Petition for Writ of Certiorari — Serv-Air, Inc. v. National Labor Relations Board

' SUPREME COURT. GU. @.

saree

JUL 8 1968

scares erermwnrn<e—T- TORE DAVIS, CLERK

ia the

- SUPREME COURT OF THE UNITED STATES

OcToBER TERM, 196%

No. me ay 6

SERV-ArR, INC.,

Petitioner,

VERSUS

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT

FRANK CARTER

Attorney for Petitioner

of Counsel:

OJTEN & CARTER

Bass Building

Enid, Oklahoma

July, 1968

UTTERBACK TYPESETTING CO., 13 $0. WALKER, OKLAHOMA City. PH. CE 5S-0030

' SUBJECT INDEX

a : PAGE

PIII, siinnccnesicseinescnenniccennsivssmia ‘Tenner 1

Opinion Sought to be Reviewed Seen ae - -*

~ Grounds for Jurisdiction a nnn ta ae

Questions Presented for Review | EER. 3

Constitutional Provisions, Statutes and Regulations

Involved : 4

Concise Statement of the Case _.. 5

* Argument

No. 1—The “Serious Harm” Notice

Nos. 2 and 3—Offer to Return to Work seams sane on S2

No. 4—The Badge Incident _.. — 15

No. ‘5—The Election Petition | cacewige,’. * a

No. 6—Jet Engine Reduction in Force a

Conclusion ~_........... , clintiehechigercneiteddb eile 27

Certificate of Service _.... 29

AUTHORITIES

CASES:

‘Allied/Egry Business ees Inc., 169 NLRB 60

(CCH 22,089) ——

Amalgamated Clothing Workers of America v. )

NLRB, D.C. Gir., 365 F.2d 898 2... - oo

Caterpillar Tractor Co. v. NLRB, 230 F. 2d — 20

Fabri-Tek, Inc., 148 NLRB 156, rev. by 8th Cir. 352 aes

_ F.2d 577 , : 17, 18, 19, 20, 21,22 -

‘

t

, —

INDEX CONTINUED . PAGE.

Kayser-Roth Hosiery (57 LC | 12,472) (388 F.2d

979) 41

Murphy-Diesel, 36 LC 65792, 263 F.2d 301... 17

NLRB v. Essex Corporation, 245.F.2d 589, 9th Cir. 17

NLRB v. Floridan Hotel of Tampa, Inc., 218 F.2d

545 (5th Cir. 1963) — 17

NLRB v. Harrah’s Club, 143 NLRB 1356, 337 F. 2d

177 (1963) aan 17

NLRB v. Threads, 308 F. od es \- 2 eee 7,11.

NLRB v. TRW-Semiconductors, Inc. (9th Cir.),

No, 21549 (1967), 56 LC {| 12,299, 385 F.2d 753... 11

Republic Aviation ee v. NLRB, 324 U.S.

space : 20-21

Suprenant Manufacturing Co. v. NLRB, 5th Cir.,

341 F.2d 756 _... 7

Wellington Mill Division, West Point Manufactur-

ing Co. v. NLRB, 4th Cir., 330 F.2d 579, cert.

den. 379 US. EPS Hae eps tas Ameen near 7,11

CONSTITOTIONAL PROVISION: ,

United States Constitution, First Amendment -_..... 3,4

STATUTES: =) te |

28 U.S.C.A. 1254 a . eS

MISCELLANEOUS: iS |

Rules of the Supreme Court, Rule ad ;

| Taft-Hartley Act, Sec, 8(c) - tes 4-5

Webster’s® 20th Century Dictionary alan,

2nd Ed., “Without conditions or reservations;

absolute” : 13

APPENDIX A

Opinion of United States Court of Appeals for the

Tenth Circuit | j-xiii

In the |

- Supreme Court of the United States

| OcTOBER TERM, 1967

SeErV-Arr, INC.,

. Petitioner,

. VERSUS _

* ’ NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT

> A

JURISDICTION .

Petitioner, Serv-Air, Inc. invokes the jurisdiction of |

this Court by virtue of the provisions of Title 28, Section

1254, U.S. C. A., which provides:

“Cases in the Courts of Appeals may be reviewed

by the Supreme Court by the following methods:

“1, By Writ of Certiorari granted upon the Petition

of any party to any civil or criminal case, before or

after rendition of judgment or decree.”

| | on War 343

OPINION SOUGHT TO BE REVIEWED

This Petition for a Writ of Certiorari is taken for the

purpose of procuring a review and it is hoped, a reversal

of an epinion delivered by the Circuit Court of Appeals

Oi Neo agnle Na

snl

for the Tenth Circuit (involving the question of enforce-

ment of an order of, the National Labor Relations Board),

' cited as “Serv-Air, Inc. v. NLRB,” — F.2d —, and a copy

_ of which opinion is attached hereto, as Exhibit A:

GROUNDS FOR JURISDICTION ©

Pursuant to Rule 23 of the Supreme Court, a concise

statement of the grounds on which the Jurecicten ¢ of this

Court is invoked follows:

1. The date of the decves sought to be reviewed, and >

the time of its entry are as follows:

Date of rendition of the opinion, January 19, 1968; |

Date of entry, January 19, 1968.

2. Subsequent to said decree, a. Petition for Re-

hearing was filed by your petitioner on March #10968. On

® April et 1968, the Petition for Rehearing was denied by

, divided Court (2 to 1) with Justice Wilbur K. Miller dis-

~ senting. On April 29, 1968, the Circuit Court acting through

Judge Jean Britenstein, entered its Order withholding a

mandate for a period of 30 days which was to expire on

May 28, 1968. Thereafter, and on May 28, 1968; an Order:

was entered by the Honorable Byron R. White, Associate

Justice of the Supreme Court of the United States, staying

- the mandate, “pending ‘the timely filing and —— of

a petition for a Writ of Certiorari. ole.

' 3. The statutory provision which petitioner believes

to confer on this Court jurisdiction to review said judg-

“ment or decree in question by Writ of Certiorari is as

heretofore asserted, Section 1254, Title 28, U.S.C.A.

—

| IV. i

QUESTIONS PRESENTED FOR. REVIEW

The questions presented for review by this Petition

are as follows:

1. Was the “serious harm” posted by the Company

-non-coercive and protected -by the “free speech pro-

vision” of Section 8(c); and by the free speech (First

Amendment) provision of the Constitution of the

United States?

2. Do the following communications issued to the

Company by the Union during a strike constitute

unconditional offers to return to work?

(a) “The Union is respectfully demanding’ that

‘ the company cease and desist these unfair practices .

and to allow all concerned to return to their jobs

without any more retaliatory measures being taken

against them because of their concerted actions.”

“. and. ane >.

(b) “The group desires to work but they want

their legal rights respected.” —

3. Does the following communication constitute an

“unconditional offer to return to work?”

“Be further advised that they are interested in

returning to their jobs‘and remaining on their jobs

-as long as the Company does. not create instances

that would cause further disturbance.”

4; “Whether or not a Company engaged in an ex-

tremely sensitive activity, such as the maintenance of

multi-million dollar aircraft, must permit the adorn-

ment by employees of ‘multiple-badges,’ and ‘pie plate’

badges, and affixed ‘streamers’ to their apparel, -re-

sulting’ in diversion among employees, and in the

hazard of possible injection of ‘foreign objects’ into

e

ag

the mechanism of such aircraft, even though permit-

ting the wearing of. a single uniform union button?

_ And whether or not the wearing of such multiple

badges constituted a violation of a valid ‘no-solici-

tation’ rule.”

5. “Whether or not an election petition circulated

in one of the plant shops, simply seeking an election

_after one year of certification, was an unfair practice

on the part of the employer, even though a supervisor

participated in such circulation.” _ ; .

6. “Whether or not the employer was guilty of an

unfair labor practice under Section’ 8(a) (3) and (1)

_ of the Act, when, pursuant to a mandatory require-

ment by the Air Force that it must reduce its mainte-

nance crew by eight men, it objectively selected the

two crews consisting of four men each, who had the

lowest record of productivity in the plant.”

Vv.

CONSTITUTIONAL PROVISIONS, STATUTES

AND REGULATIONS INVOLVED

(a) With respect to the “serious harm notice”

posted by the Employer in 1960, and held by. the Court

to be coercive (although the 4th, 6th and D.C. Circuits

have held such notices to be well within the realm of

the free speech doctrine), the following pertinent

Article, Statute, and Regulations are quoted as fol-

lows:

(1) The First Amendment to the Constitution of

the United States provides:

“Congress shall make no law * * * abridging

the freedom of speech or of the press * * *.”

(2) Section 8(c) “of the Taft-Hartley Act adopted

in 1947 provides: |

anon

“Section 8(c). The expressing of any views,

arguments, or opinions or the dissemination

thereof whether in written, printed, graphic or

visual form, shall not constitute or be evidence of

an unfair labor practice under any of the pro-

visions of this Sub-chapter, if such expression

contains no threat of reprisal or force or promise

of benefit.” |

(b) The “serious harm” notice posted by the Com- |

pany in 1960 and maintained Se, reads as

follows:

“Since the Union has been putting on a campaign

to get in here, some of you have been asking ques-

tions in regard to the following matters. We have

decided to state the Company’s position on these

subjects as clearly as we can for everybody alike:

“(1) This matter is, of course, one of concern to

the Company. It is, however, also a matter of seri-

ous concern to you and our sincere belief is that if

this Union were to come into this Plant, it would

_ not work to your benefit but to your serious harm.”

VI.

CONCISE STATEMENT OF THE CASE

This case presents six grounds as above set forth for

a review of the decision of the Circuit Court for the Tenth

Circuit.

e petitioner here, Serv-Air, was petitioner in the

Circuit Court, in which it sought a review of an order of

‘the NLRB involving ° several issues. The Board filed a

Cross Complaint, seeking enforcement. The Court over-

ruled the Board on certain issues and overruled the pe-

titioner, Serv-Air in certain. instances.

CR TES PITT TR LAPD NY II MPMI ST at ad

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_

It is only those. issues which we deem to be of sub-

stantial importance which Serv-Air desires to submit to

this Honorable Court for resolution.

There was no question concerning jurisdiction. Serv-

Air, Inc. is a corporation which holds a contract with the

' United States Air Force, for the maintenance of the tangi-

ble facilities and the maintenance of a highly intricate

powerful and complicated jet engine aircraft complex ad-

vanced Air Force Base at Enid, Oklahoma, which is one

of the vital locations in the United States Air Force Train-

ing Command. | |

In the discharge of its duties, responsibilities .and

functions, it employs approximately 1,100 people on the

Base. Of this number, only approximately 57 workers are

members of the bargaining unit which was certified by the

Board on June 12, 1964 as the “Fire Rescue Department.” -

The relationship between these firemen “Smoke Eater’s

Lodge No. 898” (and the International Association of Ma-

chinists AFL-CIO) and this petitioner is the subject of the

issues which were involved in the proceedings before :the

Board and before the Tenth Circuit. This case also involves

certain other alleged activities of the Company with re-

spect to other employees in the Maintenance Shops, but

_ which were not certified as bargaining units.

A complaint was filed by the General Counsel con-

cerning certain alleged unfair labor practices on the part

of the Company. Hearings were completed before the

examiner on April 8, 1965. The examiner rendered his de-

cision on November 18, 1965. The decision was partly in

favor of and partly adverse to this petitioner. Exceptions

were taken and the Board rendered its decision (161 NLRB

No. 17, dated October 25, 1966).

ee

As to those issues which were decided adversely to

this petitioner, a Petition for Review was filed with the

Tenth Circuit. Briefs were filed. The case was heard before

the Honorable Wilbur K. Miller, of the District of Colum-

bia Circuit Court, Judge Britenstein, and Judge Seth, Cir-

cuit Judges. |

4 On January 19, 1968, the Circuit Court rendered an

opinion, sustaining in part and overruling’in part the pe-

tition of Serv-Air, Inc. On March 8, 1968, the petitioner

' filed its petition for rehearing and on April 23, 1968,

without argument, the petition for rehearing was denied -

by a divided Court (two to one) with Justice Wilbur K.

Miller dissenting.

VII.

ARGUMENT

No. 1—The “Serious Harm” Notice

We first proceed to the “Serious Harm” notice.

This was promulgated in 1960 as disclosed by the

record, and admitted by the lower court.

Not only this type of notice but the exact language

thereof has been upheld by the 4th Circuit in Wellington

Mill Division, West Point Manufacturing Co. v. NLRB, 4th

_ Cir., 330 F.2d 579, cert. denied 379 U.S. 882; Suprenant

Manufacturing Co. v. NLRB, 5th Cir., 341 F.2d 756 and

Amalgamated Clothing Workers of America v. NLRB, D.C.

Cir., 365 F.2d.898. |

All of these decisions were cited to the Circuit Court’

in addition to: ;

—NLRB v. Threads, 308 F.2d 1 (4th Cir.).

.}

3 Ade sete nant tt

ae ee

It is noted that the 10th Circuit on this issue de-

termined that while the notice is proper and was protected

by Section 8(c),,.when adopted in 1960, “that conduct of

the company in.1964 deprived it of that status.”

In the Court’s decision it mentioned three Circuit

Courts which had. held this type of free speech non-

coercive, the Fourth Circuit, the Sixth Circuit arid the D. C.

Circuit, and in which cases the respective Courts differed

with the Board. That in the atmosphere which existed in

- 1964, however, the notice “could well be considered as a_

threat of reprisal.”

I am sure that this Court would welcome and consider

the suggestion and information, that since the opinion of

the Tenth Circuit was rendered on January 19th, there has

been a radical departure on the part of the Board in its

, assessment of the validity of this type of notice, issued by

the employer; and that there has also been another case

_ decided by the Fourth Circuit reiterating its position

that. such notice is valid, notwithstanding attendant

circumstances. : —

In the case of Allied/Egry Business Systems, Inc., 169

NLRB 60 (CCH 22,089), decided January 30, 1968, the em-

ployer had issued a letter during an organization campaign

stating:

“your company stands very strongly against bringing

this union into our plant. We feel that it would be a

great mistake at this time, that it could not benefit you

or the company and that it could quite possibly cause

sericus problems and harm to all of us.”

In an additional letter during the organizational campaign

in 1967 the employer injected the “serious consequences of

ae

strikes and the strike record of the lithographers union.”

In another letter, is underscored the futility of choosing

union representation. In another letter it affirmed the em- |

ployer’s “absolute right” to stand firm in negotiations,.and

asserted that while “the union can promise you the ‘pot of

gold at the end of the rainbow’ it cannot guarantee you a

single thing.”

Other letters from the employer stated:

“Promises of paid professional union organizers do

not buy: the groceries and clothing for your family or

pay the loans on your home. Only the wages you earn

from Allied/Egry do those things. And if this * * *

union were to win the election there would still be

only one way that it could try to force us to agree to

any of its demands we thought unreasonable, or which

we otherwise couldn’t see our way clear to agree to

THAT WOULD BE PULLING YOU OUT ON

STRIKE. I can assure you that -Allied/Egry has no

intention of yang to any such pressures as that—

EVER. ai

It further refers'to the reason for closing another plant

belonging to the employer as being “another union’s strike

for ‘unreasonable demands’ and ‘irresponsible goals.’ ” The

union was then charged in the letter with having engaged

in 58 strikes over the last three years.

After listing the possibility of permanent replacements

and denial of employment benefits during the strike the

letter concluded with: ‘

“Why gamble with your money and the security

and the future of yourself, your loved ones, and your

- company by bringing this new militant international

union into our plant and creating a situation that could

PAGS ERIE NEE IE TORE I EL OIE ION IR, IES EMM OR SEI ILM NTE ING LPI PL

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—10—

lead to strikes and walk-outs. Such a gamble seems a

bad one to me at a time when you and our Petersburg

operation stand.on the threshhold of what-I consider

a very bright future with our most experienced and

able plant manager at the helm, and our long awaited —

plant expansion about to commence.”

In a,subsequent letter the employer claimed that the

| employees enjoyed:

“Steady work and better wages and working con-

ditions than anyone inv Petersburg, since the plant -

‘ opened,” ;

“and countered with the question:

_ “What would the story-have been if you had been

out on strike for several months during this time?”

In another subsequent letter employer pointed to

_ strike violence and loss of jobs during a sympathy strike

participated in by another local union.

He also stated that he would not give in “to strike

pressure,” and affirmed his legal sign to replace economic

strikers.

In one letter he also suggested possible union retali-

ation against employees; and in another letter asserted that

the union was “out to get its hands on the employee's

money.” °_ : .

In the face of all of these communications, it is inter-

esting to observe that the Board has completely changed

‘its position and issued its Order on January 30, 1968, hold-

ing that the “serious harm” notice and/or letter was still

available to the employer as a right of free speech under

en —=

— )

the Constitution and under Section 8(c). This, of course,

was a drastic departure from its previous holdings in simi-

lar cases, where it had held that ‘such notices, when con-

sidered in connection with incidents such as described in

_ the Allied/Egry case, supra, kecame non-privileged. -

It is ‘interesting to note further that on January 12,

1968, the Fourth Circuit again in Kayser-Roth Hosiery (57

LC {| 12,472) (388 F.2d 979) reiterated its former position

taken in Wellington (330 F.2d 579). Threads, Ine. zs F.2d

1, 8). 7

It is therefore to be hoped that in the light of the

definite change in stance taken by the Board on this issue,

together with the additional decision rendered by the

@ Fourth Circuit in the meantime, that this. Court will accept

the opportunity to reconcile the conflict which exists among

Circuits with respect to the “serious harm” notice. See also

NLRB y. TRW-Semiconductors, Inc. (9th Cir.), No. 21549

(1967), 56 LC J 12,299, 385 F.2d 753.

The Tenth Circuit: holds, however, that the E Board has

urged that this rule, which has been upheld by four Courts

should not be applied in the instant case, and apparently |

relies upon the Amalgamated Clothing Workers case,

supra. i

' The Court admits that the notice was proper and was

protected by Section 8(c) when adopted in 1960, but that

the “conduct of the company in 1964 deprived it of that

status.” |

The only authority mentioned by the Court in sup-

port of this, position is Amalgamated Clothing Workers,

supra. ..

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In that casé, the Company, as ‘the Court found, was

. guilty of certain other unfair practices, such as interro-

gation; but in Amalgamated, the Court still dove the

notice. .

Here we have three Circuit Courts and four separate

cases upholding the yalidity of the “Serious Harm” notice.

In Serv-Air, the 10th Circuit has disagreed in 4

stance with three other Circuit Courts. :

Its reliance on Amalgamated, supra, we must submit,

is a nebulous and “quicksand” foundation for support.

' We further submit that an employer under the First .

Amendment to the Constitution and under Section 8(c) of

the Act, has the right to say what he wants to say about

the Union, so long.as there is no threat of reprisal.

Certainly there is no such threat contained in this

notice; and the notice cannot be impregnated with any .

other unarticulated feelings of the-employer—regardless

of what they might be.

On this question alone, we submit that certioravi

should be granted and the higher decision of the 10th Cir-

cuit reversed.

Nos. 2 and 3—Offers to Return to Work

Questions 2 and 3, although involving separate inci-

dents, involve the same issue, to-wit: Whether or not the .

Communications presented to the Company, constituted

unconditional offers to return to work.

' The situation under the question presented under No.

2 was that the employees in the “Base Shop” had walked

—13—

eo

out on September 3 which was on Thursday. On Friday,

September 4, the Company received from the Union a tele-

gram as quoted in “Questions Presented for Review” sub-

paragraph 2(a). September 5 was Saturday, a non-working

day. September 6 was Sunday, a non-working day. Sep-

tember 7 was Labor Day, a non-working day and Sep-

tember 8 was the first working day after offer to return.

There were many preparations to be made if the employees

_ were to return, after they had unceremoniously left their

work; but they did return to work on September 9. The

Board held and the Tenth Circuit agreed that the telegram |

of September 4 was an unconditional offer to return to

work; and that the Company should have accepted them

back that day, and would be liable for wages from Sep-

tember 4 until September 9.

It was and is the position of the Company that the

telegram of September 4 was not an unconditional offer to

return to work.

. The acceptance of the terms of such an offer of course

would mean that the Company was tacitly admitting:

(a) That it had committed any unfair practice;

(b) That it had taken any “retaliatory” measures —

against any of the employees.

The offer was therefore not absolute. It was not with-

out reservation. It was not without conditions.

Consequently, it was not an unconditional offer.

The word “unconditional” is defined in Webster’s 20th

Century Dictionary unabridged, 2nd Edition, as follows:

“Without conditions or reservations; absolute.”

ii

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~—14—

The Board and the Court we submit were therefore

in error in adjudging this employer to be liable for back

‘pay, not only during -the non-working days, but for any

period from September 4 to September 9 for refusing to

-accede to this conditional offer to return.

With respect to the Question Presented for Review as

No. 3, this also involved a communication which the Union —

contended constituted an unconditional offer to return to

work. '

The situation in this instance was that the firemen

(who were members of the Union or the Fire and Rescue

Department and which was a certified unit for the Com-

pany) had walked off the job on September 14. On Sep-

tember 15, the Company received a telegram from the -

Union as follows:

“Be further advised that ee are interested in re-

turning to their jobs. and remaining on their jobs as

long as the Company does not create new instances

that would cause further disturbance.” (Italics ours.)

The same argument would apply to this telegram as

to the one referred to in the preceding paragraph. The

Union only stated that.the people “are interested” in re-

turning to their jobs. The Union did not.state that they

were offering to return to their jobs. The mere fact that a

person might say to a salesman that he is interested in

buying a car is certainly not an unconditional offer to buy

a car. By no stretch of the imagination could this telegram

be accepted as an unconditional offer to return to work, as

we understand the law of contracts in this country.

=

Furthermore, by the acceptance of such an offer, the

company would be in the position of admitting that it had

“created” a present disturbance, and which could have

been made to serve an unfair charge. .

The company had not created this instance, and cer-

_ tainly it was not going to be placed in in a bce ae of having.

admitted that it had.

This was therefore not the- type of unconditional offer

to return to work which is contemplated under the

decisions.

No. 4—The Badge Incident ‘

This involved an incident relating to the wearing of

multiple unorthodox badges by men in the engine mainte-

nance section. As a result of this clownish episode, which

occurred between October 19 and October 23, petitioner

was obliged to terminate 16 men. These men later were

accepted back to work by petitioner. The Board, however,

has ordered that they be made whole for the time lost,

holding that this Company had no right to restrict the num-

ber, size or appearance of these multiple badges. The de-

cision of the Board was sustained by the Tenth Circuit.

- In this case the company did not restrict the wearing |

of one ordinary conventional badge indicating union af-

filiation or any other affiliation. It did, however, and justi-

fiably so, restrict the wearing of multiple badges which

began to assume the proportions of a very difficult problem

on or about October 19 and October 20. The people in the

engine shops had not been certified as a bargaining unit;

but they were apparently engaged in an organizing cam-

peau és

a

paign. The members of the union in the shops and certain

employees of the company in the shops had: been wearing

a small single badge theretofore, evidencing the direction

of their respective sympathies. It was felt by the company

that one badge was certainly sufficient to announce to all

the workers in the plant the attitude of the wearer toward

the union. ,It was felt that so long as an employee was

permitted to wear one badge disclosing his affiliation or

_ his sympathy he was not being deprived of his right of

free speech.

The turning point came, however, when the employees

involved, began to make a mockery of the rules relating to

appearance, discipline, interference with work, safety, and

the No-Solicitation Rule, by wearing multiple badges con-

sisting of various types and sizes, and even including cer-

tain home-made “pie plate” types of badges, and even

large, taped-on signs across the back of their shirts: or

jackets. (See R.” 1074.) |

All of these antics distracted other employees from

their work.

There was also the possibility of the injection ‘of

foreign objects into expensive and highly-sensitive aircraft

motors being worked on (see Testimony of Major John

C. Trobaugh, R. 99, et seq., and Major. Eugene Bartolich,

Staff Maintenance Officer), who testified to what could

happen to the blades in a compressor by the injection of

even\a small foreign object into the engine and who identi-

fied certain Exhibits. 12(a) through 12(c), being actual’

photographs of engine blades which had been atrociously

damaged by the injection of a foreign object, and which

would endanger the life of a pilot. .

—

The principal cases involving this type of multiple

badge wearing are as follows:

—NLRB v. Floridan Hotel of Tampa, Inc., 218

F.2d 545 (5th Cir. 1963);

NLRB v. Essex Corporation, 245 F.2d 589, 9th

Cir.;

Murphy- Diesel case, 36 LC { 65792, 263 F.2d

301;

NLRB v. Harrah’s Club, 143, NLRB 1356, 337

F.2d 177 (1963).

It is interesting to note that one of the principal cases

upon which the Examiner relied (Fabri-Tek, Inc., 148

NLRB 156) with respect to the wearing of oversized

badges, was later reversed by the 8th Circuit (352 F.2d —

577).

| This is a very analogous case, to Serv-Air.

' Fabri-Tek was in the business of manufacturing mag-

netic memory devices for the computer or digital equip-

ment industry. The finished product was extremely com-

plex and each item must operate perfectly to enable the

ultimate mechanism to function. It is also undisputed in

that case that each step in the fabrication of a “memory

frame” is done by hand and required a high degree of .

concentration during its performance. These intricate

pieces were required to be absolutely “perfect.” The intri-

cacy of this work is analogous to the extreme precision

work required on the workover of the aircraft engines at

Serv-Air. A high degree of concentration, the Court found,

“is required on the part of the employees and distractions

of any kind might very well lead to inefficiency, work

slowdown, and costly errors.”

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=

In the Fabri-Tek case, certain employees began to

wear three types of buttons: one, a large round button of

the type usually used in political campaigns, which ap-

parently was very similar to one of the buttons constituting

an exhibit in the Serv-Air case, about 3 inches in diameter;

then, a square two-inch button; and, then the customary

Union button. In addition to these buttons, there was a

blouse being worn by some of the employees on which was

stencilled on the back the words “Vote IBEW” in black,

21-inch letters.

In the Fabri-Tek case, a$ in the Serv-Air case, managé-

ment did not object to the wearing in an ordinary way of

the customary Union button. However, when it became

apparent that these multiple buttons and signs were being

used for the obvious purpose of attracting the attention of

other employees the Company issued a memorandum very

similar to the Administrative Circular No. 9 introduced in

evidence in this case, and ee on page 23: of the

Examiner’s decision.

As in the Serv-Air case, Fabri-Tek also had in force

and effect a long-standing “no-solicitation rule.”

Just as in the Serv-Air instant case, Fabri-Tek

contended:

(1) that the wearing of such multiple and unortho-

dox buttons and signs constituted a violation of its No-

' Solicitation Rule; and

(2) that the wearing of such oversized buttons pro-

. duced a distracting influence which would affect the ef-

ficiency and the precision performance of the employees.

This case was tried before three eminent Circuit

Judges of the 8th Circuit with Chief Judge Vogel writing

the opinion, in which both Judge Mathes and J Judge Ridge

concurred.

In disposing of the issue as to whether the wearing of |

these oversize badges constituted “solicitation,” the opinion

stated:

“We think that the wearing of the various oversize

insignia was definitely a form of solicitation and cam-° —

paigning in behalf of I.B.E.W.,+that that was the only

meaning such type of insignia and activities could

have had, and that it was in violation of the company’s

rule against soliciting or campaigning on ‘oampeny

time.” :

In this connection, it will be observed, of course, from’

the recommended decision of the Examiner, that he very

justifiably agrees with Serv-Air that its long-standing ©

“No Solicitation” Rule was valid and enforceable.

Since Serv-Air did have a valid No-Solicitation Rule,

in effect, then based upon this very recent and significant

decision in Fabri-Tek, it must necessarily follow that the

wearing of these oversized multiple badges and signs

constituted a form of solicitation, and was in violation of

our No-Solicitation rule.

The inescapable conclusion then is that we had a

perfect right to discharge, lay-off, or terminate the six-

teen people who , declined to remove these emblems of

solicitation.

Tn addition to that ground, it is obvious from: the de-

cision in the Fabri-Tek case, that we were also justified and

ee eee © ek

[Peers preeee™ aid

dere Ne ane

. ‘

PY ‘\etgilihaaes 43 a

doubly justified in the lay-off or termination of these peo-

ple by reason of the distractions caused by the wearing

of such unorthodox symbols, on the ground that they

constituted a special circumstance consisting of “distrac-

tions” to employees. ” ;

On this basis, the Court proceeded to state in the

Fabri-Tek case:

“As will be discussed in full, we further believe,

however, that the company rule as written and en-

forced banning the wearing of unusual union insignia

or usual union insignia in an unusual way is not in

violation of the employees’ rights under the act be-

cause of special considerations and circumstances

present in this Case, i.e., the importance of eliminating

distractions to employees, which distractions could

lead to a substantial increase in poorly produced

memory devices.” 2%

It will also be recalled that in the record, there is

testimony that some of the workers were carrying rolled-

_up newspapers with the word “SCAB” printed on it, obvi-

ously, flaunting them before some of the other employees.

In this connection, it is interesting to review the state-.

ment of the Court of the 7th Circuit (Caterpillar Tractor

Co. v. NLRB, 230 F.2d 357):

“We are of the opinion that petitioner’s anticipation

that the ‘SCAB’ buttons would prove disruptive of em-

ployee harmony in its plant and destructive of disci-

pline in production was fully justified.”

Also, in the case of Republic Aviation Corporation v.

0 eaewe re : . — .

ae Be a tad BS PO OO i DEI as vee UP A. tee POI ens mais Sea ai

NLRB, 324 U.S. 803, the Supreme Court of the United |

States stated:

—

“The Act of course does not prevent an employer

from making and enforcing reasonable rules covering .

the conduct of employees on company time. Working

time is for work, It is therefore within the province of

an employer to promulgate and enforce a rule pro-

hibiting union solicitation during working hours. Such

a rule must be presumed to be‘valid in the absence of

evidence that it was ‘adopted for discriminatory pur-

poses.” (Italics-ours.) ©

The Court in Fabri-Tek thereupon continued:

’ “Clearly petitioner’s rule against solicitations was

not adapted for discriminatory purposes. The rule was

solely designed to prevent distracting the attention of

the employees during working time.”

It is further interesting to note from Fabri-Tek; the

quotation of the statement made by one of the witnesses

which is almost parallel to the statement made by Mr.

Hood, Vice-President and Operating Manager of Serv-Air,

when the personnel manager told the witness as stated by

her: ‘

“It wouldn’t make any difference whether we (Mrs. :

Heacock and another employee) were wearing .non-

union buttons or presidential campaign buttons or

anything. He said he would have to ask us to take them

off—no wheres on the premises.”

In conclusion, the Court in Fabri-Tek stated:

“Considering the record as a whole, we believe that

petitioner’s prohibition of the use of the attention-

attracting emblems during working time is anentirely —s_ |

reasonable exercise of its rights of management and &£

employee discipline.”

s.

i

Here again, however, we have an instance of a de-

cision of the 10th Circuit adverse to that of the 8th Circuit

wherein the 10th Circuit helds (pages 15. and 16 of its

opinion) : °

“To the extent that Fabri-Tek, Inc. v. NLRB, 8th

-Circuit 352 F.2d 577-586, holds that badge wearing

_ may be forbidden under a valid no-solicitation rule,

we believe that it runs contrary to the Republic Avi-

ation decision.”

This matter we submit is a question which should be

resolved once and for all by the Supreme Court of the

United States.

No. 5—The Election Petition

The ies Circuit admits that this is a “case of are

impression.”

The facts are that an election petitién was circulated

throughout the base employees long after one year subse-

quent to certification, and before any contract had been

signed with the Fire and Rescue Department.

The base maintenance personnel and the jet engine

maintenance personnel had never been certified as a union. —

An election had never been held for that group, sinde 1961,-

in which the Union did not prevail. There appeared to be

some employees in favor of a union and some who were

not. As a result there had been some discordance among

the ranks; and the employees themselves decided to bring

it to a head by circulating a petition for an election. One

of the employees who appeared to have some supervisory

status but certainly not in the higher echelon, apparently

took some minor part in the circulation of the petition.

ea) Ril aa Seal nls hSDN ie Na Ml ES BOO 0 te. ep ne siesta inh ehtabe. Be ee ne ee ee TE ee

CaP gyn iwmee - =

—23—

It was not a petition for decertification because there

was no union in that group which had been certified. it

was simply an application o art of the employees to

the Board to seek an ion. It is unknown whether a

majority were for the union or whether a majority were

against the union. Enigmatically the District Director de-

nied the petition; but the company was castigated by the

union for even having a supervisor, unbeknownst to man-

agement, sign the petition and assume a very minor roie

in its circulation. |

_ This petition and its circulation was stigmatized by

the union and by the Board as being an unfair labor prac-

tice on the part of the company.

The Court concurred.

_ We submit that there is no law, and there is no valid

rule or regulation which would preclude a minor super-

visor from signing such a petition and participating to 4

limited degree in its circulation.

As the Court stated this is a matter of “first impres-

sion,” and we submit should be decided by the Supreme

Court.

No. 6—Jet Engine Reduction in Force

_ We would respectfully ask the Court to review the de-

cision of the lower court relating to this incident.

It involves the question of whether or not the lay-off

of eight men on November 6 on account of the necessary

reduction in force, was on account of and by reason of

their union activities; or whether it was a justifiable man-

agement decision. <7

Pa Se ie we ee

=

It was the contention of the Government that the

Strict and literal results of the test given by the company

were not followed; and that the lay-offs were therefore

arbitrary and discriminatory, and on account of union

activity. |

We submit the testimony and the facts even as found

by the Court do not justify this conclusion.

It will-be noted from the testimony of Mr. Hill, the

Director of Air Craft Maintenance at Vance, as reflected

by the findings of the Examiner (page 27), that in the

summer of 1965, it became obvious that the 100-hour in-

spections of the engines, could be increased to 200 hours of

periodic inspection intervals. That on or about September

2nd a reduction in work force would therefore be in order.

It will be recalled that these same eight men, on Sep-

tember 3rd, including others, staged a “walk off.”

These included Anson, Brockway, Brown, Edwards,

Greer, Gooch, Kuhlmeier, Knowlton, Lankard, Kuberskey,

Ming, Peckham, Payne, — and Scaia (Examiner’s

Decision, page 13).

If Mr. Hill or the company had any intentions of termi-

‘ nating these men or any of them, on account of union

activity, they could have done so at that time because they

already had notice of the necessary reduction in force.

On October 20th and 21st, when they walked off on

- account of the “badge incident,” the company, if it had

any intention of terminating them for union activity, could

have done so and assigned as their reason a necessary 1 re-

duction in force.,

a met nr IMS Ate ES ED BE at ll ieee Bil beta aich deo.

—25—

Orginally it appeared that there were 16 ‘men who

were destined to be laid off, but by November, attrition

had taken care of eight of them; which left only a neces- °

sary reduction of eight men.

The company assiduously endeavored to retain as

many of these people as possible, even though several

’ opportunities obviously presented themselves for termi-

nation between September 2nd and November 6th.

We submit, therefore, it cannot be realistically con-

tended that these people were laid off on November 6th for

‘union activity. Had that been the reason, the company had

more than two months between September 2nd and No-

vember 6th within which to separate them from company

service. On the other hand, it is apparent from the record

that the company continued to make overtures to the Air

Force in a sincere effort to prevent the reductions.

_ This was a humanitarian act on behalf of the company,

and certainly is not indicative of any animosities toward

these people.

As to the objectivity of selection, we would urge the

Court also to re-analyze the facts here.

It is true that individual surveys and appraisements

were made of some 80 employees. It was also true that the

company was faced with the task of accomplishing this

reduction, so that the men who had to be released, would

have the least effect upon the composite productivity and

efficiency of the entire JEFM Plant.

The company therefore selected 14 men who had the

lowest individual scores in the group, from which to seléct.

the eight men who had to be laid off.

RO ee ee

Pe ee

>

a Pee

ae en

_

Coincidentally, we think it significant to note that all

of these 14 low men were people who had walked off the

job on September 3rd and presumably were all union

sympathizers. They included Brown, Edwards, Peckham,

and Ringgold, who so far, as the company knew were just

as active union people as the others in the group.

In fact, it appeared at one of the meetings with Hill

and Sprayberry that Ringgold was the spokesman.

Ringgold was not separated.

Brown was not separated.

Edwards was not separated.

Peckham was not separated.

Scaia and Greer were crew chiefs and each of them

had three other men on his crew. :

With reference to the production record of these two

crews, Examiner found (page 32, Examiner’s Decision)

that of all of the full crews producing in the plant during

July, August, September and October, the Scaia crew was

the lowest producer in July, August and October, and the

second lowest in September; and the Greer crew was the

second lowest in July, third lowest in August, and lowest -

in September and October, tying with the Scaia crew for

lowest in the latter month. These facts are not contradicted.

Based upon this completely unsatisfactory produc-

tivity: record therefore, and since all of the men within

those two crews were among the 14 lowest in the individual

grading, it would appear to us that it was not only natural

and realistic, but pratically mandatory that Mr. Hill and

Mr. Sprayberry select these men for the layoff.

—27—

In the alleged segregation incident which occurred

when the men came back to work on September 9th, the

Examiner held and the Board sustained that the company

had the right to separate and preserve the autonomy of

these crews.

There was therefore nothing unusual nor reprehensi-

ble on the part of Mr, Hill and Mr. Sprayberry to select

these eight men, who composed the two least. productive

crews in the plant, and who were among the low 14, to be

laid off. In fact, it Seems to us it was simply good mana-

gerial judgment.

We would hope the Court will re-examine the record

and the circumstances involved in this November layoff,

- and either reverse, or remand for rehearing.

CONCLUSION

.

In conclusion we respectfully submit to the Court that

this is a case which should receive serious consideration

by this Court for the following basic reasons among others,

to-wit:

(1). With respect to the “Free Speech” notice there

is a definite conflict between’ the 4th Circuit and the 6th

Circuit, on the one hand and the 10th Circuit on the other

as reflected in this Petition.

(2). With respect.to “MULTIPLE BADGES” there is

a definite conflict between the 8th Circuit-and the 10th

Circuit which should be finally determined by this Court.

(3). With respect to the circulation of a petition for

an election among a group of employees who have not been

oer Ow 22 et Aree

—23—

amalgamated into a certified bargaining unit, it involves a

case of first impression.

s (4). With respect to what constitutes “an uncon-

ditional offer to return to work” it requires a determi-

nation.

(5). With-respect to the manner in which a company

may lawfully terminate personnel when faced with a

mandatory reduction in force, it requires determination.

It is therefore respectfully requested that the Writ be

granted.

Dated this 3rd day of July, 1968.

e

j FRANK CARTER

Attorney for Petitioner

of Counsel:

OJSTEN & CARTER

’ Bass Building

Enid, Oklahoma

‘July, 1968 |

(Proof of Service Attached Hereto)

—29_-

SUPREME COURT OF THE UNITED STATES

BG -eccitestntanecas

SERV-AIR, INC., t

‘Petitioner, ¥

VS. ;

NATIONAL LABOR RELATIONS BOARD,.

Respondent.

TO: Marcell Mallet-Provost, ; j

Counsel for Respondent. rae

You are hereby notified that a Petition for a Writ of — ’

Certiorari in the above entitled cause was filed in the Su- :

preme Court of the United States on the day of

July, 1968.

A printed copy of the Record and a printed copy of

the Petition and Brief are served upon = herewith.

FEES ES EMT NEO EF

Petitioner

Service accepted this ‘

day of -, 1968.

a laa a a

Counsel for Respondent

PIPES IN

OEE IEP BT BREE ER

.

7

J PONT PPC ee

ee ee) ee

“<r

WO AOE 2, STILE OTR ENON ey are we ee

APPENDIX A

J-4939

Serv-Air, Incorporated

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT —

No. 9193—JANUARY TERM, 1968

SERV-AIR, INC.,

Petitioner,

Vv.

*NATIONAL LABOR RELATIONS BOARD,

Nee ee ee ee ee Se Se”

Respondent.

On Petition for Review and Cross-Application

for Enforcement of. an Order of the National

Labor Relations Board

Frank Carter (Otjen, Carter & Huddleston, Of Counsel,

were with him on.the brief) for Petitioner

John E. Nevins, Attorney, National Labor Relations Board

(Arnold Ordman, General Counsel, Dominick L. Manoli,

Associate General Counsel, Marcel Mallet-Prevost, As-

sistant General Counsel, and Glen M. Bendixsen, At-

‘torney, National Labor Relations Board, were with him on

_ the brief) for Respondent.

Before WILBUR K. MILLER,* BREITENSTEIN and

SETH, Circuit Judges.

* 10-CA-2122; 161 NLRB 17

Bendixsen/Nevins

* Of the District of Columbia Circuit, sitting by designation.

POS WENN RUMI R eR PANE

FSP. eng 8,

Lipson FOE

ne ee ee

>

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a cs

[APPENDIX]

BREITENSTEIN, Circuit Judge.

Serv-Air, Inc. (the Company), petitions for review of

an order of the National Labor Relations Board! and the

Board requests enforcement of its order. The Company is

engaged in the operation and maintenance of all facilities

and equipment used in the pilot training program at Vance

Air Force Base and auxiliary fields near Enid, Oklahoma. .

It has about 1,100 employees. The International Associ-

ation of Machinists (the Union) attempted to organize the

employees, As the result of an election held on May 6, 1964,

Smoke-Eaters Lodge No. 898, an affiliate of the Union, was

_ designated as the representative of about 85 employees in

‘Fire and Rescue Department of the Company. We are con-

cerned with unfair labor practice charges which arose

after that date and continued for a number of months. The

charges, and the facts pertaining thereto, are so inter-

related that an orderly presentation is difficult.

1. The No-solicitation Rule.

In November 1960, the Company posted a notice which

stated among other things:

“No person will be allowed to carry on Union

organizing activities on the job. Anyone who does so

and who thereby neglects his own work or interferes

with the work of others will be subject to discharge.”

On September 2, 1964, employees McCarty and Haley

were discharged for violation of this rule. The fact that

they engaged in conduct forbidden by the rule is not con-

tested. The question is the validity of the rule. The Ex-

aminer upheld the rule and the Board reversed.

A no-solicitation rule which only regulates employee

activity during working hours is valid unless adopted or

used for a discriminatory purpose.* The Examiner found,

1 See 161 NLRB No. 17.

[APPENDIX]

we believe correctly, that there was no evidence of dis-

criminatory promulgation. The Board said that “no one-

disputes that the notice was initially promulgated in re-

sponse to union activity.” Standing alone, the fact that an

organizational campaign may have begun before the rule

was posted docs not prove a discriminatory purpose. The

rule was in effect for at least three and one-half years

before any complaint was made. In effect, the Board infers

from occurrences in 1964 that the Company had a bad mo-

tive in 1960. We do. not deem this to be a reasonable

inference. | : “

I i os .

ewe

The Examiner found no discriminatory application of

the rule. He did so after denying a proffer of proof by the

General Counsel that the rule had been applied discrimi-

natorily. The Board held that the offer should have been

received and we agree. The Board went on to hold that

discriminatory enforcement was shown by the facts that

the Company had condoned solicitations to pay for flowers

sent to widows of deceased employees and had on one

occasion discussed with a group of employees the handling

of Community Chest and Red Cross contributions through

payroll deductions. In our opinion, these beneficent acts

fall far short of establishing forbidden discrimination.

The holding of the Board that the no-solicitation rule . 7 (|

was discriminatorily promulgated and enforced in violation

of § 8(a)(1) is reversed and the case remanded for such

further proceedings as are appropriate on the issue of the )

allegedly discriminatory promulgation and enforcement of ;

the rule. This requires that the Board decision that Mc-

Carty and Haley were discharged in violation of § 8(a) (1)

and (3) be also set aside. If the rule was enforceable, the

discharges were proper. Determination of the question of

i a ih el

ARETE, TARR TNR Gage ey

PGI MAL

2 See Republic Aviation Corp. v. National Labor Relations Board, 324 ©

US. 793, 803-805; National Labor Relations Board v. American Coach

Company, 10 Cir., 379 F.2d 699, 701; and National Labor Relations

Board v. Shawnee Industries, Inc., 10 Cir., 333 F.2d 221, 225.

PME O NT Heme

.

ATSB

9 mh ested

[APPENDIX]

discriminatory discharge must await the reconsideration of

the validity of the rule.

2. The “Serious Harm” Notice.

The printed notice which contained the no-solicitation

"rule includéd the following statement:

“Since the Union has been putting on a campaign to

get in here, some of you have been asking questions in.

regard to the following matters. We have decided to

state the Company’s position on these subjects as

clearly as we can for everybody alike: __

(1) This matter is, of course, one of concern to the

Company. It is, however, also a matter of serious con-

cern to you and our sincere belief is that if this Union

were to come into this Plant, it would not work to your

benefit but to your serious harm.”

Three circuits have held that this type’of notice is non-

coercive and is protected by the “free speech” provision

of § 8(c).* The board urges that the rule announced should

not be applied in the context of threats and other unfair

labor practices. This distinction was suggested by the Dis-

trict of Columbia Circuit in Amalgamated Clothing Work-

_ ers of America v. National Labor Relations Board, D.C.

Cir., 365 F.2d 898, 910, and in our opinion is valid“ Our

view is that the notice was proper and was protected by

§ 8(c) when adopted in 1960 and that the conduct of the

Company in 1964 deprived it of that status. In the atmos-

phere existing in 1964, the notice could well be considered

as a threat of reprisal. The inference of the Board that the

8 Seé Wellington Mill Division, West Point Mfg. Co. v. National Labor

Relations Board, 4 Cir., 330 F.2d 579, 583, cert. denied 379 US. 882;

Surprenant Manufacturing Company v. National Labor Relations Board

6 Cir., 341 F.2d 756, 758-759; and Amalgamated Clothing Workers of

America v. National Labor Relations Board, D.C. Cir., 365 F.2d 898,

909-910.

Se NOR ate bm a iC Rt et Rs heat tip tae hap Sak Recaaa ss

—-V—

[APPENDIX]

notice was then a threat violative of § 8(a)(1) is reason-

able and the order will be enforced in this regard.

3. Refusal to Reinstate Base Shop Employees after Strike.

After the September 2, 1964, discharge of McCarty and

Haley, some employees at the base shop walked out and

were joined later by others. The strikers authorized a

Union representative to make an unconditional offer to re:

turn to work on September 8. The Company did not permit

them to return until September 9.

The question of whether we are concerned with an

unfair labor practice strike or an economic strike is imma-

terial because no replacements were hired. The Company ~

was obligated to reinstate the strikers when they uncon- ©

ditionally applied for reinstatement.‘ The question is

‘whether the application for reinstatement was uncon-

ditional.® The offer to return to work on September 8 con-

cluded with this language:

“The union is respectfully demanding that the com-

pany cease and desist these unfair practices and to

allow all concerned to return to their-jobs without any

more retaliatory measures. being tak against them

because of their concerted action.”

After the Company refused to allow the strikers to -

return on ‘the 8th, they sent a second message which,

among other things said:

“The group desires to work but they want their le-

gal rights respected.”

On September 9, they were all back to work. -

4 National Labor Relations Board v. Fotochrome, Inc., 2 Cir., 343 F.2d

631, 633, cert. denied 382 US. 833.

® See National Labor Relations Board v. MacKay Radio and Telegraph

Co., 304 US. 333, 345; National Labor Relations Board v. Fotochrome,

Inc., supra note 4; National Labor Relations Board v. Brown & Root,

Inc., 8 Cir., 203 F.2d 139, 147.

EAM, AIL ET IIRL CLL CLI RINE : 1

Ae ee ION a Sep ony?

| eee cee

[APPENDIX]

The Company says that the offer to return was con-

ditional and that an acceptance would have been an ad-

mission by the Company that it had engaged in unfair

labor practices. We do not agree. The offer was not

conditioned upon any major concession such as a consent

election or the execution of a contract and did not request

any change in wages, hours, or working conditions. Of

some relevance is the fact that on September 8 the strikers

appeared for work at the normal hour and place.* The

Company’s reliance on American Ship Building Co. v. Na-

tional Labor Relations Board, 380 U.S. 300, is misplaced.

That case related to a lockout used as an employer weapon

to strengthen its bargaining position after impasse in

bargaining. The lockout here occurred because the Com-

pany did not like the terms of the application for reinstate-

ment. An objective view convinces us that the application

was unconditional and the lockout was impelled by a dis-

criminatory motive.? The holding of the Board that the

lockout violated § 8(a)(3) and (1) is affirmed.

4, The Refusal to Reinstate the Firemen.

On September 14, 1964, 57 employees of the Fire and

Rescue Department walked off their jobs, assertedly be-

cause the Company had refused -to hear certain grievances.

_ On September 15 they notified the Company that they

would return to work “as long as the Company doesn’t

create new instances that would cause another disturb-

ance.” On September 17 they presented an application

_ suitable to the Company and were back to work on the

18th. The Company says that the September 15 notice was

conditional and, hence, it was not bound to accept it. Here

again the offer to return was not made contingent upon the

6 See Olin Industries, Inc. v. National Labor Relations Board, 5 Cir., 191

F.2d 613, 617, cert. denied. 343 US. 919.

7 See National Labor Relations Board v. R. C. Can Company, 5 Cir., 328 -

F.2d 974, 982.

et le halen ak Sn Sees ities helt baad Lacks

—vii— |

: [APPENDIX]

grant of any concessions or benefits. For the reasons stated

in regard to the base employees, we believe that the re-

ouest for reinstatement was unconditional:and the lockout

- on September 16 and 17 was discriminatory and a violation

of the Act. This portion of the Board’s order is affirmed.

5. Discharges for Multiple-Badge Wearing.

In connection with Union organizational activities

‘ Union adherents began to wear insignia signifying alle-

giance to the Union. These took various forms, such as pen-. -

cils worn with a union clip showing, plastic badges, impro-

vised badges pasted on plastic buttons, and signs attached

to the back of a shirt or jacket. The Company countered

with badges indicating that no union was wanted and dis-

tributed them to both employees and officials. Some em-

ployees then defaced and wore the Company badges. On

October 15, 1964, Company supervisors began asking em-

ployees not to wear multiple badges. Between October 19

and 20, ten employees were clocked out for refusal to re-

move multiple insignia. On October 20, the Company

posted a notice directing that only one badge be worn. In —

the next three days, 26 employees were terminated for vio-

lation of the notice. On October 27, the badge rule was sus-

pended and everybody went back to work. The whole epi-

sode shows an immature approach to labor relations by

both the Company and the Union.

The right to wear union insignia on the employer’s

premises during working hours is guaranteed by $7® in the

absence of special considerations. The Company says that

special considerations justified its actions. |

8 Republic Aviation Corp. .v. National Labor Seiten Board, 324 US.

793, 801-803.

9 See National Labor Relations Board v. Essex Wire Corp., 9 Cir., 245

F.2d 589, 593; National Labor Relations Board v. Floridan Hotel of

Tampa, Inc., 5 Cir., 318 F.2d 545, 548-549; and National Labor Rela-

tions Board v. Harrah’s Club, 9 Cir., 337 F.2d 177, 180.

PREPS RNP TY

s EEO COLI, STIRS

[APPENDIX]

It first relies on the claim that the buttons were dis-

ruptive of harmony among the employees and, hence, un-

der Caterpillar Tractor Co. v. National Labor Relations

Board, 7 Cir., 230-F.2d 357, were excepted from the general

rule. The Board correctly rejected the argument. The Com-

pany itself contributed to the disruption, if any, by distri-

bution of its “no union wanted” buttons. The only showing

of disharmony is the testimony of a supervisor without any

enlargment as to the-time, place, or circumstances of the

disharmony. The Company’s reference to the carrying by

employees of rolled-up newspapers on which the word

“scab” appeared is irrelevant because the multiple-badge

rule in issue does not purport to cover such activities. The

Caterpillar case, Id., 230 F.2d at 359, says that an employer

may not restrict “passive inoffensive advertisement of

organizational aims.” The buttons with which we are con-

cerned fall within this category.

The Company urges that the, prohibition of multiple

badges was proper to lessen the danger of foreign objects

falling into jet engines. Fabri-Tek, Inc. v. National Labor

Relations Board, 8 Cir., 352 F.2d 577, 586, holds that danger

to plant processes can be a valid reason for restrictions on ©

wearing of union buttons. The facts here do not justify the

application of that principle. The Company permitted loose

objects to be carried in the front pockets of shirts. It al-

lowed multiple badges to be worn for about three months

before taking any adverse action. It distributed its own

badges. One employee discharged for violation of the rule

pushed a lawn mower rather than repaired a jet engine.

The Company fails to convince us that it had real concern

over the foreign-object. danger.

The Company contends that the rule was necessary in

order that the employees present a responsible appearance

to the Air Force instead of “looking like a bunch of clowns”

because of all the badges. The argument that employees

have no right to wear union insignia that are offensive to

customers" . does not apply here. The record shows that the

? or. Ako ae nd aaa

=

(APPENDIX)

Company acted because of pique and not because of custo-

mer relations. It failed to take action against multiple

badges for several months and contributed to the carnival

atmosphere by the distribution of its own badges.

The claim that the badge wearing was a violation of

the no-solicitation rule does not impress us. The courts

have generally held that the wearing of union insignia is

a form of expression protected by § 7 rather than a form

of solicitation.11 To the extent that Fabri-Tek, Inc. v. Na-

tional Labor Relations Board, 8 Cir., 352 F.2d 577, 586,

holds that badge wearing may be forbidden under a valid

no-solicitation rule, we believe that it runs contrary to the

Republic Aviation decision.

We agree with the Board that the multiple-badge rule

violated § 8(a) (1) and that the discharges for violation of

that rule discriminated against the affected employees in

violation of § 8(a) (3).

6. The Election Petition.

Between October 1964, and January 1965, there was

circulated among the employees a petition requesting that

a representation election be conducted by the Board’s re-

gional director. Among others engaged in this activity were

Klepfer and Huston. The Board finding that they were

supervisors and that the Company was charged with re-

sponsibility for their acts accords with the principles which

we stated in Furr’s, Inc. v. National Labor Relations Board,

10 Cir., 381 F.2d 562, 565-566, cert. denied — U.S. —, and

is supported by the record.

10 See National Labor Relations Board v. Harrah's Club, 9 Cir., 337 F.2d

177, and National Labor Relations Board v. Floridan Hotel of Tampa,

-Inc., 5 Cir., 318 F.2d 545, 549 (dissenting opinion of Judge Lewis).

11 See Republic Aviation Corp v. National Labor Relations Board, 324

US. 793, 802 n. 7; National Labor Relations Board v. Mayrath Co.,

7 Cir., 319 F.2d 424, 426; National Labor Relations Board v: Power

Equipment Co., 6 Cir., 313 F.2d 438, 442. ;

; nas

[APPENDIX]

The Company urges that the Union may not complain

of an opportunity to participate in a free election to de-

termine its status. The Board counters with the claim that

Company solicitation of signatures to procure a certification

election interferes with the employees’ § 7 right to choose

a union. Neither party supports its arguments by reference

to any court decision on this particular point. Neither the

rule that the Board: will not conduct a representation

election at a time when the employer is charged with an

unfair labor practice which might affect the election out-

come!? nor the rule that an employer may not seek signa-

tures for a, decertification petition ** is decisive under the

facts presented.

Like many first-impression. decisions, the choice here

is difficult and requires consideration of general principles.

A-union organizational campaign is not carried to fruition

overnight. It may continue for a prolonged period. If an

employer may induce employees to call an election, it may

be able to force an election on a union in the beginning of

the campaigri and before the union has a real chance to

bring its views before the employees. Once an election is

lost, the union may not seek another for one year! and is

barred from organizational picketing for a like period.'®

The Act gives an employer no unrestricted right to secure

an election.1® When these considerations are viewed

against a background of animus against the Union and a

variety of unfair labor practices, an approval of Company

solicitation of signatures to an election petition would per-

_12 See Furt’s, Inc. v. National Labor Relations Board, 10 Cir., 350 F.2d

84, 85.

13 See National Labor Relations Board v. W. R. Hall Distributor, 10 Cir.,

341 F.2d 359, 362.

14 §9(c) (3).

15 §8(b) (7) (B).

16 See §9(c) (1) (B)..

—Xj— .

[APPENDIX]

mit the Company to profit by its improper actions.17 We

conclude that supervisory sponsorship of the election pe-

tition interfered with the employees’ § 7 rights and vic-

lated § 8(a) (1).

7. The Jet Engine Field Maintenance (JEFM) Layoffs.

In 1964, it became apparent that the jet engines main-

tained by the Company would need servicing only half as

' often as was the practice theretofore. A new contract was

negotiated between the Air Force and the Company. In

November, eight employees engaged in the JEFM program

were terminated. The Board does not dispute the fact that

economic considerations caused the layoffs but says that

those laid off were discriminatorily selected.

Before. acting, Company supervisors made a compre-

hensive rating of affected employees on such bases as

seniority, production, attitude towards supervision, and

harmony with co-workers. The factors of attitude and

harmony are paricularly sensitive when applied to leaders

in an organizational campaign. Union activity does not en-

title an employee to special immunity. At the same time

such activity makes difficult the objective rating of any

employee by an employer. All eight men laid off were

Union stewards and had been prominent in the activities

previously mentioned. An examination of the rating sheets

shows that the scores were disregarded rather than ap-

plied. On the record presented we must accept the Board’s

conclusion that the true reason for the selective layoffs was

the elimination of active union leadership and violated §

8(a) (3) and (1).

.

' 17 Cf. Franks Bros. Co: v National Labor Relations Board, 321 US. 702,

704-705. a. |

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| —xii—

[APPENDIX] 7

8. The Chodrick Layoff.

A reduction in the number of firemen was made

necessary by the closing of Perry Field, one of the auxili-

ary bases. A rating system similar to that used for the

JEFM workers was followed. The employees in the Fire

and Rescue Department were represented by an affiliate

of the Union and all were Union members. The layoff of

Chodrick is said to be discriminatory because he was active

in union affairs and had more seniority than some of those

retained. No showing is made that seniority had to be ob-

served in the layoffs. The claim of discrimination is not.

reasonable to us. All the firemen were Union members and

necessarily those laid off belonged to the Union. Chodrick

was reinstated when the first opening occurred. We con-

clude that the layoff of Chodrick did not violate § 8(a) (3)

and (1) and that as to him the Board’s order should not

be enforced. 7

9. Questioning of Employees and Disparagement of the

Union.

The Examiner ‘credited testimony of employees that

Company supervisors questioned them on their attitude to-

wards the Union, inquired as to the identity of Union

organizers and threatened their discharge, and said that

‘union recognition would “jeopardize the jobs of” the plant

employees. These occurrences are sufficient under our de-

cisions in Betts Baking Co. v. National Labor Relations

Board, 10 Cir., 380 F.2d 199, 201-202, and National Labor

Relations Board v. Midwestern Instruments, Inc., 10 Cir.,

264 F.2d 829, 831, cert. denied 360 U.S. 932, to sustain the

Board decision. A review of the entire record convinces us

that a violation of § 8(a)(1) occurred.

10. The Refusal to Bargain.

After the Smoke Eaters Lodge had been certified to

represent the employees in the Fire and Rescue Depart-

ment, the Company unilaterally changed the terms and

—xiii—

[APPENDIX]

conditions of employment. Although admitting the § 8(a)

(5) violation, the Company pleads that the order with

reference thereto should not be enforced because it is now

bargaining with the employees’ representative. A sufficient

answer is that compliance with a Board order is no defense

to a petition for the enforcement of that order.18

The petition for review is granted and enforcement is

denied on the item relating to the discharge of Chodrick.

In regard to the no-solicitation rule, the petition is granted,

enforcement is denied, and the case is remanded for such

further proceedings as may be appropriate in the’ light of

this opinion. See Ford Motor Co. v. National Labor Re-

lations Board, 305 U.S. 364, 373. In all other respects the

petition for review is denied and enforcement is ordered.

A formal mandate shall issue in accordance with the views

herein expressed.

The Company’s motion attacking the costs of printing

the additional material designated by the Board is denied.

The Company has failed to convince us that the material so

designated is immaterial. Further, after filing the motion

the Company voluntarily deposited the estimated cost of

printing the appendices. The Act of July 18, 1966, 80 Stat.

308, permits the taxing of costs to the prevailing party in a

civil action brought by or against the United States after

the date of the Act. The petition for review was filed De-

cember 12, 1966. In the circumstances the costs are taxed

85% against the Company and 15% against the Board.

Miller, Circuit Judge, dissents.

18 See National Labor Relations Board v. Mexia Textile Mills, Inc., 339

US. 563, 567, and National Labor Relations Board v. Local 101, In-

ternational Union of Operating Engineers, 10 Cir., 315 F.2d 328, 331.

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