# Petition for Writ of Certiorari — Republic Aviation Corp. v. NLRB > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386404_0147%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1945 - **Citation:** 324 U.S. 793 ## Text ‘ . ‘ . . . . 26 t Pa ° ‘ . ‘ AD fe ° “ ‘ . r) . : ‘ . . : » . . . ° . ce . - ‘ a = . . , * . ig ° . ‘ . . « - : % ok Bp & . 8 ars “e - . > . 7 : ae, ; F p ae . s ° . oN ° ‘a 2 ° , P . ¢ ® > . a . 3 bs ’ "6 - es * ve : Bes oe ; ae 4 : : G " ‘ : . . e Zi ‘ - 2 , - % e P : 8 ‘ ‘ 7 : 5 . . % 2 es . - 2 id . . : ~ . mY) Pas : . » , : ; i é . . . e 4 *"« . ° . a ad _ . . = i - . ; ; oe / ‘ . s = e - . ° . ‘ ; - ° 2 , ts 3 * R ‘ ie \ 7 . e A ae « . ® . a “a . x . fm os «i) ‘ * a “ ‘ 5 , | Pd - ae 1g Ss ; ‘ f ‘3 INDEX ae > a ; = SCSEEEEEeee ae 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-.. 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OcToBer: TERM, 1944 . | * ae ve, : No. = ° ae — 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 4 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. - 3 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 ). 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. . « 74 > ° \° ze ; 2% ss sae . . [ 5 . 3 é _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). / & 0% 16-48, 24,8940). Py 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! \ s * United Steel workers éf Amerfon, affiliated. with the _ See (Re 55; riglieds | a : . ° 2 ? 7h ee ot ~ thsit Q- & ‘ ' = ‘ . 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. ne 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 g 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, : - ” ee ‘ : ; ¢ j : Fe] ’e 5 a pe . ‘s g ‘ era f-- - ¢ r ‘ te ; 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- “ a: er ee ‘ q: % é ei - ea “ihe \ ¢ oe . \o : ¢ : i — pe sete es 10 ae 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- & 2 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 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. at & : 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 % , ¢ ae — ¥ ° > ie . Sew, ep Phe ns - a a tt oat \ . { $ 6 ° : ~~ 7 ry ° ’ ©. 9 Coverwwret paimtiag Orewa: isee g = ” e ® g ” “ aie 2 o ‘* > a eo _ cae ae. \ F H i ss ao \ i] . 7° aa ~ ae. , &* ° . ; Sy ‘ fod - = ; 3 a ~ P . . > "2 = . o ® : > ‘ ‘ ° eC 4 Vv > t > pate’ s ° t ° Vd] s/ 5 ad ° x =f : ° =) f ; 2 . . . ° . : . : o ~~ 2 “ss ee . * \ * ’ : . - . . ° < . : é ; . e r : j *e € : . . i. at ~ -. ° . ° : o . 3 i, Cis mY Pa ° . ° . . a ‘ 3 e J , 4 . "A ; Do “ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386404_0147%3A2. Public record. Not legal advice.