Petition for Writ of Certiorari — Republic Aviation Corp. v. NLRB

Supreme Court brief1945

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—_————_ a nena

| Gnthe Supreme Court sf the Mnited States

, : ‘ “ihe: . hes

| le Octoper Term, i944

NATIONAL Lapor Hers ttONS Boarn, PEGITIONER .

Le Toprnras COMPANY. OF GRORGIA o

POEs ar sean eee

PHTITION’FOR A WRIT OF CERTIORARI TO THE UNITED -

. “STATES CIRCUIT COURT OF APPEALS FOR THE FIFTH ;

CIRCUIT Pa he aoe ;

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‘3 INDEX

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Opinions below __ ___- ee Sea oer 1

Jurisdiction __ __- ee ages 2

Questions presented ae Dice aindaatebacncaien 2

Statute involved _ SR fires Sen Ne et MARI ES 3

Statement___.____- ieee Pepaicntay 3

‘Specification of errots. to be urged ea Sas ay ta gen es ne 10

Reasons for granting the writ. a2 : Se —_ IL

Conclusion :........_.-.-.2-.. Spey g: Rian! 16

. Appendix... < 65) ste eee SEE 7

CITATIONS

Cases:

Boeing Airplane Co. v. National Labor Relations Board,

ce 140 F. (3d) 428...._,.-...9. eaae 14

Midland Steel Products Co 0. V. \: fiona Labor Relations

-Board, 113 F. (2d) 800, _...-- nae x 14

National Labor Relations: Board v. Denver Tent ‘and ies

Aioning Co., 138 F. (2d) 410.2... 14

Republic Aviation Corp. ». Nationat Labor Relations ‘Board, ° :

142 F. (2d)-193_.--...- ea | ee

Spalek, Adolph, Matter of, 45 N. L. R. B. 1272. cacke 7

‘Statute: ; ;

National Labor cep Aet, Act of July 3 1088, c. 372,

49 Stat. 449 (29 U, .’C., Sees. 151 et séq.): ay

; ___ 9 aS eee ee Pie 17

WG titenwoes ae ees oo a, is BE

eee ekeaaiees eined ened tee

SNR a Sia ticaxese steed ooseen ate acu, ute sane 17

Re ioe ee cieaie ane i<ngtannwens a

, Sec. 10 (e). 2. -- ae da hnae anuemneel ie bee ani: ee

Miscellaneous: . ;

National Labor Relations Board, Eighth Annual oe

Gov’ t Print. . 8 % Rate hiamiamealaae 15

7” (I) :

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OcToBer: TERM, 1944 . | *

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—<—<——<— . 8: Vv.

La TOURNEAU Company OF GEORGIA

' fy 8 a

PETITION FOR A WRIT OF Gentine: TO THE UNITED

STATES CIRCUIT COURT OF a FOR THE FIFTH

CIRCUIT — 7 7 |

The Solici ‘itor Gene val, on behalf of the National

- Labor Relations Board, prays that.a writ of cer-

tiorari issue to review “the decree of the United

States C ircyit Court of Appeals for the Fifth Cir-

@ cuit; entered on June 23, 1944 (R. 82), setting

aside the Board’s order directed against. the Le

. Tourneau Company of Georgia. E SS

OPINIONS BELOW

The opinion of" the ‘Circuit. Court of Appeals

(R. 79-82) is reported in 143 F., (2d) 67. The~

findings of fact, conclusions ‘of law, an order of ©

'“R” denotes referent es to the “Transec ript of Record,” and

“BA” referent es to the Board’s appendix.

os q@)

of -» : a

oe _*”

the “Board UR-"55-73) are reported’ in ~ 54

N..L. Re B. 133, =X: peas eae

Pap ie JURISBICTION see

: The decree of the Circuit Court of Aopeae wal

entered’ en June 25, 1944 (Ro 82); The juni

* tion of this Court is invoked ubder Section 240 a

(a) of the Judicial Code, as amerided. ‘by the Act”

of February 13, 1925, and Section 10 Ce) and (f)

of the National Labor Relations Bg ed an

- QUESTIONS. PRESENTE

The Company promulgated R “rule prohibiting

Pers violated this rule

by passing out union handbills on the-Company’s:

the distribution of printed matter on its. property.

.Employees Ferguson and :

; parking lots, and each was suspended from ‘work,

for 2 days. for the infraction. ‘The plant. is ina:

‘rural area, distant. from any city, on a 6,000-acre -

tract of land owned” by the ‘Company: or its sub-

sidiary. Most of the employees live at great“lis-

tances from it, and their homes are scattered over

a large area. The employees’ entrance tothe

“plant is set back 100 feet from a -publie highway

and there isa parking lot on the Company’s _prop-

erty between the plant entrance and the highway.

More than 60 percent of*the-employees never have »

‘* occasion to set foot on the highway in going to or.

coming from work. because the. vehicles in which

they travel are parked on this lot. .The questions

_ are whether in the circumstances of this case, the.

fr Boatd could properly find (a) that the Company

- by promulge iting aud enfercing the aforesaidarule,

insofar as: it prohibited employees from distribut*

ploy ees ‘unde r Section 7 of the Act, in violation of

Section 8.(1); and (b) that the C ‘ompany violated

Fer ‘area and. Ayers. oe ie <

STATUTE INVOLVED, -

The pertinent provisions of the Naticnal Labor

Relations Act’ (Act of July 5, 1935, .c. 372, 49 Stat:

4 -out in the Appendix, pp. 17-18, infra. z (

2 : a as z ‘ Fé

; - - * STATEMENT re

- U por. the nnvial proce ceedings the Board, on ay fy.

“sions of aw: and order (R.5 ._ oe 5-73), The- pe rtinent

facts, as found by -the Board and as shawn by

undisputed evidence, niay , be- summarized - as

follows:? — bia

cerporation, lie ‘reinafter called: The jompany, is

a manufacturer af earth- njoving machine ry -and

_ other products,- -and employs more than 2,100 per=

. Sons at its plant, near Taccoa; Georgia (R. 5T-DS:

“oe

- ?In the following statement. re ferenc es prec -eding a..semi-

‘colon are to the Board’s findings; those following are to the...

support ing eV idenc e. a ew ; =

ing union handhills on its parking lots, interfered _

with the exercise of the rights guaranteed . em-.

Section 8 (3) and (1) of the Act by suspending:

449, U.S. Ci“Fitle 220s Seé. 151 ¢t seq.) are set

ruary te, 1944, issued its findings of faet, cone la,

* Le Tournead Company of Georgia, 3a Georgia *

Oe,

- ‘

24, B. A. 3). ° The plant’ site is part. of a 6,000-aere

tract of land, owned by the Company or its sub- .

sidiary (R. 58;- B.A. 3), and extends in its en- *-

titety along the northerly side of U.S. Highway

13.(R, 58; B. A. 34,6). It is divided inte 2 sec-

~ tions by a roadway ‘that intersects the. highway

(R: 58; B. A. 7). A 6- foot wire fence, roughly.

paralleling the highway, but set back | ‘at distances

varying from 30 to 100 feet frony the highway (R.

59; Be A. 4, 6), ene ‘loses each section of the plant ”

(R.59; B. A. 4, D>). Virtually all of the employees, .

irrespecti¥e of on which side of the-roadway they

work, enter and: leave the plant through a main

‘ + gate which adjoins an office: building ‘that serves ;

“as a-section of ‘the Téties (R. 9; BoA. 4,5, 6, 7

33). * This gatp is set back from n the highway 100 .

. feet (R. 59, 66; B. A. 5, 29); the company- owned

ground hetyyeen the ie ‘é building ‘and. the high- ;

way .(R. 59; Be NX.29) is paved with concrete (R.

OD; 66-67 ; Be A...5, 7). This concrete apron arid

a connecting grav ‘a ‘plot, together calle the. North,

parking lot, extend along the highway for 0 feet

eR. 59; BRA. 45, ‘6-7; Tr. 108). “ On the opposite

side of the highway is another parking loty pore- ee

. 4 = a

* Xdjacent to the plant,.but on. the southerly side of High: oe

way 13, is a hamlet awned by the Company, known as Tourna-

pull, consisting ofa United States Post Office, a gasoline sta-

a’, - tiof, and about 50 ee, which are oc cupied by employees of

* the Company (R. 58; B. A. 3-4)... Toccoa is about 3 miles all

_tant Afom Tournapull (B. A;3)....%

. * Tie time _ ks are inside he gate (Ro 59,1 n. 3; B. A. 0.

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_inafter called bike. ‘South | pres lot,. which | ig

’ leased by the Company (R, 59; B. AS 5, 8-9, 23, ..

‘26-27, 29). Both lots are guarded and. a clean

by the Company’ s plant- -protection force. (R. 59;

B. A. 8, 26-27, 28, 36).- - .

Most of the employees live in widély sisabeieds

communities and on farms within a radius of.

20 miles of the plant (R. 58, 67; B: A. 4). They

travel to and cone work’ by automobile or bus

(R. 59, 67; B. A. 5,°8-9, 11, 27, 28-29, 30). The-

conveyances ‘in whke h about 60 percent: of them

_~ travel are parked on the North lot;.most of the

’ others are paried, on the South Jot Moa 59; B. A;

“8-9, 11). -

Since July. 1941, the. ‘Company: has atrictly eK-

' forced a rule préhibiting all persons from distrib-

oe) | uting printed matter, ef any Kind on its pr operty.

- Without permission’ (R. 61; B. A. 27-28, 48, 34-35,

37-38).’ "In February 1943, the Congress of In-

dustrial ..Or ganizatidhs; - hereinafter calleds the

= ot ¢ O., began to-organize the Cornpany’s em-—

ployees,.and on April 8, 1943, the Board lield an

election: at the Pee whieh-the C. 1. O. lost (Re

61; B. ‘A. 12-13,” Tr. 37). On the day. of the

Board electjon, employ ee Grady Ferguson, after

completing hig day’s work, boarded “a standing’

~ on the North par king Jot he 62; B.

* Before- the rule was omulgated, merc hants from nearby

towns employed boys to Place advertise ments in the parked’

automobiles, a practice that had resulted in littering (R. 60;

ly BA. 34-35). Thefts from the automobiles had 4)a0 occurred

from time to time = the head was adopted ‘(id.) -

ie le.

25, 12-13).

/ &

16-48, 24,8940).

CLL. OL. the labor organization ‘that filed they harges i in this -

“. P 5 a "

ses is

? *

On ‘entering the bus, Ferguson toand a few C. L 0.

leaflets, some of which he gave to fellow passen- :

gers, and others of, which -he handed through an

os window to persons on the parking lot (R.

62; B. A. 35). The ¢ ‘aptain ‘of the Plant Guard

saw-the incident; and instructed Fergusén to, re- °

‘port. to the Plant: manager the next day (& 62;

B. A. 2! 5-26) ; the Plant M: anager suspended Fer- :

+ guson ftom work for 2 days’ because of his viola- |

“tion of the. “no-distribution’ ’ rule (Re 62; B.A.

26). "

Aftet the defeat of the C. 1. 0. the Union*

‘ undertook to ‘organize the Company's s employees _

(R. 61; B. A. 12-13). On Juiy 15, 1943, em- -

ployee: LW ayman Ayets, preside nt of the local

union, asked for permission to distribute "hand-

bills in and cabout the plant” ‘apnoune ing a Union

mee ‘tithe. but the Plan Manager denied his request

.(R. 62; BY A. 13-1 The next day, Ayers dis- *

tributed a few-tinior handbills on the South yee,

ing let during dis lunch hour, in the mistaken

belief that this lot did not belong to the Company

R. 62-63; B. A. 13-16, 21, 3940), A plant guard

observed his actions, which ‘were ‘ultimately re-

ported’ ty the General Manager. The latter sus-

pended Ayers’ for 2 days. bee srr of his-violation: .

CR, “63; B. A. 13, |

of the **no-distribution”’ rule!

* United Steel workers éf Amerfon, affiliated. with the

_ See (Re 55; riglieds

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. Upen- the fore going facts - the Soe

although the “no-distribution?

tule had.

“been applied to all persons, without bxeeption, “

‘ seeking to distribute literature on the parking

lots”?

(R. 64), the Contany, **in apply ing its * no-

distributing’? rule te the distribution, of union

* Jiteratire -by- its: eniployees -on its. parkitg

lots * * "placed -an “unreasonable impedi--

"ment on the freedent of eomnunic ation essenitial

to the exercise of sits employees” right to self-

organization, * 9S" OR, 68). - The ‘Board -

~.pointed out:

* * * -respondent’s plant is’-located in

-» the country in the heart of 6,000. acres of

land owned:by it or its subsidiary. Apart —

from U. 8. Highway No. 13 (and perhaps

the intersecting road); the respondent anid

its subsidiary own all the land adjacent to .°

> the’ plant. - This, in itself, seriously limits °

are

the possibilities of effectively: communicat-

ing with the bulk of the respondent’s ‘em-

pioyees. This limitation would not, -how-

ever, be too restrictive if the respondent's _

‘gate opened directly onto the highway, for

then persons could stand «utside the .re-

~spondent’s premises arid: distribute litera-

‘ture as each employee entered or ieft the

‘plant. But at the respondent’s plant the”

Matter of Adolph SpaleK and William J. 8 enchik,

copartiers, doing business as Spalek Engincering Com pamy.

45N.L RB. 92, eS paces %

e0765044——-2 | : ¢ a.

s ae *

gate is 100 fet back fronr the highway. -On

company property. Over 6S percent of the :

- respondent's “inployews, A fey passing

gate, enter alitotnobiles: oF, busseg ‘parke ‘d\n

the spacé be tweed he gate utitl the. highy stv

fice. fhe Nogth, parking lot}. and prist ame

ably: speed fomeward, ‘without eveMgetting |

foot an the highway. Distributron of? dit-

erature to employees’ is re ndered virtually

Inipossible ander the se Cire ces, and

- §t is an inescapable conclusion: that ‘self-

“a OMe (he as conpequently se criously im:

ed (R. 66-67). PT a i ;

. After thus eniphasizing the serious detrimental °

impact of the rile upoh the e mployees* freedom of

self Orange ition, the Bosird tay ned to a cousiger: &:

ation af the. possible: detriment te the “employer's =

interests which would tlow fram abrogation: of the

rtle as?ap plied to the parking lots. The Board

" pecegnized. that: the. ; Company hiad a * Jegitimate’

: “Interest inh preventing, litte ring, but ‘found: that.’

that “inate rest, alid hat justify the rulfunder “the

‘epeciliar facts of this « ASC ’ (R. 67): “The Board

hoted that’ hirtePing on : parking. Jot «is. not AS-¢

~ SETIOUS to “an employer as would “be. littering oh

within bnild ings: “Whe ye > prodie 410K] Js being ear’

ning : + *

‘The unpedunent wits partic larly -sertous in the attadlt 2

Tse. thee Board stilt. vu | 67 »-becatise “the semi plovees’

Somes are s¢ atte) ed over 4% ge hence, “En (igtabbence:

vf a Kyat, of names afd addresses, naa dly os direct contact, |

"awit oti majority, of the respondent's employees>sway from”.

sihe-plant would be extremely difficult” (R. 67 Yugaas nas ie

“@ i ; x wo: ‘ aie * i, : -

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; public interest in affording the employ’ ees a prac-

a prevent thes'ts, the ‘Board found (R. ae that fer

thefts, had ‘ceased When outsiders were denied ae- “

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ried on * * * (R67), dad that the Company

had no general rule against littering (R. 67; B.A.

31): In. balancing this employer interest against ee .

the eniployees’ right ty *shie ‘it - membership @for .

their laher orsanization aid to ‘enjoy their right

to comminnie wie. with one atiother for the. Purpose

of. self- organizetion, the Board. eumpliasizing, that |:

this case’ prexerits a ‘situation in iwhieh the em-

-ployeey contd hot as a practical nbttea" dia vibute:

trom handbills atthe plant g sates, rownd that the

teal opportunity: “to enjoy their rights unde Y the.

Act. outweighed’ ‘the: enrployer’ sv interest | ine wee

¥ et : bas 0G a

venting: littering on its parkiny lots CR. 67). i

answer: 40. the contention that the rule Was Nicaea

cess ‘to the lots and that: ‘in any event: ‘fhe rule

. ould: have no, be arinige upon. that problam because 5s a 4

under. the® “rule sthe employees: coptinued : to: “have ie SS

Tree feces to the lots CR. 67-68). “Ina Iswer to cz

ye Cc emipany s eK conte ntignh—ani une ly,

ont that, the’ Company ayes ci oe Again st emie : . .

. plovecs edimiying hie Hepa pei's ir “the ‘Pop wrinted na: it

te} into the plant; and: tat it. places: cops ot a 3 :

Meigeazine in, boXesg ne ar, the plant gate! whik ‘he the eee

tw iployees cand. ike wit! si m into, the plant ton os

: ‘OS: B..- A. ‘9-10, 34) Yi gene as : .

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The. Board there ‘fore -concluded that: the Conr

‘pany, by’ ap plying its no-distribution rule to the

‘distribution of union literature -by its employees

mits parking lots, engaged im unfair labor prac-..

“tees Within the meaning sof Seetion,8 (1) of the.

. Act (R.-71). and: by suspending °Ferguson and

_ Ayers for-Violationg of the rule, discriminated: in.

regard to their-hire| afd te nure of employment in

vigdatioa ot Section/ 8 (3) of the Act (R. 68, 71).

The Board ordered. the Company to cease arid:

desist) from its Anta air labor pri actices; to mike .

Férgusen and Ayers: whole for the wages they Jost

during their respective two-day suspensions ; to

reseind the rttte insofar as it prohibits distribution

of unio literature’ by employees in the 2 ee

lots; and t® post appropriate, notices (R. 72-73).

_ On February 24.) 1944, the. ¢ Company. petitioned

tiie coftt below te set aside'the Board’s order (Re.

8, -#*7). There:

ter the Board, answering

cee Lon, requested that its order be

enforced (R. 9-1: On June 23, 1944, the court |

below handed ay its. opinion and entered..a

dec ‘ree setting aside the Board's order in | its en-

tirety (R: 82).

SPECIFICATI N OF ERRORS TO BE URGED

“he AMssonen revs Appeals err ed— ’ " oes

In holding, as a matter of law, that. the Com-

panya's ap iplic ation of: its ‘‘ne distribution” rule a

“prevent the. distributiongot union literature by

enphieg arking lots did not: interfere with .

: |

; |

ae |

”

° ag.

. its, employees’ .exercise es the rights. guaranteed

them in Section 7 of the Act.

Ee holding without qualification that ther re is

“noeproviston, express or implied: in the National -..

‘ Labor Relations Act avhich requires an employer 7

. to permit organization efforts [by his employees ]

on his premises’? (R. 81), and that an employer

may therefore insist “that the eniployce S diseuss

‘and act on the niatter of their own or ganization

else Where than | on the employer’ s property’? (CR.

‘ OE)... : ae : . $ ; ; *s

3. In holding that the issue presents a que stion

of law for the court to. decide for itself and_in

failing to give any weight to-the Board's deter-

mination that in the instant: circumstances, .the

application of the rule to eniployee congluct on the

parking lots constituted interference in violation

of Section 8 (1) of the Act. A i CRY

4. In holding that the suspension of Ferguson

and Ayers for having violated the rule did not

constitute diserimination respecting. lure and

_. tenure of employment violative of Section 8 (: 3) of

. a ‘Act. et :

. e setting aside_ar pe denying enforceme nt to.

tie Board’s order.

_, REASONS FOR GRANTING THE WRIT

1, The decision below egiifiiets with Re wablic

Aviation. Corporation v. National Labor Relations

Board, "142-F. (2d) 193 (C! C. A. 2), certiorari

pending,’ No. 226; this Term, in which the Board

hic. a : oa

with the employer’ s business. .

both cases .te-find that the employers’ application

-Act. In broad outline, these considerations are

‘special circumstances under which the employees

‘employers would have suffered from abrogation

- &

has filed a memo ‘andum consenting to the grant-_

ing of a. writ ‘of certiorari. The fundamental

issue in both the Republic and the imstait case is

whether, and to-what extent, an employer may

prohibit his employees from engaging in union

activity°on, company property outside of working

time. - In the Republic case, an employe e who

-solieited: membership for his union in the plant

during the lunch hour was discharged for vio-

lating a rule prohibiting.solicitation of any, kin

in the plant (51 N..L. R. B..1186, 1187, 1195-

1196}. If,-as the Second Circuit held, the Board

may order an employer. mt fo prohibit union,

solicitation within the plant outside of working

hours, it would seem to follow that it could make *

a similar: order ‘with respect toa rule governing”

the distribution of literature in’ a-parking. lot,

which would cause, if anything, less ‘mterference

The same considerations impelled the. Board in

of their respective rules was ‘in derogation ‘of

rights guaranteed employees by Section 7 of the /

that, the application of the plant rules in the

in both eases worked and lived resulted in a.

virtual denial to them of the rights guaranteed by —

the statute, and that.the detrimeyt which . the

. A 26 . bd - . .-

~ the Board's de

e 3 . 2

i ; ¢

_of the rules was not sufficiently serious to war-

-rant denial of the employees’ rights.

In the ‘Republic’case the. Circuit Court: of f Ap-»_

peais fe for. the e Second £ ‘irenit upheld the Board's

“position, saying that. the Board could properly

weigh * ‘what, in fact will) be-the prejudice to the

interests of. the employer ‘in allowing eleciioneer-

ing to go, om during lunch hours, and what will’

be the benefit to the employees; and what will be

his benefit and their prejudice in disallowing it’*

_. (42 FF. (2d) at 196): It held further that the

Board is empowered. in- the first instance to ‘de-

-termine ‘whether the benefit [to the employer]

shall prevailover the prejudice [to the employees]

or vice versa’? (id, at 196), and that ‘only In eases

where [the reviewing courts | believe that. there:

‘is no reasonable warrant for thre. priority actually

awarded’? (1d. : co may the courts set aside

nivatien. In contrast to this

ruling, the court ’ below held that. an employer

need not furnish ‘‘a theater’’ for his, employees’

_ efforts at self-organization ; that he may lawfully

insist ‘that the employees Viseuss and act’on the °

matter of their own’ organization elsewhere.than

on, the employer’s property’’ beeause, said - the

court, “there is no provision, express or implied,

in the Natioyg! Labor Relations Act which’ re-

“quires an we Ts to permit organization efforts

on his premises” (R. 81). Thus, the court below

excluded as irrelevant the competing consider-

ations that the Board and the Circuit Court. of

2 ke

ere by Sone

"Appeals for the , ae Cireuit deem. controlling,

and. held that plant rules forbidding unlon ac |

tivity on company prope ty are lawful however ‘

destructive their‘impaet upon employee rights of |

self- -organization ‘unless the, rules are adopted or

appliéd for. the purpose: of discotiraging union

membership | (R: 81).”

~2.°'The questions presented in the instant case”

‘ asin ‘the Pe public case, are of importance in the

administration of the National Labor: Rel ations

Act, In both eases, - the Board findings reveal

“(compare pp. 5, 7-8, supra with 51 N. LR. B. 1186, ,

1195-1196), that the employeés live over a widely

“scattered area at great distances from the“plant;

in both the plants are situated in a region remote

ffoni any city. In. such ‘circumstances, as the

Board has found (d.), the plant is the normal—

indeed the only—place_ at which the employees |

¢ Phe: Circuit Court of Appeals for the Sixth Cirenit. held ¢

such a rile validin a case where the Board had not passed on

the rule. Midlend Steel Prodite ts Co. ¥. National Labor Re-

lations Board, 113° F.. (2) SUA), WS, 806. The Ciretit Court

of Appeals for the Tenth Cire@t has twice, by way of dictum,

expressed its view that ‘Such a rule. is valid unless it was .

adopted “nie orely aga ‘device to obstfuct or impede. self- -organi-

zatton,” once in a ease where it upheld the Board's finding

that the rule was adopted, merely for anti union purposes

‘ Nationa? Labor Relations Board v. Denver Tent & Awning ’

2158 F. (2d) 410,411), and the second time ina case in

fi. h ifset aside a finding that employees were discriminated

against Bechuse of union activities and held that they were

‘ properly punished for violating a valid no-solicitution ryle.

“Boei ig. fir plane Co. v. National Labor Relations Board, 140

KF. (2d) 42 bast ania

yo ; a , , q@

cae

-€an, as a practical n tter, exercise their right to

self- organization. ‘Only at the plant, where they

all eongregtite, can | hey adequately communicate

with one-another ; insurmountable_ practical bar-

‘Tiers stand in the. way of any attemptby such”

employees to reach any large® ‘umber of their

fellow workers at home. If in such plants the

- Board were. powerless to protect the employees in

carrying on union solicitation in or adjavent to the

plant on their own. time, the aim of the statute

could not be achieved. by employeessin a large |

‘segment of American industry. Nor should it, be

4 _overlooked that the rationale of the court below

sanctions prohibitions of all kinds of union solici- .

tation on the employer’s premises, even. theugh.

~ the solic ‘itation is confined ——T to nonworking

time.. i ‘

The problem which this case’ poses has. been of

great concern to the ‘Board. In, its Eighth. An-

nual Report, the Woard stated that the problem

‘‘appeared and reappeared’’ and was “of. general

" interest,”’ and that-it ‘‘felt it wise to evolve a clear

and general policy for the guidance of employers

- and labor organizations alike.”” The policy that

the Board adopted, which was followed in the

Republic and in the present case, is the policy of

- balancing the competing considerations previously

_mentionéd, (pp. 12-14 supra).

National ig r Relations Board, Eg ighth Annual Report

(Gov't Print. € a, 1044), p. 29.

alters: | ae

CONCLUSION

The questions. ‘raised by ‘the decision below are

‘of substantial public importance. The decision

vonflicts with that of another Cireuit Court of Ap-

peals. It is respectfully submitted that this peti- -

tien for'a writ of certiorari | be granted. |

» J CHARLES Faxy,

ae ? ‘ Solicitor General.

Auvix J, ROCKWELL, Se

. General Counsel;

National Labor Relations Board.

Serra MR “

‘The peviinent provisions ef the Nina Sitios a

een APPENDIX ~ Spee

—_— Act (Act‘of Sily 5, 1935, 49 Stat. 449,

1. S. C., Set. 151, et seq.) are as follows: A.

Sec. 1. ’ he LU Tae

* . *. s + - *

It is:hereby declared to be the ‘jeliey of |

the United States to eliminate the causes of

certain. substantial obstructions to thé free

flow_of commerce and to mitigate and elimi-

naté these obstructions when they have oc-

‘curred by. encouraging the practice and

procedure of collective bargaining and. by _

protecting the exercise by workers of full

freedom of association, self-organization,,

and designation ef representatives of their

own choosing, for the purpose of negotiat-

ing theterms and conditions of their em-

. * * \ 9

ployment or other ve aid or protection.

Sec. 7. Employees shall have the right to.

self-organization, to form,: join, or ‘assist

labor organizations, to bargain- collectively

through representatives of their qwn. choos- .

ing, and to engage in concerted ac tivities,

for the purpose of collective bargaining or.

other mutual aid or protection.

Sec. 8. It shall he an unfair labor: pprac-

tice fof an-employer—

(1) To interfere with,: restra ain, or ee=

eree employees in the exercise of. the rights

guaranteed in section 7 i.

? * +: * ig * *. , .

(3). By ‘discrimination ‘in regard to hire

or tenure. of émpl@#ment or any term ‘or

(17) rd ae.

& : f A . a .

al ne ee a

cf _ » i ; ‘¢ e - z

condition of employment to encourage or. -

discourage membership in any labor organi--

aos zation * * ;

5 ee ee ieee ae Ee * *

; . Sec. a | 0. : e Q ae 4 Le

< "

* Oe Fy? Rigen * . *

taken the Board shall be. of the opinion that *

“any person named in the complaint has en- '

gaged in or is engaging in any*such unfair

labor practice, then the’ Board shall state

its findings of fact and shall issue and cause

-,° to be served on such person an order requir: .

" ing such person. to ceas® and desist from

: 2

ch unfair labor practice’ and to take such

» . affirmative action, ineluding reinstatement

. - Of employees with-or without back pay,

+ as. will - effectuate the policies’ of this

nn ne Act. “+ * # ° . :

+ *

“os 2 @ : 7 * . *. :

te (e) * .*.% The findings of the Board

as to the facts, if supported by evidence,

“Shall be’ conclusive, Po Piece .

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.