Opposition Brief — Aero Corp. v. National Labor Relations Board

INDEX —

Opinions Wet. 5 i bicneen kcheiedsinccdeek Grane %

Jurisdiction. _.--------- eis sea sieenunaietiatie cil eins

Statute involved--_-_-.-- AOE PCM < Apne) Ory Oy En

Questions presented... -- 2 se nin sncied cance coven

SOUNGIG 6 a Sn nae cin Rhee SR = Sagem Ph es, A

A. The Board’s Suet Of CaOK i i5.- cowed)

x» B. The decisions below--.-...---..:_-----.-

I eS oo ccsinsidsazlnadanne vecead deine

SO rcnnnesencsanesindirndien 2h BS ag eer

: ‘CITATIONS:

Cases:

~ Colson Corp. v. National ‘tae “Relations

. Board, 347 F. 2d 128, certiorari denied,

D. H. Holmes Co. v. National Labor Rela-

tions Board, 179 F. 96 816.0 sic 5 cx bets

ieee Editorial “El Imparcial, ” Iné. v. National

~ +Zabor Relations Board, 278 F. 2d 184._-_--

Irving Air Chute Co. v. National Labor Rela- .—

tions Board, 350 F. 2d BO ign emnnpacks

* Joy Silk Mills ‘v. Nasional Labor Relations

Board, 185 F. 2d 732, certiorari denied, 341

UB. Fig ca ccdiiesiacevnacensspnee the

Local 152, Teamsters v. National Labor Rela-

tions Board, 343 F. 2d 307___--..--------

Local Lodge No. 1424 v. Nabanal Laker deaa-

- tions Board aoe Mfg: Co.), 362 US: 4115 —

(1)

e

: 237-435—66——1

2

% 7 ty

moawnmny

see

rae

Cases Continned ek a aay

: "Notional. Labor Relations Board y; Alcties:

_ Engineering Corp., 340 F. 2d 281, certiorari SSS ea

ae denied, 382 U:S. MGM: ee ee

‘a ‘National Labor Relations Board v. Arkansas-- >" *

.« Louisiana Gas Co., 333 F., >” iy. eames 14°.

‘-"’” National Labor Relations Board v. Caldarera, a ee

90 F-Od 208: sec src hesccec sh 4g

Nadionil Tuber Relations Board *. C. I. Glass?

gow Co., 356 F. 2d 476..2---2) 22-21. Seong

; National Labor @elations Board. v. ‘Central -

OS Oklahoma Milk Producers Assn., 285 F, 2d

+ 406-2 sascccecsuc SOP Senta Aa8 Cs ae Th st; 44

Nellanal ahs: Relelione: Goaed 3. Fioealei/s00:!.-

= Corp.,; 347 ae ian in tis Ue |

-. ' National Labor Relations Boatd v. Gotham Shoe ae

*q@ = Mfg. Co., 359 F. , nagar NERA CRA te ey:

. .. National Labor Relations Board v. Greenfield ee ra

Components Corp., 317 F. 94:96 3883 9g:

ry Nanoust Lane, Raahions Board t. Hyde, 339F.

2d 568-- A ea a Bie ee ey eS 9

| National Labor Relations Board v. J. I. Case Sorte

“". -Ge.; 201-¥. 96 GOTO Be ee 8.

Natiénat Labor Relations Board v. “Peterson :

Br; Bea Fs Sab. ee 9,10

National Labor Relations Board v. S.N.C. Mia

‘ BO, satel ai Mi, certiorari denied, 38240.8.

National Labor Relations Board v. Stow Myo.

Co., 217 F. 2d 900, certiorari defied, 348

US. oan EE EDs re np top ed ey techie gS EE 9

National ‘Labor Relations’ Board v. Teismsters, R58

Gocal 41, 225 F..2d0843_._- 1... eee

National Labor Relations Board v. Vapor Blast a 3

: Mio. ot 287 F. seers aot wane | we

; {

}

6 ane Was

. 4

oN

1

BESTEL

s >

- & -

II ;

as

ts) .

Cinta nee | ae Sine

: National Labor Relations Board v. Wirth. Dizie er

Stores, Inc., 341 F. 2d 750, certiorari denied,

. 382 U.S. $8052 02225 sn Lap 'd binhee wilh le Sime 2 8,9

“Piasecki Aircraft .Corp. . National Labor

- Relations Board; 280 F. 2d 575, certiorari se

denied, 364 U.S. 933___---- ‘cai boiaeittep grilibibasih tet 12

_ Ra-Rich Manufacturing Corp.;, 121 NLRB 700. 13

Raser Taming Co. v. National Labor Relations

- Board, 276 F. 2d: 802-2... 4 eoicodiAg ss 44

' Texas Industries, Inc. v. National Labor. Rela-

- . tions Board, 336.F. 2d 128------------,--- (14.

‘Statute and rules: -

, National Labor Relations Act, as amended (61 -

-. Stat. 136, 73 Stat. 519, 29 USC. 151, et

fh Re a eR TSE ye cep RG RS ih capa a aac 24

~. Section =e ame 6, 7, 12, 13°

Section 8(a)3) .. <5 sae mn ste -cen nee 4. . 6,7

Section 8()(5)- c22seueuecs-.---2<->-- 6, 11

._ peetion 8(c)._.--_--- Slasstalgd's le cass dusk eaahseottanss , 2,18 S

"Section WG visas weaces se oe ay | Sk

National Labor Relations Board Rules and ‘

Regulations and Statements of Procedure

Bhs: C.F.R.): :

Man

i 0 ag ame erase encase se cacnercees 8.

Sh wenwronanemme anil ae

’

2 . is

x , t : ; e é oe

he Sone Gt of he Med igen

Octésen Ten, 1966 The hele

No: 662 ee

AERO ‘CORPORATION, PRIyTIONER lid

~ (Ky; si! ) 5

Nariovan LABOR RELATIONS Boas )

‘ON. PETITION: FOR A WRIT OF OBRTIORARI TO-THE UNITED

STATES COURT OF APPRALS ron THE DIATRIOT OF COLUMBIA -

CIRCUIT anise?

Me

“

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD

a OPPOSITION

OPINIONS BELOW

“The opinion of the court of appeals (Pet. lity, es

A1-Ail) is reported at 363 F. 2d 702. The Board’s-

- decision and. order (R. 227-408)" are ae s at 149. ,

JURISDICTION Hh

: The pe of the court of appeals was entered » :

+ on June 15, 1966 (Pet. App. A12-A13).. On Septen:

ber 12, 1966; Mr. Chief Justice Warren extended ‘the’

time for filing a petition for a writ of certiorari to and

16R, ” refers to the portions of the ‘record printed as & em.

a .'

genie in the court below.

(1)

fe 3 S Ng +5 : 2 @ | ; <i %

including October 13, 1966. The petition was filed on® - |

‘ October 12,- 1966.. The jurisdiction of this Court. is

invoked under 28). 8. C. 1254(1). 3 :

ces

6

STATUTE INVO! ;

: The relevant provisions of the National Labor Rela- 7 ;

* tions Aét, as amended (61 Stat. 136, 7 3 Stat. 519, 29 |

U.S.C. 151, et seq.), are set forth in Appendix B to ee

ig the petition, pp. AfS-A16.,

. QUESTIONS PRESENTED

igs 3 Whether the Boagd properly found that | a -ma-

: jority of the employees validly authorized: the union to

_ represent them for collective bargaining. Oe

2. ‘Whether ‘the Board’s finding that petitioner

unlawfiilly refused to bargain with the union: was .

based on events which occurred more than six months

_ ‘prior to the filing and service of the unfair labor: prac: : vixen

” tice charges, contrary to Section 10(b) of the Aét.

3. Whether the Board’s unfair labor practice find-

- ings lare based on “views, argument, or oping, pro-

3 tected by Section. 8(c) of thé ‘Act. © ae

4. ‘Whether petitioner was. entitled to Sane gee

ica of employees: who were not called : as 8 witnesses |

| by the Heneral Counsel. 7

4% Fp Oe STATEMENT

ra} e

a bk THE BOARD’S FINDINGS oF “FACT:

3 \t Early in 1962, the, Union’ began an organizing |

eamapaign at — 8 plant at Lake City, Florida.’ he,

; i. Toternational Waisa’ United mv Aerospace ‘ol oar

: a eecad a —- of saves eaonecn

A

ie Dee:

, :

' I

‘ : ~

“. “an, wok

ef . . " = o : “

‘

3

On February 27," the Uition mv its first organiza- ;

tional meeting, attended by 30 to 50 employees. At

' the’meeting, Union Organizer Fred Quatrini outlined

an organizational campaign and passed out authori-

zation cards (B. 234-235).* Quatrini told the em- .

‘ployees that, if a majority of the employees signed

cards, the Unie: would ask the Company to recognize

. it and start negotiations, but, if the Company would —

_ not recogriize the Union, it would then have to go

through an NLRB election (R. 399; 143). Twenty-

ong employees signéd cards at this saitiods patie

* "(Be 235).

a

oT . i

At another meeting, on Mareh: a7) an: catia :

organizing committee was selected, smarts purntiog te

* Uniéss othenwinn apecified, ‘UL daenien a Sse a babes

* The cards. contained printing in various sizes of type, as

shown: on Pages 211-218 of the record, and" read as follows:

AUTHORIZATION TO UAW.

ed FILL IN BLANKS :* rts

a thee eta employes of | a

Po

_

~ ame of Company)

authorize UAW to represent me in colletive. bargaining

. Signature of Employee.

Name of Employee—Please_ Print eave —

Home Address pA ORS aay 5 _t

City ies 7 “Besta st

°° Class of Work. — , hit

: :Telephone No._-— "adige or Clock Hee ;

_Thlp'ta ‘nl. nds ilehtiis tow mtbiabaskip ‘This card is for

-—~ use in support. of the demand of (UAW), American Federation

-of_Labor and _ Congress: of Industrial: Organizations oe fae

es for roreenigion. or for | an or election. zi

e a

Saas

edaitional « imeeting veea'h held.. At-these saebiniin’ Qua-

trini repeated the explanation given‘at the first meet-

ing concerning the authorization cards: (RB. 235, 399;

143). Moré eards.were signed at. these meetings and

during the interval betweén them, so that by April 9,

50 of the 98 ‘employees then in the unit had seme’.

cards - (R. 377; 384-388). |

- On that date, the Union wrote ssbiti bine. that ¢ a

majority of its production and maintenance employees

had designated the. Union as: their exclusive bargain-—

ing agent and that it wished to begin bargaining

immediately (R. 229; 209). On April 16, petitioner ;

_ Yeplied.to,the Union’s demand for manoesttion, as fol-

lows (R. 230; 210) : ane * ‘

Your recent letter requesting eiialaliiiin as:

exclusive bargaining representative for our

_ employees has been received. It is our opinion

- that our employees do not desire ‘your, union

to represent - them =. °

In any event, we niust insist that our em-

ployees be given an @pportunity to. voteon this

important matter. in an NLRB election before

Wwe assume that you have captured them. i.

Meanwhile, on April 10, the Union had filed a pe-

“tition for a Board eléction. On April 26, a hearing

on the representation ‘petition was held, and on May |

10, the Regional Director scheduled. an election for

June 1 (R. 230).. Throughout. this period the Union

4 continued to hold meetings and solicit suthorisation .

ere 235). * : “ nee

* "8 During this sechod the size of thé unit. tacteiel 6 120

and he uber of mien adherents incre to 6 ( 384—.

#88). :

~“ ee,

_. 4.2. Petitioner was aware of the organizational cam-

" ~paiign? from its inception: (R. 236-237) and almost im-

_» faédiately undertook to defeat the. organizational |

effort. On the day-after the initial meeting, Fer

Haywood ' Martin interrogated two employees about

_ What they thought of the meeting, who was there, and

what was said’ (R. 261). ‘Martin also interrogated ff

other employees about their union views, and warned

employees that, if thé Union prevailed, petitioner

' would ‘move the plant: (R. 261-265; 77)> Other offi-

cials expressed similar opinions (R. 263, 265). Em-_

ployee Russell Horne ‘was made a foreman’s. assistant

_, .with the understanding that he would do what he

could te keep the Union out (R. 268; 42-43). An--

other eiieipis Win 408% wi Yaibis tirana in When ts

vetarned from sick leave, provided the Union did not

get voted in (R. 267; 22). At least three union meet-

ings were: ‘spied upen by petitioner’s superintendent,’ .

Carl Price, who. drove his car slowly in. front of the

meeting hall and parked for long periods of time, in’

order to observe employees who were gomg betes the :

meetings (R. 257-258). 8

Finally, prior to. the een: two employees 1 were —

- dischargéd. One was a member. of the employees’.

organizing committee and the other was the instigator

of the union drive (R. 271-278, 288-299).* yea Nee ¥

- *A third employee, . angther ‘member of the organizing com-.

_ mittee, was discharged on August 18, ‘three days after the second

election «(sve infra, p. 6) (R, 319-322; 216-017). A‘ fourth:

union “ aétivist was discharged on. October 17, shortly after the

Regioial Direttor set aside the stiond election’ ee: !

icine ca | nae a Se

o

oy 3, » The Binion lost the June 1 election hin a vote of

- 49 to 43, with 4 challenged ballots. Upon. objections

_ by the Union, the Board’s Regional Director, finding -

that the’ Company’s conduct had interfered with the

employees’ free choice, set the election aside and oF

dered a new: election for August 10 (R.»231). :

Before the second election, petitioner. pe to

interrogate and threaten its employees. It told one

employee that “the best way for him to get laid off

was * * * to keep campaigning for the Union’’ (R.

266-267; 87). Three other-employees were promised

raises in a context of anti-union interrogation (R.

| 268-269, 24-25; R. 262, 141; 269, 98-99). The Union

. lost the second election by a vote of 59 to 55, and. the

Regional Director again set aside the results on the

ground that the Company’ Ss. conduct had interfered

‘with the employees’ free choice (R. 231)...

On October 25, the Union filed a charge alleging

that the. Company had: refused to bargain in violation

- of Section 8(a)(5) of the Act (R. 231), and\‘a com-

plaint issued on this and the other ohana < which’ »

- had been filed agains petitioner. bis

: B. THE DECISIONS BELOW

“The - Board found that petitioner violated Section

8(a)(1) of the Act by spying on union meetings,

. and by. interrogating, threatening, ‘and’ making proni-

ises of benefit. to. employees. It further found that

petitioner discharged four employees because of their

TA TA charge asserting violations of Section. 8(a) (1) and (3)

of the. Act had been filed by a discharged union adherent on

oly #1 R. es n. gas Py ; :

t) ae

en me 8 ‘

e a

-_

>

a

* union activities, in viotitinni of Section 8(a) (3) ‘and.

(1) of the Act (R. 391-392). city 2a

. In addition, the Board found that ‘Betitioner had ~

refused to bargain. in. violation of Seetion 8(a) (5)

of the Act. It-held that the. Union had valid author- —

ization cards from a majority of the employees: in

_ the bargaining unit and that petitioner did not have

a good faith doubt as to the Union’s majority (R.

392-403). Respecting the lattter, aun’ the” Board

stated (R. 393) : /

[ Petitioner’ s] overall conduct effectively re-

buts its claim of a good faith doubt of the

Union’s majority status, and convincingly dem- .

onstrates that it refused to recognize the Union

in order to gain time in which to destroy the

- Union’s majority by engaging in unfair lahor.

"practices during the election campaign. Thus,

_ “ * * {petitioner’s] illegal interference with

the right of its employees to organize com-"

menced the day after it learned that they were

organizing, and was so aggravated as to make

impossible the free expression of choice of a

bargaining representative. by the employees in

the two elections conducted by the Board. * * *

' The Board ordered petitioner to cease and desist =

=~ from the unfair labor practices found, to reinstate the

unlawfully discharged employees, and to bargain with

the Union upon reque st. CR. 381-383). wT OF Le

‘The court of appeal! sustained the Board’s findings A

levis: and enforced its orde in full hE, App. Ar AM).

soe

' 1, Petitioner’ challenges the Board’s finding that —

'; te’ Union had valid authorization cards signed bya

‘Majority of petitioner's employees, contending that’

_ the cards were ambiguous, that the-employees who

signed the eards‘intended: merely that: they be tised to _

secure an election ‘to determine the Union’s representa-

tive status, and that the Union misrepresented the’ _

purpose for which they were to be used (Pet. 25-37). -

. These questions turn essentially -on the particular —

ee ee eee

Court. - 7

The card specifically ‘stedied in: prominent type,

that the signer “authorizefs} [the Union} to represent

_ Phim] in collective bargaining.” Although the fine -

print at the bottom explains that the card. may be -

.. Used in support of a demand for recognition “or for

an, NLRB election’’* (supra, p, 3, .n. 4), it has ger

‘erally been ‘held that the mere indication of the latter

alternative is not sufficient to cloud the purpose of .

the card and render it invalid asa union authorization

eard.* ° card.’ * And, where, as here, the card clearly authorizes

" *The Bo Board, in order to avoid conducting elections in which

the petitioning union -has no substantial likelihood of. success,

has long held that a union seeking a representation election

must demonstrate that at least 30 percent of the employees —

involved’ are interested in selecting it as a representative.

See National Labor Relations Board, Rules and Regulations

_ and Statements of Procedure, Sections 101.17-101.18, 29 C.F-R.

- 101,17-101.18; see also-National Labor Relations Board. v..J. I.

* Case Co., 201 F. 2d 597, 598-600 (C.A. 9).

"9 See, 2.g., National Labor Relations Bord ¥. Winn-Diwie-

Stores, Inc., 341 F. 2d 750, 754 (C.A. 6), certiorari denied, 382

U.S. 880; National Labor "Relations Board v. S.N.C. Mfg. Co... *

| ee : “\ 9 : : >

union representation, it is sad well settled that the |

card may not be impeached by testimony. of em- |

_ployees, given long after it was chtained; ‘that Kenid

had a different intention.”

In National Labor Relations Board v. Pecbiveos

Bros. 342 Fr. 2d 221, 224-225 (C.A. 5), the court held ©

that- -a card similar to the one used here was ambiguous

on its: face and, upon analysis of the evidence, ruled

that at least four employees had misunderstood its pur- |

pose. Whilé that court’s ruling as to the ambiguity of

the card differs from. the decision hére and in’ the’ -

other cases where the point was considered (see n. 9,

supra), a disagreement over the interpretation of a

particular authorization catd does not present an issue.

: _ warranting review, by this Court. In any event, the

situation in Peterson differs in significant respects

--from that involved here. The record. in Peterson

". showed that union representatives had misrepresented §~

the purfidse of the authorization card to at least one —

employee—which suggested that other. employees may

_. have been similarly misled. . More, on the other hand,

352 F. 2d 361° (CA.DC), westicieset denied, 382 US. 902; Na .

tional. Labor Relations Board v. Gotham Shoe Mfg: Co:, 359 -

F. 2d 684, 686 (C.A. 2); ‘National Labor’ Relations. Board v.

0. J. Clasgow Co., 356 F. 24-476, 478 (C.A. 7). ae

- . National Libor Relations Board v. Winn-Dizie Stores, Ine.,.

supra, at .755; Calson Corp. v. National Labor Relations Board;

847 F. 2d 128, 135 (C.A. 8), certiorari denied, 382 U.S. 904;

National Labor Relations Board v. Hyde, 339 F. 2d 568, 570

(CA. 9); Joy Silk Mills v. National Labor Relations Board:

_ 185 F. 2d 782, 748°(C.A.D.C.), certiorari denied, 341 U.S. 914; .

‘National Labor Relations Board v. Greenfield Components -

Corp., 317 F. 2d 85, 89 (C.A. 1)$ National. Labor Relations

Board v. SS eee Co., 217 F. ascent 902 (ca. os sinesicrais

cae aie ss

3 Het ee |

nO employee testified that he was told that the sole pur-

_ pose of the card was to secure‘an election. The Board .

expressly found that no such misrepresentations were

. made (R. 400), and the court below correctly accepted

that finding. Moreover, in Peterson, the trial examiner ©

had found that three employees had misunderstood the

purpose of thé card. Although the Board had rejected

these findings, the court of appeals accepted them on

_ the basis' of the employees’ testimony, which indicated :

_that they didnot intend to authorize the union to

represent them.” This is not the case here. The em-

ployee testimony cited by petitioner (Pet. 30-32) is

- fully consistent with Union Agent Quatrini’s testi-

mony that he en the dual purpose of “ — ae

(supra, p.3).” ©

11 Indeed one employee, whose’ card was accepted as valid ra

. the: Board, testified that he was: illiterate; that his wife had

signed and: returned the authorization card by mail‘in his

absence; and that, when he heard what his wife had done, “he

became angry” (342 F. Od at 294),

12 Petitioner also challenges (Pet. 37-42). the Board’s finding

that the authorization cards were not tainted by the fact that

four signatures were solicited by a minor supervisor- and -that

another supervisor transmitted some cards from a Union agent’.

(R. 370-871, 394). This finding does not warrant further

review in the light of the holding of-the court below that there

1s “substantial evidence to support the Board’s finding that the :

limited participation and unclear status of the persons,involved

negatived the possibility that they may have coerced employees

_ into signing up against their wishes” (Pet. App. A10). More-

over;.as the’ Board added, “to permit. [the Company] now to.

_ rely. on .[the supervisors’] activities. to justify its refusal’ to

recognize the Union designated by a majority of its employees, ~

‘would encourage [the Company and other employers] to have

‘ just such marginal supervisors join in employees’ organizing _

activity, secure in the knowledge that if the Union should gain

Se ee a eT nT a OO ee

e Xe

. 2..The Union’s charge alleging a refusal to bargain .

» was filed on October-25 and setyed on October 26. _

- Relying on Section 10(b) of the. Act," petitioner con-

tends (Pet. 12-21) that the Board’s ‘Section 8(a) (5)

finding is barred because the Union’s S. demand for

recognition and the Company’s refusal ‘occurred on ..

April 9 and April 16, respectively, at least. teri lay 3

' beyond. the limitations ‘period. The Board (BR. 3

3 398, n, 3) and.the court below (Pet. App. AtAB)

properly rejected this: contention. |

_ As*shown in the Statement, throughout the 10¢b).

period the Union continued to claim a majority anid’. ,

to seek recognition, while petitioner, attempted to

destroy the Union’s majority by committing the un-

fair labor practices found. In .these circumstances, .

as the court below concluded (Pet. App. A7), the

“Board was justified in construing ‘he Union’s de-.

“mand and the Company’s refusal as a. continuing

- demand for recognition and bargaining, and a con-

- 'tinuing refusal, when another ‘formal demand in light

of the Company's. prior peremptory refusal would

have been: useless,’” quoting from Local 152, Team- —

_ \sters v. National Labor Relations Board, 343 F. 2d

. 307, 310 (C.A:D.C.).. See also National Labor Rela-

tions Board v. Albritton Engineering Corp., 340 F.

2d_,281, 285 (C.A. 5), certiorari denied, 382 U.S. 815;

National Labor Relations Board v. Teamsters, Local

, 41, 225 F. 2d 343, 345-346 (C.A. 8). :

: a majority, disclosure of the supervisors’ real status would

- defeat that majority” (R. 395).

18 That section provides that “no complaint shall issue > boned

upon any unfair labor practice occurring more than six months

| prior to the filing of the charge with the Board” and its — ‘

r service upon the- ‘Tegpondent.

©

12 9

Local feaie No. 1424 v. National Labor. Relations |

Board (Bryan Mfg. Co.), 362 US. 411, is not to the

contrary. ‘There, the only activity within the 10(b)

period’ was the enforcement of a union security agree-

‘ment, valid on ‘its face; since this activity, by itself, ,

was innocent and could be impeached only by-resort-

ang to an event outside the: limitations period (i.e. i

' showing that the union Jacked majority status when it

" entered into the agreement), the Court held. that. the

ba complaint was barred by 10(b). Here, on the ‘other -

hand, the Company erigaged in unfair labor practices -

within the 10(b) period, which ‘the Board could

‘properly view “as reiterations by deed of the under-

lying. refusal to bargain and hence ‘as establishing a

“violation of Section 8(a)(5)” (Pet. App. A8).

_ + In any event, as the Board. and the court: clon

soled (Pet. App. A8, n. 7), “even if the 10(b)

period of limitations were fatal to an 8(a) (5) finding,

an affirmative bargaining order would be appropriate

to remedy the 8(2)(1) violations found herein, and

‘to restore the status quo ante:” See D. H. Holmes Co.

aa National Labor Relations Board, 179 F. 2d 876, 879=

880 (C.A. 5); National Labor Relations Board v. Cal-

darera, 209 F. 24 265, 267-269 (C.A. 8); Editorial “El |

Imparcial,”’ Inc. v. National Labor Relations Board,

278. F. 2d 184, 187 (C.A..1) Pi iasecki Aircraft Corp. v.

‘ National Labor Relations Board, 280 F. 2d 575, 591-

592 (C.A. 3), certiorari denied, 364 U.S. 933. Contrary :

. to petitioner (Pet. 23), National Labor Relations }

Board v. Flomatic Corp., 347 F. 2d 74 (C.A. 2), does

not hold otherwise. Indeed, the court there recog-

nized that a bargaining order might be an appropriate |

me an

ae

remedy for an 8(a) (1) violation; it held that such

an order was not justified on the particular . facts,

since the 8(a) (1) violation there’ was not “flagrant” hee

(347 F. 2d at 78-80). Mr 2 s

3. There is no merit i in petitioner’ s contention that :

the Board’s unfair labor practice findings were: based -

-on statements of views and opinions protected by

Section 8(c) of the Act (Pet.-8-12). There was —

- ample evidence of improper coriduct wholly apart :

from.any protected statements. See Statement, supra, —

pp. 5-6. As the court below properly. noted (Pet..

a A9): “There is a vast difference: ‘between the use

of protected statements as evidence of an unfair labor :

practice, and the use of such statements to draw the .

background of the controversy and place other non-

verbal acts in proper perspective. ‘The owed is alll |

the Board did here.” .

4. Finally, contrary to allieeae’ 8 contention (Pet.

43-45), it was not entitled to obtain copies of affidavits

_ given to the General Counsel by five, employees whot

did not testify ‘at the hearing. Under the rule of

Jencks v. United States, 353. U.S. 657, 667-669, which

the Board follows in its proceedings (see, Ra-Rich

Manufacturing Corp., 121 NLRB 700), the govern-

ment must make available pre-trial stgtements of wit-

nesses who testify in its behalf. e purpose of the

14 Flomatie involved one ‘Wielalien of Section B( a)(1); a

letter distributed . by Flomatic’ S president tHe day of the elec- -

tion was found to contain promises’ of benefits contingent on

defeat of the union. 347 F. 2d at 27. In contrast, the

Section 8(a){1) violations’ in this case involved, inter alia,

threats of economic: reprisals, coercive i nterrogation, surveil- :

lance and promises. of rewards. See Irving Air Chute Oo: ve

National Labor Relations Board, 350 F. 2d 176, 182 (C.A. 2).

ed on he \"

x : as

) any

St

we

o*

.

ae, é

} y ;

« /

» area at

*, . : ~ ” | 4 >

. > 4s ed > .

fF 08 wd eee

Net . Vd . ie a a

pe As ‘ Ge See

. + ® .- *. A: £-{ w. ” ae

4 ’ -- . . e

ter Tae Os . }- &

orga a ; io eed

. if ‘ ‘i +8. * .

4 9 | - = Ke \ ae :

\ ae . re NJ o

ap gl ae SS ee i aes K+, oh %

sy . > a % ro eae

fs : oy a Ke ,

of ‘ -t ‘

‘ r ie mh Bae

( 2): ‘. pie OAS 4 . 3

. * . ¥ E — bs

: es pao Sar i ti ae

Me .&- 3 ‘ “— ae

ate Pr. ae : ‘ .

a aigg *, . - . ‘ Lae

. of”. *: ‘" & .& 4,

* . cd a ~~ 4 .

oo ed : .

oe eS am, aie : BS

? * [ ’ nes a * *. set

"2 - ° yew, es Pte —/

ees eae - sf AN: 6 g ian . ®

é ‘ ' by 2 <7 . ’ f

b= J ; 5 ae o ee te .

ee | 4 e i : ee

Reve “54 aT eye.

oe -—wene ae Se ered ‘* . ’

_ ~ *. re | <* ff olor Sie

me iN ce bs -2 4 s+" ae 7

; : pe . Re es PS

Sag CaO tae Mag eee

ees ee ME OS Tics

et ge ‘ a ke

.; “« 4 a € 4 ",

z 5 . ~ ° 4

aa on fs oo @

> : _ | <2

Se te Oe ins Hd ‘a ;

: me Bis ee ‘ >

Bees es er, ee ete | . “;

Beg oe cae Le ee a :

. nya ae. Be ‘e ,

. aa ten Ps : oP

¥ \ aay s ane \“*s

. Mes a

: Ww a

. 4 ¥

i wi i

ve

4

$y

2.4 ‘s

~os oe

*. A

% 4 ad t % :

° “wv ;

7 re -Si4 °

- >

“

' PIR Ad ;

a r

.

EEE or Se

a" » a

:

4 *

a4

ntienanenth

: : Nr :

ae a

.

ralei is t6 » permit impenchinént of the. witneds* How- at :

ever, * where ‘persons: giving pre-trial statements are

‘s peéaching them’ and therefore their statements. need

fats. J be Produced.” aiatifee ;

| pts SS

wigs PON, ees

The. ‘petition for a iri bead certiorari should 1 be

“denied. ‘

- Respéctfuliy sabenitbed:.

or)

FIM 2 » mono Mica,

esicex LOR Pr ae Sa:

» -ARNoxb, OnpMAN, aN ASE ie

ies General Counsel, Js Ms tear

» Dommic: Ty, Manta,” ihe bes emirate a o

~; . Associate, General Conn

., Noatoy. J CoME, °

e- ’

5 : fe a

Gao - Solicitor. General. .

Oe GE %

-.

‘

2;

-* Assistant General Counsel, ye a “i . : he iy : he

“Tia, R* SHER, | af"

-. Attorney, ~\°*

.\ - National. Labor’ Relations: Board.

November: 1966. ©)

2. a "8 : National “Labor | Relations Beagd v. Arkansas: hein Gas a

00. $33..F.-2d 790,-797 .{C.A. 8); National Labor Relations

- Boord® - Central. Oklahoma

495, 498° (¢ A: 10). e

16 The

ot called as witnesses,’ there is no necessity ! for ifp-;

eral Conant dia proffer the signatures « on 5: the affi-

ee

ney

Milk. Producers Assn, 285 F, aa.

davits. of the :five-é émployees who did -not, testify in order to: |

* permit comparison with the signatures: on the: authorization

’

°

*

—

we

°

\

”

\

~<

. .

° ie a

a

cards, but, the ‘Company. insisted“on inspecting the contents of

* the affidavits as well. This ‘it may not do. Raser Tanning 0:

A, Walshe! Lake Rdlaans Board, 276 F. 2d 80°(C.A. 6); Na-°

“tonal Labor. Relations Board-y. Ve apor Blast Mfg, Co. 28F ¥.

x “led 402," 405-407 °\(C.A:“1) ; see TewasTraingpries, Inc. v. Na-

_ tional Labor Relations’ Board, 386 ¥..2d 128, 134 (€.A.°6). In*

— saPeY He Nauta Roasil. mone: . a that. the Union had a |

| cards er these- five

z ‘employes. : en ie “fe . wt {fie 398 4 ives

ix 7g : ee a ” - 4 Os. “coveowwent PPINTING Orrice: 1968 ve

% - ap ter se Sat saan (

> ae - 4 aa he hoa ‘ .

7 — < ; o\*% ; - = ; 2 a

: ss hae Loe Few, TE ee eA Eran

. : tz ~ : } . ee

We : 3 7 oe setae Per ‘ -

ke ae ae ON

«i ae: er ® / < Weg nas Se ec

° ° nb G os 8 * . os ‘.

. > as Ftd ee “« te