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

LIBRARY . : fous | |

SUPREME COURT, U, & th aR ®

a =. DAVIS, CLERK

IN THE.

ees Court of the United States

‘October Term, 1967 . f

——41 91

AMALGAMATED CLOTHING WORKERS OF

Sem AFL-CIO, e

' ~ P. etittoner,

4.

>]

Vv.

NATIONAL LABOR RELATIONS BOARD AND

CRAWFORD MANUFACTURING CO., INC.,

ee Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE —

‘UNITED STATES COURT OF APPEALS FOR.

THE FOURTH CIRCUIT

Jacos SHEINKMAN,

Currrorp D. Reznicexk,

- . Rosert J. Rasr, |

Attorneys for Petitioner,

Amalgamated Clothing Workers

of America, AFL-CIO.

15 Union Square West,

New York, N.Y. 10003,

— (212) 255-7800.

Opinions Below ...........4....0-00. Svenede ae | 1

Jurisdiction .......0......e.0ec ee. Nees 2

Questions Presented errs Pee \ jpescueduear 2

Statute Involved .............. waeesaceeeuer frerr 3

Statement ........... eeaxladsdunars oe Perr er. :*

A. The facts and proceedings WN conen bas ov 3

i&B. The Union’s majority .......2.26etsee00 7

- Reasons for granting the Writ ...... eeeeunes reene

9

1. Conflict with decisions of the Supreme Court 9

2. Non-compliance of. the court with the Su-

preme Court’s ‘‘substantial evidence’’ doc-

trine......... cmbeneesseune eegrwevenssesss 10

3. Conflict among the Circuits .......... aed a

ER ars EN ROAR ey Bee Dee 14

icc era caeecaceaw arene eeeee eee 15

Bauer Welding and Metal Fabricators v. National .

Labor Relations Board, 358 F. 2d 766 (C.A. 8) . 13

Bernel Foam Products Co., 146 NLRB 1277 (1964) 4

Bryant Chucking Grinder Co. v. National Labor Re-

lations Board, No. 30844, decided Decemfer 12,

Epes, Ge Lameeee Ses (OLA. B) on. ccc ccccceccccss 13

Cumberland Shoe Corp., 144 NLRB 1268 ( 1963),

enforced, 351 F. 2d 914 (C.A. 6) ...........0.. 12, 13

Engineers and Fabricators v. National Labor Rela- _

tions Board, 376 F. 2d 482 (C.A. 5) ............ 13

- Purr’s, Ine. v. National Labor Relations Board, 381

F.2d 562, certiorari denied, 389 U.S. 840 ........

. International Ladies’ Garment Workers Union v. Na-

tional Labor Relations Board (Bernhard-Altman),

366 Uz. S. 731 eeesen oeauoeut as @ 6 a © & oe eee eee

Irving Air Chute Co. v. National Labor wennome

- Board, 350 F. 2d 176 (C.A. 2) Se OE eee

PAGE

‘SB,

- Joy Silk Mills, Ine. v. National Labor Relations ,

Board, 185 F.. 2d 732 (0.A.D.C.) Certiorari

SM OE MD ori sass s vevecdabesececeeess

National Labor Relations Board v. Dan Howard

' Manufacturing Co.,-No. 16,154, decided Jannary

11, 1968, 67 LRRM 2218 (C.A.7) ... si escceevees

National Labor Relations Board v. Logan Packing

Co., No. 10,355, 66 LRRM 2596 ..........:.......

N ational Labor Relations Board v. S.E. Nichols Co,

OO Oe OD asics acc ccessvesedivncseseds or

National Labor Relations Board v. Sehon Stevenson"

& Co., No. 10,189, 66 LRRM 2603 ..............

| National Labor Relations . Board v. Southbridge

_ Metal Works, Inc., 380 F. 2d 851 (C.A. 1) “.....

National —Labor- Relations Board v. Swan ‘Super

Cleaners, Inc., No. 16,952, decided October 25,

1967, 66 LRRM 2385 (C.A. 6) ....... eer ere

National Labor Relations Board v. Walton Manuv-

facturing Company, 369 -U.S. 404 .:....0...: noe

United Automobile Workers v. National Labor Rela-

tions Board and Preston Products. Ine., No.

20,137, et al., decided-~ November 14, 1967, 66

LRRM 2548 ........ SUUMSUUAL CAE a uo kd oles eee . 11,

United Mine Workers v. Arkansas Oak Flooring Co.,

eis oles cickbcanneee copier

"Universal Camera Corp. v. National Labor Relations

I OP SE PD env keticcrscvivccccecececs

12.13 |

IN THE

‘Supreme Court of the United States

October — 1967

No.

,,

Vv

AMALGAMATED CLOTHING WorKERs OF Amnawa, AFL-CIO,

Petitioner,

v.

NationaL Lasor ReELatTions Boarp AND

Crawrorp Manuracturine Co., Inc.,;

Respondents.

,

dl

PETITION FOR A WRIT OF CERTIORARI TO THE.

UNITED STATES COURT OF APPEALS F OR

THE FOURTH CIRCUIT

The Amalgamated Clothing Workers of America, AFL-

CIO (referred to herein as the-.“‘Amalgamated’’ or the

‘‘Union’’), Intervenor in the proceedings below, petitions

for a writ of certiorari to review the judgrwnt of the

United States Court of Appeals for the Fourth Circuit

in this case. The Solicitor General filed: a petition for

certiorari in this case on behalf of the National Labor

Relations Board on January 36, 1968.

Opinions Below

The opinion of the court of appeals, not yet: officially

reported, is contained in 66 LRRM 2529. The decision

and order of the National Labor Relations Board is re-.

pe ene we ‘tibcitle ee ery Neer ne EE elites Radics Danced ipete b ERAN ASS Hae nist ie at gee Lea BG BRR tld ts 6s ine Be MTSE ain geo ie

ported at 161 NLRB No. 91 (1966). The court’s opinion is

contained in the Board’s petition; App. A (pp. 15-33) and

the Board’s Decision and Order is contained in the Board’s

petition App. C (pp. 36-135) and at J.A. 11-1111 The

opinion of the court below denying the Amalgamated’ 8

motion for rehearing is not contained in the Board’s peti-

- tion and is attached to the: Amalgamated’ . petition as

Appendix EK.

Jurisdiction

The judgment of the court of appeals was entered

October 27, 1967 (Board petition App. B, pp. 34-35.). -The

Amalgamated filed a motion for rehearing November 24,

1967, which motion was denied by the court of appeals De-

cember 6, 1967 (Appendix E, infra, pp. 15-16). ‘The

jurisdiction of this Court is invoked under 28 U.S.C.

1254 (1). | ; |

Questions Presented — ;

1. Where substantial evidence supports the finding of

mae the National Labor Relations Board that eight employees _

were laid off on account‘of their union activity, may the

court of appeals reverse the Board because it chooses to

accept the company’s explanation for the lay-offs?

-.2. Where substantial evidence supports the findings of

the N ational Labor Relations Board: (a) that a majority of —

the employees in a unit appropriate for collective bargaining

signed cards which clearly authorize the union to represent

them for collective bargaining purposes; (b) that none e of

1 In order to avoid duplication of the record; references to pro-

ceedings below are keyed to the National Labor Relations Board’s

petition for certiorari (referred to herein as “Board petition”), as

_ well as to the Joint Appendix in the court below (referred to herein

as “J.A.”).

ts eae na ae ealieah ae Nicene Litnlesas ty i i a a Fy

— aa as

the employees establishing said madedtie' x were told that

the cards would be used solely te. obtain a Board representa-

tion election; and (c) that the company by other acts and

conduct engaged in unfair labor practices designed to dis-

sipate the union’s majority; may the court of appeals —

refuse to.¢nforce a bargaining order based on such findings —

because it decides that the employees were confused a as to

the.purp e of the cards?

Statute Involved ~< ya

The relevant provisions of the National Labor Relations

Act (61 Stat. 136, 73 Stat. 519, 29 U.S.C. 151, et seq.) are

set forth in the Board’s petition, _——— D, pp. vanes

Statement

A. The facts and proceedings below

This case arises out of the Amalgamated’s campaign to

' organize the. employees of Crawford Manufacturing Com-

pany (referred to herein as the ‘‘Employer”’ or the ‘‘Com-

_ pany’’) at the Employer’s Emporia, Kansas plant. ‘The

Union’s representatives solicited employees to sign au--

thorization cards designating the Amalgamated as their

collective bargaining representative by telling them in

‘straight-forward, accurate and thorough terms the steps the

Union would take to obtain bargaining rights.

' Authorization cards were first, distributed to employees

at the plant gate on January 7, 1965? by Jay Dee Patrick,

a national representative of the AFL-CIO acting on behalf

of the Amalgamated. The cards were attached to a leaflet

bearing the prominent heading ‘‘An Invitation to Join’’

the ‘‘ACWA”’ (Board petition pp. 44-45; J.A. 117-118,

2 All dates are 1965 unless otherwise noted.

4

631-634). The language of the cards, set out below,? spe-

. Cifically states that it, is an ‘application for membership,

authorizes the Amalgamated to represent the signatory in

negotiations concerning conditions of employment, ‘and

‘ makes no.mention of an election whatsoever. The follow- ta

ing day, Plant Manager Jonés addressed all the employees

and, as if to make plain the meaning of the cards, stated

that ‘‘yesterday an outside union organizer handed all of °

our employees an invitation to join an outside..union.’’

_. (Board petition p. 45;-J.A. 588-589).

At the Amalgamated’s first organizational meeting, on

January 12, Patrick read the cards to some 75 employees.

He explained thatthe Union would demand recognition on:

the basis of the signed authorization cards, but pointed out

candidly that the demand would probably be rejected and

that it-would then be necessary to proceed to an election ‘

(Board petition pp. 49-50; J.A. 121-122, 133).. Patrick

® The card reads as follows:

APPLICATION FOR MEMBERSHIP . oe

: in the | _

Amalgamated Clothing Workers of America,

a2 daa AFL-CIO as

1627 Locust St. a pts St. Louis (3) Mo.

7 CEntral 1-9329 |

I, the undersigned, hereby apply for membership in the Amalgamated

Clothing Workers of America, and do’ hereby appoint and authorize

the officers thereof, to represent and negotiate for me in-all matters,

pertaining to wages, hours and other conditions of employment...

I SE ta cli eee ce duan deeeadieecese cea

MENS ctuwaseacessavevuehese (Reaetne ees eene denn bhesdeeecas

‘Telephone Number: ...............e00000% eae

SES biaeedndssereeet sees. peetadnweueseeeds eteeeeteeses

ee

5

told the employees to take the cards nein read and think

__ about them and discuss the matter with their families, and

return the cards to the Union in the envelopes provided

(Board petition p. 50; J.A. 123).°

_ By January 18 the Union had received over 100 ‘teint

authorization cards from employees i in an appropriate col-

lective bargaining unit of 172 employees (Board petition

pp. 52,’ 104-105).. The Union thereupon made its written

‘demand for recognition in the said unit, and petitioned the

Board for an election. The Employer rejected this demand

on.January 20, by which time the Board had received the

Union’s election petition ( Board petition pp. 43, 53-54;

J.A. 621-623).

' On January 19, Patrick held a second meeting, ¢ Seaisilal

by about 72 employees. Patrick informed the employees

that he had sent the Company a letter requesting recogni-

tion based upon the authorization cards and read the letter

to them. He also told them that he had’ ‘petitioned for a

Board election in the event the demand was refused which,

as he had previously advised them, he anticipated. He told

the employeés that they were free to withdraw their

‘authorization cards, as suggested by the: Company, and

offered to help anyone who so wished to get his card back

(Board petition p. 58; J. A. 135-136).

During the two and a half months .between the com-

mencement of the Amalgamated’ S organizing drive and

the election, the Board found that the Employer engaged

in a course of conduct which was designed to dissipate ~

the Amalgamated’s majority and constituted unfair labor

practices, It held that the Employer repeatedly threatened

employees with reduced benefits if the Union ,won the

election; warned known key Union adherents of reprisals

for their. Union activity ; ; coercively interrogated employees

5 Between 10 and 20 employees returned their cards to Patrick at .

that. meeting (Board petition p. 52; J. A. 123, 133). The others

held their cards for a longer period of time.

od

es z

about their Union activities; and, violated Section 8(a) (1)

of the Act in other respects (Board petition pp. 94-104,

127). The court found that the Board had substantial

evidence in the record to support these findings and sus-_

tained its order @irecting the Employer to cease and

desist from these violations “ the Act (Board petiiion

ip. 18). ane

But when it came to the Board’s —— that ; rs

- Employer violated Sections 8(a) (3) and 8(a)(5) of the

Act—findings that “in the opinion of dissenting J udge |

Sobeloff call for a more stringent remedy than ‘‘an in-

- effectual wag 2 on the wrist’? ® —the court balked at sus-

taining the oard. ~e

* The day after the Employer and the - Amalgamated

signed a consent election agreement the Employer laid off

eight employees only to recall them almost immediately

after the: Union lost the election held March 26. Relying

upon the timing of the layoffs, the union activity‘of those

involved and the transparency of the Employer’s proffered

economic justification, the Board held ‘that these layoffs

were discriminatory and violated Section 8(a)(3) of the

Act (Board petition pp. 88-91). Without even raising the

’ question whether substantial, evidence supported the

Board’s findings the Court reversed because it independ-

ently concluded that there was ‘‘no acceptable basis for

this discredit of the company’’ (Board petition pp. 18-19).

- The Union was defeated in the election 85 to 69, with 8

iuiuaes ballots. In order to effectively remedy. the

numerous violations of the Act by the Employer, the Board

set the election aside and ordered the Employer to bargain

with the Amalgamated on. the basis of its majority. status -

as demonstrated: by the authorization cards. This remedy

was not only predicated upon the finding that the Employ-

er’s refusal to bargain with the Union was in bad faith —

in violation of Section 8(a)(5) of the Act, but was granted ~

6 Judge Sobeloff so characterized that portion of the remedy

sustained by the court — petition p. 25). .

t.

f ’S because the Employer’s conduct made it impossible to hold.

a free and fair election (Board petition pp. 102-104).

®The court refused to'enforce the Board’s bargaining order

_ because it entertained a doubt that a majority. of the

employees validly designated the Union to represent them.

So finding, the court did not reach the question whether

the Employer violated Section 8(a)(5). of the’ Act or

_ whether the remedy is appropriate (Board petition pp.

19-25). j

,

B. The Union’s majority.

The Board sustained the Trial Examiner’s reasoning

and conclusion that 101 employees in an appropriate collec-

tive bargaining unit of 172 employees validly. designated

the Union to represent them. The Trial Examiner gave

considerable weight to the uncontroverted facts that the

card itself, in plain and unambiguous language, authorizes

the Amalgamated to represent the employees; that Patrick

read the card to an assembly of about 75 employees; that

he subsequently read to about 72 employees a letter he had

sent to the Employer requesting recognition on the basis

of these authorization cards; and, that, at best, only one

employee attempted to covets his bargaining authorization,

despite repeated requests by the Employer that the em-

ployees do so (Board petition pp. 115-116). The court

does not dispute any of these facts and indeed affirms that ~

at the second meeting Patrick told the employees he had

used their cards as the basis of his demand for recognition . -

(Board petjtion pp. 19-25). The Trial Examiner concluded ~

that Patrick gave a straightforward, clear and truthful

account of the uses to which the card would be put.

The Trial Examiner found that none of the 101 cards

he counted as valid were procured by a representation

that the card would be used solely for an election;7 he .

% The Trial Examiner’ rejected 4 of the 105 proffered cards on

this basis, leaving 101 cards upon which he based the Union’s

majority (Board petition. pp. 126, 138). |

" atte

discredited testimony to this effect when given in response

to leading questions or where inconsistent with credited

testimony. In assessing the Employer’s attack on the

validity of the cards the Trial Examiner noted that the

employees testified almost nine months after they signed

their cards and appeared not to have a clear recollection

at the time of the hearing of the representations made to

them previously-(Board petition p. 109). He considered

the Employer’s pre-trial interrogations ® to unduly sug-

gest to employees that they testify that they had signed

the cards in order to obtain an election and noted that

employees testifying in front of a hostile Employer would

naturally wish to minimize the effect of signing an authori-

- zation card by stating it was for some purpose other than

representation (Board petition pp. 110-112). For these

reasons, he viewed: with reasonable skepticism testimony

inconsistent with the overt act of signing a valid and un- —

ambiguous authorization card.

The court, on the other hand, by taking some of Pat-

rick’s statements out of context ® and without considering

8 The questionnaire, distributed by the. Company to practically

every employee, is set out in the Board petition pp. 134-136 and at

J.A. 558-587. The only question dealing with an election, No. 1(d),

_ required the employee to use the word “solely” if he wished to state

that representations were made to him about a Board election. It

appears that after employees completed the questionnaire they were

called in individually by the Company’s attorney ‘to amplify their

answers. The Company’s attorney then reduced their. statements to

writing using his own language, and had the employees sign or initial

the resulting document, see e.g. J.A. 160-164, 191-195, 321-322.

® The court refers only to-those representations by Patrick having

to do with an election or application for membership, and completely

ignores Patrick’s statements that the cards would first used to

demand recognition (Board petition pp. 48-51, 116-118). Dissent-

ing Judge Sobeloff cites the other relevant’ portions of the Board’s

Decision in footnote 3 of his dissent (Board petition pp. 26-27).

With regard to Patrick’s statements about joining the Union, he

merely assured employees that ‘their application for membership

would not be acted upon until a contract had been successfully

negotiated. (Board petition, pp. 117-118). The court’s analysis is

not directed at what Patrick said, but rather at the elusive subjective

state-of mind of the employees who signed cards.

in detail the testimony of even a single employee, rejected

all 101 cards outright because. it felt that employees were

confused as to the purpose of the cards.

9

Reasons for granting the Writ -

¥ Conflict with decisions of the Sia mw

The Fourth Circuit has, in virtually’ all cases recently

decided by it, rejected the-notion that validly obtained -

authorization cards may create a duty to bargain with a

union. If this is not apparent from the court’s wholesale |

rejection of the authorization cards in this case, it is seen

in two other recent cases in this circuit which must be read

with the Crawford decision: 1) National Labor Relations

Board v. Logan Packing Co., No. 10, 355, 66 LRRM 2596;

and 2) National Labor Relations Board v. Sehon Seveneee

& Co., No. 10,189, 66 LRRM 2603, both decided October 27,

1967. While both cases could have been decided on narrow

grounds (as pointed out by Judge Sobeloff.in his separate

opinion in Stevenson) the court condemned. authorization

cards as a predicate for demanding recognition except in

‘extraordinary cases.’’? (66 LRRM at 2603.) This reason-

ing makes it virtually impossible for a union to obtain

recognition through ‘authorization cards unless the em-

ployer voluntarily grants such recognition, a result which

is squarely i in. conflict with the Supreme Court’s decision im:

United Mine Workers v. Arkansas Oak Flooring Co., 351

U.S. 62; ef. International Ladies’ Garment Workers Union

v. National Labor Relations Board (Bernhard- ltmann), -

366 U.S. 731; see also Joy Silk Mills, Inc. v. National Labor

Relations Board, 185 F. 2d 732 (C.A.D.C.), certiorari de-.

nied, 341 U.S. 914.

Ft»

10

2. Non-compliance of the court with the Supreme Court’s

ae “substantial evidence” doctrine.

in National Labor Relations Board v. Walton Manufac-

turing Company, 369 U.S. 404, this Court reiterated the

holding of Universal Camera Corp. v.°National Labor Re-

lations Board, 340 U.S. 474, in noting the Fifth Circuit’s

failure to apply the ‘‘substantial evidence’’ rule to dis-

charge cases decided by the Board. In the instant case

the Fourth Circuit has exceeded its scope of review in the

same manner as that condemned in Walton.

In this case, there was substantial evidence in the record

to support the Board’s finding that eight employees were

laid off because of their union activity, in violation of

Se¢tion 8(a) (3) of the Act. The Board based.its conclusion

on the timing of the layoffs, the fact that union adherents

were selected, and the failure of: the Employer to support

its alleged economic justification for the layoffs. In dis-

posing of this entire issue in two short paragraphs (Board

petition pp. 18-19), the court did not even consider whether

substantial evidence supported the Board’s conclusion.

Rather, it cited the Employer’s proffered economic justi-

fication and cryptically. stated ‘‘we see no acceptable basis

for this discredit of the company . . . we discern no falsi-

fication here’’.

At best, the facts give rise to two conflicting views as

to the company’s motivation for its conduct. But the

court may not “displace the Board’s choice’’ between these

two possibilities, where the Board’s conclusion is supported

_ by substantial evidence, even though the court could have

justifiably drawn a different inference if it had heard the

case de novo. Universal Camera, supra at p. 488. ..The

court below chose the Employer’s explanation in spite of

‘substantial evidence to support thé Board’s findings, thus

ignoring this Court’s instructions in Walton and Universal

Camera. (supra) — |

‘il

The court’s erroneous interpretation of its reviewing

function also permeates its treatment of the authorization

ecards. Its approach should be contrasted with that of the

D.C. Circuit in the recent. case of. United Automobile

Workers v. National Labor Relations Board and Preston

Products, Inc., No. 20,137, et al:, decided November 14, 1967,

66 LRRM 2548. The D.C. Cireuit upheld the finding of the

Trial Examiner and the Board that employees validly

designated the union as their collective bargaining agent,

and distinguished the recent decision of the Second Circuit

in National Labor Relations Board vy. S.E. Nichols Co.,:

380 F. 2d 438, in which the Second Circuit made an inde-

pendent review of the evidence. Commenting on this, the

D.C. Circuit wrote: \

‘“‘The Nichols rule would require us to, ©» mine all

relevant testimony in detail, to adjudge che credi- -

bility of each witness, and to weigh the evidence.

Yet, as noted above, the Board is ‘one of those

* agencies presumably equipped or informed by experi-

ence to. deal with a specialized field of knowledge’,

Universal Camera Corp. v. National Labor Relations——

Board, supra, 340 U.S.-at-488,‘and it would be diffi-

cult to imagine a topic more clearly within this

specialized field than the evaluation of the signifi-

cance of the circumstances under which authorization

_ . cards are solicited.’”’ —

7 In this case, the Trial Examiner made numerous credi-

bility findings, .and the Board in sustaining these findings

utilized its particular expertise in determining the validity

of the authorization cards. In accordance with the scope

of review delineated by Universal Camera and reiterated

by the D.C. Circuit, these findings should not have been

disturbed on .review; when they were supported by sub-

stantial evidence.

412

3. Conflict among the Circuits. .

The Board’s bargaining order would have been sus-

tained in the courts of appeal for at least two other circuits.

In Umited Automobile Workers v. National Labor Rela-

tions Board and Preston Products, Inc., supra, the D. C.

Circuit upheld the Board’s Cumberland Shoe? doctrine;

that a clear and unambiguous authorization card may not’

be invalidated absent a representation to. the signatory -

employee that the only.purpose of the card is.to secure an

election. A similar view. is taken by the First Circuit in

National Labor Relations Board v. Southbridge Metal

Works, Inc., 380 F. 2d 851 (C.A: 1). ‘Under the rulings of > —

both courts a representation to an employee that the card

will be used to obtain an election does not invalidate it, since .

such a use is consistent with the card’s primary function -

of obtaining recognition. Both courts agree with the Board

that the overt act of signing a clear authorization card is

more reliable than the testimony of employees, in the

presence of company officials, after the company has com-

mitted unfair labor practices. The two circuits also affirm _

the Board’s doctrine that an employee’s thoughts (or after-

_thoughts) as to why the signed a card cannot negate the ©

_ overt act of having signed the card, Joy Silk Mills, Inc.

_v. National Labor -Relations Board, 185 F. 2d 732, 743.

| (C.A.D.C.) certiorari denied 341 U.S. 914. Since the Board

in the instant case found that none of the 101 cards it

counted towards the Amalgamated’s majority are tainted by

a representation that the card would be used only for an

election, its bargaining order would be sustained in . the

D.C. and First Circuits.

In contrast with the above Circuits, the Fourth Circuit

makes its own review of a cold record, ignoring the Board’s

expertise in the realities of organizing campaigns, and

1° Cumberland Shoe Corp., 144 NLRB 1268 (1963), enforced,

351 F.2d 917°(C.A.6).. :

13

determines what employees thought when they signed au-

thorization cards. . Only the Fifth Circuit, in Engineers and

Fabricators v. National Labor Relations Board, 376 F. 2d

' 482 (C.A. 5), takes a similar view, chiding. the Board for .

failing to probe ‘‘into the subjective intent of the chal

lenged signers.”’

Recent Siniaions of several. of the other circuits reflect

a modified view of the Cumberland Shoe doctrine, e.g.

_ National. Labor Relations Board v.-S.E. Nichols Co., supra;

‘ Bryant Chucking Grinder Co. v. National Labor Relations

Board,-No. 30844, decided December 12, 1967, 67 LRRM

2017 (C.A. 2); National Labor Rdations Board v. Swan

Super Cleaners, Inc., No. 16,952, decided October’ 25, 1967, -

66 LRRM 2385 (C.A. 6); National Labor Relations Board

v. Dan Howard Manufacturing Co., No. 16,154, decided

January 11, 1968, 67 LRRM 2278 (C.A. 7); Bauer Welding

and Metal Halistaaies v. National Labor Relations Board,

358 F. 2d 766 (C.A. 8). The Tenth Circuit appears to con-

tinue to follow Cumberland Shoe, see Furr’s, Inc. v. Na-

tional Labor Relations Board, 381 F. 2d 562, certiorari ~

- demed, 389 U.S. 840. Several of the foregoing decisions _

explicitly. point out the differences between their views and

those of other circuits on the issue of authorization cards,

e.g. Bryant Chucking Grinder Co. v. National Labor Rela-

tions Board, supra, 67 LRRM at 2019, 2020 (referring to

C.AtD.C.; C.A. 2; and C.A. 6); United Automobile Workers

v. National Labor Relations Board and Preston Products, -

‘Inc., supra, 66 LRRM at 2552 and 2555 (referring to C.A.

2 and C.A. 6); National Labor. Relations Board v. Swan

Super Cleaners, supra, 66 LRRM at 2392 (referring to

C.A. 2); National Labor Relations Board v. Dan Howard

Manufacturing Co., supra, 67 LRRM at 2280, 2281 (refer- .

ring to C.A.D.C.; C.A. 2; and 6).

Thus, the conflict between the Circuit Courts is multi- -

plying and requires a final » re solution.

"Ta. 7 | ' es

The Petitioner, an international union, which represents

some 385,000 employees i in almost every state in the United -

‘States, should not be subjected to such a variety of holdings

depending upon the circuit in which jurisdiction lies to

review or enforce a Board order.'! The vital question

whether employees can secure the representation rights

, guaranteed them under the Act and whether the Board

’ ean fashion remedies adequate to correct violations of the

Act should not be left to jurisdictional happenstance. This

Court-should harmonize the conflict that now exists among

the circuits.

CONCLUSION ~

For the reasons stated, the petition for certiorari should

be granted.

Respectfully submitted,

Jacos SHEINKMAN,

Currrorp D: Reznicex, ~

Rosert J. RaBin,-

Attorneys for Petitioner,

- Amalgamated Clothing Workers

of America, AFL-CIO.

15 Union Square West,

New York, N.Y. 10003,

(212) 255-7800.

tf

Dated: March 1, 1968.

_' 41 Jurisdiction in the instant case in the court below turned upon

the location of the parent office of the Employer, and not upon the

location of the plant in which the organizing drive took place.

>

15

_ APPENDIX “E”

Order Denying Petition for Rehearing

UNITED STATES COURT OF APPEALS = 2

For THE Fourtu CrrcuirT

No. 11,040.

.

Vw

CrawForp Manuracturine Co., Inc.,

Petitioner,

VS.

NationaL Lazor Reations Boarp,.

Respondent, —

AMALGAMATED CLOTHING WorkKERs or AmeEnica, AFL-CIO, ©

Intervenor.

4

Vv

Upon consideration of the petition of the intervenor,

Amaigamated Clothing Workers of America, AFL-CIO,

for a rehearing or a rehearing en banc, the court finds ©

‘no grounds asserted therein which were not presented upon

the initial argument of this case and considered by the

court, and finds no reason justifying the rehearing.

16

Wherefore, it is ordered, with the concurrence of the.

_ other members of the court, that ‘the said eam be, and

it is tiated denied.

. Srwon E. em

United States Circuit Judge

Apert V. Bryan -

United States Circuit Judge

Harrison L. WINTER

- United States Circuit Judge

Filed |

Dec 6-1967 ae

“Margaret L. Davis

Chief Deputy Clerk

_A true copy,

Teste:

Marearet L..Davis. ©

Chief Deputy Clerk, —

U. S. Court of Appeals

for the Fourth Circuit.

. is

~~

ae

a

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