# Petition for Writ of Certiorari — Historic Smithville Inn v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1172%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1970 - **Citation:** 397 U.S. 908 ## Text : : Office-Supreme + all tows kraar | 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 y% 3 - ~ No. + - - Historic SMITHVILLE Inn and Quam Hitt, : Petitioners, v. NationaL Lasor RELATIONS Boarp, - Z Respondent. y% 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. \W 4 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 7 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 5 J A ) 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,