Brief in Opposition to Petition for Writ of Certiorari — Sarkes Tarzian, Inc. v. National Labor Relations Board

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CITATION

—

Betts Baking Cs. v. National Labor Relation Board, ,

- 0B LARA GOON, cis cicescsepencdeccusdaee

Great Atlantic’ and Pacific Tea Company, The v.

' National Labor Relations Board, 354 F. 2d 707----

Nachman Corp. v. National Labor Relations Board,

S00 F.. BE Gabe i cepcdncncecctuncntvasionevaneas

National Labor Relations Board v. Avciine Naval

Architects, 355 F. 2d 788....-.--.---- Scascédssces oy

. National Labor Relations Board v. Buitoni Feeds Corp.

. Bab F. BS Wen cedadpcticwdecésceatcacshoustecs .

7 National Labor Relations Board ¥. ‘Great Easter Color -

Lithographic Corp., 309 F. 2d 352, certiorari denied,

WO Ue. Weve cwdincncccccesctucensesmesctidava +4

National Labor Relations Board v. Link-Belt Co., 311 °

National Labor Relations Board v. Security Plating Co., :

8 sb. Serres eee ud

National Labor Relations Board v. South Rambler Co., .3

10

10

4

1

/

Cases—Continued : te "page

National Labor Relations Board v. Te Vz Sutphin, 373

SESE SARL REE ae nero a 11

- National Labor Relations Board v. Walton Mfg. Co.,

369 US. oo ps ee ee. ee 9, 10

National Labor Relations Board v. West Side Carpet

Cleaning Co., 329 29 F. I caciceibcdnabasineid winiciaciad ap 10

National Labor Board v. Whitin ‘Machine

. Works, 204 F. 2d 883__\...---.------------------ 10

Universal Camera Corp. * . National Labor Relations

Board, 340 U.S, 474_---\ - cracctecencerc eee eeen es

. Statute: gs

_ National Labor Relations Act, as potent Ee @ Stat.

136, 73 Stat. 519, 29 U.S.C: 151, et seq): ,

EERE SE See See aes 7,11

Section a iebeeohatpeaioeny ecient iparanbianoep ee, Ss

Lewetininwnnecownnnhenbewebpnede 1]

- 2

a the paren Gout of the United States ,

OCTOBER TERM, 1967

| No. 241 .

SaRKes TaRziAN, INC., PETITIONER |

ae ) v. ,

N rae Lapor RELATIONS BoaRD

ON: PETITION FOR A WRIT OF CERTIORARI To THE UNITED

STATES COURT OF APPEALS FOR THE SEVENTH OIROUIT

BRIEF FOR THE NATIONAL LABOR. RELATIONS BOARD —

! IN OPPOSITION :

pes

. Fs | OPINIONS BELOW

The opinion of the court of appeals (Pet. Ape B

1-6) is reported at 374 F. 2d 734. The Board’s de- -

cision and order (J.A. 115-127, , 198-198) are reported

at 157 NLREB 1193.

_ JURISDICTION

The decision and judgment of the court of 2 icieila

were entered on February 27, 1967 (Pet. App. B 1).

A petition for rehearing was denied on April 6, 1967,

and a decree was entered on April 7, 1967 (Pet. App.

B 7, 8). The petition for a writ of certiorari was filed on

1“J.A.” references are to the portions of the record. printed as

a joint appendix for the court below and filed with the petition.

(1) “ 7

| 2 |

June 12, 1967. The jurisdiction of this Court is in-

yonee under 28 U.S.C. 1254(1).

ae the Board’s eS that the employer re-

strained and coerced its employees and discriminated —

* against -them, in violation of Sections 8(a) (1)-and

(3) of the National Labor Relations Act, are sup-

ported by substantial evidence. ,

‘STATUTE INVOLVED

The relevant provisions of the N ational Labor Re-

| lations Act, 61 ‘Stat. 136, 73 Stat. 519) 29 U.S.C. 151,

at seg., are a! in Appendix A to the petition.

STATEMENT

|

sie “A. THE BOARD'S FINDINGS OF FicT |

- Dining 1962, International Brotherhood of Electrical

‘Workers, AFL-CIO (the. Union) started its cam-

paign to. organize the employees at petitioner Com-

pany’s plant, located near Bloomington, Indiana.”

During the course of the Union’s campaign, Company

_ President Sarkes Tarzian made numerous speeches to

the. employees emphasizing his strong opposition. to

' . the Union 1c} A, 32-35, 61-63). Tarzian and other

2 On October 5, 1962, the Union filed a petition under Section’.

9 of the Act for certification as the employees’ bargaining repre- -

sentative, and, on January 25, 1963, the Board conducted an

election, which the Union lost. The‘ election was set aside be-

cause inter alia, of the unfair labor practices involved herein.

ise O11, 71%, 198.)

members of management implemented this oppésition

by the conduct summarized below:

1. THREATS, COERCION AND RESTRAINT

Company representatives, in an attempt to defeat

the employees’ organizational drive, solicited employ-

ees to engage in unlawful spying and other anti-union

conduct; interrogated employees concerning their

_ union activities and that of their co-workers; and

threatened employees with discharge and other re-

prisals if they joined or assisted the Union (J.A. 75-

109, 111, 116). Thus, Leola Hostetter, an employee

enlisted by the Company in its anti-union campaign,

was given the task of canvassing a list of non-super-

visory group leaders in order to identify for Plant Man-

ager Polley those who were either pro-union’ or

anti-union (J.A. 77-78, 96 ; 380-381). Mrs. Tarzian, vice-

president of the Company, subsequently instructed

Plant. Manager Polley,.in the presencd of Hostetter,

that those employees who were ‘disloyal’ because of

their union adherence were not to be promoted (J.A..

96; 504, 506-507). Later, Company General Counsel

Woods requested Hostetter to linger in the plant rest-

room, listen to the conversations of the ‘girls, and re-

port back their union sentiments (J A. 80, 96-97 ; 388-

_ 390, 485, 497). In like vein, Production Manager Sloan

solicited other employees to diselose. pertinent organi-

zational information, and warned them that their pro-

union activities might result in their discharge (J.A.

108, 14-15, 22; 255-256, 262-263). The Company also

used Hostetter to inake asic ee, to em-

ployees at meetings where Tarzian and his wife spoke

(J.A. 81-82; 382-387).*

Employee Hattie Logie was shoatiaaty recruited ‘by

the Company i in its campaign to defeat the. Union.

The Company arranged for Logie to use her position |

as a member of the Union’s organizing committee to

gather and report information about the Union’s ac-

tivities and plans (J.A. 76-80, 85-96, 98-102). Logie

started this activity after her foreman warned that - -

she would be out of a job if her record of absenteeism

continued and then suggested that she could safe-

guard her job by switching her allegiance to- the Com- .

pany (J.A. 46-77, 94-96; 392-397).* After Company

President Tarzian agreed to have employee Logie

_ “guarded” against union reprisal while she was spy-

ing and to send her to Yakima, Washington when the

election was over, she collected employee authoriza-

tion cards and turned them over to Company Super-

visor Haynes before forwarding them to the union

_ organizers J. A. 78-79, 88, 98; 395-397, 483-484),

During the year or so that Logie engaged i in espionage

for the Company, she reported many times to manage-

$ Additionally, Mrs. Tarzian authorized Hostetter to use Com-

pany supplies to make anti-union signs and badges (J.A. 81-82;

383-384). General Counsel: Woods asked Hostetter to arrange

for the printing of some 2000 “Vote No” buttons. Woods there-

after reimbursed her, with the understanding that this money

was’ for expenses incurred during the campaign (J.A. 82-83;

386-388, 438-439).

‘ Thus, Foreman Porter told Logie prior to the election (J.A:

394-395) : “* * * go into the office and talk to them, because the

Company could do more for: [her] than what the Union was

a yee wom ae Se ee fo

se

5

ment officials on the progress of the Union’s drive at

the Indiana plant, as well as at other Tarzian plants

located in Tennessee and Arkansas (J.A. 85-86, 88-

91, 397-398, 400-419).° The Company not only re-

warded Logie with cash payments ranging from $5 to

_ $60, but also installed a special phone in her house and

hired a private detective to protect her and enable her to

report more effectively (J.A. 91, 99, n. 9; 412-414,

418-419). The Company also refrained. from disciplin-

' ing Logie for her absenteeism and tardiness (J.A. 480-

'482). Early in 1964, when Logie eventually threatened

to disclose her role as Company spy if the promise to

send her to Yakima was not fulfilled, the Company

gave her two checks for travel expenses to Califor-

nia, and made extensive efforts to find work for her on —

the west coast (J.A. 85, 89, 92-93; 375-376, 378-379,

400, 409-410, 414-418, 455, 458, 463, 557-569).

2. THE DISCHARGE OF EMPLOYEE WILBER

Melville Wilber had been employed by the Com-

pany for nine years, during which time no complaints

were made concerning his conduct or his work (J.A.

47,104, 117; 214, 223). He assumed an active role in

- the. Union’s 1962 drive, and served on the organizing

— committee (J.A. 47, 104, 117; 214-216, 218-219). His

_” pro-union efforts were well known to Company repre-

sentatives (J A. 51, 53-54, 119; 217-218, 294).° There- ~

5 When ~ 8 When the Union lost the election and thereafter filed. objec- |

tions based on. the employer’s pre-election conduct (see n. 2,

supra), Company Counsel Woods instructed Logie to continue

“to attend the union meetings, and spy on the union * * * [and

discover] what they planned on doing” (J.A. 85; 397-399).

* Plant Manager Polley had “heard rumors that (Wi ilber]

rn active in the union work” (J.A. 294). ;

after, Wilber’s direct supervisor, Foreman Pearson,

warned him ‘“‘to stop talking union” because ‘‘there

would be three people watching” him (J.A. 53-54,

119; 217). On October 16, 1962, shortly after Pear-

son’s warning and the filing ‘of the Union’s represen-

tation petition with the Board, Wilber was discharged |

(J.A. 117-119, 104-105, 47-54). The Company claimed

that Wilber was discharged because he had punched

another employee’s timecard.’ However, other em-

_ ployees had similarly clocked in their co-workers and

were not disciplined (J. A. 118, 104, 49-51; .202-203,

231, 251, 258, 268-269).* Further, the plant employees |

were generally unaware of any rule forbidding a per-

son from clocking in a co-worker (J.A. 117, 49-50;

212, 223, 253, 257-258).° Although Wilber’s. foreman

told him on October 16 that he would probably be

called to the office.and warned “never to do it again,”

Wilber was instead summarily discharged that same

afternoon (J.A. 47-48, 117; 220-223, 226).

‘Wilber had punched the timecard of Mrs. East, his mother,

just before 7:00 a.m. on October 16. She had gone home ‘that

- -morning to retrieve her misplaced dentures and had returned

to the plant a few minutes after’ the 7:00 a.m. starting time, |

but before work commenced at her station (JA. 48-50, 117,

n. 5; 230, 248, 314-316, 321).

* Company. supervisors, as well as Plant Manager Polley;

. knew of this practice; indéed, one foreman was repeatedly ob- -

‘served punching an employee's timecard (J. A. ‘118; 202-203,

231, 251).

* During the nine years that Wilber worked for the Company,

one other employee was discharged for this infraction, in| 1953.

However, that ernployee had previously received at least one

warning with respect to s violation of Company rules, and had

been subsequently rehired ar 118, 53; 310, 312).

7

3. THE REFUSAL TO REHIRE LOGIE

As noted above, Logie, with Company assistance, left

for California early in 1964 (J.A. 92-93; 375-376, °

878-379, 414-418, 458, 557-559, 563-569). In June

- 1964, Logie returned to Bloomington, Indiana,-: went .

immediately to the office of Company Counsel Woods,

and asked if he would return her to her former posi-

tion. Woods instead offered her a job in the personnel

office, screening applicants concerning their union

sympathies. ‘Logie refused because she did not want

_ to get involved in the “union business” again. Woods

* ‘responded that she had “just better go to work for”

another employer, ‘‘because that’s what: [the Com-

- pany] wanted [her] to do” (J.A. 100; 419-422). Logie

filed a formal job application form with the Com-

pany, but she was never offered reemployment (ibid.).-

B. THE BOARD’S CONCLUSIONS AND ORDER, AND ‘THE COURT

. OF. APPEALS’ DECISION

Upon the foregoing record, the Board concluded

. that petitioner, in opposing the Union’s organization

_: campaign,’ threatened, coerced and restrained its em-

‘ployees in violation of Section 8(a)(1) of the Act

(J.A. 100-101, 116). The Board -further concluded

that petitioner violated Section 8(a)(3) of the Act

by discharging employee Melville Wilber because of

his .pro-union activity (J.A. 117-119), and by refus-

_ing.to rehire Hattie Logie because she would not ac- :

cept a job which would have required her to interro- “<“/

x nn prospective ‘employees concerning their union

{ : sympathies and affiliations (J.A. 101-102, 116), The

Board ordered petitioner to cease and desist from

the unfair labor practices‘ found; to offer Wilber and

‘Logie the jobs they would have had but for the dis-

crimination against them; to reimburse them for any

loss of earnings resulting from the discrimination;

and to post appropriate notices (J.A. eae, 124-

127, 194-198).

The court of appeals held that the “Board’s findings

that the Company committed several violations of Sec-

tion 8(a)(1) were fully supported by the record”

(Pet. App. B 3). The court further held that the

' “Board was justified in inferring that Wilber’s dis-

‘charge was motivated ‘by his union activity and that

his violation of the company. rule was a pretext for

discriminatory action’’ (Pet. App. B 5). Finally, the

court held that the Company further violated Section

8(a)(3) by “attaching the discriminatory condition

of union surveillance’’ to the tender of employment to

Logie (Pet. App. B 6). Accordingly, the court en-

foreed the Board’s order in full (ibid. ).

ARGUMENT

1. Petitioner ‘contends (Pet. 8) that the court of

appeals, in sustaining the Board’s unfair labor prac-

tice findings, failed to consider the record as a whole.

However, an examination of the court’s epikion (Pet.

App. B 1-6) shows that this contention is without sub-

stance. The credited testimony, summarized in the

Statement, fully supports the Board’s findings.” Peti-

3 Sheesegpr nay ap gery pay o apaendl ye

, which the Board and the court below accepted, by .

out that the Examiner had originally made certain

favorable to the Company and then changed these .

i SMe dic cease sock taeis gnc ation

&

9g

tioner’s attack on the substantiality of the evidence

supporting. these findings is principally based on the

resolution of several questions of credibility made by

the Board’s Trial Examiner and subsequently adopted

by the Board (Pet. 4-6, 8). There was, however,

_ ample basis for these credibility determinations (J.A.

94-109) and, as the court below held (Pet. App. B 2),

| “the record as a whole * * * presents no exceptional

. circumstances’ which would justify disturbing on re-.

~ View the Trial Examiner’s resolutions of conflicting

testimony. See National Labor Relations Board v..

Walton Mfg. Co., 369 U.S. 404, 408. In these circum-

stances, no issue warranting review by: this Court is

_ presented. Universal Camera Corp. v. National Labor

Relations Board, 340 U.S. 474, 491. |

2. Equally insubstantial is petitioner’s assertion

(Pet. 11-14) that the court of appeals applied an er-

-roneous rule on burden of proof in sustaining the ©

attempts to convey the impression that Hattie Logie gave the

only significant testimony at the reopened hearings and that —

her testimony related solely to events subsequent to the election

(Pet. 5). However, Leola Hostetter, who. testified that. prior to ~

the election she had been recruited by the Company to spy on_

‘the Union and to give information concerning the union

sympathies of other employees, also testified for the first time at

the reopened hearings. In addition, Hattie Logie testified that,

although she did not actually begin .her spying for the Com-

pany until‘ after the election, the threats to fire her and the .

agreements to reward her if she worked for the Company

against the Union all occurred prior to tlie election (J.A.

392-397). The Trial Examiner found with regard to this new

incredibility of the witnesses for the Company sii cet of

a the ee in my earlier caer ml (J.A. 95).

Board’s finding as to reason for Wilber’s discharge.

It is settled that the -Board was ‘‘not compelled to

_ .aceept”’ the employer's assigned reason for dischftrg-—

ing an employee ‘‘when there is reasonable cause for

believing that the ground put forward by the employ-

er was not -the true one, and that the real reason was

_ the employer’s dissatisfaction with the employee’s

union activity.” The Great Atlantic.and Pacific Tea

‘Company -v. National Labor Relations Board, 354 F.

2d. 707,709 (C.A. 5). See National Labor Relations

Board vy. Walton Mfg. Co.; supra." The Board and

the court below merely applied that principle here.

Thus, the Board, on the basis of the evidence in this

case, rejected as a. pretext the Company’s ‘asserted

non-diseriminatory reason for discharging employee

Melville Wilber. As the court below properly con-

-™ Accord: National Labor Relations Board v. Link-Belt Co.,

311 U.S. 584, 602; National Labor Relations Board v. Whitin

Machine Works, 204 F. 2d 883, 885 (C.A. 1); National Labor

Relations Board v. Great Eastern Color Lithographie Corp.,

809 F. 2d 352, 355 (C.A. 2), certiorari denied, 373 U.S. 950;

National Labor Relations Board v. Buitoni Foods Corp., 298 F.

“9 169, 174 (C.A. 3); National Labor Relations Board v. Asso-

_ Ciated Naval Architects, 355 F. 2d 788,792 (C.A. 4); National

Labor Relations Board v. West Side Carpet Cleaning ‘Co., 829.

F. 2d 758, 761 (C.A. 6); Nachman Oorp v. National Labor .

- Relations Board, 337 F. 2d 421, 423 (C.A. 7); National Labor °

Relations Board v, South Rambler Co., 324 F. 2d 447, 449 (C.A.

8); National Labor Relations Board v. Security Plating Co.

356 F. 2d 725, 12-728 (C.A. 9); Betts Baking Co. v. National

Labor Relations Board, 65 LRRM 2568, 2571-2572. !

. Application of this principle will, of course, produce different

results depending on the particular facts of each case. The

; peace ft erat edited ate wy te tape

. the cireuits, merely involve different factual

a

i.

eluded (Pet App. B-5), the cireumstances attending —

Wilber’s suromary —in the context of petition-

er’s intense hostility toward the Union—justifjed. the

* finding that he was fired. because of uae pro-union ac-

tivity.”

3. Contrary to petitioner’s contention (Pet. 14-15, me

7), the Board’s findings of unlawful threats, eoercion,

and restraint are not predicated oi petitioner’s so-

called “‘captive audienee speeches” to its employees, or

management’s threat to fire an employee who refused

to attend one speech.” There is ample other evidence

to support the Board’s Section 8(a) (1) findings (see

Pet. App. B 4). In view of the extensive nature of

petitioner’s threats, surveillance, and premises of

economic benefit, there is no substance to pet#tioner’s

| contention (Pet. 14-15) that its conduct merely in-

volved “speech” protected by Section 8(c) of the Act. .

2 The language quoted and emphasized in: the petition (Pet.

12-13) from National Labor Relations Board v. 1. V. Sutphin,

373 F. 2d 890 (C.A. 5), was subsequently deleted by the court,

-upon the Board’s petition for rehearing..(see 373 F. 2d at-894).

Accordingly, that case does not establish any principle different

from that discussed above.

18 As noted (n. 2, supra), the Board not only found the unfair

labor practices here involved, but. also sustained the Union’s ob-

‘ jections to the January 1963 election. The Board relied on the

threat to the employee for failure to attend a management speech

merely asa ground for setting aside the election, and not as a basis

‘for its 8(a)(1) findings (see J.A. 106-107). As the court below

pointed out (Pet. App. B 2,.n. 3), the Board’s action in setting

aside the election was not before it for réview in this proceeding.

b

12.

CONCLUSION

- The petition for a writ of certiorari should be

’. denied: .

Respectfully submitted.

.f£ | Txrurcoop MarsHatt,

Solicitor General.

ARNOLD ORDMAN, © 2 Sau”

General Counsel, | -

Dominick L. Manout,

Associate General Counsel,

Norton J. Comz, «= °

. Assistant General Counsel,

Frank H. Irxm,

Attorney, RS 73

| National Labor Relations Board.

J ULY 1967.

“ay

a* SovERnwent PRINTING OFFICE: a