Brief for Respondent — NLRB v. Steelworkers

Supreme Court brief1958

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5 J EN Office - Supreme Comt. |! 8.

OH yRie™ FILED

ae &* 1 Samide JAN 171558

a | ‘No, 289. - | JOHN T. FEY, Cierk

IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1957.

NATIONAL LABOR’ RELATIONS BOARD

AVONDALE MILLS.

On Writ of Certiorari tc the United States Court

of Appeals for the Fifth Circuit.

"BRIEF FOR AVONDALE MILLS.-

#2...

FRANK A, CONSTANGY,

_ M. A. PROWELL,

FRED W. ELARBEE, JR.,

‘MILDRED McCLELLAND,

1404 Candler Building, .

Atlanta 3, Georgia,

Attorneys for Respondent,

‘Avondale Mills.

———— 5 —_— a ee « ~~

Si. Louis Law Prixtise Co., 415 North Eighth Street. C'Entral 1-4477.

Statement of the CASO ee eee eee eee eee eee ee teens

Summary Oe Ge I once os ct es edsecenn Ceseee

A. The issue here is a purely f hoctiand issue growing

out. of the board's disagreement with the evalua-

tion ef and the weight given the evidenve in the

record when considered as a whole by the Court

below. The act charges Courts of Appeal with

the responsibility for granting or denying en-

forcement of labor board orders, This Court has

said it will not reverse a Court of Appeals in

such matter because it may differ with the Court

of Appeals’ appraisal of the evidence ... Mo...

B. The full measure of self- organizational rights of

respondent's employees which the act grants has

not been impaired. . The accommodation of these

rights should not be eley rated to such a para-

yiount position as to deprive respondent ‘of. its

eqhally important rights. The discharges of

Rich and Parker for violation of respondent's

rule and directions after being warned against

future vidlations were discharges ‘‘for cause’

within the meaning of Section 10 (¢) of the Aet.

The board may not direct reinstatement and back

pay as to employees so discharged. .., ‘**

C. The ‘Act prescribes and the Court below. has de-

creed the traditional specific remedies for the

correction of the unfair labor practices found to

have been committed by respondent. In addi.

tion to these adequate remedies, the board seeks

to impose additional requirements upon respond.

ent which are punitive in nature and not remedial

and which result in a forfeiture ef inherent

rights of respondent... Such puuitive remedies

sare beyond the scope, power and authority vested,

_in the board i Me ENE ETE TEER

“4

‘

—

haiti i keudnaeesetes eet intaneeeeeetaees pees

y ‘The issue hére i is a itis factual issue growing

out of the Board’s disagreement withthe evalua- |

tion of and the weight given the evidence in the |

record when considered as a whole by the Curt

below. The Act. charges Courts of Appeal with

- the responsibility for granting or denying en-

forcement of labor board orders. This Court

has said it will not reverse -a- ‘Court of Appeals - |

in. such matter because it may differ. with the

Court of Appeals’ appraisal of the evidence.....

. The fu full measure of self-organizational rights of

respondent’s employees which the Act grants has

_ not’ been impaired. The decommodation of these —

rights should not be elevated to such a paramount

‘ position as to deprive responéent of its equally

-important rights. The discharges of Rich ‘and :

Parker for violation of respondent’s rule and

directions after being warned so future, vio- -

lations were discharges ‘ffor cause’? within the .

-meaning of Section 10 ( c} ‘of the Act: The board

may not direct reinstatament and back pay as to

employees so discharged. ..2......00. 00 eee ee

. The ‘Act prescribes and the Court below has de- —

ereed the traditional. specific, remedies’ for the

correction of the unfair labor practices fopnd to

have been committed by respondent. In addition ,

to these “adequate remedies, the board seeks to

impose additional requirements upon respondent

which are punitive in nature and not. remedial ;.

and which result in a forfeiture of inherent rights.

of.respondent. Such punitive remedies are beyond

the. scope, power and authority vested in the

OE OF TIN scares ons ors chiens ia eee!

oe ea rd ve eke wa Pele ae biclc oa

—

» il

ae Cases Cited. a

"Albrecht v. NLRB, 180 F. 24 652, 7th Ciry........65. 42

Boeing Airplane Co. v. NLREB, 140 F. 2d 423, 10th Cir. 21 -

‘Bonwit. Teller v. NLRB, 197 F. 2d 640, 2nd Cir., cert.

, den. 345 U.S. 905 5....... Att an heheeEEees Kowa n SAKE 22

ais Tractor Co, v. NLRB, 930. P, 2d 397, 7th-

Cir

Commented Edison Co. v. NLRB, -305.U. S. 197, 2357

‘Dannen bitin & Milling Co. v. NLRB, 130 t 2a 321,

8th Cir. a) Seen eee cwueeewie ents s a: ree ae 42

Denvér Tent & Awning, Co, v. NLRB, 138 F. 2d 410,

See bees SRL eae kta ae cu Meee eee e eee Y 22

- Indiana Metal Pr deus Co. v. NLRB, 202, JF. -. 613,

7th Cir. PAI Hiei 8 ee BB Eye women nuacwne ée teas 49-43

: interlaké Iron Co. v. _ NLRB, 131 F. 2d 129, 7th Cir. ... 42

_ Kansas City Power & Light Co. v. NLRB, 111. F. 2d

.* a OE EY “eS o-oo cand e een reel aerene ch webs 42

Keystone Steel & Iron Co. v. ae 155 F. 2d 553, 7th

Cir., vacated on other grouiids 332 U.S. 833.0. ...... 21

- Marshall Field Co..v. NLRB, 200 F. 2d 375, 7th Cir.... 21°

Midland Steel v. NLRB, 113 F. 2d: 805, 6th Cir....... 16, 40

‘Midland Steel Products Co. v. NLRB, 113 F, 2d 800,

5 ag,” RR Be Oe pee Pe ene street tee ee Tee ye

Milwaukee Electric Tool Co. v.. NLRB, 237 ra, *

(Rt RE Wh, Sar ee een eee eee 22

NLRB v. Reeve Thread Co., 210 F. 2d .381, 5th

RS ieevecess 9 Se er TA eee re eee ey oh 21, 42

NLRB. v. American Tube Bending Co., 205 F. 2d 45,

“Seb CA ins ee ee NG ye ae ge ee ae 99

NLRB. ¥. Babcock and W ‘leo Company, 351 ©.

Oe ee se he ak |

NLRB v. Brandeis & Sons, 145 F. 2d 556, 8th Cir. ‘kt ae

‘iv’

NLRB v. “Caroline Mills§Sth Cir., 167 FY ‘od M202... 42

_ NLRB v. Carter Carburetor Corp, 140 F. 2d 714, 8th

ee I a ee ar Re gc 22

" NLBB v. Citizens News Co., 134 F. 2d 970, 9th-€ir.... 42 ff

‘NLRB v. Clearwater Finishing | es 216 PF. 2a 608,

I eer eae ree atk y 21, 46

NLRB v. Clearwater Finishing Co., 203 F. 2d 938, a

RN AAT ie een et ae OOS 4

* NLRB yx. enone. Citrus Assn., 147 F. 2d 353, 5th

Cir.- ‘ pus hae ees AS coe ade ee ae pb des aeeraee 21

NLEB v. Enid Seeussatiee Creamery, 169 F. 2d 986,

Be SS a ey asl eons es ae eee sheakn ed 4%..22, 42

NLRB v. Enipire Furniture Co., 107 F. 2d 95, 6th Cir. 42°

NLRB v..F. W. W oolworth Co.,\214'F. 2d 78, 81, 82,

83, Gth Cir. occ eecececccseceseccscenves hb wipe Pas, 47

“NLRB v. Fulton Bag & Cotton Mills, “175 F. 2d ‘675 aa

Dtha Cr. occ reccerepeemscccerscenecesesecceres ~

NLRB v. Glenn L. Martin, 141 F. 2d 371, 8th Cir....... 2

* * NLRB v. Goodyear Tire & Rubber Co., 129 F. 2d 661, = - &

| ae R ao ce aaah ees saad cee edies 42 §

.~ NLRB v. Goshen Rubber ae Co., 110 BF. 2d =

PMR, dc cacan uaneedadaes sue sats fan see anaemia 42

NLRB v. Gullett Gin Co., 340 U. 361, 365, 366,- 95. =.

L. ed“ 338, 341, Muth bnaeeceun<xudedetateun 44

— v. Houston Chronicle Publishing Co, -» 211. F. 3d

Ae ES +. Esler eae a RIE enti eA Rc 41

Me v. J. I. Brandeis & ae, 145 F. 2d 456, Hh :

fy ris are cee Gene re chutisceeeanceuns 42°38

NLRB v. Jones & Laughlin Steel es 301 U.-S. 1,

O06, .. Ts, 0b, OO, WIG. 25 vn cee tete ces 16

Wy. NLRB v. pub otis W oraseck, Shoe Mfg. Co. 1 58 F. 2d ‘sf

BO OO ooo os 6 ks es eh bee ena Se, eee 42 |

NLRB v. LeTourneau Company of Gidieia, | 324 U.S

FO TUE icas ov een cu Gk bean Fas ee eevceeks 14, 21, 37

NLRB.y. Local Unign’ 1229, IBEW, 346: U, S. 464, ;

474-5, 98 L. ed. 195, -2 Be Rs Ferree ..17,42 §

NLRB v. Martel Mills, 114 F. 2d 624, 4th Cir. ..... To,

v :

- 7 : é

NLRB v. = Dept. Stores, 154 F. 2a 533, 8th Cir

cert. den. 329 U. S.. 725 ....- i ea aha odulne 21

NLRB v. McGahey, 233 F. 2d 406, 412, 414, Sth Cir.. 41

NLRB v. Montgomery Ward, 157 F. 2d 486, 8th >

“NLRB v. Mylan Sparta Co., 166 F..2d 485, 6th Cir... .22, 42

NLRB v. Pennsylvania Greyhound Lines, 303 U.S.

261; 267-268, 82 L. ed. S31, ; * heer 48

NLRB v. People’s s Motor _Express, Inc., 165 F. 2d 977 C.

es a eRe eee et ene ee Can tte see se ses 42

NLRB v. Pittsburgh Steamship Co., 340 U. S. 498, -

502, 503@@5 L..ed. 479, 482, Swine teee . 13, 14, 35, 36

NLRB v. Ray Smith ee Co., 193 F. 2d 142, oth :

5 Se ee ee oe Seer. eee ee ee Oe 42

NLRB v. Reynolds Corp. .. 168 F. 2d 877, Sth Cir. ...:. 42

NLRB v. Reynolds International Pen Co.; 162 F: 2d

723 TR UR Ppt OP ee EE ee 42

NLRB v. Robbins Tire. & ‘Rubber Co., 161 F. 2d 798,

MA OU, go oc Suis cc vce dee decece ce eet eoestyesessuses 4?

NERB v. Seven-Up Bottling Co. 340 U.S. 44, 351, 97.

Ls, ed. B77, BBA... e eee gece cee seer e ewe e ee eiee 44

“NLRB v. Stowe Spinning Co., 336 U. S. 596, 98 TL. ed.

ae eS Pee Peper oe Deoeet ey 19, 47

-—

NLRB v. Tennessee Coach Co., 191 F. 2d 456, 6th Cir. © 42°

NLRB v. reeeeee Products, Ine., 97 F.2d 15, 6th

CMe See PLN ee tiv sages SASS ETAS SES HOSED S 42 .

NLRB-v. Wayside Press, 206 F. 2d 862, 866, 9th Cir... 43

NLRB v.: West Ohio Gas C ‘a, 172 F. 2d 685, 6th Cir. .. 7

SLRB v. Williamson Dic -kie C* o., 130 F. 2d 260, 5th Cir. -

XLRB v. Wilson & Co., 123 F. 2d 411, 8th Cir...... 2 re

Peyton Patking Company, 49 NL RB 928 ‘aff. 142 F.

24 1009, oth Bick baa ercs ee een: Mae ae 11, 21, 22

Rasublic Aviation v. NI IRB, 324 U. 8. 798, 908: ..: +. . 21

Rubin Bros. Footwear v. NLRB, 203 F. 24.486, Sth Cir. 21

Southern S. S. Co. ys NLRB, 316 U. S. 31, 47, 62-S. Ct.

886, 894

. v .

a A

Seale Cotton Mills Vv. NLRB, 129 F, 2d 629, 5th

So CENGSI ACS Nate Ae GAC hee Sarasa reaen ane 42.

Subin v. NLRB, 112 F, 2d 326, (Bd Cir. woe eee eee eee. 4?

Universal Camera v. NLRB, 340 -U. 8. 474, 96 L. ed.

MU Sucks obi ceatentausreictsans Guerna Veer nun 22°

Wyman & Gordon v NLRB, 153 F. 2d’ 480, 7th Cir 42

Statutes Cited. ae

Labor Management Relations Act, 1947, 10 (ce), 61 Stat. Re

148, 29 U.S. C. (Sapp. IIT), Sec.,160 (e)........- . 4.

National Labor eae Act: ae

BectiOn TF on. cee ccc er ee sctfecsvecseccsecsecesse 1G

Section 8 (a) (1), ..2... 5.0.0.0. .. 9, 13, 15, 17, 34; 43, 46

Section 8 COE TOE pe sar dearer devesesccntesseesses OO

~ Section 8 7 a sapere Pere Pie SIGN eRe 46

Section 10 (ce) ............: Pee SER AE 16, 41, 42

n ' - Miscellaneous Cited. _- . ,

Revel of the Committee of alates. Labor-Man-

agement Relations Act of 1947, H. Rept. No. 510,

80th Congress, First Session, June 3, 1947:........ 41

U. S. Code Corigr. Service, 1947, First Session, page. -

ME exc hears eee eka b 51 od eeu CS Salebngiews 42

No. an

IN THE

SUPREME COURT OF THE UNITED STATES,

OCTOBER TERM, 1957.

-. NATIONAL LABOR RELATIONS BOARD

vy -: fam,

AVONDALE MILLS.

On Writ of Cortiorari to ‘the United States Court ,

of Appeals ~ the Fifth Circuit.

BRIEF FOR AVONDALE MILLS.

.STATEMENT OF THE CASE.

In order that the instant matter be viewed in proper **

perspective.Respondént deems it necessary to briefly re-

view the salient facts relating to the issue here.

As Govind by the Court below, .Respondent operates nine

textile mills in seven communities in Alabama. It employs.

approximately six thousand peop Its principal offices

and two of its principal plants ‘are ential in Sylacauga .

(the two here involved, Eva Jane Mill and Catherine

on tan

- >

Mill), three other large uilaiaie are located at Sycamore,

Pell City, and Alexander City, Alabama, all‘ within a ra-

dius of ony miles of Respondent’ s Sylacauga ov

(R. I, 74).

The evidence moreover shows that heatnadie in Gites.

1954, the charging Union in the instant matter began to

make what it characterized as ‘‘surveys’’ in and around—

Respondent’s Sylacayga, Pell City, and- Alexander City §&

plants and in the course‘of its surveys contacted a number

of Respondent’s employees (R. II, 13). The evidence

show s, moreover, that sometime early in November, 1954,

_ the ‘Union organizers gave to some sixty of the employees

in Respondent’ ’s Sylacauga Mills, from tep to sixty union

membership cards each, for the purpose of having these

cards signed in connectiom:with the Union’s organizing

campaign (R. II, 11-13). The evidence shows, and the

Trial Examiner found, as did the Court below, that im-

mediately thereafter a number of employees began to en-

gage in widespead solicitation¢ of Union. memberships in —

Respondent’s Mills during wogk time: This. was observed

by Supervisors. There were complaints to the Supervisors

from employees about this, and complaints from Super-

visors in one Department to Supervisors in other. Depart-

ments about their employeés leaving the Departments in,

which they worked and going into other Departments dur- ©

ing working hours to solicit other employees at work, on &

behalf of the Union (R, I, 71, R. II, 77, 86, 157, R. ITF, 4-6,

9, 10, 16, 22, 23, 25, 26, 48).

The evidence shows that Respondent does. not prohibit

general discussions of any matter by employees in its

plant during non-work time, i. e., not only on its premises,

but also during periods when employees are in the smoking

areas, rest rooms, eating lunadh, ete. (R. II, 152). The evi-

_ dence shows, moveover, that Respondent has had, for a

number of years, a rule prohibiting any solicitation Within

“i ‘ , as, oe

its‘ plants during .actual work time for any purpose, or

" eause, other than the annual Red Cross Charity solicita- _

tion, and that from time to time this rule has been called

to the attention of employees (R. IT, 152).

Moreover, the evidence shows that it has been Respond-

ent’s consistent practice in the sixty years of its existence -

——not-to have written rules (R. I, 72). Respondent has never

published its rules, practices, and instructions by posting

notices on its bulletin boards, issuing detailed written in-

structions, or any like device,.but-rather, it has distributed

*. in writing only the general policy statement on rules con-

tained in the booklet entitled ‘‘An Introduction to Avon-

dale’’ (G.-C. Ex. 2, R. IIT, 55) to wit:

‘*2. Compliance with Rules. It is necessary to have

plant rules regarding conduet, safety and housekeep- _

‘ing. These rules are designed for the protection and

well being of all.

‘*3. Maximum Ffficiency. High production and

* quality enable Avondale to compete successfully with

other mills in the industry and are the sources of .

profits to be shared... .

‘‘5. Personal Interest in Avondale. Your -interest,

both in your own job and, in the over-all program of

the Company, is necessary for the maximum success of

the partnership program .. . ”’

Beyond this, all rules and policies affecting employees

are conveyed by oral communication from supervision t4

employees. - Many rules, policies, and practices have not

been reduced to specific terms but have existed as a matter -

of custom and practice, and they have become accepted by

traditional knowledge that there isa certain type of con-

duct which is expected of employees and certain other con-

Auct which is prohibited. Among its other practices, Re-

spondent follows a practice of not disciplining any em-

EGO CLL, NO OGD IOI OO

nh nee

ployee for violation of rules, directions, or policies, until

the rule, direction, or policy has been expressly called to

the attention of the employee and he has been advised that

future violations will result in discharge or discipline. |

The Trial — based on the evidence, found, more-

over, that prior té the widespread in-plant solicitation for

‘union membership, at least one employee (a Board-witness) -—

had been expressly warned about solicitation in Respond-

ent’s plant during working hours, as a result of his cireu-.

lating a petition seekingea pardon for lis son who was then

in the penitentiary (R. II, 81, 82).. This-employee testified

that his Supervisor told him: ‘‘You know»the Company

won’t allow you soliciting on the job’’ (R. II, 82). This

same employee (G. C. Cook) was-later reprimanded for

engaging in union solicitation on the job. He neverthe-

less testified that he had no knowledge of any rule agent

solicitation while at work (R. II, 80, 81).

, The evidence shows, moreover, that the employees pro-

duced as witnesses for the General Counsel of the Board,

and who testified about being warned against future vjola-

tions of the Tule against in-plant solicitation during a

time were not ‘‘singled out’’ for warning, except as a re-

sult of actual observation, or of a particular report or com-

plaint by some other employee, or by some Supervisor, that

they were interfering with others while on the job, or neg-

lecting their own jobs as a —_ of their solicitation dur--

ing work time (R. IIT, 8, 22, R. II, 77, 85, 32, 135, 160).

A numnbér of them testified tliat as of the time they were

warned against future solicitation while at work, they

were not aware of Respondent's rule against such solicita-

tion. Others, on the other hand, testified that they knew

that soliciting on the job was against the plant rules; and

as'stated above, at least one of the Board’s witnesses testj-

fied to a previous warning for solicitation on the job in

connection witha matter not remotely’ connected with

union activities.

poe we

; a

The Trial Examiner found:

ee . Respondent ‘contends that the basis of its

wanda: was a recognized rule in industry. generally,

and in Avondale certainly as plant rule, that ‘work-

ing time js for work’, and that no solicitation of any —

kind was countenanced without disciplinary action

_after warning; “and: that this restatement of ite exist-

ing rule was necessary when it became appar@ht that

_ there was extensive union solicitation being carried

oh. which was ‘interfering with production and effi-

ciency and was causing complaints by employees who

‘were being interfered with at their jobs. On the basis

of the entire record, the Trial Examiner. finds that _

there was a valid but unwritten rule against solicita-

tion of any kind on working time—excepting only the

annual ‘Red Cross’ charity drive, and that the warn-

ing was predicated thereon. Z

‘‘Therefore, unless inherently bad solely because ta

warning was limited to union solicitation, and if not —

discriminatorily applied and used as a pretext, the rule

was sound. Cf. Peyton Packing Co., supra. Also to

argue that the rule was invalid because not formu-

lated and enforced untii the union adherents began

soliciting is a philosophic non sequitor—otherwise, the

occasion would never have arisen. The testimonies

of plant Superintendents Callaway and Pasley, to-

gether with those of Foremen Gunter, Pickren’ and

Forbus indicate that the solicitation activity was in-

terfering with production and plant efficiency. There-

fore, it cannot be held that it was adopted and enforced

without any regard to business necessity for. the pur-

pose of impeding employees’ self-organizational efforts

by interfering, restraining, and coercing them when

employ ees were leaving their jobs to solicit union mem-

hership of working employ ees. This is precisely what

happened. Again, the test- is whether a presumptively

valid rule was discriminatorily applied, and the burden

"of proof was on the General Counsel to prove other-

wise.. He did: not sustain that burden *. . .*’ (R. I,

98, 99). ;

The evidence moreover establishes that after the warn-

ing and notification by the Respondent of its rule against

solicitation during working hours by employees supposed

. to be at work, or of employees supposed to be at work, :

that three of: the employees, who had. been warned, there-

after again violated the rule by engaging in solicitation

- during their working hours or by soliciting other employees

who were at work. Two of these cases are hpre~-before.

this Court in the present status of this matter.

One involves John Rich, who, after having been ex-

pressly warned against future solicitation while on .the

.job and after being iffstructed that he must stay on the

job during the time he was supposed to be at work, nevér- |

theless during the same week in which he received the

warning, left his own Department at'a time when he was ©

supposed'to be at work and solicited another employee who

was at work in another Department on his job, to sign a

Union ecard and to join him in soliciting others in his De-

partment to sign membership ecards (R..III, 18). ‘This was

repor ted to the Supervisor of the employee being solicited

_by Rich,.who in turn reported it to Rich's own Supervisor.

Wheit Rich was ealled in by his, own Supervisor, he ad-

mitted having engaged in such solicitation during work

hours and. after his previous warning (R. IIJ, 3; 4, 18, 19).

Ile was suspended and ultimately discharged for violating

the rule. There was ‘no dispute of. fact: whatsoever a's to

Rich's violation of the rule after warning. The Trial Ex-

aminer found, as Rich’s own -testimony’ required, that

Rich was ‘aware of the rule and that he actually violated

it after being expressly warned that he must obey the rule

"in the future or he would be discharged, and that Rich ad-

mitted these facts, The Roard made no different or con-

co 3

vig

‘fe

SK,

;

CL OIER Ly ew,

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a ~———

trary hiding of fact. as to the circumstances of Rich’ s

* discharge. ey ane, ,

‘

As to Calvin Parker, the evidence shows that Parker had ._

solicited one employee several times during the night of ©

November 12 in an effort to get him to sign a Union card;

that in order to perform this solicitation Parker had to.

leave his job while he was supposed to-be at work on it,

and while his _job in fact required his presence in order to

keep his machine running, and go some distance from his

- own place of work to the place of work of the employee,

(Craddock, who was also at work, in order to'solicit him: to

join the Union. This solicitation. of Craddock .by Parker

co@tinued throughout the entire shift. Ultimately, Crad-

dock testified, he signed a card i in order that Parker would : ;

Jet him alone and permit him to continue to do his job (R.

III, 21). When Craddock next saw his Foreman he re-

ported to him the facts as to Parker’s solicitation of him —

while on his job, and while Parker. was also supposed to

he at work (R. IIT, 21, 34); When Parker reported for

“work at’ the beginning of his next shift, he was called in

and given a specific warning that. future solicitation on —

‘Company time—that is, during his own, working-hours or

“those of persons who were at work, would result. in his

distharge. (RA 384, 403). + Thereafter, during the same

evening and later in the same shift, Parker not only ignored ;

‘this warning, but deliberately and flagrantly violated the-

no-solicitation rule again, by soliciting another employee

to join the Union during Parker’s own working hours

hefore the other employee hac begun work and again -

soliciting. him to join the Union or to sign a Union mem-.

hership car after this: employee began his work. This was v

reported to the Supervisor by the employee solicited (R. IT;

158). As a fesult of this report, Parker was sent for by

his Supervisor, suspended, and ultimately discharged.

While Parker denied the above in part, the evidence shows

that Parker, in the course of ‘his effort to havé his. sus-

pension or discharge reacinded, admitted at. least. on one

occasion that he had in fact solicited in violation of the

rule after the previous warning (3: III, 32). The Trial

Examiner found: |

S34 eee Se the secsliuillien of Pickren’s

testimony atid the equivocal and. diffusive: testimony

of Parker himself, the conflict is resolved in favor of

Pickren’s version. ‘ Accordingly, the Trial Examiner

finds that. Parker solicited union memberships of em-

ployees on the job after having been .warned that

such solicitation was in violation of a:company rule,

‘and his resultant discharge was. not. in violation of .,

the Actas being:discriminatory. Accordingly, it will

be recommended to. the Board that the allegation be

dismissed 6. 0 (RET 97). ae gee

The General Counce! for the Board in its Exceptions to

the Intermediate Report, of thé Trial Examiner did not

except to the Trial Examiner's credibility findings as to”

Parker, The Board in, its Order. made no finding’ of facts

as to the circumstances of Parker" s discharge contrary to

those of the Trial Ex xaminer.

2The third employee w ho was dicchatgea for violation

of the rule was an employee named James Melvin Jones.

“There was a dispute of fact in the evidence, as to whether

or not Jones, who had been warned against future solieita-

tion in the plant and while on the job did, thereafter, again

violate the rule. The Trial Examiner found that the: sus-

pension and discharge of, Jones was as a result of -his,

solicitation of other employees during working hours after

having been warned against such activity in violation of |

the rule in the future under penalty of discharge.

The Board in its Decision and Order made specific eon-

trary findings of fact to these of the Trial Examiner as to

Jones” conduet after-the warning. It reversed .the Tria?

EX\aminer’s factual ‘findings as to Jenes and held tha:

aor naa

Jones’ discharge was dincriminatory even though the rule

might be valid:

™ . We are convinced by the Seinedalias evidence,

more wailcuieaby. the Respondent's efforts to persuade

Jones to cease his union activities, the summary na-

ture of his layoff and discharge Without giving him an

opportunity to prove that he did not violate the rule,

the fact that he did not engage in the prohibited solici-

tation, the statements made to Jones by ranking com-

pany officials, the Respondent’s hostility to the Union

as well as its other unfair labor practices, that it was

Jones’ adherence to the Union rather than his. asserted

disregard of a prior warning that motivated the Re-

spondent in laying off and then discharging Jones. .

Accordingly, we find, contrary to the Trial Examiner, .

that, apart from the question of the validity of the

no-solicitation rule, the Respondent discriminated

against Jones in violation of Section 8 (a) (3) and =

(1) of the act . . .*’ (R. I, 123). ila

The Trial Examiner, hased on the evidence: before him,

also found there were certain violations of Section 8 (a)

(1) committed by certain of the Supervisors of Respondent

subsequent to the invocation of the no-solicitation rul¢.

These violations were in the nature of interrogation and

several comments or remarks made«by Supervisors which

the Trial Examiner found to.be coercive or threatening and

therefore violative of the Act; and one instance in whieh

a Supervisor during non-work time asked an employee if

he wished to withdraw his unid® application. The Trial

Examiner’s findings and recommendations in ¢onnection

with these instances were not excepted tosby the Respond-

ent. The Board affirmed them. When the matter was

> hrought before the Court below for é¢nforcement, the Re-

spondent did not there resist enforcement of the Board’s

Order in ‘these particulars. Respondent limited -its re-

=—10— ,

sistence to the. enforcement by the Court below of that.

part of the Board’s Order which directed the re

of Rich, Parker, and Jones.

The Court,. in, its Gpiaion, found that substantial evi-

- dence in the Record as a whole did not support the Board’s

finding that the Company’s no-solicitation rule was. in-

voked for discriminatory reasons, and that it was not dis-

eriminatorily applied to Rich and Parker, holding:

“¢ | On the -first issue, then, we agree with tlie

Trial iiialienie and find there was no substantial

ev idence to support the Board’” (R. I, 7

On the second issue, the discharge of Jones. the Courf

* held : .

‘On the second issue, whether employee Jones was

nevertheless discriminatorily discharged, we think

that the Board’s findings, though contrary to those of

the Examiner, are supported by substantial evidence

in the Record as a whole and hence should he SUs-.

tained by us - . . *’ (R.T, BORD!

A Petition for Niscesimantins aS to the first issue was

~ filed with the Court-below. That Petition was denied .by

.- . the Court. (R. I, 137-139).

= po

SUMMARY OF ARGUMENT.

A. The nes Here Is a Purely Pactual Issue euneie Out

-_* of the Board's Disagreement. With the Evaluation of

and: the Weight Given the Evidence in the Record

When Considered as a Whole by the Court Below..

The Act Charges Courts of Appeal With the Responsi-

bility for Granting or Denying Enforcement of Labor

Board Orders. . This: Court Has- Said It Will Not

Reverse a Court of Appeals in Such Matter Because

It May Differ With the Court of Appeals’ —

‘of the Evidence. ;

The Board seeks in this Petition for Certiorari to i ve.

this Court review and reappraise the weight and sufficiene Vv

of the eviderice in the Record: and to decide’ a conflict

between the Court below and the Board, not a conflict

between the Circuit Courts of Appeal. The issues involved

herein do not. present any conflict of principles of law.

The: Board, the Court below, and ‘the Respondent ali rely

upon the principles enunciated in Peyton Packing

pany, 49 NLRB 828, aff. 142 F. 2d 1009, Sth Cir. Nia

recognize that Saianlon had a legal right to. invoke

and enforce a rule against solicitation on its premises dur-

ing the working time of its enploeyees so long as the ride

was not invoked or applied discriminatorily.

While the question upon which certiorari was sought

is phrased in such.a manner that upon first impression it

seems to present au issue of law, an examination of the

_ Record and a reading of the Board’s Brief clearly show

that the Petitioner complains of the Circuit Court's ap-

praisal of the evidence and not of that Court’s interpreta-

-tion of any legal principle under the Act. The «issues in

this Petition for Certiorari are purely factual issues which —

were decided adversely to the Petitioner *in the Court

—12—

below after that Court’s’ conten of the evidence in |

the Record as a whole, = a ee ’

The entire ‘argument ‘of Petitioner as contended in its.

| Brief, rests upon a recitation of evidentiary matters which

*- it contends should, have required.the Court below to con-

clude, as a matter of fact, that Respondent’s no- -discrimina-

tion rule was discriminatofily . invoked and applied and

that tlie two employees involved iti the Petition for Certio-

rari were discriminatorily discharged. On thése issues

‘ both the Trial Examiner and the Court below found, as a

matter of faét and contrary té the Board, that Respond- .

ent’s nio-solicitation rule was neithér discriminatorily in-_

voked nor applied as to the two employees involved herein.

The issues which were presented to the Court below were

issues involving the substantiality of the evidence in the

Record : whieh supported the Board’s Order. The, issue

as framed and decided by the Court below. was whether

or not there was substatitial evidence in the Reeord as a

whole which would support the Board’s Order that Re-

spondent’s no-solicitation: rule was discriminatorily in-

voked or applied. The same issue. is here presented by

"Petitioner in the hope that this Court will reappraise the

evidence in the Record, arid reach conclusions as to weight

and sufficiency of ib, different from those reached |

hy the Court.of Appea é |

& °

vey

This Court has said it will not ifterfere with decisions

of the Courts of Appeal involving enforcement of Labor

Board orders solely for the purpose of reviewing a conflict

of evidence or substituting its judgment as to the weight

or substantiality of the evidence.

a ee Congress has charged the Zfourts of Appeal, |

and not this Court, with the ment - primary re- |

sponsibility for granting or denying enforcement of |

Lahor Board orders . .. This is not the place to review

a couflict of evidence nor reverse the Cgurt of Appeals @

—wB-

"—~hecduse were we in its place we would find the record

tilting one way rather. than the other, though soir

‘minded Judges could find it tilting either way... .

(NLRB vy. Pittsburgh Steamship -Co., 340 U.S.

49S, 502, 503, 95 I.. ed. 479, 482, 483.)

The Petitioner. ,has attempted. to pose a ‘legal issue to

- this Court and what it contends to. be a conflict of law as

between. the circuits by adroit phraseology of a unique

interpretation. concerning coercive remarks which were

made by several of Respondent’s supervisors. What Peti-

tioner overlooks is the fact, that the coercive. remarks

which.were madé by a few of Respondent’s supervisors on

‘the ‘several occasions as shown by the evidences do not in

themselves present any unique ‘legal issue amounting to

a conflict between the circuits, but that they constitute no

more than. evidence to be considered along with other evi-

dence in. the record in determining the faetual issue of

whether or not. Respondent discriminatorily. invoked or

applied its no-solicitation rule. Such remarks, even “though .

violative of Section 8 (a) (1) of the Act do not automati-

’ eally render invalid, Respondent’s otherwise valid no-solic-

itation rule. This-séme factual. issue was presented to the .

Court below in Petitioner’s Motion for Rehearing in that

Court. In the Court’s judgment, based upon its appraisal.

of the record as a whole, including the coergive remarks .

by supervisors, t at part of the Board’s Order here in-

volved was not supported by substantial eyidence in the

record as a whole.. AS

The Petitioner’s argument clearly illustrates that Peti-

tioner has departed from the question posed in its Petition.

r-Certiorari and, instead, urges this Court to review the

‘sufficiency of the evidence in the record and to decide, con-_

trary to both the Prial Examiner and the Court below,

that the Board's Order was supported by substantial evi-

dence contained i in the record as a whole. Petitioner. hopes

a, oo

that this Court will find, in its judgment, ‘‘the record tilt-

ing’? in its favor and on that basis reverse the Court of

Appeals’ decision. This the Court, both by Congressional

mandate and ‘its own decisions, should not and will not —

do. . Labor Management Relations ‘Act, 1947, 10 (e), 61 g

Stat, 148, 29 U. S.C. (Supp. III), Sec. 160 (e), NLBB-v.

’ Pittsburgh Steamship Co., supra. :

RB. The Full Measure of. Self- duicdiiaiias Rights of. Re.

spondent’s Employees Which the Act Grants Has Not

Been: Impaired. The ‘Accommodation of These Rights

Shoyld Not Be Elevated to Such a Paramount Posi-

tion as to Deprive Respondent of its Equally Important

Rights. The Discharges of Ricg and Parker for Vio-

lation of Respondent’s Rule and Directions After

Being Warned Against, Future Violations Were. Dis-

charges ‘‘for Oause’’ Within the Meaning of Section

10 (c) of the Act. The Board May Not Direct Rein-

statement and Back ‘Pay as to ce So “Dis-

charged.

The right of employees to. engage in Union edlicitation

on plant property is not s6 linlimited as to ignore the §

countervailing right of an employer to the use, productiv-° 3

“ity, and enjoyment of his property. The rights of beth. .

employees and employers in this regard must be balanced |

so that ‘‘accommodation between the two (is) obtained: &

with as httle destruction of the one as is consistent with .

the maintenance of the: other . . ** (NLRB v. Babcock Fa

and Wilcox Company, 35! U. S. “403). As this Court @

pointed out in NLRB v. LeTourneau Company of Georgia, |

324 U.S. 793, 797-798, there must be ‘fan adjustment be-

tween the undisputed rights of self-organization a’ssured

to employees under the . . . Act and the equally undis- 3

puted right of employers to maintain discipline in their 3

establishments. The rights of each should be acecommo- &

dated as fully’as possible without more than ‘minimum ‘

inipairmént’ to the other." .

- In.this case, the full self-d?ganizational rights, to which

‘both the Board and the Courts have historically held that

_employees are entitled, have been maintained without im-

pairment. Respondent has demanded that its employees’

work time be devoted*to work! It has done nothing more.

Respondent has not prohibited its employees from engag-

ing in any Union activities on ‘its property during such

times as its employees are not supposed to be working.

. Respondent's employees are free to engage in Union solici-

‘tation or other Union activities while on Respondent’ ~

- property during. such time as, they are in smoking areas,

rest rooms, or lunch periods, and in the pre-’ and post-

shjft .times. Congress did not intend that employers’

right to expect and require their employees to spend work-

ing/time at work be subordinated to what the Board ap-

payently contends is a right of employees to engage in

Usion solicitation. or other self-organizational activities

during actual work time (Report of the Committee of Con-

ference on Labor-Management Relations Act of 1947). ,

aig

The Board urges that because several of Respondent’s

supervisors engaged in what the Board found .to be coer-

cive, anti-union actions in violatidn of Section 8 (a) (1)

of the Act, Respondenf has therefore forfeited its right to

expect.and demand that its*employees’ working time be .

devoted to work and that they not leave their jobs during

‘such time to engage in extraneous activity. The Board ~

urges: that Respondent hd’ penalized in this manner even

_ though the self-organizational rights of Respondent's em-

ployees are more than‘amply -preserved by their right of

having full opportunity to engage in union solicitation or

other self-organizational activgties off company property

and on company property at all times except when they *

are supposed to be working. The. fact that they may not

utilize their actual. work time to exercise these rights is

merely a minimum accommodation of their rights to the

_ equally important rights of their employer.

b |

oe ar Nae tO CMR A OR REY A Me NOE

Py ’

; What the Board seeks to do is to make. paramount the

rights of employees under Section 7 of the Act in complete

disregard to, and derogation, of, Respondent’s right to the

use, control, and enjoyment of its property. Such a depri-

vation of property rights was not intended.by Congress

. and the Board cannot limit the rights. of ate to

Ww hatev er extent it’ in its discretion dictates.

The two employees involved herein, as well as other em-

‘ployees, were warned that they would be subject to dis-

cipline or discharge if in the future they left their jobs

to engage in solicitation or solicited other employees while © fe

they were working. In spite of the warnings the two em-

-ployéés, in complete disregard. of Respondent’s” right to

expect: them to remain on their jobs, -and its specific in-

structions, thereafter engaged ‘in solicitation during times.

when they were supposed to be at work. They were sus-

pended and discharged because of their flagrant disregard’

of Respondent’s instructions and warning. Respondent

certainly had a right to discharge them for violating its

rule against solicitation. ‘‘The employer in his control &

over, the property and employees is authorized to make - &

reasonable rules for the conduct of the business and the §

employee is bound to obey such reasonable rules as part

of his contract of hire.*’. (Midland Steel v. NLRB, 113 F.

F. 2d 805, 6th Cir.).

And as this Court pointed out in NLRB v. Jones & |

Laughlin Steel Co., 301 U.S. 1, 45-46, ... L. ed! 893, 916-17, “=

the Act ‘‘does not interfere with the normal right of an 3

. employer to discharge its employees’? and ‘‘the Board

may not make its authority a pretext for interference with-

out right unless the right of discharge is exercised dis-

criminatorily.’ ” This C ourt has moreover held that within

the Meaning of Section 10 (c) of the, Act as amended,

which prohibits the Board’s ordering reinstatement or .

back pay for employees discharged ‘‘for cause,’’ that

‘|. , insubordination , . . is adequate cause for discharge

~~ =

7 (NLRB v. I Local Union 1229, sceal 346 U. S. 464,

474-5, 98 L: ed. 195, 203.)

In this ‘ease Respondent had a valid rule. prohibiting

solicitation by its employees on‘ its property during times

when the employ ees were supposed to be working. The

evidence overwhelmingly shows that the two employees _

involved herein violated the rule after. being previously °

warned against future violations thereof and were dis-

chagyed therefor. Respondent had a right to expect them —

‘to follow its rules and to discharge them for ‘violation.

Such a right-of Respondent with respect to its property

and its work time is inherent and should not be invaded

and denied when its employees had not been ‘deprived of

the accommodatiowof their self- organizational rights which

tlie Act requires. .

In the light of the discharge of Rich and Parker for

cause, the Decision of the Court below as to them should

be sustained independently of any action taken by this

Court in ‘connection with the Nutone case. *

(: The Act Prescribes and the Court Below. Has Decreed

the Traditional Specific Remedies for the Correction of:

the Unfair Labor Practices Found to Have Been Com-

’ mitted by Respondent. In Addition to These Adequate

‘Remedies, the Board Seeks to Ifipose Additional Re-

quirements Upon Respondent Which Are Punitive in

Nature and Not Remedial and Which Result in a For-

feiture'of Inherent Rights of Respondent. Such Puni-

-. tive Remedies Aré Beyond the Scope,-Power and Au-

thority Vested in the Board’by the Act. _

For the violations of Section 8 (a) (1) of the Act com-

mitted by Respondent’s Supervisors, the Board and , the

Court below have provided. a complete, adequate y: spe-

cific remedy. Respondent has been ordered and required

to ceise and: desist from such activities under the penalty ~

ae ee eet

nn tis

of contempt for such future conduct. This is the remedy

which was envisioned by Congress and has traditionally

been followed by the Board under the Act and universally

upheld by the Courts. The Act does not authorize the

Board to apply or’ prescribe: any penalty which it, in its

discretion, believes might effectuate the policies of the Act.

The powers of the Board, by law, are remedial, not puni-

tive. Consolidated Edison v. NLRB, 305 U. S. 197, 235, 236,

83 L. ed. 126, 143, 144.

The Board may not _ a remedy which nines: an

employer of his norma] right to control the working time

of employees while they are on their jobs, or deprives him

of it simply because the employer’s supervisory employees

‘diseuss unions or make anti-union remarks on its premises

during the non-superyisory employees’ working time.

~ ~

The Board overlooks the vast and inherent difference be-

tween the nature of the duties and functions of supervisory

and non-supervisory employees.’ The jobs of Respondent's

Supervisors require them to move about in the plant, dur-

ing work time, to make themselves aware of conditions of

‘ their subordinate employees’ jobs while they are running;

_ to instruct these employees; to communicate orders, direc-.

tions and information to them; and discuss theirs and the

Company’s production problems and other policies with

them. On the other hand, it is the primary duty of non-

supervisory employees ‘to stay on their jobs and run them

when they are supposed to be running. They are not to

leave their jobs during the time they are required to run

them to utilize such time to engage in extraneous activities.

If, during the course of carrying out his duties and fune-

_tions, which are different from those of a non-supervisory

employee, a supervisory employee expresses views or makes

remarks found to be. violative of the Act, such conduct does

not thereby enlarge the scope of the Act: or the powers of

the Board 40 as to enable the Board to require and direct

‘bus

ry -

ae :

: Ma

. §

i &

Me.

-an cinapiein er to permit its non-superv isory ‘employees there-

after to desert their jobs at will and engage in solicitation °

or pther activities if ‘and when they deem it desirable. If

a Supervisor exceeds the permissible limitations of the Act, -

or as a result of his comments, conversations or actions

violated the Act, there .is a specific: remedy to rectify such |

violations of the Act. 'Phis does not, how ever, as @ conse--

quence, so expand the Act-as-to extend the scope of the em- -

ployee rights beyond the point of balance required between

the rights of self- organization pee the- i teh s property

"rights.

gear sem may not be required, as the Board seeks to

_ do here, to make its premises and work’ time available to.

the union for its use as a penalty for its having committed

an unfair labor practice under the Act, or as a penalty

for Supervisors’ comments which have gone beyond the

point which an employer may go in the exercise of its pro-

“ar right of free speech. NLRB v. Stowe Spinning Co.,

6 U.S. 226, 98 L. ed. 638, 646.

ARGUMENT.

A. The Issue Here Is a Purely Factual Issue Growing Out

of the Board’s Disagreement With the Evaluation of

and the Weight Given the Evidence in the Record

~ ‘When Considered as a Whole by the Court Below. The

Act Charges Courts of Appeal With the Responsibility

for Granting or Denying Enforcement of Labor,,Board %

Orders. This Court Has Said It Will Not Reverse a

Court of Appeals in Such Matter Because It May Dif-

fer With the Court of Appeals’ Appraisal of the Evi-

dence. a |

The isspe involved in the Petition for Certiorari and in

the instant matter is not,;we submit, an issue of law, but

is an ksue of fact which grows out of thé Board’s secking

to have this Court agree with its evaluation of the evi-

denee in lieu of that made by the Court below as a result

of its examination ,of the evidence in the Reeord consid-

ered as a whole, The issue here involved has consistently

been an issue of fact; it was an issué of fact insofar as the

Petition for Enforcement in the Court of Appeals was con-

cerned; it was an issue of fact insofar as the Petition for

Rehearing by the Court of Appeals was concerned; and it

continues to be an igsue of. fact as it is stated and argued

in the Brief of the Petitioner in this Court.

Respondent submits that while the question as posed in

the Petition for Certiorari. gives the appearance of raising

a purely legal issue, tliat is merely as a result of adroit

phrase ology and does not infact present the true issue

here. This is: Clearly established by the actual argument

and detailed coutentions in Petitioner's Brief to this Court

in the instant matter, which clearly establish’ that the. Pe-

titioner here is in fact asking this Court to* review and

reverse the faetual determinations made, and the -weiglhit

given certain evidence hy the Court of Appeals below on

the basis of its examination of the entire Record, because

. ws : ae

53 eben ADSL i Gh lA pa ili

itr ei el RS AON

eo < en .

that Court’s determination as to the evidence differs in

' this regard from the conclusions reached by the Board in

its reversal of the Trial Examinér’s Findings and Recom-

mendations. ’ : ‘s :

The Respondent, the Petitioner, the’Trial E> aminer, and

the Court below all rely upon the holdings and principles

enunciated in the Peyton Packing case, 49 NLRB 828, Aff.

142 F. 2d 1009, 5th Cir., and the application of those prin-

ciples to the facts here. Each ultimately concedes that

Respondent has-a legal right to invoke and enforce a rule

against solicitation on its premises during the working

time of its production employees in order to protect its

property, its production, -its discipline, or to meet its busi-

ness needs.” All concede that the rule invoked by the Re-

spondert here was limited to ,solicitation by employees

during.the period When they were ‘supposed to be at work

and that the rule did not interfere with solicitation during |

the free time of employees during their working hours or

with solicitation by them on Respondent’s premises during

non-working hours. Such a rule is in keeping with normal .

and almost universally accepted industrial practice, Rules

imposing even greater limitations on employees’ work time

solicitation than Respondent’s rule have been consistently

upheld by the Courts as being properly within manage-

ment’s right to control its property, pretect its produc-

tion, efficiency, or discipline." |

' Republic Aviation vy. NLRR, 324 U. S. 793, 803: NILRR =

LeTaurneau, 324 U..S.-793: NLRB ~v. -Rabcock & Wilcox, 331

— US. 105, 114; Boeing Airplane Co. 7. NLRB. 140 F. 2b 423°

lh Cir.; Keystone Steel & Iron Co. v7 NILRB, 133 F. 2d 3523,

7th Cir., vacated on other grounds 332 U.S. 833: NLRB ve Mont.

gomery Ward, 137 F. 2d 486, 8th Cir.: Rubin Bros. Footwear v

VL.RB, 203 F. 2d 486, Sth Cir.: NLRB >. May Dept. Stores, 134

F.2d 533, &th Cir., cert. den. 329 U.S. 725: Marshall Field Co >

"NLRB, 200 F. 2d 378. 7th Cir. Caterpillar Tractor Co. z. NLRR.

220 F’ 2d 357. 7th Cir.: NLRB o-. Edinburg Citrus Alsen. 147 F-

2d 353. Sth Cir.; NLRB v. American Thread Co..:210 F. 2d 38),

*th Cir.: NLRB v. Clearwater Finishing Co.. 216 F- 24 OOS, 4th

Cir: Milwaukee Electrre - Tool Co. v. NLRB, 237 F. 24 75. Tth

; \

—27— ee

The ultimate question presented by the Petitioner to the

Court of Appeals below, 4nd to this Court, is wheher

or not the.rule was invoked or applied, insofar as Parker,

Rich, and others similarly situated are concerned, in a

discriminatory manner or. for a: purpose interdicted by

the National Labor Relations Act, as amended. The issue

as to this is a pure and simple issue of fact. The Trial

Examiner, whose Intermediate Report was, by virtue of

the Decision of this Court in Universal Camera v. NLRB,

340 U. S. 474, 96 L. ed. 456,2 a part of the Record as a

whole to be considered by the reviewing Court of Appeals,

found that the Respondent invoked its long-standing no-

Cir.; NLRB v. Enid Cooperative Creamery, 169 F. 2d 986, 10th’

Cir.; Denver Tent & Awning Co. v. NLRB, 138 F.2d 410, 10th

Cir.; NLRB v. Mylan Sparta Cv., 166 F. 2d 485, 6th Cir.; NLRB

+. Williamson Dickie Co., 130. F. 2d 260, Sth Cir.; Bonwit Teller

--, NLRB, 197 F. 2d 640, 2nd Cir., cert. den. 345 U, S. 905; NLRB

«. Glenn L. Martin, 141 F. 2d 371, 8th Cir.; NLRB-v. Brandeis &

Sons, 145 F. 2d 556, 8th Cir.; NLRB wv. American Tube Bending

Co., 205 F. 2d 45, 2nd Cir.; Peyton Packing Co.7. NLRB, 142 F.

2d 1009, Sth Cir., cert. den. 323 U. S. 730; NLRB wv. Carter Car-

buretor Corp., 140 F. 2d.714, &th Cir.; NLRB v. F. W. Wool- >

north, 214 F. 2d 78, 6th Cir.; Midland Steel Products Co. 2.

NLRB, 113 F. 2d 800, 6th Cir.

2.“ | The ‘substantial evidence’ standard is not modified in

_ any way when the Board and its examiner disagree. We intend

only to recognize that evidence supporting a conclusion may be less

substantial when an impartial, experienced examiner who has ob-

served the witnesses and lived with the case has drawn conclusion-

different from the Board's than when he has reached the same con-

clusion. The findings of the examiner are to be considered along

with ‘the consistency and inherent probability of testimony. The

significance of his report, of course,- depends largely ‘org the im-

portance of credibility in the particular case. To™ an it this

significance does not”seem*to. us materially more difficult than to

heed the 6ther factors which “in sum determine whether evidence

is ‘substantial.’ . . . On reconsideration of -the record it (the

Court of Appeals) should accord the findings of the Trial Ex-

aminer the relevance they reasonably command .in answering the -

comprehensive question oof whether the evidence supporting the

Board's order is substantial...” :

(Universal. Camera Corp. v. NLRB., 340 U. S. 474, 496, 497,

95 L.. ed. 456, 472.) ae

—23—

» solicitation rule in keeping with its normal and traditional

practice, procedure, and policy as to the invocation: of all

its rules; that the Respondent invoked the rule because of

the actual and potential -interference with its production,

plant§fficiency, and discipliné which flowed from the wide-

spread on-the-job solicitation: which began in its several

plants early in November, 1954; that .the rule was not

dis¢riminatorily applied ‘insdfar as the three persons dis-

charged were concerned; and that. their discharges, as a‘

result of their violations of the no- solicitation rule after

being expressly warned against. future violations of the.

‘rule, were not violative of the Act.’ The Intermediate

Report clearly detailed the evidence in the Recort, based _

upon - the ‘actual testimony, which supported the Trial

Examiner’s Findings as to the validity of the rule and the

" legality of the discharges, and particularly as to the dis-.

charges of Parker and Rich.

> arn enae BRON ci mec |

The Board, in its Order, rev ersed these Findings of its

Trial Examiner. It did not, however, make any findings

+ of facts which were contrary to those of the Tria] Examiner

insofar as the application of the no-solicitation rule to

Rich and Parker was concerned - as, indeed, -it could not

in the light of the evidence as to their subsequent’ specific —

violations of Respendent’s no- solicitation rule after hay-

ing been expressly warned that future violations would

lead ‘to discharge. Instead, the Board held their. discharges

violative of the Act as a result of its drawing inferences,

contrary to the ‘undisputed evidence, of ageged ulteriot

motives in the promulgation and invocation of the rule,

namely, that Respondent’s soJe purpose in invoking its -

rule against employees’ soliciting during their work time

was to, ——— the self- -organizational efforts of its em-

plavees.”’ .

The basis upon which the Board predicated this infer-

ence, albeit, we submit, in cor nfliet with the undisputed evi- -

dence, was:

ce on bal

(a) Because. Respondent did not invoke or make its em-

ployees currently aware of its long-standing .rule against

solicitation during work time until after such solicitation

had begun and until after it became — widespread

to be apparent to Respondent; and .

(b) Because. when Respondent did invoke and bring to

the attention of its employees its rule against solicitation

. during worktime; it did so by the techniques and methods

- which Respondent had traditionally used to invoke and

publicige all of its rules.. In this cqnnection the Board

specified the practiees \and methods of publicizing such a

rule which it preferred. It found that Respondent had an

illégal motive in promulgating its rule since it followed ©

a different method of publicizing it from that preferred by

the Board. The evidence was clear that Respondent’s

normal method and procedure followed in connection with

all of its rules was to orally notify employees individually

of the existence of the rule and to caution them that future

violation of the rule would result in discipline or discharge;

and

upon which it disagreed -with the Findings of the Trial -

Examiner that this work time solicitation in Respondent’s:

plants: resulted in interference with production and plant -

efficiency, it nevertheless concluded that since Respondent

had failed to make a quantitativesshowing in the Record

of the ‘extent’? to which the solicitation interfered

with production, that it’ could conclude, in spite of the

undisputed evidence to the contrary, that such solicitation

during working hours did not ‘‘seriously’’ interfere with

production or efficiency; and that, therefore, the rule must

have been invoked for an illegal and discriminatory pur-

pose, ‘rather than for a purpose of relating to business

necessity such as maintenance of production, efficiency, or

discipline. .

(d) The Board held that the fact that on four or five oc-

casions subsequent to the invocation of the rule, Respond-

ent’s Supervisors interrogated or made remarks to em-.

ployees while in the plant which it construed to be coercive

or threatening, and the fact: that “talking on a varicty of

subjects’’ was permitted. in the plant by- employees and

* Supervisors.-alike, .proved that Respondent did not require

_a limitation on the non-work activity of its employees. dur-

ing work time for business. purposes and that, therefore,

Respondent’s making and enforcing a rule prohibiting

solicitatign during ‘work time was a ‘‘device’’ to defeat

self- -organizational rights of employees; and

- {e) Finally, the Board found that assuming the rule was

valid and” non-diseriminatory, that insofar as it. was ap-

plied in the case of Jones it was discriminatory because,

according to the Board, Jones did not in fact violate the

letter 6f the rule subsequent to his- being warned against :

future violations thereof.

When the case reached the Court of Appeals below, the

questions to be determined as set out by the Petitioner in:

its Brief to the Court in support of its Petition for En-

forcement, were: . : ,

“(1) W hether substantial evidence iain the

Board’s finding that Respondent violated Section 8 °

(a) (1) of the Act by discriminatorily promulgating

or reviving its no-solicitatien rule and violated Sec-

- tion 8 (a) (1) and (3) of the Act by cuchergns em-

ployees for violation of the rule. e

‘‘(2) Whether. substantial evidence supported the

Board's finding that Resporident discriminatorily dis-

charged employee Jones in violation of Section 8 (a)

(1) and (3) of the Act, even assuming that Respond-

ent did not discriminatorily apply’ its” rule against

solicitation.”’ * (Emphasis supplied. )

renee ne Te

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— 2% —

Respondent in its Response and Answer to the Petition

for Enforcement in the Court below: denied that it: had

committed the alleged unfair labor practices and contended.

_ specifically: . €

‘*Respondent shows, moreover, that the ‘said Deci-

sion and Order of the Board is not supported by

substantial evidence in the Record considered as a.

whole . . . moreover, . . . the evidence in the Record

considered as a whole sustains and supports the recom-

mendation of the Board’s Trial Examiner .that this

_ Respondent did not discharge or otherwise discrim-

_ inate against James M.. Jones, John Rich, and Grover.

W. Parker in violation of Sections 8 (a) (3) or 8 (a)

(1) of the National Labor Relations Act as

amended . .‘. ’’ (R. I, 6).

On the issues thus drawn by the parties, the Court below

in its “re stated the issue as follows: ;

‘‘The issues here are: 1. Whether substantial evi-

dence on the record as a whole supports the Board’s

finding that the Company’s no-solicitation rule was

invoked and applied for discriminatory reasons, :and

2, assuming that it was not, whether there is other

substantial evidence to support the Board’s finding

that Respondent discriminatorily discharged employee

Jones’’ (Op. Court, below) (R. I, 133).

‘Thus the Petitioner’and the Respondent argued and the.

Court below reached its Decision on the sole question of

whether or not the evidence in the Record, considered asa

whole, supported the Board’s Findings and Order. ;

The question as stated to this Court in the Petition for

* Certiorari purportedly departs from this actual factual °

issue and poses the question upon which certiorari: was

sought thusly: 3 Fad

‘‘Whether a rule prohibiting employees from en-

- gaging in pro-union solicitation during working hours

otherwise valid under the tests enunciated by. this

* Court is invalidly applied if the employer himself is

engaging in unlawful, coercive, and anti-union. ne

tion during working hours’? (Pet. for Cert. p. 2).

Petitionet’s Brief to this Court on the’ merits sliows

moreover that Petitioner is actually seeking a revgrsal ‘of

the Decision below on the basis of its disagreement with -

the evaluation of and weight given by the evidence by the

Court below. The Petitioner's position as set out in its

Brief is:

“ ‘We ilgili believe. that the decision in this |

case should be reversed,, as the conduct of the em-

ployer here establishes discriminatory motivation in

the invoeation and application of the no-solicitation

rule-. . . ’’ (Pet. Brief, page 13).*

Thus the issues actually before this Court in this matter .

are: ae

- (1) The'factual issue of whether or not the employees’

solicitation during their work time interfered with Re-

spondent’s production, or was so related to production,

plant efficiency, or discipline as to warrant its exercising

* See also the concluding paragraph of Petitioner's Brief, where

the Petitioner argues ‘for reversal of the Decision of the Court

below on the following basis:

“The court below conceded that an ‘otherwise valid . no-

solicitation rule * * * cannot be invoked or applied for a “(dis-

criminatory purpose.’ It concludéd, however, that since the

evidence failed to’ establish that ‘any solicitation in_ violation

of the rule had ever been permitted,’ the record lacked ‘>

stantial evidence of an unlawful and discriminatory. purpas

in_ invoking and applying (the) no-solicitation rule’ (R. I,

133-134). If the court’s factual. premise had-any suppcrt in

* ‘the record, then the difference between the Board and the

%#» court would involve no mure than a mere’ disagreement be-

tween the two tribunals in their appraisal of conflicting evi-

dence. But ‘the facts are to the contrary * * *’ National Labor

Relations Boa®d v. Warren. Co.,” 380 U. S. 107,110... .”

(Pet. Brief p. 18).

its inherent right to invoke or revive its’ rule agajnst

- solicitation during work time. In this particular the Trial

Examiner found, based Upon his evaluation of the evi-

dence: a mee ie

“The testimonies of Plant Superintendent Callaway

and Pasley together with those of Forenjen Gunter,

Pickren, and Forbus indicate that the solicitation

activity was: interfering with production, and plant

_efficiency. Therefore, it cannot be held that it was

adopted and euforced without any regard to business

necessity . . . When employees were leaving their: 3

jobs to solicit union membership.of working employees.

This is precisely what happened”? (R. I, 99).

In its Decision, the Board, in spite of the above referred

evidence held;: i :

‘There is no concrete evidence in the Record show-

ing the extent, if any, that, production was impaired

Ly union solicitation”’ (R. I, 120). (Emphasis sup-

plied.) se | .

The Court below on its review and consideration of the

Record as a whole, found:

‘There is no dispute. in thie evidence that solicita-

tien of? Union membership: during ‘work hours had

interfered with production and plant efficiency ty,

(RR. I, 134)... 7 a

(2) The factual issue growing out of Respondent's

method of making employees aware of this rule and: the

timing of its invocation or revival. The Trial Examiner,

based on the evidence and nie observ ation of the witnesses,

found: . .

ee, — rules, being unwritten, were mat-

ters of -eustom, some possibly dating back nearly 60

years.) ©. PF canatege ; a

“¢ . . Immediately after ec ‘oming aware of the

Union organizing campaign together with re ports of

4 ane 4

. — 29 — 2

various employees attempting to solicit Union mem-

berships during working hours from employees who

were working, management invoked its so-called ‘no-

solicitation’ rule... Other than for the annual Com-

munity Red Cross Weive, no solicitation of any kind

was permitted in Avondale, as is evidenced by the

warning previously given an employee, who was cireu-

lating a petition seeking a pardon for his son who was

in the penitentiary . . ..To argue that the rule. was

invalid because not formulated and entered until the

Union adherents. began soliciting is a philosophic

non at ugha ald-on the occasion would never have

arisen). 22°? (RL 7, 73

The Board, in disrexard of the evidence, said in revers-

ing the Trial Examiner:

‘) 2). Thus, instead of generally publicizing its

newly adopted or revised rule te employees, as one

would expect of an employer solely concerned with

production and efficiency, the Respondent. at the very

ts inception of the Union’s merobership drive singled ont

a number oof employees ostensibly’ suspected oof -en-

vaving in union solicitation during working hours to

be warned: against a repetition of the reported) of:

fense . . .°° (RL 1, 118), |

On this issue the Court below, on the basis of its review

of the Reeord, as a whole, and. its evaluation of the evi-

dence, found:

the consistent policy of the company has

heen not to have written rules, but. to rely upon rules

and policies evolved ‘froma and ‘proved workable in

custom and practice, including a practice not to dis-

cipline an employee for violation of a rule until the

rule bad been expressly called to his attention and he:

had -been advised that future violations would result

in discharge or discipline. Such matters as hours of

work, lunch periods, order in the plant, quality stand-

ards, ete., were all regulated by enstom and no written

rules were posted in the plant... . .

‘*. . . There is no dispute in the evidence that solici-

fatices of union membership during work hours had

interfered with production and plant efficiency and -

that when that’ became obvious the Company took ac.”

tion by making its employees aware of the no-solicita-

tiow rule in the same manner that it made them aware

of its other rules. That’ much the Company had a

riglit to do. The fact that the rule had not been posted

or otherwise publicized before the occasion for its use

arose is consistent with the Company’s practice .as’

to all of its rules . . .’’ (R. T, 132, 134).

(3) On the issue of the application of the rule, ——s

as Parker and Rich were coneerned, the Trial Examiner

found’ on the basis of the evidence, as to Rich:

‘*Rich was called into the office at he niekt

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of November 11th by Foreman Gunter, and inthe pres-

ence of Forbus was read the warning against solicita-

_¢ tion, and was told that no union aetivity would be per-

mitted on the job. Rich admitted That he had given

out a few ecards but. promised not to‘give out any more

ecards in the plant. This meeting ended with Rich

asking: ‘What does this mean,-am I fired? And he

said, No, you forget. it ‘and I'll forget it. He said,

| dan't want any more on. the’ job.’ However, Rich

continued his advocacy of the union with employees in

othe} departments during working time and on No-

vember 17th a week after he was warned, he was again

reported to Gunter‘ forsoliciting on the job si

? (R. IT, 89)

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#-. 2. According to Gunter, the reason forthe suspe nsion an!

subsequent termination of Rich was his solieytation of the elevator

operator Glidden Holt on the November shift. Rich, on

cross-examination, also admitted ‘solicitin 1 of the female em-

ployees for union member -hip while she was at work. Both worked

—

2) adits

—= en

And, as to Parker: |

“*. . . Parker admitted that he had been soliciting

on Novémber 12th, but contended that he did not ask

anybody -to sign a card in the plant, and only: at

‘clean-up hours’ or in the bathroom. During these

times he hadk gotten ‘Joe Baker, J. T. Downs, James

’atterson, and Billy Craddock to sign up. Asked if

he had solicited anyone to sign a card in the beaming

room, Parker answered: ‘IT had them in the beaming

‘room if they wanted to.sign they eould have.’ The

Trial, Examiner’ found Parker's extensive testimony

diffused, and his demeanor and, deportment on the

stand rendered his recitals suspect.

—**Pickren’s version was that he talked to Parker on

two occasions, the first on Tuesday night, November

16th’ ‘right at ten, o'clock’ and again Wednesday

morning, November 17th. He testified that he said to

Parker: ‘We have already told You one time about

soliciting on the job and it has been brought to my

attention again. He said that he knew about it and

said he didn't think he was going to gef into trouble.

T told him To was suspending him for 30 days a:

(R. 1, 95), ees /

“*. . . In view of the corroboration of Piekren’s tes-

timony? and the eqnivecal and diffusive testimony of

. in departments other than his own. Subsequently Rich appeared be-

fore and appealed his suspension and discharge to Superintendent

Callaway, Personnel Officer Cleghorn, Bh. 41) Haynes, and finally

the president of Avondale, J. Craig Sinith—all of. whom affirraed

Rich’s discharge for violating the rule. after warning against

soliciting urwon memberships while on-company time from persons

who were working.’ The Company's definition was the literal ap-

plication of the one set forth in the Peyton Packing Company case

(mupra), and Rich's discharge came. within. its purview. Necor.’-

ingly, F shall recommend to the Board that the complaint be «is.

messed as to Rich” (R. T, 90, 91) : .

S$. . Thomas I. Craddock, a beamer tender Ordinarily em-

played on the second shift. but who had asked for the third shift

;

> od acs ‘

Parker himself, the conflict is resolved in favor of

Pickren’s version. Accordingly, the Trial] Examiner -

finds that Parker, solicited union memberships of em-

ployees on the job after having been warned that such

solicitation was in violation of a company rule, and

his resultant discharge was not in violation of the Act

as being discriminatory. — Accordingly, it will be rec.

ommended to the Board that the allegation be dis-

nied..." 4. 5, Oe.

The Board, in its Decision, said:

‘¢. . . That the Respondent was prompted to invoke

the no-solicitation rule by a desire to prevent union-.

ization of its employees rather than by consideration

of plant production and efficiency, as the Respondent

argues, is also indicated by the fact that talking on

a variety of subjects was permitted in the plant. This

included union discussions in which both employe es

and supervisors -participated .. ‘ |

“ . Viewing the Secu no in the light

of the Respondent's other unfair labor practices, we

are convinced that the Respondent invoked its so-

called no-solicitation rule as a device to defeat its

on November 12th in order to attend a high school football game,

was working on the 5th frame near Parker who was on the “th

frame. Craddock testified as to a conversation with Parker began,

stating: ‘At first he came in there when he first came to work, after

‘the ball game when we first came to work, before we clocked in,

be wanted to sign a union card. I told him T didn't want to sign

one.” But, he stated that Pasker came twice again to lis frame

during work, with the result that Craddock signed the card. Cratl-

dock subsequently reported the ‘facts to Pickren.”

oo. Arthur D. Elrod, a tender on. the first shift which fe Hows

the third shift on ‘which Parker worked, testified thit he came in _

at 5:30 on Wednesday, November 17th, and shortly thereafter

Parker came into the bathroom ‘where I was and asked me woul!

-T sign.a eard.” Unsuccessful at this time, Parker returned around

6’after- he had gone on the job and requested him to sign a Card,

and also asked him to go to a yinion meeting. Elrod. likewise, re-

ported the ‘facts to Supervisor Pickren” (R. J, 96, 97).

a ta Ae Ny

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° a

‘we find, contrary to the Trial Examiner, that the

Respondent thereby violdted Section 8 ( a) (1) of the

Act. As Jones, Rich and Parker. were laid off .and

ultimately discharged for violating this rule, we find

that the Respondent discriminated against them within

.”’ (R. T, 119, 120).

~The Decision of the Court below in this particular was;

sé

. . The evidence fails to establish that any solici-

tation in violation of the rule had ever been permitted.

to the Union, as was its lawful right, furnish substan-

Pa | ‘tial evidence of an unlawful and discriminatory pur-

- pose in invoking and applying its no-solicitation Tule”

(R. I, 1 34).

E | (4) On the final issue of whether or not the rule was

- | discriminatorily applied as to Jones, the Trial Examiner

found that it had not been (R. I, 94); but the Board,

to the contrary, found: |

efforts to persuade Jones to cease his union activities,

the summary nature of his layoff and’ discharge with-

ont giving him an opportunity to prove that he did not

violate the rule, the fact that he did not. engage in the

prohibited solicitation, the statements made to Jones

by ranking company officials, the Respondent's hostility

to the Union as well as its other unfair labor practices,

that it was Jones’ adherence to the Union rather than

his asserted disregard ‘of a prior warning that moti-

vated the Respondent in laying off and then discharg-

ing Jones, Accordingly, we find, contrary to the Trial

Examiner, that apart from the question of the validity

of the no-solicitation rule, the Respondent discrimi-

the meaning. of Section 8-(a) (3) and (1) of the Act

employees’ sclf-organizational efforts. Accordingly, ©

Nor does the,fact alone that the Company was opposed ;

. We are convineed by .°. . the Respondent's —

— 34 —

nated against Jones in violation of Section 8 (a) (3)

and (1) of the Act . . .’’ (R. I, 122, 123).

In this connection, the Court below as a result of its

examination of the Record, held:

‘*. . . Without detailing the other matters mentioned

by the Board; we hold there was substantial evidence

to support its findings on this second issue (the finding

of discrimination in the discharge of Jones) . . .”

. (R. I, 134). - ; ; ~h

After the Court of Appeals rendered its Decision, the

’ Petitioner filed a Motion for Rehearing and Brief (R. I, 135-

137) in which it argued that the conduct of the Supervisors

* found violative of Section 8 (a) (1) of the Act constituted,

as a matter of fact, ‘‘unlawful anti-union solicitation in

violation of Respondent’s rule,’’ thereby making the rule

invalid and the discharges of Rich and Parker violative ‘of

the Act...”

In its Brief in Support of its Motion foe” Rehearing in / 1a

-the Court below, Petitioner ~ again cited the several ex

amples of conduct by Respondent’s Supervisors which had

been found to be violative of Section 8 (a) (1) of the ‘Net

(the same ones cited in the Brief in. Support of the Petition

for Enforcement). It again contended ‘that the Court should F 4

reconsider and find that these instances should be given

sufficient evidentiary. weight to cause the Court to find 7

that the Board’s conclusions as to Respondents no-solicita-

tion rule and the application of tlie rule to Rich and Parker —

were in fact supported by substantial evidence in the

Record as a whole. The Court below denied reconsidera- —

tion.

We submit that these are all- factual considerations —

which go to the question of weight, sufficiency, and validity

of the evidence in the record, rather than questions of law.

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‘ — 35 —

The Petitioner in its Brief to this Court-still bases its con-

tentions on these same questions of substantiality, weight,

and validity of the evidence in the Record. .Thus, the Peti-

.tioner is, in the final analysis, asking this Court to again

review the evidence in the Record in the instant matter to

see if this Court, upon its appraisal of the evidence, would

reach a different conclusion on the weight and sufficiency

of the evidence than that arrived at by the Court below,

and to reverse the decision of the Court below on the basis,

of: such a different evaluation of the evideneé, if, indeed,

it was different.- .

This Court has made it clear:that the evaluation of the

evidence in the Record in an enforcement proceeding,

under the Labor Relations Act, for the purpose of deter-

mining Ww hether substantial evidence in the Record, consid-

ered | a whole, supports the Board’s Order; is ‘the’

Fetal and responsibility of the Courts of Appeals; and

that this Court will not review a conflict of evidence, or.

reverse -a Court of Appeals becanse it, in its place, might

have found the évidence ‘tilting’? another way. NLRB v.

Pittsburgh Steamship Co., 240 U.S. 408, 502-503, 95 L. ed.

479, 482-483." ;

f “But Congress has charged the Courts of, Appeal ant net

this Court with the normal and primary respons Hility for gr anting

or denying enforcement of Labor Board orders. ‘The furi-dietion

of the court. ¢of appeals} shall be exclusive and its judgment and

decree shall be final, except that the same shall be subject to. re-

vew-. . . & the Supreme Court of the United States Upen writ

* of certiorari ae Taft-Hartley Act, Sec. 10 (e). OF Stat. 148, «

120, 2 U. ie om (Supp. II}), Sec. 100 fe). Certi rari is ntact

only ‘in cases involving principles the settlement of which is ef

importance to the public as ype origin from that of the partie-

and in cases Where there is avreel and embarrassing econther of

opinion and authority between the cifguit courts of appeal” Lavne

Bowler Corp. v Western Well Works, 261 U.S. 387, 303, 67

of the United States, Rule 38°63). The same considerations that

should lead us to leaye undistuthed, by de ‘nying certiorart, dect-ions

ef Courts of Appeals inv: Wa ng solely a fairoassessment of a reco rd

aie, _—B—

« r

We submit that it is clear-that the question of whether

or not Respondent's no-solicitation rule was invoked to

intimidate or interfere. with its employees in ‘their self-

organizational activities, rather than for other-reasons, is

<a question of fact. We submit that the question of whether

Respondent was motivated by a desire to block unioniza:

tion in its mills or motivated by a desire to protect its

production, efficiency, or-discipline in invoking its no-solici-

tation rule is’ also a question of fact. We submit.that the

- question of whether or not the alleged comments and in.

terrogation by Supervisors provided ‘sufficient evidence

to @stablish a diseriminatory application of the rule as to

Parker and Rick or others is a question of fact. These ques-

tions of fact, which goto whether or not substantial evi-

dence in the Record supports thé conclusions of the Board,

have been adversely determined to the contention. of the

Board by the Court below, after an examination and

evaluation of the Record, Such a determination: by the

a ‘ourt of Appeals should be sustained here.

ron the issue of unsubstantiality. ought to lear! ™ to do no more

than decide that there was such a fair. assessment .when the case 1-

“here, as this is, on other legal issues.

“This ts not the place to review a conflict of evidence nor ty

reverse a Court of Appeals because were wen its place we would

find the record tilting one way rather than: the other, though fair-

mined judges could find it tilting either way. ft is not ‘for

ty invite review by this Court of decisions turning solely on evalus-

tion of testimony where on a conscientious consideration of th:

entire record a Court of Appeals under the new dispensation tind.

the Board's order unsubstantiated. In such situations we sheild

‘adhere to the usual rule of noninterference where conclusions of

Circuit Courts of Appeals depend on appreciation of circumstances

which admit of different inte ee Federal Trade Com. y

Pew Tobaccn Co., 274 U. . 343, $44.71 Leds 1193, 1194,

le by t Se

“6X LRB >. Pittsburgh Steamship Co., BOE. S 498, 3020 503.

95 J. ed, 479, 482, 483.4 (Emphasis supplied )

— 37 —

B. The Full Measure of Self-Organisational Rights of Re-

spondent’s Employees Which the Act Grants Has Not

Been Impaired. The Accommodation of These Rights

Should Not Be Elevated to Such a Paramount Position

as to Deprive Respondent of its Equally Important

Rights. The discharges of Rich and Parker for Vio-

lation of Respondent’s Rule and Directions After

Being Warned Against Future Violations Were Dis-

charges ‘‘for Cause’’ Within the Meaning of Section

10 (c) of the Act. The Board May Not Direct Rein.

statement and Back Pay as to Employees So Dis.

charged.

This Respondent is in full accord with the principle con.

tended for by the Petitioner in its brief to the Court: in

‘ase No. S81," at pages 16-43 thereof. That principle was

ae hy this Court in its decision in NLRB v. Le-

Tourneau Company, 324 U.S. 792, where the Court: said at

Pages TOT-0S, that rules ati solicitation of Union

membership and distribution of literature on an employer's

premises evolve out of ‘tadjustments between the undis-

puted right of self-organization assured to employees under

the Wagner Aet and the equally undisputed right of em-

plovers to maintain discipline in their establishment. .

opportunity toe organize and proper discipline are both

essential elements inoa balanced society,’ and in its latér

decision in NLRB v.. Babcock and Wilcox Company, 351

U.S. 105, where the-@ourt said at Page 112, ‘‘organiza-

tional yights are granted to workers by the same authority,

the national government, that preserves property rights.

Accommodation between the two must be obtained with as

little’ destruction of the one as is consistent with the main.

tenance of the other . " (Rimphasis Supplied.) | Re-

~ponceant shows that in the instant matter such accommo.

dition between self-erganizational rights and property

7 NERR vv. United Steelworkers of America, C10. and Nutone.

in, gt8r. oA copy of said brief having been served upon tiie

Kespomdent as noted in-the Petitioner's brief in the instant wratter

°o

rights has been made. The limitation on self-organizational

rights imposed by Respondent’s rule against solicitation

during work: time is somewhat less than that which it.

legally could have imposed under the controlling decisions

The evidence in this Record, without dispute, establishes

that in the instant matter the only limitation on the self-

organizational rights of employees insofar as Respondent's

premises and time are concerned is its limitation on. its

employees using their actual work time to engage in solici-

tation. There is no limitation, and neither the Board nor

the Court below found a limitation, oi the employees sxo-

liciting in the “plants during non-work time, even though

. it be time for which Respondent compensates them, or on

Réspondent’s premises at any time other than work time.

The evide:ce moreover shows that while Respondent

has hada rule against solicitation during work time for

some years, it, has invoked it only in keeping with its usual

practiee, to wit: when it comes to its attention that a rule

is being violated, such rule is agaiti called to the attention *

of employees by warning those who have been observed,

or reported violating the rule, that future violations of

the rule will result in discipline or. discharge. Respond-

ent’s policy on. work time solicitation gives full aceommo-

dation to the self-organizational rights of its employees |

while -on its premises. Certainly employees havé ample

opportunity to discuss unions or exercise their self-organ-

izational rights on and off. Respondent's premises. They

. nave ample opportunity. to solicit membership off. Re-

spondent’s premises and on Respondent’s premises during

all times except during those times’ when employees are

actually supposed to be working on their jobs. This in-

cludes periods when they are in the smoking areas, the

‘rest rooms, and eating their lunches, while they are being

paid by Respondent, and their pre- and post-shift time.

The statements or remarks by supervisors complained

of by the Board herein do not diminish or depfive the

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employ ees of their right to carry on legitimate activities

or of the full aecommodation of self-organizational rights

to which they are entitled even though a rule against so-

licitation during the work time is enforced.

The Petitioner in its brief contends that Respondent's,

property and managerial rights, which include its -right

-to require its employees to refrain from solicitation or

other outside activity during the periods they are sup-

posed to be at work, are ri®bts which it, and other em-

ployers, “have only by sufferance of the Board and _ that

‘they are subject to such limitations as the’ Board may iy

its discretion impose. The Board at Page 15 of its brief

sets forth this: contention as follows: :

‘In short, the Board making an &Jjustment be-

tween the competing interests and rights, permits an

employer to limit the Section 7 right of the employees

to engage in solicitation where the abridgement . . . is

solely for the purpose of assuring the employer of the

employees’ full attention to work during working

hours.”’ .

Neither Section 7 nor any other provision. of the Act

gives or implies that the Board shall have’ sneh complete

control over an employer's business; nor may the Board

give self organization rights under the act such paramount

status over prope rtvoand all other rights.>

Nevertheless under the Pe titioner’s concept here, unless -

“the employer satisfies the Board that it is prohibiting

emplevees from engaging in solicitation when they are

"Tras sufficient for this case to observe that the Peart ha

heen commissioned to effectuate the polictes of the Laher Ral.

Act so single-mindedly that it may wholly ignore other and.

Ww portant Congression: ul objective s. F req tently the entire scone «of

C ngressional purpose calle for careful accommodetton of

statutory scheme te ane ther. and it 's not toe much te demam! ef ae

aiministratwe body that tt undertake this accommnre lation wits

excessive emphasis upon its immediite task? ,

‘Southern S. S. Co. v NiRR, 316 U. S. 31. 47, 62S. Cr

RX, ROOF)

— 40 — ak

- being paid to be at wack and are hingeedt to be at wedi

solely because of its concern for ‘‘undisturbed produc.

tion,’’ then the employer may.not restrict solicitation by

his employees on his premises even during the time that

they are required by the nature of their jobs and the duties

thereof to attend to their jobs.”

In the instant situation Respondent made clear to tlie

two employees i in question, and others, that they would be |

subject to discipline or discharge if they in the future

utilized time when they were supposed to be working, or

interfered with others who were at work, in order to en-

_ gage in solicitation in the plants. The evidence ‘is clear

that such activity was being carried on in the plants at

that time. Respondent in the exercise of its business judg:

ment had a right to stop it, if it felt that it did, or was

likely to, interfere in any way with production, efficiency,

or discipline. In ‘the two discharges here involved, after

the employees had_ been expressly warned to discontinue

such activity in the future, they disregarded the warnings,

engaged in solicitation of other persons during their own

and the other persons’ work time in defiance of Respond.

ent’s directions. These discharges for disregard of in- &

structions and _ violation of a rule limiting their work time

_ activity, we submit, were not illegal interference by Re-

spondent_ with their right of self-organization nor did

they impinge upon reasonable ‘‘minimum"’ accommoda-

tion of self-organizational rights to property and man. -

agerial rights.

We submit further that this is not a matter which the

Board may evaluate from ‘the standpoint ef whether or

not in its judgment the Respondent presentéd proof of

‘the extent to.which production was rn with which

“9 “The employer in his right of ie over the property and

employees is authorized to make reasonable rules for the conduct .

of the business and the employee is.bound to obey such reasonable

rules as part @f his contract of hire.”

(Midland Steel v. NLRB, Ms F. 2d 805, 804, 6th Cir )

= on he

_the Beard regarded as sufficient to warrant its permitting

Respondent to continue to exercise its inherent right to

control its property and control the fork time of its em.

ployees.'°

Independently of its no-solicitation rule, we submit, Re.

spondent had a legal right to direct the two employees

here involved, and all other employees, not to leave their

work for, or engage. in, solicitation when they were sup.

posed to.be at work. It had a further right to discipline

or discharge for disobedience of that instruction, which

was clearly insubordination, as it did with the employees

_ here involved, without being subject te an order directing

reinstatement and back pay to them for so doing. This

was the purpose enunciated by Congress in enacting the

‘amendments to Section 10 ie) of the Act as “part of. the

amendments embodied in the Taft- Hartley Act. See re.

port of the Committee .6f Confererice, Labor- Manageme nt

Relations Act of 1947, H. Rept. No. 510, 80th Congress,

First Session, June 3, 1947.1! This Court has enunciated

10) | | Motives are notoriously susceptible of being misun-

derstood and hard to prove or to disprove. If-an ordinary act

of business mariagement can be set aside by the Board as being

- improperly motivated, then, indeed, our’ system of free enterprise.

the only system under which either labor or management woul!

have any rights, is on its way out, unless the -Poagd’s action is

scrupulously restricted. ta cases where its findings are sopperted by «

substantial evidenve, that.is, evilenee aoureiel of genuine sub-

stance . . .° , ae

NLRB wv. Houston Chronicle Publishing Co. 211 F. 2d R48,

5th Cir. )

. as we have so often said, management is for manage ment.

Neither Board nor, Court can second-guess it or give it gentle

guidance by over-the-shoulder supervision. Management cam «ti--

charge for good cause, or bad cause, or no cause at-all. It has.

as the master of its own business affairs, complete freedom With

but one specific, definite qualification : i may net discharge when

the real motivating purpose is to do that which Section & (arsed)

forbids . ... :

(NLRB v. MeGahey, 233 F. 2d 406,412, 414,-5th Cir.) *

1 | | The House bill also included, in section 10 (c) of the

amended act, a provision forbidding the Boargl ety order reinstate-

“

i 3 ; > .

the principle that ‘‘insubordination, disobedience’ or dis-

loyalty is adequate cause for discharge.’’ (NLRB v. Local

Union 1229, IBEW, 346 U. S. 464, 474-5, 98 L. ed. 195 J

203-4.)12 | a

ment or back pay for any employee who had been suspended or

discharged, unless the weight of the evidence showed that the em-

ployee was not suspended or discharged for cause. The. Seriate

amendment contained no corresponding provision. The conference

agreement omits the: ‘weight of evidence’ language, since the Board,

under the general provisions of section 10, must act on a preponder-

ance ‘of evidence, and simply provides that no order of the Board

shall require reinstatement or ‘back pay ifor any individual who

was suspended or discharged for cause. Thus employees who are

discharged or suspended for interfering with other employees at.

cork, whether or notin order to transact union business, or for

engaging in activities, whether or not union activitics, contrary to

shop rules, or for Communist activities, or for other causes (see

Wyman-Gordon v. NLRB, 153 F. 2d 480), will not be entitled to

reinstatement.” *

(U. S. Code Congr. Service, 1947, First Session, Page 1161.>

(Emphasis supplig.)

12 See also to like effect: NLRB z. American Thread Co., 210

F. 2d 381, 5th Cir.; NLRB v. Fulton Bag & Cotton Mills, 175 F.

2d 675, Sth Cir:; NLRB wv. Goodyear Tire & Rubber Co., 129 F.

2d 661, Sth Cir.; Stonewall Cotton Mills v. NLRB, 129 F. 2d 6%,

Sth’ Cir.; ° NL RB 7 Robbins 'Tire & Rubber Co., 161 F. 2d 708,

Sth Cir.; NLRB v. ‘Caroline’ Mills, ‘Sth Cir., 167 F. 2d 212; NLRB

Reynolds Corp., 168 F. 2d 827, 5th Cir.; NLRB wv. Ray ‘Smith

Tronaneet Go., 193 F. 2d 142, Sth Cir.; NLRB vw Thompson Prod-

ucts, Inc., 97 F. 2d 13, 6th Cir.; NLRB v. Empire Furniture Co.,

107 F. 2d 95, 6th Cir.; NLRB v. Goshen Rubber & Mfg. Co., 110

F. 2d 432, 7th Cir.: Kansas City Power & Light Co. v. NLRB,

111 F. 2d 340, &h Cir.; Subin 7. NLRB, 112 F. 2d 326, 3d Cir. ;

NLRB «. Martel Mills, 114 F. 2d 624, 4th Cir.; NLRB wv. W ilson

& Co., 123° F. 2d 411, 8th Cir.; Dannen Grain & ‘Milling Co. +. §

NLRB, 130 F. 2d 321,. &th Cir. ; Interlake Iron Co. 7@. ar al ;

131 F. 2d 129, 7th Cir.; NLRB wv. Citizens News Co:, 134 F.

970, 9th Cir. :°NLRB wv. J. L. Rendle & Sons, 145 F. 7 Png

Sth Cir.; Hyman & Pt 7. NLRB, 153 F. 2d 480, 7th Cir.;.

NLRB @ K opman- -Woraseck Shoe Mfg. Co., 158 F. 2d 103, Rth

Cir. : NLRB 1 Reynolds International Pen Co., 162 F. 2d 680,

7th Cir.; NIL RB v. People’s Motor Express, Inc., 165 F. 2d 957.

.4th Cir.; NLRB wv. Mylan Sparta Co., 166 F.2d 485, 6th Cir:

NLRB wv. Enid Co-op Association, 169 F. 2d 986, YOth- Cir;

NLRB vw. West Ohio Gas Co., 172 F. 2d 685, 6th Cir; Albrecht >.

NLRB, 180 F. 2d 652, 7th Cir.: NLRB +. Tennessee Coach Co.

191 F. 2d 456, 6th Cir.; Indiana Metal Products Co. v7. NLRB,

For the foregoing reasons and particularly in the light

of the provisions of Section 10 (c) of the Act as it-has

been interpreted by this Court and the Courts of Appeal,

the decision of the Court’ below insofar as it found that

neither Rich nor Parker was discriminatorily discharged

by Respondent must be sustained independently of whether -

or not the Petitioner prevails’ in the Nutone case (supra).

C; The Act Prescribes and the Court Below Has Decreed

the Traditional Specific Remedies for the Correction

of the Unfair Labor Practices Found to Have Been

Committed by Respondent. In Addition to These Ade-

quate Remedies, the Board Seeks to Impose Addi-

tional Requirements’ Upon Respondent Which Are |

Punitive in‘Nature and Not Remedial and Which Re-

sult in a Forfeiture of Inherent Rights of Respondent.

Such Punitive Remedies Are Beyond the Scope,

Power, and Authority Vested in the Board by’the Act.

The Act, the Board’s Order, and the Decision of the

Court below prescribed specific remedies which ‘clearly

correct any violation of Section 8 (a) (1) of the Act which

may have been committed by Respondent’s Supervisors

as a result of their interrogating employees or making

‘other statements found to be threatening or coercive, The

Board’s Order and the Decision of the Court below pro-

hibit any such future conduct by requiring the Respond-

ent, under, the penalty of contempt, Ao~eease and desist’

from such activities. The Decision ‘of the Court below,

moreover, directs that one employee Who was discharged:

he reinstated with back pay ‘because,( upon consideration

of all the evidence in-the Record, the Sourt below deter-

mined that substantial evidence supported the Board’s

Finding that as to him the no:solicitation rule’ was dis-

eximinatorily applied. These remedies are in keeping with

‘202 F. 2d 613, 7th Cir.; NLRB o. Clearzcater Finishing Ce. 203

F. 2d 938, 4th Cir.; NLRB vw. Wayside Press, 206 F. 2 862. 866,

th Cir.

—44—

those traditionally, followed by the Board and universally

upheld by the Courts, and by inference, at least, approved |

b¥ Congress i in the enactment of: the 1947 Amendments to

the Ad. us

Thus the Board’s Order as enforced by the Court im-

poses the ‘traditional reniedies which’ reetify the unfair

labor practices found and prohibit their future commis-

sion. What tho. Petitioner now seeks further is that the

Respondent be subjected to an additional: punitive order

whicli would deprive it of its right to require’ its em-

ployees to devote their'work time to their jobs and not to

itilize such work time to éngage in outside activities’ with-

out permission if Respondent* & supervisory employees dis-

cuss unions or make anti-union comments on ay oh i

premises during the non-superv: isory employees’ working

hours.

p ttt. ‘\

‘The rationalization upon which the Board refies in seck-

ing this either ignores or deliberately evades the inev itable

and apparent differences between the status and function

of supervisory and non-supervisory employees. Clearly,

industrial practice establishes that’ there is a substantial

difference in the situation where non-supervisory employees

_ desert their posts at will and leave the jobs which they are

running, or are supposed to be running, to engage in solici-

tation, conversations, or activities extraneous to those

jobs, and the situation involved when supervisory em-

ployees go to the work places of their’ subordinates while

they are at work, “The johs of Respondent's Supervisors’

require. them to move about, make themselves aware of

tle condition .of their subordinate ,employees’ jobs in

their departments, instruct them, to communicate orders,

directions, and information, and discuss theirs and the

—— production problems with them, - It is the duty

13 NLRB ov. Gullett Gin Co., 340 U. S. 361, 365, 366, 93 L. et

338/ 341,°342; NLRB @ _ Seven- L'p eeakee Co. 340 UL. S. 344,

344.297 1. ed 377, 384 fet

see

of the non-supervisory employees to stay on their jobs and

run them when they are supposed to be run. A non-super-“

visory employee violates that duty:when he leaves his job

without. permission, .Petitioner’s contention here, if sus-

tained’ by this Court, would give Respondent's non-super-

visory employees carte blanche authority to Jeave their

jobs even when they nemded attention or required their

presence, or to interfere with other employees, who were

at work, whenever they pleased. We submit: that. the

Employer through its Supervisors has the right ‘to permit,

or refuse to permit, Sion-supervisory employees ta leave

their. jobs in order to solicit or to carry on other non-work

activities, Jf the Employer docs not grant such permission

or prohibits the activity during work time, we snhmit that

the Board does not have the authority, statutory or other-

wise, to direct or require the Employer to™sanction or

permit such activity during work time. P

Supervisors normally-go to the jobs ofemployees while

at work, They engage in conversations with employees

and, as a matter of fart, they cannot effectively perform

their job of supervision unless they do so, As representa-

tives of management’ and as part of their.supervisory jobs,

Supervisors in Respondent's plant have a right, and cat

times a duty, to talk to employees on their jobs. Super-

visors.are Respondent's principal channel of communication.

with its employees, Such right and duty of Supervisors

does not give noi-supervisory employees a concomitant

right to leave their jobs and attend to matters not related

to the job, without permission, much’ less when expressly

forbidden.

cA\ssuming that Supervisors may seek at times ‘to persuade

employees that unionization is not preferable or desirable

from the Employer's standpoint, that is nevertheless a

matter which they, as part of management, have a right to

do even during work tame, *which is unmistakably ‘*man-

agement’s time,’* as’contrasted with non-work time, which

is an employee’s ‘‘own time.’’ If, in so doing, Supervisors

exceed the limits of the Act, the Act provides an effective

remedy for the rectification of such situations. Such

remedies have been invoked by “the Board and enfdreed

by the Courts.

The Decree.of the Court below contains a specifie pro-

hibition against Respondent’s Supervisors’ engaging in ille-

gal interrogation, making coercive-or threatening remarks

to employees or soliciting employees to withdraw from the

Union, and directs the reinstatement with back pay of an

employee found to have been. discriminatorily discharged.

These are the normal remedies for violations of Sections $

(a) (1) and 8 (a) (3) when the Findings as to them are

supported by substantial evidence in the Record. These

are the sole remedies warranted in the instant matter. The

additional remedies sought by the Board in this Court,

and denied to it by the Court below, would be’a mandate

to Respondent that it may not prevent or interferé with its

non-supervisory employees’ utilizing its premises, its paid

time, and their work ‘time to carry on any activities they

chose in the furtherance of ‘‘self-organizational’’ rights at

any time they chose, so Jong as the Employer permitted its

’ Supervisors to use its premises and its work time in order

to communicate its views toits employees. Such additional

remedies would thus result in a forfeiture of Respondent’.

normal rights in respect to its property, disciple, efficiency,

and production,'’* and, would as a consequence be punitive,

not remedia& .

“140% 0 That the altercation nray have arisen because. of Tint

merman’s advocacy of the union does not sustain the position of

the Board, since the employer was within its rights in forbidding

ynren advocacy during working hours

(NLRB &. Clearwater Finishing Co., 216 F.2d OR. 4th Cir:

Under the statute and. under the adjudicated cases en-

forcement of this order must be demed. To decide that a m

solicitation rule deprives the employer of the right to confer with

his employees about any important matter, including unionizatiorr,

is to deprive him of the freedom of speech specifically guaranteed

bw the Constitution and by Section & (c¢) of the Act. The Boar!

— 47 --

This Court has rejected the concept that Respondent

may be required to make its premises available to the

Union for its use as a penalty for its having discriminated

against employees in. the exercise of their rights under

the Act. See in this connection NLRB y. Stowe. ‘Spinning

Company, where the Court said:

. If the Act permitted imposing such a penalty

upon the employers, it’ would perhaps be appropriate

to compel them to provide a meeting hall in lieu of

those it kept the Union from obtaining. However, ‘it

is well established by decision of this Court that See.

10 (c) of the Act, 29 U.S. C. A., See. 160, 9 BF. AL C.,

Tithe 29, Section 160, is remedial, not punitive. Con- -

solidated Edison Co. v. NLRB, 305 U.S. 197, 83 1. ed.

126, 59 S. Ct. 206; Republic Steel Corp. v. NLRB,

U.S. 7,85 LL. ed. 6, a] S.Ct. 77. In both cases, Chitf

Justice Hughes said for the @ourt ‘this authority to

order affirmative action does not go so far as to confer

a punitive jurisdiction enabling the Board to inflict

upon the employer any penalty it may choose because

heis engaged in unfair labor practices, even though

the Board be’ of the opinion that the policies of the

* 44

Act might be effeetuated by such an order... 6

(NLRB v. Stowe Spinning Co., 5) US. 226, 256,

03 1. ed. 698, 646.)

ds net antherized to write inte the Act a limitation that doe. t

eXIst. :

“The Board contends finally that it~ ruling miu-t te pleld dn

cane of the ‘economic power Gf the emphover and ale Tecate

the plant or shepe ais a conventent place fer the ws lem te canvas:

fer members Tf this rule is te -tand oo will be apphed + :

plovers of verv small resources as well as to the tar tong AN a

oth Company. Freedom of speech ms guarantee | under the C

ntntion alike to the weak and the powerful sl Peace’ rs eet

author rized by construction and implic ation to hint the freedorn

f speech e- -tablishe lin the Constinnti@n and resemphasized gn S

on Rte)

NLRB v. FW. WVookcorth Co. M4 Fo 2d FR. 81, 22 RI

, oth Cir) :

— 48 —

This Court has moreover held:

‘*. .. We do not think that Congress intended to

vest in 1 the Board a virtually unlimited discretion to

‘devise punitive measures and thus prescribe penalties

or fines which the Board may think would effectuate :

-the purposes of the Act. We have said that this ‘au-

thority to order affirmative action does not go so far

as to confer a punitive jurisdiction enabling the Board

to inflict upon the employer any penalty it may choose

because he is engaged in unfair labor practices even

though the Board be of the opinion that the -policies

of the Act might ‘be effectuated by such an order’

. the power to command affirmative action is re- —

noid, not punitive .. .’’ :

(Consolidated Edison Co. v. NLEB, 305 U. S. 197,

225-236, 83 L. ed. 126, 143-144.)

' See also: NLRB v. Pennsylvania Greyhound Lines, °0):)

' U.S. 261, 267-268, 82 L. ed. 831, 835-856,

‘CONCLUSION.

For the reasons stated above, it is respectfully submitted

that the Decision of the Court of Appeals below should be

affirmed. .

Respectfully submitted,

AVONDALE MILLS,

of. Of Counsel.

FRANK A. CONSTANGY,

M. A. PROWELL, *

FRED W. ELARBEF, JR.,

MILDRED MeCLELLAND,

1404 Candler Building,

_ Atlanta 3, Georgia,

Attorneys for Respondent. |

aio

APPENDIX.

Statutes Involved.

Labor Management Relations Act, 1947, 61 Stat. 136, 29

ULS.€., See. 141 et segq., See. 10.

**(¢) The testimony taken by such member, agent or

agency or the Board shall be reduced to writing and filed

with the Board. Thereafter, in its’ diseretion, the Board

upon notice may take further testimony or hear argument.

Tf upon the preponderance of the testimony taken the

Board shall be of the opinion that any person named in the

complaint has engaged in or is engaging in any such untair

labor practice, then the Board shall state its findings of

fact and shall issue and cause to be served on ‘such person

an order requiring such person to cease and desist from

such unfair labor practice, and te take such affirmative

action, including reinstatement of employees with or with

out back pay, as will effectuate the policies of this Act:

‘Provided, That where an order directs reinstatement of

an employee, back pay may be required of the emplover or

labor organization, as the case may be, responsible for the

discrimingtion suffered byw him: And provided further,

That in determining whether a complaint shall issue alleg-

in deciding such cases the same regulations and rules of

decision shall apply drrespeetive of whether or not the labor

organization affected is affiliated with a labor organization,

national or international in scope. Such order may further

require such person to make reports from time to time

* showing the extent to which it hascomplied with the order,

If upon the preponderance of the testimony taken the

Board shall not bee of the Opinion that the person naamed it

the complaint has engaged in or is engaging in «av such -

unfair laborgractice, then the Board shall -tate its findings

of faet and shall issue an order dismissing the said com-

— an

plaint. No order of the Board shall require the reinstate-

ment of any_jndividual as an employee who has been sus-

pended or discharged, or the payment to-him of, any -back

pay, if sach individual was suspended or discharged for

tause. In case the evidence is presented before a member

of the Board, or before an examiner or examiners thereof,

such member, or such eXaminer or eXaminers, as the case

may be, shall issue and cause to be served on the parties to

the proceeding a proposed report, together with a recom.

mended order, which shall be filed with the Board, and. if

no exceptions are filed within twenty days after service

thereof upon such parties, or within such further period as

the Board may authorize, such recommended order shal!

become the order of the Board and become effective as

therein preseribed.

‘*(e) ‘Phe Board shall have power to petition any circuit

court of appeals of the United States (including the United

States Court of Appeals for the: District of Columbia), 01

if all the cirénit courts of appeals to which application may

lhe made are in vacation, any district court of the United

States (including. the Distriet Court of the United States -

for the Distriet of Columbia), within any circuit or dis-

trict, respectively, wherein the unfair labor practice .in

«tte stion occurred or wherein such person resides or trans-

acts business, for the enforce ‘ment of such order and for

appropr tate t temporary. relief or restraining order, and shall

ce rtify and file in the court a transcript of the entire record

in the proceedings, including the pleadings and ‘testimony

upon which sach order was entered and the findings and

order of the Board. Upon sueh filing the court shall cause

notice thereof to be served upon such person, and thereupon

shalt have jurisdiction of the proceeding and of the ques.

tion determined therein, and shall have power to grant such

temporary relief or restraining order ‘as it deems just and

proper, and to make and enter upon the pleadings, testi-

mony, and proceedings set forth in such transeript a decree

oe BB ak

- enforeing, modifying, and enforcing as so modified, or set-

ting aside in whole or'in part the order of the Board. No

objection that has not been urged before the Board, its

member, agent, or agency, shall be considered by the court, |

unless the failure or neglect to urge such objection shall

be exensed because of extraordinary circumstances. The

findings of the Board with respect to questions of fact if

-supported by: substantial evidence on the record considered

as a whole shall-be conclusive. If either party shall apply

fo the court’ for leave to ‘duce additional evidence and

shall show to the satisfaction of the court. that such addi-

tional evidence is material and that there were reasonable

~ grounds for the failure to adduce such evidence in the

liearing befyre ‘the Board, its member, agent, or agency,

‘the court may. order such additional evidence to be taken °

hefore the Board, its members, agent, or age ney, and to’ be

made a.part of the transeript. The Board may modify its

findings aste the facts, or make new findings, by reason

of additional evidence so taken and filed, and it shall file

such modified or new findings, which ‘findings with respect

to questions éf fact if supported by substantial evidence on

He record considered as a whole shall be conelusive, and:

shall file its recommendations, if any, for the modification

sor setting aside of its original order. The jurisdiction of

the court shall be exclusive and its judg: vent and decree

shall be final, except that the same shall he subjeet te re-

view by the appropriate circuit court of appeals if applica-

tion was made to the distriet court as hereinabove pro-

vided, and by the Supreme Court of the United States upon

writ of certiorari or certification as provided sections

229 and 240 of. the Judicial Code, as ame nded | a a &

tithe 28, sees, 346 and 347).

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.