Petition for Writ of Certiorari — Northwest Engineering Co. v. National Labor Relations Board

No. 54 4 be 20 1067

: | | JOHN f. avs, CLER

3 IN THE 3

1 Court of the Use States

O e, 1967

NORTHWEST ENGINEERING COMPANY, |

ae i

ve .

NATIONAL LABOR RELATIONS BOARD, 1

ae — Respondent.

PETITION FOR A WRIT OF CERTIORARI’TO THE

UNITED STATES COURT OF APPEALS =e

FOR THE DISTRICT OF COLUMBIA —

+

~

WALTER S. DAVIS, .

324 East Wisconsin Avenue

g Milwaukee, Wisconsin —

Counsel for Northwest

Engineering . Petitioner

Of Counsel: 2

FREDERICK N. ‘TROWBRIDGE

Green Bey, Wisconsin 54305 ,

5 e A iy - ä ; 2

UNITED STATES LAW PRINTING: co, CHICAGO, Ill, n La 56581

Ct

2

*

4

o

| : PSD rack

Opinions Below R = * 2

CWC

1 Question Presented ; : 2

7 Presiding’ Bilow ; — Le sage. 3

tatutes Involved ca stb nite 5

Statement ae r 5

Reasons fot Granting: the Writ - 2

* 1 n . 5 bess -

Appendix — * App. 1 n

| APPENDIX

Opinion of the Court of Appeals 1 the District

ee of 5 dated March 24, 1967 — App. 1

Judgment of the Court of Appeals for the District -

of Columbia, dated J une 3, 1967 : 4 App 7

National Labor Relations Act: | 5 0 2

. e eee eee

met FFC

; §10(¢) A \ = ; son 5 2 App. 9

a 2 3 0 ü ape ae 8

3 f ney Sr. -

5 “Aiello Dairy Farths, 110 NLRB 1365 (1954) 4 2,8

Amalgamated Clothing Workers v, NLRB, 365 F. 20)

808 (CADG, 1966 1

Bernel Foam Products Co., 146 NLRB 1277 (1964)

Chambers Mfg. Corp, 124 NLRB 721 (1959), ela,

278 F. (2d) 715 (CA-5, 1960) .... eats 15

‘Henry Colder Co., 163 NLRB No. 13 ( 19677 We

Consolidated Edison v. NLRB, 305 U. S. 197, (1988) .. N

Dayco Corp. v. NLRB, v. % , 56 Och Lab,

Cases 112,113 (CA-6, 1967 13

os ae & Fabricators, Ine. v. NLRB .. F. (2d)

ö 55 CCH Lab. Cases 111,850 (CA-5, 1967) 13

‘Franks Bros. v:-NLBB, 321 U.S, 702 (1944) ——8, 10

Furr's. Inc. v. NLRB,. . F. (2d) 55 CCH Lab. :

Cases 111,734 (CA-10,. 1967) 8 13

Interlake Iron Corp. v . NLBB, 131 F. (24 129 (oA

1g 2) 3 fn

International ‘Aircraft Trading Co., Ine. v. U. 8. 75

F. Supp. 261 (Ct. CL, 1947 a ee = 14

- Int'l Union of Elee. Wkrs. (SNC Mfg. Co.) v. NLB,

352 F.(2d) 361 (CADC, 1965) ö 13

. Int'l Union UAW v. NLRB (Aero Corp), 363 F. (2d)

702 (CAD C, 1966) sit 13, 16

r d ME AGN, SLOT OA r

as ; , ; 4 % N 224 558

ae 111

. 5 PAGE 5

Int'l: Union UAW v. Russell, 356 U.S. ‘634, (1958) .

Irving Air Chute Co., 149 NLRB 627 (1964) 3 *

Joy Silk Mills v. freee ‘ae: F. (20), 732 (CADC,

1950) ö 13

VNL RB v. Flomatic Corp., 347 F. (2d) 74 ( 1965) . 9,12

NLRB v. C. J. Glasgow Co., 356 F. (2d) 476 (CA,

1966) — 5 5

NLRB v. Gorbea, Petes & Morell, etc., 300 F. (2a) 886

Cal, 1862) i 12

NLRB v. ‘Hannaford Bros., 261 F. (aa) 638 (Cad, 100

1:99) : 12

NLBB v. Johnnie’s. Poultry Co, 944 F.(2d) 617 (CA-8, ae

1965) 12

NLRB v. Krochler, 328 F. (2d) 770 (CA-7, 1964) .. 13

NLRB v. Morris Novelty Co., Inc., F,. (2d) pes a2

3638 CCH Lab. Cases 111, 998 (CA-8, 1 — 12

NLRB v. Peterson Bros., Inc., 342 F. (2d) 221 (CA-5,

1965) me}

NLBB v. Pick Mfg. Oo., 135 F.(2d) 329 (CA-7, 1943). 11 f

Olender v. U. S., 210 F. (2d) 795 (CA-9, 1954) 14

Peoples Service Drug Stores, Inc. v. NLEB, 275 F.

(2d) 551 (CA-6, 1967) nnn: 12

Pizza Products Corp. v. NLRB, 369 F. (24) sl (CA-6,.

1966) 12

een v. Mebermott, 138 F. 00 338 ( 2545) 14

PPP

*

1

PAGE

Toho Bussan Kaisha, Lita. v. American Pres. Lines,

Lied., 265 F. (2d) 418 (0A. 2, 1959) 1

Wausau Steel Corp. v. NIRB, . F. (2d) , 8

cc Lab. Cases 111,849, (c, 1 n

N Ligabue |

National Labor Relations Act, as amended, (61 Stat. me.

3 151, et seg) Hes;

AT ee eee

$8(a)(1) aes pe — 9

41888060 — E

„ Re een

u le i

e eee eee e

ae. . . . Miscellaneous 5 5 a

Am. Jur. Evidence, o 1A?

Bok, The Regulation of Campaign Tactics, 78 Harv. Se

L.Rev. 1 Ae (Nov. 1964) a 1

(4

Ne

* 7 ie

Sanne Cour of the Use Sates

pe 1 Tense, 1967

| 8

ce 4 8 ‘ | ’ 8 ; 5 —

4 g NORTHWEST ENGINEERING COMPANY.

"Petitioner,

Se gg STE tied ; ; } 725

J Ps |

NATIONAL LABOR RELATIONS ‘BOARD, 255

2 N : "Respondent

PETITION FOR A WRIT or CERTIORARI TO THE

4 UNITED STATES COURT OF APPEALS |

FOR Estes DISTRICT OF COLUMBIA

‘To the Justices of the Supreme. Court of the United States:

Northwest Engineering Company, Petitioner herein, ro-

-spectfully } petitions for ‘a Writ of Certiorari to review the

judgment of the United States Court of Appeals for. the

District. of Columbia, entered on June 3, 1967, granting

the Ni ational Labor Relations Board’s ballen to enforce

its Order dated September 21, 1964, as amended o 3 March

3, 1966, which requires Petitioner to cease and from

certain alleged unfair labor practices and affirmatively,

to post a notice and to bargain with the Union on demand.

yee

Fadl

an

a.

On March 24, 1967, the Ar below handed down its opin-

ion in the matter. On April 5, 1967, Petitioner petitioned

to reconsider, as did the Union, On April 21, 1967, both

petitions were: denied. On June 3, 1967, the court below

ordered, adjudged and decreed the Petitioner herein to

abide by and perform the direction of the Board's order,

as amended.

OPINIONS BELOW

The original decision of the National Labor Relations

Board is reported at 148 NLRB 1136 (1964). The Board

issued a Supplemental Decision and Order reported at

158 NLRB No. 48 (1966). The decision of the Court of

Appeals is reported in 376. F. (20) 770, and is ‘printed i in

the Appendix hereto, at pp. App. 1-6,

3 JURISDICTION 8

The judgment of the Court of Appeals for the District

of Columbia was made and entered on June 3, 1967, and a

copy thereof is printed in the Appendix at pp. App. 7-8.

The jurisdiction of this Court is invoked pursuant to

28 80 _—

| | QUESTION PRESENTED

The question presented here arises. out of a policy shift

of the National Labor Relations Board manifested by its

decision in Bernel Foam Products Co., 146 NLRB 1277

(1964), which directly overruled Ajello Dairy Farms,

110 NLRB 1365 (1954). Specifically, the question is im-

portant in the administration of the National Labor Re-

lations Act in that the basic right of employees to select or

reject representatives for purposes of collective bargain- =

ing through the election procedures established by Con-

3

gress are being circumvented. This case gives the Court

the opportunity to clearly enunciate.on the — sub-

stanti ve and procedural question: = = :

Does the power of the National Labor Relations Board :

under §10(c) of the Act to order affirmative relief in

aid of a cease and desist order include the power to

order an employer to recognize ‘and n collec-.

tively with a union where— ?

(1) the employees reject the union in an election con-

dueted by the Board at the union's instance?

(2) the union knows of alleged unfair labor practices i

Prior to the election, but does nothing until ier.

it loses the election? :

(3) the unfair labor practices are not aggravated and

do not include discriminatory discharges, clear

and vitriolic threats of retaliation or reprisal or

a rejection of the collective bargaining principle?

(4) the proof of majority status of the union ante

election relied on by the Board is

( a) shown to have been collected by a union or-

ganizer by misrepresentations as to its use;

(b) admitted into evidence without naive

proof of authentication. N

(5) there is no charge flled within the six (6) month

statutory period alleging a refusal to bargain with

the union.

PROCEEDINGS BELOW

These proceedings grow out of a petition for certification

filed by United Steelworkers of America, AFL-CIO (here-

inafter Union“), with the National Labor Relations |

Board (hereinafter ‘‘Board’’), on March 8, 1963, pursuant

to §9(c) of the National Labor Relations Act, as amended,

29 USC §151 et seg. (hereinafter the Act’’), seeking an

election among employees of Northwest Engineering Com-

‘pany (hereinafter ‘‘the Company’’), Petitioner herein.

On May 8, 1963, the Board conducted such an election in

which 743 of the. 753 eligible voters participated. The

Union lost the election 377 to 362, two ballots being chal-

lenged and two being void. |

- Thereafter, the Union filed objections to Company con-

duct claimed to have affected the outcome of the election.

An unfair labor practice charge of violating §8(a) (1) of

Act covering the same and additional conduct was simul-

taneously filed as permitted by §10(b) of the Act. A com-

plaint issued on the charge and the §9 ( election objection)

and 810 (unfair labor practice) proceedings were consoli-

dated for hearing. On March 27, 1964, the Trial EX.

aminer issued his decision dismissing the Wee and

complaint for total lack of merit. ae

On September 21, 1964, the Board reversed the Trial

Examirier, found merit to the complaint, and ordered a

new election be held. 148 NLRB 1136 (1964)

- Dissatisfied with the order for a new election, the Union

moved the Board to reconsider and amend its order to

coincide with.a new policy of the Board as enunciated in

Biernel Foam Products Co., 146 NLRB 1277 (1964), and

further refined in Irving Air Chute Co., 140 NLRB 627

(1964). The Board so amended its order and remanded

the case to the Trial Examiner to determine whether a

bargaining order should issue without a new election.

The Trial Examiner eondusted a supplemental hearing

and, following the receipt of evidence over the Company 8

strenuous objection, decläred in a Supplemental Decision

dated — 27, 1965, that the Union once had a majority

5

status, that the Board had previously found unfair labor

practices had been committed and, ergo, consistent with the

Board’s new policy, the Company must, inter alia, recog-

‘nize and bargain with the Union upon request. On May

3, 1966, the. Board affirmed. 158 NLRB No. 48 (1966) ö

The Union petitioned the Court of Appeals for the Dis-

trict 6f Columbia for review of the Board order, seeking ad-

-. ditional findings and relief. The Board petitioned the

same court for enforcement. On March 24, 1967, the Court

of Appeals rendered its decision denying: the Union’s

_ petition for review and granting the Board’s petition for

enforcement. Both Union and Company petitioned for re-

hearing and both petitions were denied on April 217.1967.

The Court’s decree was entered June 3, 1967.

STATUTES INVOLVED

The pertinent portions of the National Labor Relations

Act, 29 USC §151, et seq., are set forth in the Appendix,

at pp. App. 8-9.

STATEMENT OF THE CASE

In late February, 1963, the Union began an organizing

campaign among the more than 700 production and main-

tenance workers at the Company’s Green Bay, Wisconsin,

shovel and crane plant. On March 7, 1963, the Union filed

a petition for a board-conducted election and simultaneous-

~ ly sent a letter to the Company claiming that it repre-

sented a majority of the employees and requesting a ne-

; gotiating meeting. The Company keplied that it would

recognize the labor organization duly certified ener.

ing a Board- conducted election.

Accordingly, acting upon the Union’s petition, the Board

directed an election, which was held on May 8, 1963. The

Union lost the election, 377 to 362.

6

After various maneuvers by the Union and action by the

Board (see Proceedings Below, supra), a supplementary

hearing was held by the Trial Examiner at which time the

efficacy of the Union authorization cards and their authen-

ticity became an issue. Over the Company’s strenuous

objection, 453 Union-solicited cards were admitted into

_ evidence without proper foundation or authentication. To

the Company’s contention that §10(b) of the Act requires

that the rules of evidence applicable to the United States

District Courts be followed in Board proceedings insofar

as practicable, the Board affirmed the Trial Examiner's

evidentiary ruling on the grounds that it was reasonable

procedure in view of the large number of cards in-

volved’? and that the Company had ‘‘uncircumstantially’’

made an ‘‘extra-judicial admission because it had re-

ceived the cards in its possession prior to hearing and

had not raised any issue other than a few questioned signa-

These cards having been admitted into evidence the ei

pany contended that they were invalid for the purpose in-

tended because they were misleading on their face and

tainted by the atmosphere in which they were solicited.

Such card reads as follows:

AUTHORIZATION

I hereby request and accépt membership in the

UNITED STEELWORKERS OF AMERICA, and of

my own free will hereby authorize the UNITED

STEELWORKERS OF AMERICA, its agents or

representatives, to act for me as a collective bargain-

ing agency in all matters pertaining to rates of pay,

wages, hours of employment, or other conditions of.

37

5 y 4 . ;

employment, and to enter into contracts with my em-

ployer covering all such matters, ineluding contracts

which may require the continuance of my membership

‘as a condition of my continued employment.

DATE. ) | : nF

Signature N 95

ADDRESS fod conse

: Street City Zone State.

oz HORN COM RX

DEPT. asad Er

This . when signed will be shown to no one

except an Authorized Representative of the

U.S. Government

: Please fill out entire card

The Trial Examiner held that evidence of the Union’s

exaggerations or. even untrue statements surrounding the

card solicitation was insufficient to invalidate the cards

as proof of majority status; that the Courts had not fol-

‘lowed this rule, but he was bound by Board decisions.

(Jt. App. 230) , Pees

4

in the UNITED STEELWORKERS OF AMERICA

e

coe Reasons for Granting the Writ : mt — Be

Bra iL

*

The decision of the Court of Appeals for the District -

of Columbia herein should be reviewed because it es-

tablishes important substantive and procedural principles

affecting the right of employees to freely choose their bar-

gaining representatives by secret ballot in the manner ,

specified ‘by Congress in §9(c) of the Act. While this

Court specifically held in Franks Bros. v. NLRB, 321 U.S.

702 (1944), that the Board had the power under §10(c) of

_ the Act to affirmatively order an employer to bargain with

a union even though there had been no election, this af

firmance came where the union had withdrawn the petition

for election upon discovering alleged unfair practices— —

i. e., acted in conformance with the election rule réaffirmed

by the Board in’ Aiello ig N 110 NLEB 1365

(1954).

This case, at the supplemental Board A0 level,

extended the rule in Franks Bros., supra, to affirm a bar-

gaining order where the union had proceeded to an election

in the face of existing unfair labor practices and then lost

the election. This result was a permissibie rationale by

the Board because it had reversed its prior election rule

in Bernel Foam Products Co., 146 NLRB 1277 (1964),

and Irving Air Chute Co., 149 NLRB 627 (1964). :

Under the rule established by the Court below in af-

firming the Board’s order, employees are denied the right

‘to reject a collective bargaining representative and are

forced into representation in the name of ‘‘efféctuating

policies of the Act’’ through Board-imposed remedy. The

_ Cireuit Courts have reached conflicts in both the sub-

stantive and procedural questions involved.

|

1 rere is a direct conflict between the decision of the

| Court of Appeals for the District of Columbia herein

and a decision of the Court of en for ip Second

Circuit.

be, After the employees rejected the union in the Board-

7 conducted election, a full and complete hearing was had be-

| : fore the Trial Examiner on the alleged violations of the

| Aet. The Trial Examiner, who saw the witnesses, ob-

| served their demeanor and resolved all credibility: issues

from face-to-face confrontation, issued his Decision and

Report on Objections recommending dismissal of the com-

plaint and overruling the objections entirely. (J t.App.,

pp. 161 et seq.) The Board reversed, and the Court below |

affirmed, saying:

„While the e is hardly rede ink, our

evaluations are. irrelevant because, after e ;

the record, we have concluded that the Board’s. find-

ings do een, reasonable interpretations of the

evidence.“ a

Nevertheless, the Court below sustained the Board's Or-

der requiring Northwest to bargain with the Union on

demand, despite the employees’ prior rejection in a secret

ballot Board-conducted election and despite the lack of

‘overwhelming evidence“ of any rejection by Northwest

Jof the collective bargaining principle.

The Court below openly states its conflict with the ma-

jority decision of the Second Circuit in NLRB v. Flomatic

Corp., 347 F. (2d) 74 (CA-2, 1965). There it was held

that a bargaining order should not issue as.part of the

remedy for §8(a) (1) violations ‘unless the violations are

10

‘flagrant’? and stem from an aggressive or planned

campaign at dissipating union strength by resort to threats,

discharges, or refusals of recognition. Supra, p. 78.

This rule would seem to be consistent with this Court's

rule in Franks Bros. Co. v. NLRB, supra, where a bar-

gaining order was sustained upon a showing of the em-

ployer’s ‘‘stubborn refusal to abide by the law.’’ (p. 705)

By way of contrast, Northwest Engineering was inter-

. pretively’’ found to have committed unfair labor practices.

The Court of ‘Appeals for the Seventh Circuit has at-

tempted to state ‘a rationale for the divergent views ex-

pressed between the circuits. In Wausau Steel Corp v.

NLRB, . F42d) ....., 55 CCH Lab. Cases 111,849,

(CA-7, 1967 ), with a dissent, a bargaining order issued

by the Board was enforced on the ground that it was

within the bounds of allowable discretion and ‘not clearly

inappropriate. The Court there noted that in other cases

where a bargaining order was not issued but a new elec-

tion ordered instead, the courts relied on record evidence

independent of the election results which indicated a lack

of majority status in the union. Further, the Court

observed that bargaining orders were generally enforced

where there was strong evidence of majority status exist-

ing prior to the commission of unfair labor practices. The

majority then concluded that there was in the case be-

fore it only authorization cards to prove majority status

and only the election results to prove minority status;

that there was a dearth of evidence’) and consequently

it was impossible to determine whether the unfair con-

duct affected the employees’ freedom of choice. Ac-

cordingly, it held that the Board 8 teforence that sean un-

\

\

—

5; *

ae. ae

) lawful conduct dissipated the union’s Al status |

could not be set aside.“

The conflict between the decision here’ and Nba a

, with the attendant attempt by the other circuits to find a

common ground, emphasizes the need for penetrating ex-

amination and resolution of the conflict by this Court.

Even the most provocative article on the subject of e,

tended Board remedies has suggested that the Board should

act with restraint and restrict its use of bargaining orders

to cases involving discriminatory discharges or clear

threats of retaliation. Bok, The Regulation of Campaign

Tactics, 78 Harv. L. R. 38, 138 (Nov., 1964) ). This Court’s

definitive ruling is desirable and this case presents a ripe

Situation for setting forth appropriate distinctions in this

regard.

2. The decision: below decides an . important question

of federal law. which has not been, but should be,

settled by this Court.

The Court below states that, It was duly found, by

both the Trial Examiner and the Board, that oui to the

‘1'It is respectfully submitted that this decision lacks the fi ring of

clear logic that Judge Hastings generally propounds. He states on

the one hand that there is inadequate evidence to show that the

election results were tainted by unlawful conduct, but then states

that the Board’s inference of the opposite result cannot be impugned.

Overlooked are the propositions that (a) under §10(c) of the Act,

the General Counsel has the burden to prove violations by a pre-

ponderance of proof, and (b) while the Board may draw inferences,

it is permitted to do so only upon facts found. Interlake Iron Corp:

v. NLRB, 131 F.(2d) 129 (CA-7, 1942) ; NLRB v. Pick Mfg. Co.,

135 F.(2d) 329 (CA-7, 1943). In andes, ide Court admits there

is no evidence to support the inference, but nevertheless incon-

gruously sia it cannot be set aside.

12 „

Company's unfair labor practices a majority of the em-

ployees in the appropriate bargaining unit had signed

union authorization cards.“ This statement passes over

without comment or resolution two issues, tried before the

Trial Examiner and the Board and briefed and argued

to the Court below: (a) that the cards were an accurate

indicia of majority status; and (b) that they were prop-

erly received into evidence, :

(a) Are siithietination cards drobative evidence of

majority status ante- unfair labor practices?

It has been said in several cases in several Circuits in

several ways that union authorization cards are a no-

toriously unreliable method of determining majority status

of a union. Peoples Service Drug Stores, Inc. v. NLRB,

375 F. (2d) 551 (CA-6, 1957); NLRB v. Morris Novelty Co.,

Inc., . F. (2d) ., 55 CCH Lab. Cases 711,998 (CA 8,

1967); Picea Products Corp. v. NLRB, 369 F. (2d) 431

(CA-6, 1966); NLRB v. Flomatic Corp., supra; NLRB v.

Gorbea, Perez & Morell, etc., 300 F.(2d) 886 (CA-1, 1962) ; ;

NLRB v. Hannaford Bros., 261 F. (2d) 638 (CA-1, 1959).

Even Board Chairman Moculloch has noted that unions

win only 52% of the elections where, they present au-

thorization cards from 50% to 70% of the employees.

See statement quoted in NLRB v. Johnnie 6 Poultry Co.,

900 F. (2d) 617 (CA-8, 1965).

Despite this asserted unreliability, the various cireuits

have independently developed conflicting rules under which

authorization cards have been held to be satisfactory or

unsatisfactory proof of majority status. Thus has de-

veloped the doctrines applicable to single purpose and dual

purpose authorization cards. The single purpose card

which recites only that it i is to be used to evidence interest

°

13 BON =

in obtshiing an NI RB. eonducted election dons not pose

a problem. Here, the Board and courts have uniformly

held that such cards do not constitute proof of majority

status so as to form a basis for a r order as dl

affirmative remedy.

-On the other hand, so-called. dual. purpose cards have

brought conflicting results in the various circuits. Thus,

in the Fifth and Sixth Circuits, cards which call for an

election and authorize representation would appear to be in-

valid proof of majority status if there is any showing of

mis representation or misunderstanding as to the meaning

or intent of the signers. NLRB v. Peterson Bros., Inc. „842

F. (2d) 221 (CA-5, 1965); Dayco Corp. v. VLR BR,. — F.

(2d) , 56 CCH Lab. Cases 12,113 (CA-6, 1967). Sub-

jeetive intent of the signers in these circuits is an import-

ant issue, Engineers d Fabricators, Inc. v. NLRB, ........ F.

(24) .....:.. , 55 CCH Lab. Cases 711,850 (CA-5, 1967). In the

‘Seventh, Tenth and District of Columbia Circuits, how- .

ever, if the dual purpose is plain on the face of the card,

of., Int Union of Elec. Wkrs. (SNC Mfg. Co.) v. NLRB,

352 F.(2d) 361 (CADC, 1965), the card will generally

constitute sufficient evidence of majority status to support

a bargaining order, Int Union UAW v. NLRB (Aero

Corp.) 363 F. (2d) 702 (CADOC,. 1966); NLRB v. C.J.

Glasgow Co., 356 F. (2d) 476 (CA-7, 1966), Furr’ 8, Inc. v.

NLRB, ......-- F. (ad) , 55 CCH Lab. Cases 11,734

(A410, 1967), at least, in the absence of substantial evi.

dence of active and overt fraud. See, NLRB v. Kroehler,

328 F. (2d) 770 (CA, 1964); Amalgamated Clothing

Workers v. NERB, 368 F. (2d) 898 (CADO, 1966). In

these circuits it is even doubtful evidence of the

signers’ intent can be admitted into evidence. See, Joy

Su Mills v. NLRB, 185. 8 732 (CADO, rb

ey

14

Resolution of these conflicting decisions is desirable so

that employees’ rights are treated uniformly under the

- Act. We fib Mies 8 1 4

c) What degree of authentication is required to

equate authorization cards to- ballots?

The Act provides in .§10(b) that the Board shall follow

the rules of evidence applicable to the United States

District Courts insofar as practicable. In the case at bar

the Board admitted some 400 cards into evidence without

proof of execution on the theory that to prove each card's

authenticity would be impractical. (J.A. 263) The Board

has previously held that where a small number of cards are

involved, there must be actual, individual proof. See,

e. g., Henry Colder Co., 163 NLRB No. 13, (1967).

Actually, the rule of evidence applicable in the district

courts of the United States is that a writing standing alone

does not constitute evidence; it must be accompanied by

proof establishing its authenticity and that it was executed

by the party by whom it purports to be. See Am. Jur. (Evid.)

5922, pp. 776-777; Toho Bussan Kaisha, Ltd. v. American ©

Pres. Lines, Ltd., 265 F. (2d) 418, 422 (CA-2, 1959); Sum-

mers v. McDermott, 138 F. (2d) 338 (CA-3, 1943); Inter-

national Aircraft Trading Co., Inc. v. U.S., 75 F.Supp. -

2861, 262 (Ot. Cl., 1947); cf., Olender v. U.S., 210 F.(2d)

795, 801-805 (CA-9, 1954) (“official government docu-

ments exception limited to those actually official“).

The viciousness of the Board's ambivalence in applica-

tion of the evidentiary standard is apparent where it is

remembered that these cards are being equated to votes

- east in a secret ballot election. These cards are not col-

lected in secret, may not represent the true wishes of those

15

- solicited 80 as here, often given upon the .

that there will be a secret ballot. With a large number of

cards in issue, to be sure, the proceedings for proof of

their authenticity may be protracted if the union is to ob-

tain bargaining rights by the back door“ route. On the

other hand, the Board has an adequate and better alterna-

tive by merely following the statute: hold an eleotion guar-

anteeing the secret ballot franchise.

Under the decision below, the Board now has a carte

blanche to deliver any number of cards to the employer

and in the absence of his disproving them, have them ad-

mitted into evidence as proof of majority status. The

Board has repeatedly said that there are no discovery ~

procedures available under the Act, Chambers M fg. Corp.,

124 NLRB 721 (1959), enf’d., 278 F.(2d) 715 (CA-5, 1960),

yet it has adopted a procedure here giving it the unilateral

right to demand that employers admit or deny authenticity

and if they remain mute, they will be deemed to have made

an “extra-judicial: admission“ of ee.

3, The Court below has approved a Board practice which

so far departs from accepted practice as to call for

an exercise of this Court’s power of supervision.

In what is believed to be the first decision of its kind, the

Board ‘here ordered Northwest to recognize and bargain ©

with: the Union, although at no time in these proceedings

was Northwest ever charged’ nor. did any allegation of

the complaint ever charge that Northwest had refused to

bargain when it was under an obligation to do so. The

Act provides in 510 (b) that no complaint shall issue

based upon any unfair labor practice occurring more than

six months prior to the filing of the charge with the Board.

Every decision dealing with the efficacy of a bargaining

order, in the absence of or in contravention to the results

‘of a Board-ordered election, has had present at the outset

an allegation in the complaint that the employer vio-

lated 58(a) (5) of the Act. And heretofore, even in the

District of Columbia Circuit it was held that there must

have been a charge within six months of the violation—

albeit, a continuing violation. See, Int I. Union, UAW v.

‘NLRB, (Aero Corp. 85 supra.

Here, there was no charge, ever,—no allegation of re-

fusal to bargain, ever. This procedure of the Board is so

beyond the accepted practice as to call for this Court’s

_ Supervisory rgyiew and reversal.

4. The questions presented are important to the ad-

ministration of the National Labor Relations Act and

should be resolved by this Court.

The Act, in §7, guarantees to employees the. right to

participate or to refrain from participating in concerted

activities. This announced and explicit policy of Congress

is being seriously and substantially intruded upon by re-

cent developments of Board-created law now being ap-

proved in varying degrees in the Courts of Appeal. Con-

flicts are developing and uncertainty is present. The Board,

on the other hand, is pushing to.extend its remedial pow-

ers by devising new and different affirmative relief. It

is appropriate to review the Board’s power in this regard

and. establish firm guidelines for future decisions.

This Court has previously said that the Board’s power to

order affirmative relief does not confer upon it the power

to inflict any penalty it may choose just. because the policies

of the Act might be thereby effectuated, because affirma-

PPP

tive orders must be incidental to and in aid of the primary

right of the Board to stop and restrain violations. Consoli-

dated Edison Co. v. NLRB, 305 U.S. 197, 235-236 (1938) ;

Int’l, Union, UAW v. Russell, 356 U.S. 634, 642-643 (1958).

In the face of an announced intent, manifested in this case,

to expand and invent new remedies, failure of the Court to

now pronounce its views may well lead to further con- |

flicts among the Circuits and the development of relation-

ships premised on faulty assumptions, all in derogation of

employees rights. and the intent of Congress.

7

CONCLUSION

, it is respectfully sub-

it of Certiorari should

For the reasons set forth abov

mitted that this petition for a

be granted. 7

Respectfully submitted,

Watter S. Davis,

Counsel for Northwest Engineering

cts Company : :

Of Counsel:

F. N. Trowsripez

APPENDIX _

UNITED STATES COURT OF APPEALS |

ron THE DISTRICT OF COLUMBIA CIRCUIT - _

onset

No. 18,921

Unrrep Stzeiworkers or America, AFL-CIO,

PETITIONER | 6

—

v.

Natrona LABOR RRLATIoRS Boarp,

RESPONDENT

NortHwest ENOIN EERING Company,

INTERVENOR

No. 20,211

NatronaL LABOR RELATIOxS Boarp,

_ PETITIONER

NortHwest ENGINEERING CoMPany,

RESPONDENT

Unirep STzeLworkers or Amenica, AFL-CIO,

. INTERVENOR

On Petition to Review and on Petition to Enforce Orders

of the National Labor Relations Board

Decided March 24, 1967

Mr. Michael Gottesman, with whom Mr. Elliot Bredhoff °

was on the brief, for petitioner in No. 18,921 and inter-

venor in No. 20,211.

App. 2

Urs. Janet Kohn, Attorney, National Labor Relations

Board, with whom Messrs. Arnold Ordman, General Coun-

sel, Dominick L. Manoli, Associate General Counsel, Marcel

Mallet-Prevost, Assistant General Counsel, and Warren

M. Davison, Attorney, National Labor Relations Board,

were on the brief, for respondent in Me. 18,921 and peti-

tioner in No. 20,211.

Mr. Walter S. Davis of the bar of the Supreme Court

of Wisconsin, pro hac vice, by special leave of court, with

whom Mr. E. Riley Casey was on the brief, for respondent

in No. 20,211 and intervenor in No. 18,921. Messrs. O. 8.

Hoebroeckæ and Richard P. MeLoughlin also entered ap-

pearances for respondent in No. 20,211 and intervenor in

No. 18,921.

Before Bastian, Senior Circuit Judge, LEVENTHAL and

Rosinson, Circuit Judges.

LevenTHAL, Circuit Judge: We are called upon to re-

view an order of the National Labor Relations Board is-

sued on September 24, 1964, 148 N.L.R.B. 1136, and amend-

ed after further hearings on May 3, 1966, 158 N.L.R.B.

No. 48. The facts and issues are fully detailed in those

opinions and we pause only to refer to the most salient

findings. The Board found that after the petitioner,

United Steelworkers (Union), began its organizing drive

at the Green Bay, Wisconsin shovel and crane plant of

Northwest Engineering Co. (Company), the Company © -

‘ responded with a flurry of promises and threats, all de-

signed to an impermissible degree to fob off unionization. |

The Board’s findings of fact are conclusive on us if sup-

ported by substantial evidence on the record as a whole.

National Labor Relations Act, 61 Stat. 146 (1947), as

‘amended, 29 U.S.C. § 160 (f) (1964); Administrative Pro-

eeduré Act, 5 U.S. C. § 706. While the evidence is hardly

App. 3

overwhelming, our evaluations are irrelevant because, after

examining the record, we have concluded that the Board's

findings do represent reasonable interpretations of the

evidence.

We turn to the Board's remedies. The Board 3

the customary order requiring the Company to cease and

desist from interferences with union activity, and in addi-

tion set aside a certification election adverse to the Union, .

and ordered the Company. to bargain with the Union. Both

Union and Company protest the validity of the order, the

Union on the ground that it does not go far enough, the

Company on the ground that it goes too far. We affirm.

Section 10(c) of the Act, 29 U.S. C. §160(c) (1964),

authorizes the Board when it has found a violation to

„issue and cause to be served on such person an order

requiring such person to ‘cease and desist from such un-

fair: labor practice, and to take such affirmative action

including reinstatement of employees with or without b +4

pay, as will effectuate the policies of this [Act]...

In fashioning remedies the Board is drawing on its mare

expertise and reservoir of informed judgment gained from

continuous and intimate study of labor relations problems.

Because of this, courts must pay special deference to the

Board’s choice of a remedy, see Fibreboard Paper Prod.

Corp. v. NLRB, 379 U.S. 203, 215-17 (1964). [It is

usually better to minimize the opportunity for reviewing

courts to substitute their discretion for that of the agency. ”

Consolo, v. FMC, 383 U.S. 607, 621 (1966). With this

caution in mind, we cannot say it was an abuse of disere-

tion for the Board to fail or refuse to grant the Union’s.

prayer that it award to the employees . . . the benefits

they would most likely have achieved had bargaining o-

eurred“ or „order the Company to bargain now with

App. 4

ae

the Union over benefits to be provided for the retroactive }

period.

We likewise 8052 the Company's objection challenging

the remedy as excessively disproportionate to the viola-

tion charged. The 1964 opinion and order of the Board

found a violation of Section 8a) (1) of the Act, 29 U.S.C.

§ 158(a)(1) (1964), in that the Company interfered with,

coerced, and restrained its employees in the exercise of

their rights under Section 7 to organize and bargain col-

lectively. In addition to the customary cease and desist.

order, the Board set aside the previous certification elec-

tion, w the Union had lost by a slim vote, and ordered

a new Oné. Even though there had been no charge or

finding of a violation of Section 8(a)(5), which proscribes

refusals to bargain with representatives of employees, the

Board later, on the Union’s motion, reopened the proceed-

ings. It was duly found, by both the Examiner and the

Board, that prior to the Company's unfair labor practices

a majority of the employees in the appropriate bargaining

unit had signed union authorization cards. Cf. Amalga-

mated Clothing Workers (Hamburg Shirt Corp.) v. NLRB,

—— U.S. App. D. C. ——, —— F.2d —— (Nos. 19897, 19940,

decided December 15, 1966) (slip op. at 7-9). In its 1966

Supplemental Decision and Order the Board directed the

Company to bargain with the Union without the necessity ~

of a new election.

In attacking this bargaining pene the. 98 .

on the recent Second Circuit case of NLRB v. Flomatio

Corp., 347 F.2d 74, 77-80 (1965). In that opinion the

court refused to enforce a bargaining order entered to

reetify a violation of Section 8(a)(1) alone. ‘J udge Ander-

san, writing for the court stated that ‘‘restraint’’ was indi-

cated in regard to the dictation of the ‘‘strong medicine

DONT fae eR: oY a ee et —— 5 * — * meer ey

App. 5

of a bargaining order, because of its troublesome tendency

to encroach on the employees’ Section 7 right not to

organize a labor union and the Section 9(c)(1) right to

a secret ballot election.! Judge Anderson implies that a

bargaining order would be approved only when the Com-

pany's conduct consisted of a ‘‘broad-gauged. campaign

that was ‘‘flagrantly hostile to the organizing efforts’’ of

the Union, where there were .‘‘glaring violations.“ He

states that a bargaining order is inappropriate in the

case ofů borderline, unaggravated 5 8 (a) (1) violation,

standing alone, resulting in only ‘‘a moderate unbalanc-

ing of an election by an employer.“ The opinion concludes |

that in such a case a more appropriate remedy”? i is a cease

and desist order coupled with the. granting of a new

election.

In our view the beacon with the light that guides this

court is not the Flomatic opinion, but the partial dissent

of Judge Hays, 347 F.2d at 80-81. As we have stated, the

choice of remedies is primarily within the province of

the Board. The Board has the responsibility for deciding

what relief is most ‘‘appropriate’’ and in the absence of

a clear abuse of discretion we will not interfere. Even

where the particular remedy carved out by the Board has

an impact on other values protected by the National Labor

Relations Act, it is the Board that has the primary duty

of reconciling sometimes divergent \interests. It is not

judicial abdication to treat: with deen the ageney’ x

In Local 57, ILGWU (Garwin es ) v. NLRB, —

U.S. App. D. C. F. 2d (Nos. 19478, 19624, de-

cided January 11, 1967), this court gave similar reasons for

refusing to enforce a bargaining order against a\‘runaway

shop.“ However in Garwin, unlike this case, the order set

aside would not have served to protect any Section 7 rights

of employees who chose the Union as their representative.

»

Nar

App. 6

determination as to the powers properly W! in coping

with a problem. Philadelphia Television Broadcasting Co.

v. FCC, 123 U.S.App.D.C. 298, 300, 359 F.2d 282,. 284

(1966). The inquiry is whether on the basis of the evi-

dence it had before it the Board adopted a remedy reason-

- ably calculated to effectuate the policies of the Act.

The Supreme Court has recently re-emphasized the es-

tablished rule that courts: must give deference to the choice

of remedy made by the administrative agency, unless it

reflects so gross an abuse of power as to be arbitrary.

See Consolo v. FMC, supra; FCC v. WOKO, Inc., 329

U.S. 223, 227-28 (1946). In the particular area of federal

regulation of labor relations the courts do not have a

charter to insist upon especially strong evidence of vio-

lation as a precondition to an affirmative remedy within

the Board’s jurisdiction. NLRB v. Walton Mfg. Co., 369

U.S. 404, 407. (1962); NLRB v.. Camco, Inc., 340 F.2d

803, 808 (5th Cir.), cert. denied, 382 U.S. 926 (1965).

In the present case the Board’s findings establish not only

a violation of Section 8(a)(1), but also an interference

with the bargaining agent designated by a majority. W e

are unable to say that it was arbitrary for the Board to

conclude that a reasonable vindication of the Act and its

purposes is best served by returning these parties to the

‘status quo ante and compelling the Company to commience

bargaining.

The Union’ 8 petition to review is denied, and the Board’s

pean to de is granted.

So ordered.

2 Compare FCC v. Allentown Broadcasting Corp., 349

U.S. 358 (1955), where the Court rejected a contention that

the preponderance of testimony must be very substantial

to warrant an agency in overturning an Examiner 's finding.

ol

App. 7

(Caption Omitted)

UNITED STATES COURT OF APPEALS

For The District Of Columbia Circuit

(Filed June 3, 1967)

| Nathan J. Paulson, Clerk

DECREE:

BEFORE: Bastian, Senior Circuit Judge, Leventhal and

Robinson, Circuit Judges.

The above consolidated cases came on to be heard upon

a petition for review and amended petition for review

filed by United Steelworkers of America, AFL-CIO and

upon the petition of the National Labor Relations Board

for enforcemént of its Order dated September 21, 1964;

against Northwest Engineering Company, its officers,

agents, successors, and assigns, as amended May 3, 1966.

The Court heard argument of respective counsel on No-

vember 22, 1966, and has considered the briefs and tran-

seript of record filed in this cause. On March 24, 1967,

the Court, being fully advised in the premises handed down

its decision denying the Union's petition to review, and

granting the Board’s petition to enforce said order, as

‘amended and entered judgment accordingly. *

On Consideration Whereof, it is ordered, adjudged aay

decreed by the United States Court of Appeals for the

District of Columbia Circuit that the said order, as amend-

ed, of the National Labor Relations Board i in said proceed-

ings be enforced, and that Northwest Engineering Com-

pany, its officers, agents, successors, and assigns abide by

App. 8

2 neden the ne of the Board i in said order con-

tained. |

Walter M. Bastian

5 5 Senior Circuit Judge, United States Court of

i Appeals for the District of Columbia Circuit

, Harold Leventhal

Cireuit Judge, United States Court of Appeals

for the District of Columbia Circuit

Spottswood W. Robinson, III

Circuit Judge, United States Court of pos

for the District of Columbia Circuit

STATUTES ©

— National Labor Relations Act, as m, (61 Stat

136;.29 U.S.C. 151, et geg.): :

“ Section: 7.—

Employees shall have the richt of self-organization,

to form, join, or assist labor organizations, to bargain

collectively through representatives of their own choos-

ing, and to engage in other concerted activities for the

purpose of collective bargaining or other mutual aid

or protection, and shall also have the Ox to refrain

from any or all of such activities .

ur 10—

5

**

' 7 * 7 ; °

„b) Whenever it is charged that any person 1

engaged in or is engaging in any such unfair labor

practice, the Board, or any agent or ageney designated

by the Board for such purposes, shall have power to

issue and cause to be served upon such person a

complaint stating the charges in that respect, and con-

taining a notice of hearing before thé Board or a mem-

her thereof, or before a designated egent. or agency, at

a place therein fixed, not less“ than five days after the

serving of said complaint: Provided, That no com-

plaint shall issue based upon any unfair labor practice

occurring more than six months prior to the filing of

the charge with the Board and the service of a copy

thereof upon the person against whom such charge

is made, unless the person aggrieved thereby was pre-

- vented from filing such charge by reason of service

in the armed forces, in which event the six-month

period shall be computed from the day of his dis-

charge.“ ee ,

„ * * ‘

Any such proceeding shall, so far as practicable,

be. conducted in accordance with the rules of evidence

applicable in the district courts of the United States

under the rules of civil procedure for the district courts “

of the United States, adopted by the Supreme Court of

the United States pursuant to the Act of June 19,

1934 (U. S. C., title 28, secs. 723-B, 723-C).”’

„de) ff upon the preponderance of the testimony

taken the Board shall be of the opinion that any person

named in the complaint has engaged in or is engag-

ing in any such unfair labor practice, then the Board

shall state its findings of 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

reinstatement of employees with or. without back

pay, as will effectuate the policies of this Act: