent fhat sn ‘ hhoright may be

altec ted by inh @ureetie rit requir Mm Mie: vile rship Wi ! ibe Yr coreriateas atieres

waa condition of crayplosmerit as authored im section ToS a) 03) ot

“thas title.” ; tat

.”

a -

26% es

| , js ; ‘

Scope ‘of our review, that thé record as a w hole. does

not support the ‘Board's determination.

Accordingly, ‘the petition for review will be denied,

and the supplementary order will be enforced. °°:

° ae So orde red.

wg aie =e mare * mee a eee aay aoe < ree penne eee

> r

9 «

‘ a ‘

aN ’

Te — rear ey & oe

2 +

Appendix ‘B .

The: relevant provisions of the National Labor To

lations Act, as. “amended (61 Stat. 136, 73 Stat. 919, 29

_US-C.- Sees. 151, et seq.) are as follows

Rights of Employees - -"

Sec. 7 Einployees-shall, have the ‘yacht to se s

or panidetion to form, join, or assist labor cre:

izations, to. bargain coljectively through repre-

‘sentatives‘of their own choosing, and to engage

in other cOncerted activities forthe purpose of

collective bargaining or other mutual uid or pro-

tection, and shall also have the right to refrais

from any or all of such activities except to the

extent that such right nav be affected by an

_agréement requiring, membershi ip in-a labor er-

ganization as a Gondition of employment as uu-

thorized in section S(aj(5)..

Unfair Labor cieehies

See. 8. (a)-it shall be an unfair labor practice 7

tor an employer

11) to interfere with, -restrain, or coetee

seneidy in th we exercise of the rivhts guar: anteed in

se ction.

* * * me . , . Ox .

Preve mtion of i nfair Labor p ractices

Sec. 10.— 4

* * * > ‘ * , . i * *

‘(e) * * * Tf upon the preponderance of the

-testimony taken the Board shall be of the opinion

that any person named in the complaint has eb-

gaged.in or is engaging in any such unfair laber

practice, then the Board shall state its findings of

> - Pw

a e

oR. <<

fact and shall issue and cause to be served on -

~ such person an order. requiring such “person to

‘cease and desist from such unfair labor practice.”

and to take such affirmative action including re-

instatment. of employees with or without back

pay. as will effectuate ‘the policies ef this Act:

Provided, That where an order directs reinstate-

‘ment of an employee, back pay May be. required

of the employer .or labor organization, as the

case may be, responsible for the discrimination

suffered by him: * * * If upon the preponderance”

of the ‘testimony ‘taken the Board shall not be

of the opinion- that the person named in the com- ™ *

_ plaint has engaged in or is engaging in any such

unfair labor practice, then the Board shall state.

its findings of fact and shail issue an order dis-

missing the said comp'aint. No order of the Board:

‘shall require the reinstatement of any individual, = *

as an employee who has: been suspendéd or dis-.

‘charged for cause. *-* *

. * ae Seo i os -*

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

court of appeals ef the United States, a ae

tndines of the Bodrd with respect td? questions <

of fact if supported by’ substantial evidence on

the record considered as a whole’ shall He con-

elusive. * * * Upon the filing of the record with

it the surisdiction of the court shall be EXCLUSIVE: -

ant its judgment and decree shall be tinal ex-

eept that the same shall be subject to review 7 7 °

hy the Supreme Court of the United States upon

writ of certiorari or Certiieation vas provided in

section 1254 of title 2s.

‘ , ~ 7 a rd z : y f

(f£) Any person aggrieved by a final order ot

the Board granting or denying in whole or in

part the relief sought may obtain. a res iew of such

» \

Pe a)

order in any cireyit court of appeals cf the United

States in the circuit wherein the unfair labor prac-

tice in question was alieged ta have heen eneaced

in or Wherein such person resides or Wan-acts

business or in the United States Court of Ap--

‘ peals for the District of Columbia,.* .”.* the court

shall proceed in the same manner as in the case of

an application by the Board under subsection (4

of this section, and shall have ‘the same jurisdic-

tion to grant to the Board such temporary relief |

or restraining order as it deems just and proper,

and in like manner to make and enter a decree

enforcing. modifying. and enforcing as so modi-

fied, «r setting aside in whole or in part the order

of the. Board: the tindings of the Board with ree

spect to questions. of fact if supported by subs

stantial evidence on the record considered as a

: . . ; “oe ;

whole shall in likesmaner be conelusive. ’

* * * * * . *

98 USC. Sec. 1254: Courts of Appeats: cer-

- tiorari?. appeal: certified questions 7

Cases in the courts of appeals may be reviewed @

by the Supreme Court by the followirg metho s:

(Ly By writ of certiorari granted upon the pe-_

tition Of any party to any civil or criminal case,

before or after rendition of judgment or decree:

. * * °

a .

yo ae

_ Appendix Cc

uniTeD STATES COURT OF APPEALS

District of Columbia Cireuit

2No. 16, 124

January 25, 1962.—(299 F. 2d 114. )

“. INTERNATIONAL LADIES’ GARMENT

WORKERS’ UNION, AFL- C10

E Petitioner

- v. |

NATION AL LABOR RELATIONS BOARD,

_ te spondent ob

WwW ASHINGTON, “6. J.: This. is a petition for re-

. view of a-National Labor Relations Board order which

dismissed a complaint by petitioner union. The union

charged that Walls Manufacturing Company violated

Section Sta)i1) of the National Labor Relations. Act,

“as iipousae by discharging an employee, Mrs. Mary

, Ake ov.

The facts are-not seriously disputed. In June, 194s,

a-number of women. employees vf Walls discussed

- among themselves the deficiencies of the ladies rest-

roam @t the plant. .One employee, Mrs. Le * Danois,

complained to the, production managef. As a result 2

of the employee discussions, Mrs.,AKey wrote’a letter

7 16] Stat 140 29 U Sc s VSS q 1’. Section Siat’? l declares it--

fate Lisboese

it] 10h a! |

practice for an emplover to interfere with, restrain. of

ere’ eine nees an the Jesxercise af the rights ‘quaranteed) im Seetion 7

of the Act

-\ viel tu if Section S°’a 3 WIS also charged. bart both, thie Trial

Examiner and the Boggd conchided that the evelence did fot’ support

wh an alle wats HF etrtioner mo longer Challenue » this finding

. 3r Ss yt

of complaint en July 2 19: 58, _to the Texas State.

Health Department. The letter stated that it was writ-

ten at the request of several othe. employees.’ As

result of the letter, the county health officer Bot. ‘A

sanitary improvements. On Jenuary. 6, 195%, however,

@Mrs. Akey again wrote the State. Health Department -.

- eonverning the “sanitary conditions” at Wallis. This

second letter, according toythe testimony, ‘was ap-

proved in ‘advance by several other’employees. It was

forwarded to the city “healt h officer, who visited the

plant and coneluded that it met the necessary health

standards. While inspecting the piant premises, the

_ health officer showed Mrs. ‘Akey's January 6 letter’

to company officials, wko said they suspected that

Mrs. Akey had also nade the earlier complaint. “Two

days: later, on January 4,.1959, thé vice president of :

the ec mpany called Mrs. “Akey inte, his office and $9)

the. presence of two other persons told her that she

_was fired. Mrs. Akey asked the reason for termina

tion. In response. thé vice president told her: acecrd-

ing to his testiniony, that— | $

{<.. _ apparently she wasn't satisfied with our r fa-

\ cilities and it didn’t look like she was eves zoing

- - to be and she had written a fetter to the Health

Department in Austin in which she had. made

some statements that were certainly not true, and

we just couldn't stand for tha, kind of bu. iness

at all." . £4 “eo

Mrs. Akey admitted that’ she. had written the letter:

but told the vice president that she had written at.

Se .

pe ® » te

“ :., - e.32 oe

the request of others as well as herself. She refused) .

fou. name the others. & ee va

> - Gn the busi, of these facts, the Examiner found

«that the waiting and sending ef the Januar® 6-letter

‘was neither protected nor concerted activity within

the meaning of Section 7 of the Act. Becausg the let

ter had-been approved by two other: employees, the

Board disagreed and-found thet Mrs: Akey’s condyct, .

constituted concerted activity. It did not reach -the

question whether the activity was protected. The

Poard held, however, ‘that—

* + "In order to..sustain a haaine of ‘an &( )(1)

violation based on discharge, it is necessary to

- €stablish that at’ the time of the discharge the

employer-had ‘knowledge of the concerted nature

of the activity. for which the employee Was dis-

charged.” fata,

oe The Board ‘affirmed. the Examiner's finding that when * 4

Walls dischargerl Mrs. Akey it had no reason -to be-

lieve that she -was%icting on, behalf of others. Conse-

quently. the Board found no Section ®(a)il) Violatic n.

Petitioner conte nds in this court thaf (1) the em- f

“ployer had know! ledge of the concerted nature of Mrs.

Akey! s sctivities before hee discharge’ Was accome-

"+ plished, and (2 4an employer violates Sect on SCA) 0):

by discharging an ape for concerted activities,

44 Natoma Laber™ Relate Board + Phoenix Mutual Lite Insurance

[FE Jimplowees still have the malt to engage mm Concerte i activities

r tyre mietual aid | t \e howwh +

yo prytection eve Tau he vitor a tivite tv

\e gr col ve Moira oy ° Ope. ntempiafed - (7 i (

;

told by Mrs. Akey a. Sw sécond after the .words if

: / : vs ; =~ ee fe ;

even though the emplover had no know ledge of, the

— concerted nature of such activities. cigen

In the view we? take of this case, we need not at-

tempt to give categor ical | answers to these ener

<ions. We may assume, without deciding. th;

general rule the employer must have prior know! ‘ed

of the concerted nture of the activity in order to vie

ret

date Section S(a) (1). But.even n assuming that the rule \.

announced by the Board is generally’ valid, we think: |

it should not be applied in full strictness and sever ity

to . case like the present, in which the employee s+

-claim of having acted in concert ‘With others. is myce

known: to the employer contemporaneous sly’ with: the “

discharge, and where the reasonableness ant probable

soundness of the claim is supported by the bac kero

and surrounding circumstances. Eyen ‘assumipg!

. before calling in Mrs. oAkey for idismisygathe on

-ployer had no reason to belieye that het ‘Second jétter

was written on’ behalf of a group of einployees, it wus

put on notice of her claim. to that effect at the tive

of the tiring episode. The fotfowing cireumstances. a)

pearing of record would ‘temd to show that the claim

was valid. or ut least worthy ef fair consideration :

(1) Mrs. Akey was known as a Jeader ami ne’ the

employees, and at an earlier period bad unsu ecessful liv

sought to unionize them: (2) the emplover suspe teed

‘that Mrs. Akev had written the frst letter, dated July

2. whieh on. its fuce represented concerted activity,

and to which the second letter was In the nature of

a reiteration or follow-up: (3) the: employer was

7 ponounee “d.

discharge were uttered that she had written the sec-

ond letter for other employees as well as herself; and ;

(4) no@ne in this. record indicates that the com-

pany’s representative took, any, action toward ter-

minating Mrs. Akey’s employ ment other than to tell

her orally of -the termination—no one had left the

room and no other operative facts had oceurred. Under

these. cireumstances, the employer's: good faith, and

the fairness ant rez isonableness. of its conduct, bécame ;

vital issues.‘ We ‘aré not ‘attempting to decide those ~

jssues one Way Or the other. But we do not think the

Board could properly dispase of the matter by simply

concluding— in effect—that all that counted was W hat

the employer knew or should have known befgre the

precise moment when, the words of discharge were

Pal

It will thus be seen that we agree with the Board's

conclusion that Mrs Akey" s conduct with respect to

the second letter was concerted activity, but disagree’

“as to the manner in which the Board's general rule

as to eniploytrknowledge was applied. One further

issue-remains, however —w hethex Mrs. Akey’s conduct

swith respect to that letter was’ “protected,” a matter

on which the Board expressly decfiried wo rule. Wheth-

er an activity is’ protected or not depends not only-an

the wording at id purposes cof the Act, but on the

precise nature and effect of -the umployeess conduct.

“The question is accor dingly one for the’ Board. to decide

in the -first-instance., ahd we* express Be #pinion on

Corie > rritae tet fact as +} i’ a Nes when isked thre tame S of ethose

crtcaith her. dechied’ ta canswer. But we do not think this

2 | “shiae 41 - 0

onclusively. shows that the emhplower 44 tech im gen

, MILLER, Ch. J., dissents.

\ : hw tee ‘B35

> 5 ; : ;

the subject at the present stage. No doubt, hasvever,

the Board will wish ‘to consider whether Mrs. Akey’s

second letter contained false information, and, if so.

whether the en oe were such as to remove. the”

writing from any

“protected” status jt might other-

. \ . 4

wise possess.

For. the foregoing reasons, we will remand the case

to the Board fer further proceedings not inconsistent

with this opinion...

eo.

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.