Petition for Writ of Certiorari — Historic Smithville Inn v. National Labor Relations Board

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PREME COURT, UL S. ae FILED

2 Nov.17 1969

JOHN F. DAWES, CLERK

IN THE , _

Supreme Court of the United States

| OCTOBER TERM 1969 *

xo. 859

Historic SMITHVILLE Inn and Quai Hit,

Petitioners,

Nationa Lasor Revations Boarp,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

Goprrey P. ScHMIDT,

Attorney for Petitioners,

55 West 42nd Street,

New York, N. Y. 10036.

Tel: 212-279-0355

TABLE OF CONTENTS

“b>

PAGE

Opinion Below ............ Me yt Se RRs Se EP a 1

Ro as a yer ae 1

Questions Presented .......... Netty Seon Pe 2

Constitutional and Statutory Provisions fascivas P 2

Statement of the Case = pee nice sia eg ee AWE 2

A. The Factual OIG os 8 is cis cae os es

B. The Proceedings Below fr aaa KS mis om ee vay 6

Reasons for Granting the Writ .........00000cc2 6

I no cles c a seen en oa ee ee 12

Avanti Ws. oo ac, .b Sey ae ae Pie ees 13

MENTE Re ook Soe S Tk Chie eh oie wee Res 15

IN THE

Supreme Court of the Suited States

OCTOBER TERM 1969

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- ~ No.

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- Historic SMITHVILLE Inn and Quam Hitt, :

Petitioners,

v.

NationaL Lasor RELATIONS Boarp, -

Z Respondent.

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ed

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE |

THIRD et |

Petitioners, Historie Senitievilie Inn and Quail Hill, pray

that a Writ of Certiorari issue to review the judgment

of the United States Court of Appeals for the Third

Circuit entered August 18, 1969 in National Labor Rela-

tions Board v. Historic Smithville Inn and Quail Hill.

Opinion Below

The opinion of the United States Court of Appeals for

the Third Circuit is-reported in 414 F. 2d 1358. It 1s

reprinted in Appendix A hereto annexed.

]

Jurisdiction

The judgment of the Court of Appeals was entered on

August 18, 1969. The jurisdiction of this see is invoked

“under 28 U.S.C. § 1254(1). -

Questions Presented

(1) Whether petitioners’ constitutional rights of free

speech under the First Amendment and petitioners’ statu-

tory rights under See. 8(¢) NLRA were violated below by .

‘the finding, without substantial evidence, that the Decem- .

ber 18, 1966 poll, conducted herein by petitioners (in order

- fo determine the truth of the Union’s insistent statement

that petitioners’ employees did not desire an‘NLRB elée-

tion) interfered with the rights of petitioners’ employ ees

under See. 7 of the Act.

(2) W hether with respect to the discharge of employee, | -

Margaret Jackson, petitioners’ constitutional rights to due |

process under the Fifth Amendment to the United States

Constitution were violated by the nationally significant

manner in which respondent, without relevant. substantial

evidence (a) found that petitioners discharged one em-

ployee (Margaret Jackson) out of some 900, allegedly in

violation. of Section S(a)(3) and (1) of the Act; (b) in

effect operated on the theory that petitioners were guilty

until they proved their innocence; and (¢) in effect placed

the burden of proof on petitioners, instead of on

respondent. _

Constitutional and Statutory Provisions Involved

This cae involves Sections 8(a)(1) and (3) and 8(c) of

the National Labor Relations Act, as amended, and the

First and Fifth Amendments to the United States Consti-

tution. These are reprinted in pertinent part in Appendix

B, here to annexed.

*

Statement of the Case ’

A. The Factual Background

Petitioners, Smithville Tnn and Quail Hill, are engaged

in the business of operating restaurants in Smithville, New

Pe

Jersey. / Although separately incorporated, the petitioners

have common officers, ownership, directors and a common

labor policy. They constitute a single integrated business

enterprise, and.are hereinafter sometimes collectively re-

ferred to as ‘‘the Company’? (R. 8).?

On Noveaibee 28, 1966, some of the Company’s ‘em- ;

- ployees met with representatives of the Union’ at its

4 Atlantic City headquarters (R. 26; 69-70). There is no

evidence on the record to show that petitioners or their

officers or agents knew of this‘ meeting. Those present —

apparently mapped out a campaign to organize the Com-

pany’s employees. Employee Margaret Jackson and a .

few other employeds took Union ‘cards Tor distributior

to fellow workers (R. 26, 70-71). Commencing on the

' following. Wednesday night, November 30, and continu-

ing evéry night thereafter until December 7, the Union

held meetings for employees at Jo-Jo’s Bar and the

Beatheomber, establishments located near the petitioners’

restaurants (R. 9-10, 68-74). The Union meetings were

held‘at a public place; no effort at secrecy was made.

Jo-Jo’s was a frequent after-hours gathering place for re-

spondents’ employees and supervisors, many of avhom,

either regularly or occasionally, went there directly from

‘work (R. 93, 13, 109, 129,130, 176, 196, 297% 304). This fact

was well known to all concerned (R./93). The ‘record

shows no evidence of surveillance of Union aétivities (R.

180, 182, 183, 187, 208, 245-246, 255-256, 264-265, 295,

304-305, 312-313, 328, 339, 365, 420-421), which the Trial -

Examiner and Board, nevertheless, found -to exist on the

basis of conjecture. The record merely shows that the Union

held meetings in a public place without pretense at secrecy

_ 4*R” references are to the portions of. the record: printed in the

Appendix. References preceding a semicolon are the Board's find-.

ings ; those following are to the supporting evidence. |

. 2 Hotel, Motel and Restaurant Employees, Union, Local 508,

AFL-CIO.

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and thai, as usual, the place was attended by members

of the public as well as employees and supervisors of re-

spondents. There is absolutely no record *evidence that

any employee or supervisor reported the meefings to re-

spondents’ management or that the latter authprized sur-

veillance. On the contrary, the ‘substantial evidence in

the record is completely contrary to such surveillance

(R. 182-1835, 187, 256, 293, 304-305, 365). >

Charles / Miller, a supervisor, candidly. testified that he

heard rumors that-there’ was going to be a meeting of

employees at Jo-Jo’s and that ‘‘a-certain amount of

curiosity. * * * prompted ine to stop there’? (R. 181). No

meeting Was in progress when he arrived there (R. 138-

189, 201, 274-278). He flatly denied: spying (R. 180, 182-

IS3, 187), receiving any management instructions to place

employees under surveillance (R. 187), and giving any

report of the meetings to management (R. 182, 187). Only

“* guesswork or inference from speculation served as_ the

Trial /Kxaminer’s and Board’s basis for finding labor

spying in this case. That conjecture was contradicted by

the record (R. 180, 182, 183, 187, 203, 255-256, 328, 339,

370, 244-247, 264-265, 293, 307, 304-305, 312-313, 328, 339,

3695, 420-4: 21).

The gross manner in which the Trial Examiner relied on_

inference Joy conjecture appears from this sample of his

‘reasoning \’

gee

“Its hikely that Miller told Mrs. Noyes this-fact, =

if it is i me: ST.” tee

Respondent and. Trial Examiner, relying on no evidence

_ in the record, #xpressed grave doubt that petitioners pre-

pared the **Questionnaire”’ simply because Union leader -

Timperio said the employees wanted a/card check rather

_ than a vote. Nobody on behalf of the Union denied peti-

tioners’ testimony in this respect (R. 378-379, 381-382).

5)

The questionnaire or Voluntary Statement of Employees

(G. C, Exh. 2) on its face (R. 391) showed that it was being

used because the Union claimed that the employees wanted

a card-check. The Trial Examiner’s ‘‘grave doubt’.

o (RR. 24) can scarcely be the basis for making a finding of

fact. 0

Also without, record evidence, the Trial Examiner with

the Board’s approval conciuded that the questionnaire

was predicated on the assumption that a majority of re-

spondents’ employees had signed ecards designating the

Union to represent them. The uncontradicted evidence

in the record flatly contradicts this assumption (R. 391,

392-393, 424-495, 428). The Union had only a few signed

pledge cards (R. 384).

Respondents’ decision to discharge Margaret Jackson

for chronic tardiness came before any of those manage-

ment officials who made that dedision knew of Mrs. Jack-

son’s affiliation with or sympathy for the Union (R. 199-

201, 225-226, 228-229, 234, 269, 326-327, 349-350, 364-365,

367-368). The cited record evidence is uncontradicted.

Petitioners repeatedly told their employees that they

were free to join the Union or not to join it and that they

need fear no reprisal if they joined (G. C. Exh. 3; R. 115,

173, 220, 258-259, 265, 289-290, 294, 304, 327-328, 349, 391,

393, 399, 420-421, 422, 423). The Company knew nothing

of Mrs. Jackson’s Union activity on Wednesday evening,

November 30, 1966. The Trial Examiner’s contrary find-

ing is-without-substantial evidence in the record. Indeed,

all of the evidence (R>-347, 269-271, 272,. 298, 827, 350-351,

364-365, 367) refutes this.

Jackson allegedly distributed Union cards on Noveiber

~ 30 (R. 26); but the decision to dismiss her had heen made

on November 28, 1966, as uncontradicted, credible testi--

mony shows (R. 350-351, add 368-369, 3438, 345, oe re

220-226, a

6

The Trial Examiner’s footnote 14 (R. 28) suggests that

only one witness (Merrill) testified that he was ignorant

of Jackson’s Union activity prior to her discharge. In

fact, however, such testimony was given by Lois Muller

(R. 226). Elizabeth Moore (R. 272), John Gruhle (R. 234),

Chuck Miller (R. 199-201), John Hand (R. 298), William

Crawford (R. 244-245), John Ferrie (R. 310), Charles

Grosskopf (R. 358) and Godfrey Schmidt (R. 310). They

all testified, as did (R. 327) Robert Merrill, that they had

no previous knowledge of Union activity by Jackson or by

anyone else. .

B. The Proceedings Below

On December 5, 1966 the Union (Hotel, Motel and Res-

taurant Employees Union, Local 508, AFL-CIO, filed its

charges herein against petitioners. The NLRB Regional

Director, after investigation, dismissed the charges as un-

suported by the evidence. The Union appealed; and the

General Counsel reversed the Regional Director. The

General Counsel of NLRB issued the consolidated com-’

plaint herein on April 3, 1967. The trial, before Trial

[examiner George J. Bott, took place at Atlantic City, New

Jersey on May 16 and 17, 1967. The Trial Examiner’s

Decision was dated August 29th, 1967. Respondent’s

application for enforcement was dated September 27, 1968.

Argument before the Third Circuit was heard on June

3, 1969; and Third Circuit’s decision was dated July 18,

1969. The Judgment of that Court was entered August

18, 1969. 5

Reasons for Granting the Writ

1. In the matter of the questionnaire, the rulings of the

tribunals below violate the First Amendment to the United

States Constitution and Section 8(c) of the National Labor

Relations Act, presenting a novel question important to

the choice hetween NLRB elections and card-shows.

s

he Tabi TY aL

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2. As to Margaret Jackson's discharge there was a

nationally significant failure of due process under the

Fifth Amendment to the United States Constitution be-

cause the decisions below:

(a) were not based on record evidence;

(b) were the result of requiring the employer to

carry the burden of proof and to justify Margaret

Jackson’s discharge, rather than the result of Gen-

eral Counsel’s proof of discharge for union activity;

(c) were the product of the Trial Examiner’s belief

that opposition to unionization by lawful, non-coercive

speech spelled 6ut prohibited hostility to concerted

activity ; |

(d) were based upon suppositions, assumptions and

conjectures rather. than on trustworthy, substantial

evidence in the record as a whole;

(e) were predicated on disregard of such evidence

in the record.

3. The issues involved are of general and repeated

relevance to the administration of national labor laws and

policy.

4. The reviewing Court below was not barred from set-

ting aside the Board’s decisions respecting the question-

naire and the discharge of Margaret Jackson because no

substantial, trustworthy evidence supporting these Board

decisions can be found in the record viewed in its entirety.

5. Especially now that a show of cards, rather than an

election under NLRB supervision, is more and more en-

couraged by Court and Board decisions (See Syracuse I.

Reyv., ‘Authorization cards as valid indicators of Union

Majorities’’? by LeRoy H. Sehramm, Vol. 20 No. 3, Spring,

1969, pp. 578-599), the wishes of the employees involved

8

deserve respect on the question whether one or the other

of these two methods of testing employee free choice

should be used. Likewise, the good-faith doubts of em-

ployers respecting choice between these two methods should

be subject to an employer poll which establishes the em-

ployees’ actual preferences for or against NLRB election,

where (as here) the Union presumes to assert those pref-

erences, and to base its strike on that assertion.

a

The polling represented by the questionnaire was not a

polling as to sympathy for or against the Union nor a

polling to reveal the employees’ choice of a bargaining

agent. See the full text of the ‘‘questionnaire”’ in footnote

d) of the opinion below.

No coercive, anti-union speech was first made as prel-

ude to the request for execution of the questionnaire.

Above all there was no intent or effect at any time of

placing employees in fear of their jobs. They were always

assured that their jobs would be safe, no matter what their

concerted activity (R. 118, 173, 220, 258-259, 265, 289-290,

204, 304, 327-328, 349, 391, 393, 399, 420-423 and G. C.

Ixxh. 3). No denial of this appears in the Record.

The voluntary statement which was the ‘‘questionnaire’’

(General Counsel’s Exhibit 2) was dated December 18,

1966. The following quotation from that document. is

significant:

cc“ * * My employer doubts the Union’s claim of

majority support and regards signed union-application

ecards as, in the circumstances, a most unreliable

method of showing a choice of a majority of Smith-

ville Inn employees.

‘‘As an Employee of the Inn who is deeply inter-

ested in the involved dispute between my employer

and the picketing unions and who has a stake in the

outcome of the dispute, I’ve been asked by manage-

ment to state my preference without fear or favor

and on a completely voluntary basis. * * * | 3

9

‘*T sign and initial-this form freely and of my own

volition, without any pressure or undue influence ex-

erted upon me by any management representative or

anyone else. My purpose is to inform my employer

how I, as an affected employee, feel about the alter-

natives which cause the existing dispute between the

Historic Smithville Inn and the picketing unions.’’

(Italics in original.)

Respondent here, in good faith,’ wished to refute the

claim, falsely repeated by Timperio, the Union leader (R.

381-383, 378-379, 428-429), that most of the employees at

Smithville Inn preferred that management operate on the

basis of a show of cards rather than upon the basis of an

NLBEB election.

Neither the questionnaire nor any of management’s-

speeches nor any of management’s leaflets to its employees

revealed any employer hostility toward Union ‘organizing

(R. 391; G. C. Exh. 2; R. 393, 420-421, 421-422, 493, 494-

425).

The question asked by the questionnaire did not go

beyond the need for eliciting authoritatively the particular

information which respondent sought for the purpose of

refuting Timperio’s reiterated claim (R. 381-383, 378-379,

428-429). The information sought was not of the kind

which could be used against any employees or to pry from

them secrets they wanted to keep or to invade their

privacy.

6. On the subject of Margaret Jackson’s discharge,

the Board and the Court below found, without substantial

or logically relevant eyidence and contrary to uncontra-—

dicted, substantial evidence, that the employee was dis-

charged for Union activity and not (as the only witnesses

who testified on this subject said) because of Mrs. Jack-

son’s chronic tardiness. In so acting, the tribunals below,

in effect, acted on an unconstitutional presumption of peti-

10

tioners’ guilt. They neglected due process by substituting

assumption and supposition for proof and evidence. They

reversed due procedure by requiring or expecting peti- |

tioners to assume the burden of proving that they did not

commit the charged violations. They lightened the

Board’s burden of proof by regarding mere assumption

(disguised as alleged but spurious inference) to serve as

a vehicle to carry that burden. By this method of handling

the record evidence bearing upon the discharge of Margaret

Jackson, the tribunals below violated constitutional due

process under the Fifth Amendment to the United States

C astitution.

The very first day on which Jackson (R. 101) claimed

that Management learned of her Union activity was

Wednesday, November 30th after 5:30 P. M. But Man-

agement had already made its decision to discharge Jack-

son im the morning of November 28th; and Management

did not know of Jackson’s Union activity even on De-

cember 3rd. No evidence refutes the testimony of Man-

agement on this point (S.M. 226-229, 329- 330; R. 234, 269,

972, 364- 365).

Nor could anyone 2 except the most captious find fault

in the manner in which Jackson’s discharge was effectu-

ated. An adequaté and ample investigation of her record

was made. The time-clock did not lie. Not even Mrs.

Jackson was disposed to question the accuracy of the time-

clock recordings of her habitual tardiness (R. 114). Mrs.

Noyes had long refrained from discharging Jackson, both

because she Was a good waitress while on the job and be- '

cause of her invalid daughter. Gruhle and Merrill had

many times before requested the discharge of Jackson |

(because they could not rely on her reporting for duty on

time) and Mrs. Noyes had resisted. At long last, she

gave her consent on November 28, 1966. She knew nothing

of Jackson’s Union affiliation or concerted activities on

that date, on December 3, 1966, or at any time between

those dates. Neither did anybody else in Management.

,

*

- rata EE Mts wheat SB ELS = RECS SING a NE ea

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) i Me

Mrs. Noyes decided to hold her final decision in abeyance

when her lawyer asked her to do so, in order to give him

an opportunity to weigh the matter legally. He did; and

he concurred. The testimony on these points is uncontra-

dicted by any record evidence (R. 349-350, 367-368, 326-

327, 226, 343-345, 279-280).

Nothing in the record suggests that Jackson was singled

Nout for special or different treatment. Management had

handled similar situations in the same manner in the past;.

as the record indisputably shows.* That record comprises |

not only time-card records (for a relatively short\period),

but also and more importantly undisputed testimony of

Gruhle, Merrill, Lois Muller and others about the nature

and extent of Jackson’s* ta>iness and the comparative

tardiness of others* to whom Jackson erroneously re-

ferred. A similar penalty was meted out in a similar

manner for similar offenses by others in the past.

No employee who returned from the picket line to seek

employment or who, having failed to work during the

picketing, sought work after withdrawal of the pickets was

denied employment (except Margaret Jackson, whe was

‘less zealous as a unionist than many who went back to

their jobs). Many employees who had openly flaunted

their pro-Union conduct were welcomed back without ques-

tion and certainly without reprisal. So,<too, would Mar-

garet Jackson have been taken back, if she had not been

discharged as a person hopelessly given over to habits of

irremediable. tardiness (R. 421-422, 393,. 399, 421, 422, 265,

293-294). 7

ny,

7. It is respectfully submitted that the time has come

for this Court to correct such failures of due process and

to deprecate authoritatively the use of conjecture and:

facile assumption as evidence, misuse of the ordinary rules

*R. 215-216, 267-370, 268-269, 326, Resp. Exh. 2, 5, 7, 8, 9,

10, 11, 12.and 13, R. 394-397, 404, 408-420.

a

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respeeting burden of proof, the unwarranted suppression

of evidence by trial examiners and the Board by recourse

to the lazy, wholesale formula: ‘‘I do not credit the em-

ployers’ witnesses’’.

8. The questions presented in this petition are matters

of general and national importance, in view of the relative

frequency with which the NLRB and its Examiners have

similarly conducted themselves in other cases. These ques-

tions involve important employer rights respecting union

organizing campaigns and discharge of chronically tardy

employees.

CONCLUSION

The judgment below should be reversed as to the

discharge of Margaret Jackson and as to the poll by

voluntary statement; or the writ should issue.

Respectfully submitted,

GopFrEY P. ScuHMipt,

Attorney for Petitioners,

5D West 42nd Street,

New York, N. Y. 10036.

212-279-0355

13

Appendix A.

Sec. 8. (a) It shall be an unfair labor practice for an

employer—

(1) to interfere with, restrain, or coerce employees

in the exercise of the rights guaranteed ir section 7;

a

_* . * Eo

(3) by discrimination in regard to hire or tenure of

employment or any term or condition of employment

to encourage or discourage membership in any labor

organization: Provided, That nothing in this Act, or in

any other statute of the United States, shall preclude

an employer from making an agreement with a labor

organization (not established, maintained, or assisted

by any action defined in section 8 (a) of this Act as .

an unfair labor practice) to require as a condition of

employment membership therein on or after the thir-

tieth day following the beginning of such employment

or the effective date of such agreement, whichever is”

the later, (i) if such labor organization is the repre-

sentative of the employees as provided in section 9

(a), in the appropriate collective-bargaining unit cov-

ered by such agreement when made, and (ii) unless

following an election held is provided in section 9

.(e) within one year preceding the effective. date of

such agreement, the Board shall have certified that at

least a majority of the employees eligible to vote in

such election have voted to rescind the authority of

such labor organization to make such an agreement:

Provided further, That no employer shall justify any

discrimination ‘against an employee for non-member-

ship in a labor organization (A) if he has reasonable

grounds for believing that such membership was not

available to the employee, on the same terms and con-

ditions generally applicable to other members, or (B)

if he has reasonable grounds for believing that mem-

bership. was denied or terminated for reasons other

f

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14:

Appendix A. |

\

- than the failure of the employee to tender the periodic

dues and the initiation fees uniformly required as a

condition of acquiring or retaining membership;

* * *

(c) The expressing of any views, argument, or opin-

ion, 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 provisions of this Act, if such expression con-

_ tains no threat of reprisal or force or promise of

benefit. . .: Ss

ARTICLES in addition to and Amendment of the Consti-

tution of the United States of America, proposed by Con-

' gress, and ratified by the Legislatures of the several States,

pursuant to the fifth Article of the original Constitution.

(ARTICLE I.) ;

Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof; or

abridging the freedom: of speech, or of the press; or the

right of the people peaceably to assemble, and to petition

the Government for a redness of grievances.

-

(ARTICLE V.)

No person shall be held to answer for a capital, or other-

Wise infamous crime, unless on a presentment. or indict-

ment of a Grand Jury, except in cases arising in the land

or naval forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any person be

subject for the same offence to be twice put in jeopardy

of life or limb; nor shall be compelled in any criminal case

<to be a witness against himself, nor be deprived of life,

liberty, or property, without due process of law; nor shall

private property be taken for public use, without just

compensation. ;

15

&

Appendix B.

NaTIonaL Lasor RELATIONS

Boarp, Petitioner,

V.

Historic SMITHVILLE inw and Quail

Hill, Respondent,

Hotel, Motel and Restaurant Employees Union,

Local 508, AFL-CIO, Intervenor.

No. 17503. —

United States Court of Appeals

Third Circuit.

Argued June 3, 1969.

Decided July 18, 1969.

—

Proceeding on petition for enforcement of order, of Na-

tional Labor Relations Board. The Court of Appeals,

Van Dusen, Circuit Judge, held that evidence sustained

Board’s determination that employer’s surveillance of em-

ployees interfered with and coerced employees in exercise |

of their self-organizational rights, and that employer’s poll

of employers which was made against background of em-

ployer’s surveillance and discharge of one employee in-

terfered with employees in’ exercise of their rights to

organize.

Order enforced.

Cite as 414 F. 2d 1958 (1969)

Nan C. Bases, N. L. R. B., Washington, D. C.,.for peti-

tioner (Arnold Ordman, Gen. Counsel, Dominick L. Manoli,

Assoe. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen.

30"

P °

16

Appendix B.

Counsel, William F. Wachter, Atty., N. L. R. B., on the

brief). °

Richard H. Markowitz, Wilderman, Markowitz & Kirsch-

ner, Philadelphia, Pa., for intervenor.

Godfrey P. Schmidt, New York City, for respondent.

Before KaLopner, Van Dusen and Stant, Circuit Judges.

OPINION OF THE COURT

Vay» Dusen, Circuit Judge.

This case comes before us on application for. enforce-

ment of an erder of the Nafional Labor Relations Board

(hereinafter ‘*Board’’).. The Board found that the Com-

pany’ violated §8(a) (1), 29 U.S.C. §158(a) (7), by un-

lawfully threatening, interrogating, and polling its em-

ployees, and by surveillance of their union activities.

On November 28, 1966, some of the Company’s em-

flovees met with representatives of the Hotel, Motel, and

Rextaurant Employees Union’ in Atlantic City, New Jersey.

Certain employees, including Margaret Jackson whose dis-

charge will be diseussed below, then took Union eards for

distribution to other employees. Following that first

meeting, the Union held meetings for employees on No-

veinber 30 and every night thereafter until December 7.

These meetings were first held in a poolroom in Jo-Jo’s

Bar. On December 1 and December 3, the Company’s

' There are actually two separate corporate respondents which op-

erate restaurants in Smithville, New Jersey, but we shall refer to

them in the singular because they have common officers, ownership,

directors, and a common labor policy.

* Local 508, AFL-CIO. | .

*The poolroom is separated from the bar area by a partition and

is entered through an opening near the main entrance to the estab-

ment.

+

7°

Appendix B.

‘‘coordinator,’’ Mr. Miller, was present in the bar area at

Jo-Jo’s during the Union meeting. “On December 3, the

Union meeting was moved from Jo-Jo’s to the Beach-

comber Inn, where Mr. Miller also appeared.‘

On December 2, the Union requested recognition as the

employees’ bargaining representative. The Company re- —

fused, asserting doubt about the Union’s majority status.

‘The Union callgd a strike and began to picket respondent

on December 7. On December 18, the Company distributed

a questionnaire entitled ‘‘V oluntary Statement By Em-

ployee’” to each employee in an attempt to poll them to

determine whether they preferred a secret election con-

ducted by the Board or a show of Union application cards

to an impartial third party.

\ Charges of unfair labor practices were filed by the Union

against the Company on December 5 and on December 9,

1966. General Counsel of the Board issued a consolidated

complaint on April 3, 1967, alleging unfair labor practices

‘ In addition to Mr. Miller, Assistant Chef Hand visited Jo-Jo’s on

December 1 during the Union meeting.

5

“VOLUNTARY STATEMENT BY EMPLOYEE

“Please remember that while your Employer asks you to sign

and initial this form, you are ar no obligation to do so un-

less you want to.

“I have been told by my EXployer's representative that:

“Il. The picketing Unions claim to represent a majority of the

Smithville Inn Employees engaged in restaurant operations ;

“2. The picketing unions want my Employer to ‘regard the

showing and counting of union application cards, heretofore

collected by the picketing unions as proof of that claim;

“3. My Employer prefers a secret National Labor Relations

Board election as the best way to prove whether Smithville Inn

employees want or do not want a union ;

(footnote continued on following page)

18

Appendix B.

in violation of §8(a) (1) and (3) of the National Labor

Relations Act. A hearing was held on May 16 and 17, 1967,

before’ Trial Examiner George Bott, who, in a decision

issued August 29, 1967, found the Company had engaged in

unfair labor practices. On January 10, 1968, the Board

issued its decision and order adopting the findings, conclu-

sions, and recommendations of the Trial Examiner.

-=(footnote continued from previous page)

“4. The picketing unions refused, from the beginning, and

continue to refuse a fair, secret election conducted by the Na-

tional Labor Relations Board as the method for proving their

dubious claim and for ending the present picketing and strike ;

“5. My Employer doubts the unions claim of majority support

and regards signed, union-application cards as, in the circum-

stances, a most unreliable method of showing the choice of a

majority of Smithville Inn Employees.

“As an Employee of the Inn who is deeply interested in the in-

volved dispute between my Employer and the picketing unions

and who has a stake in the outcome of the dispute, I have been

asked by management to state my preference without fear or

favor and on a completely voluntary basis.

“IT have marked my choice in the appropriate box below by

putting my initials in that box: ’ A

I prefer a secret election conducted by the National Labor

[_] Relations Board as the best way_of showing whether a

majority of Smithville Inn Employees want or do not want

a union.

I prefer a show of union application cards to some impartial

[_] third party as the best way of showing whether Smithville

Inn Employees want or do not want a union.

“I sign and initial this form freely and of my own volition

without any pressure or undue influence exerted upon me by

any management representative or anyone else. My purpose is

to inform my Employer how I, as an effected. Employee,

Line Missing— in Copy

Smithville Inn and the picketing unions. SUNDAY, DECEM-

BER 18, 1966.

PLEASE SIGN HERE”

19

Appendix B.

The issues are whether there is substantial evidence on

the record as a whole to support the Board’s findings that

-(a) the Company interfered with, restrained, and coerced

its employees in the exercise of their statutory rights, in

violation of § 8(a) (1) of the Act (29 U.S.C. § 158(a) (1));

(b) the Company discharged Margaret Jackson because of

her Union activities, in violation of §8(a) (3) and (1) of

the Act (29 U.S.C. § 158(a) (3) and (1)); and (c) the De-

_eember 18 poll interfered with the employees in the exercise

of their § 7 (29 U.S.C. § 157) rights.

~ We hold that there is substantial evidence in the record

as a whole to support the Board’s findings.

[1] We ean find no error in the Board’s determination

that the surveillance of Company employees interfered

with and coerced the employees in the exercise of their self-

organizational rights, in violation of §8(a) (1). See

N. L. R. B..v. Morris Fishman and Sons, Ine., 278 F.2d

792, 796 (3rd Cir. 1960); N. L. R. B. v. Rockwell Manu-

facturing Co: (Du Bois Div.), 271 F.2d 109 (3rd Cir. 1959).

The Board’s finding of surveillance is supported by the tes-

timony of the Company coordinator, Mr. Miller, and by

the testimony of the Assistant Chef, Mr. Hand. From the

*Mr. Miller testified that he was present at Jo-Jo’s Bar both on

December 1 and on December 3 while the Union meetings were

in progress. While that fact alone may be insufficient to establish

surveillance of Company employees, additional testimony given by

Mr. Miller supports the Board’s finding. Mr. Miller had been a

regular patron of Jo-Jo’s until August or September of 1966;

thereafter, he did not visit Jo-Jo’s until the middle of November.

Mr. Miller also testified that he may have been prompted to ‘stop at

Jo.Jo’s on December 1 by a “certain amount of curiosity”, and he

“probably assumed” another meeting would be held Saturday,

December 3, when he returned. In addition, when the Union meet-

ing moved from Jo-Jo’s to the Beachcomber Inn, Mr. Miller left

the former and went in a position to observe those employees who

attended the meeting.

Mr.’ Hand also testified that he visited Jo-Jo’s on December 1

while the Union meeting was in prograss.

ait A teid irs 60 Ho WS, ack

IIR INA ABE Dil IAAL EN PD lt Mt ot PAI Y Lic PA iS ABE AI ti hte fe OILY heal?

20

Appendix B.

facts related in their testimony, the Board could properly

infer that Miller and Hand were present for the purpose

of monitoring the employees’ Union activities.

[2, 3] There is no dispute that Margaret Jackson was

chronically late for work while employed by the Company.”

That fact alone could constitute a non-discriminatory basis

for discharge, but if the discharge was motivated, even in

part, by union activity, it is illegal despite the existence

of adequate cause for firing her. See N. L. R. B. v. Barber-

ton Plastics Products, Ine., 354 F.2d 66, 68 (6th Cir. 1965).

Although the witnesses gave conflicting testimony,® we find

_ that there was sufficient evidence to support the Board’s

* Mrs. Jackson confirmed the Company’s charge in the following

testimony:

~~ “Q. Were you late as charged by the Company?

“A. Yes, I was late.” if

Although she had a long history of being late, this defect did not

increase during the period prior to her dismissal. She had been

employed by the Company as a waitress for more than five years

prior to her discharge on December 3, 1966, and she was admittedly

a good waitress.

* Some of the Company witnesses testified that the decision to dis-

charge Mrs. Jackson was made because she was habitually tardy,

and that the decision was made on November 28, two days before

she claimed the Company first learned of her Union activity. Mrs.

Jackson was not actually discharged until December 3. Mrs. Noyes,

the co-possessor of the Company, explained that the lapse of time

from November 28 to December 3 was occasioned by the advice of

counsel, who told her not to discharge anyone until, he arrived on

December 3. Counsel testified that he gave such advice. The tes-

timony of dining room:manager Gruhle is not as precise. He

recommended Mrs. Jackson’s discharge “possibly in late Novem-

ber”, but he was unable to specify the date on which he discussed

the discharge with Mrs. Noyes. Mr. Gruhle could only recall that

a period of days elapsed betwéen the time he recommended Mrs. .

Jackson’s discharge and the date she was discharged. Mr. Merrill,

manager of the Smithville Inn, testified that the last time he recom-

mended Mrs. Jackson’s discharge was just before Thanksgiving in

1966 and Mrs. Noyes “wanted to think about it.” He reported

back to Mrs. Noyes on November 20 or 27.

(footnote continued on following page)

4

finding that -Margaret Jackson’s carne was, at least

in part, due to her Union activity.’

[4-6] We must consider the interests of the Company

and the effect on the employees in determining the pro-

priety of the poll. An employer may have a legitimate

interest in polling his employees to determine whether a

union demanding recognition actually represents a

majority of the employees or to defend itself against an

unfair labor charge, but we must also recognize that the

employee being polled may fear management reprisal for

(footnote continued from previous page)

The Trial Examiner, whose findings this testimony of respond-

ent’s witnesses. He found that the Company was substantially

motivated by union considerations in discharging Mrs. Jackson on

December 3 on the basis of testimony that she attended the Union

organizational meeting on November 28; distributed Union cards

at the Smithville Inn in the presence of Mrs. Miller, Mrs. Noyes’

sister; was searched for Union cards by Assistant Chef Hand on

November 30; was seen at Union Meetings at Jo-Jo’s and The

Beachcomber Inn by coordinator Miller; introduced Mr. Hand. to

Union president Timperio no later than December 1; and was dis-

charged contrary to the Company’s custom by which an employee

is permitted to finish out the week.

From this evidence, credited by the Trial-Examiner, it was not

illogical for the Board to infer that the decision to discharge Mrs.

Jackson was made after November 28 and was based in some Part

on her Union activities.

®In N. L. R. B. v. Buitoni Foods Corp., 298 F.2d 169, 174 (3rd

Cir. 1962), we said:

.“‘We observe * * * that where * * * contradictory reasons for

‘the discharge of an employee are ,advanced, it is the responsi-

bility of the Board to weigh the evidence and resolve the factual

_ conflict. * * * There is clearly no obligation on the Board to

accept at face value the reason advanced by the employer. The

concurrent existence of an otherwise valid reason for the dis-

charge of an employee does not preclude a factual determination

that his discharge was discriminatory if it appears from a

preponderance of evidence, and the reasonable inferences drawn

therefrom, that the discharge was in fact motivated by the em-

ployer’s opposition to the employee’s union activities.”

See. also, Hugh H. Wilson Corporation v. N. L. R. B., 414 F.2d

1345 (3rd Cir. July 3, 1969).

a

22

Appendix B.

support of the union. Cf. National Labor Relations Bd.

v. Essex Wire Corp., 245 F.2d 589, 592 (9th Cir. 1957). The

test to determine legality of the poll, applicable when this

case arose, was ‘‘whether, under all the circumstances,

the interrogation reasonably tends to restrain or interfere

with the employees in the exercise of rights guaranteed by

the Act.’’ Blue Flash Express Co., 109 N. L. R. B. 591, 593

(1954).*° We hold that the Board’s finding that the De-

cember 18 poll interfered with the employees in the exer-

cise of their $7 rights is supported by substantial evidence

on the record as a whole.

The poll was taken against a’background of unfair labor

practices in the form of syrveillance and the discharge of

an employee because of union activity. The form on which

the poll was taken clearly sought employee identification,

both by signature at the end and by initials in the box in-

dicating the alternative chosen. The Board also adopted

the Trial-Examiner’s finding that inadequate assurances

against reprisals were given. That finding is particularly

apt where employees who have been exposed to certain

unfair labor practices are then requested to fill out a form

which seeks their identification and makes inquiry regard-

ing their alignment with union or management.

The Board’s order will be enforced.

7? While we apply the Blue Flash test on this record, we note that

the Board has revised the criteria for judging legitimacy of in-

terrogation in Struksnes Construction Co., Inc., 165 N. L. R. B. No.

102,.65 LRRM 1385, 1386 (1967), where it said:

“Absent unusual circumstances, the polling of employees by an

employer will bé violative of Section 8(a) (1) of the Act un-

less the following safeguards are observed: (1) the purpose of

the poll is communicated to the employees, (3) assurances

against reprisal are given, (4) the employees are polled by

secret ballot, and (5) the employer has not engaged in unfair

labor practices or otherwise created a coercive atmosphere.”

We note the recent Supreme Court decision in N. L. R. B. v.

Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed. 2d 547

(1969), where the court cited with apparent approval’ the above-

mentioned Struksnes Construction Co. decision.