Respondents Brief — National Labor Relations Board v. Gissel Packing Co.

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LIBRARY | FILED

MAR 13 1969

“IN THE - JOHN _F.BAVIS, CLERK

‘Supreme Court of the United States

: Pettis TERM, 1 1968

pasta ae No. 573 &

N. ATION AL ‘LABOR RELATIONS BOARD,

- Wt eee Petitioner

~ GISSEL PACKING COMPANY, INC., ET AL. 7

; and | ee oie. ig

| No. 691

- “FOOD STORE EMPLOYEES UNION, LOCAL

NO. 347, AMALGAMATED MEAT CUTTERS

AND BUTCHER WORKMEN OF NORTH -

AMERICA, AFL-CIO, = - Petitioner |

Sri sf Sy Wo: Sage

GISSEL PACKING C0., INC.

On Writs Of Gértorert To The United States Court

_ Of Appeals For The Fourth Circuit

Brief For Gissel Packing Co., Inc.

— -. . Joun E. JEnKuns, Jz.

ae | CO. Rosert SoHAvB

3 “Counsel for Respondent

et . Gissel Packing Coi, Ino.

Jawxins, SOHAUD & FENGTERMAKER ee =

500 Kelly-Hatfield Building ~ Soest,

Huntington, W. Va.

- » Of Counsel —

"PARSON PTS. CO., HENTINGTOR, U. Va.

5 eg | - INDEX

° es ; ' Page.

Statement of the Case - | . ; 1

- Summary of Argument si 3

Argument wen 5 (

I. An Employer is not Obligated to Bar-

gain with the Union Solely on the Basis

of Authorization Cards Allegedly —

by a Majority of Employees pele ciacatg 5

II. Authorization Cards Are an Unreliable

- -Indicator of an Emiployee’s Actual Pref-

erence as to Representation by a La

Organization dateptatarieiiatd 9

a III. The Board Failed to- Suitele its Burden

of Proof that Respondent Had No Good_

‘Faith Doubt as to the Union’s Majority

Status __. — 16

(a) Alleged Section 8(a) (1): Violations 17

(b) Alleged Section 8(a) (3). Violations 20

-aminer, Attempted to Substantiate

a Preconceived Conclusion — -. 21

co (d) There is No Basis For Failure to

Hold an Election to Determine the

True Desires of the Employees ae 26

Conclusion eas | | ’ 29

CITATIONS

Cases:

Aiello Dairy Farms, 110 NLRB 1365 a. B- ,*

Davis Wholesale Co., 165 NLRB No. 39, 165

NLREB No. 30, 166 NLRB No. 119 ............ 2, 28 .

Lane Drug Co. v. NLEB, 391 F.2d 812 (C.A. 6) 12

NLRB v. ‘Dan Biver Mills, Inc., 5th Cir, 1960,

274 F.2d 381 | \— 24

NLEBB v. Redin Fair, Ine., 6th Cir, , 1968, 399

Baa : ae a

| NLEB Cia ic Corporation, 341, 2d om

(Oa 2) ae ie

NLRB v. H annaford Bros. ad’ 1st Cir., 1968,

261 F.2d. 638 : 24

Or _,’

NLBB +. 8. 8S. Logan Packing Company, 4th

‘Cir., 1967, 386, F.2d 562 .. ace accuere

: NLEB v. Sehon Stevenson & Co., ‘4th Cir.; 1967, .

386 F.2d 551 .. soli 2, 28

Textile Workers Union v. NLRB, 2d Cir., 1967,

386 F.24.790 +... pa sindeens

The Baltimore & Ohio: R. ite v. Aberdeen &

Rockfish R. Co., ........ US. 5 ene Oe Ee

scabies i..Jbd.2d 219 (1968) ; 26

li .- .*.

Ne Se RR SRR eR nme

et Rae a ee oe

Umted Mine Workers of America v. Arkansas

’ Oak Flooring Company, 351 US. 62, ” 8.Ct.

‘559, 100.L.Ed. 941 (1956) .. . 5

Wareson Steel Corp. v. NLRB, 7th Cir. , 1967 ,

a 1): elaidaiiaisnipen .. 20

-Wasau Steel Corp., 160 | NLRB 635- 5 (1966)

enforced 377 F.2d 369 (7th Cir., 1967) .......... 9

Statutes: 1)

N abltinal Labor Relations Act,. as amended (61

Stat. 136, 73 Stat. 519, 29 U.S.C. 88 151,

et seq.):

“ a ae 10, 17

Section . ee: cs 17, 24

Section 8 (a)(8) _._- 9, 16, 17, 20, 24

Section 8 (a) (5) Reais sain ngeeenne Ty 9,17, 26

Section 9 (a) _..- ae 7

/ . Section 9 (@) 6, 8, 9, 15

Section 10 (c) . oe 16

National Labor Relations” Act, ‘(Wagner Act)

49 Stat. M9: 3

Section 8 (a) (5) ; 6

Section 9 (a) £. plerceriens i.

Section 9 (c) 7 , i 6

- Miscellaneous:

. a. . |

, 98 Cong. Rec. A287 (daily ed., May 13, 1947) .

93 Cong. Ree 3954 (daily ed., April 28, 1947) 7, 8

111 Cong. Ree. 15124 | eae :

115 Cong. Ree. 591 (daily‘ed., January 21, 1969) 16 -

HR. $020, 80th Cong,, Ist Sess, (1947)... 7

H.R. Conf. hus. No. 510, oma Coie, 1st Sess.

» (1947) |

2 \

S. 426, Bist Cong. Lee a

Oodaimesit, Union Authorisation Cards, 7 5 Tua.

re L. J. 805 (1966) - bee 1 RE Aa 6, 7

:* 13 NLEB Ann. Rep. (1948) . cones 8

Thirty-sedond APnual Report of the National .

Labor +Relations Board (1968) alii 11, 23

“APL-CI 0 Guidebook for Union Organizers

Ee ane RCo xcs .. 5

1962 Pneniaden, SECTION OF -Lasor _

tions Law, AMERIOAN Bar. AssociATION cnspeeee 12

ere oa

> -_ ‘

EIR 28S ANN OR POUR eS a on een Te a a Ee Be niet SARTRE BOT

IN THE

Supreme Court of the United States |

: OCTOBER TERM, 1968

: - No. 573

NATIONAL LABOR a BOARD,

; Petitioner

v..

| | GISSEL PAOCKIN G COMPANY, ING,, ET AL.

| cs and

‘ a 3 “No. 691.

| -* FOOD STORE EMPLOYEES UNION, LOCAL

. NO. 347, AMALGAMATED MEAT CUTTERS:

AND BUTCHER WORKMEN OF NORTH

AMERICA, AFL-CIO, Petitioner

‘ve can 3

_ oo £

huseuan PACKING CO., INC.

On Writs OF Certiorarit To The U' nited/States Court

At Of Appeals For The Fourth Circutt .

Brief For Gisee aye Co,, Ine.

STATEMENT OF THE CASE |

On January 22, 1965, petitioner union notified

Gissel Packing Company that the union represented.

‘a majority of “eligible employees”. The letter did not

request bargaining, but indicated that it confirmed

a prior telephone conversation of that same day in

which recognition and bargaining were requested.

(G. C. Exh. 2, R13, 232). The company promptly re-

Fo . — . gexges. Se SRI Oe, 1 fle We te preter Lice SRN game eh

Peer RHO HAS HORII SOLED ELLE ALE IA ELE LIL GSN SE MILNE EEE INL TORE AO) “ LTR OT DR ED

: = sag gps gush : 3 a ri -

pited to this letter sistas its refusal to recognize

the union because the company felt a majority of

employees were not represented. This letter men-

‘ tioried an earlier election conducted by the National

Lahor Relations Board in which the union also con-

tended that’ it represented a majority, but subse-

quently lost the election. The letter also mentioned

that the union had made no current attempt to se-

-: Cure an election under fair and honest circumstances.

_ (G. C. Exh. 3, R14, 233-234). On February 11, 1965,

an unfair labor practice charge alleging refusal to

_ bargain was filed by the union; beginning proceed-

re . ings ae to the Present cause.

Within the same general span of time, this same

union was also involved in organization campaigns

with other employers, leading to actions by the Na-

_ tional Labor Relations Board so close in activity,

charge, testimony and finding-as to strongly sug-

gest, more than chance. The attempt at organization

of Gissel Packing Company was but one minor phase

of an extensive campaign aimed at several victualers

in the general area. It would be beyond the scope of

imagination that the employees of these scattered

firths all and at the same time approached the union.

_As illustrations, «see the following cases, involving

this same union in the same span of time: NLRB v.

S..8. Logan Packing Company, 4th Cir., 1967, 386

F.2d 562; NLRB v. Sehon Stevenson & Co.,.4th Cir.,

1967, 386 F.2d 551; and the Davis Wholesale Co.

cases, 165 NLRB No. 39, 165 B 40, 166

NLRB No. 119, now pe befo / United

States Court of Appeals for the District a Columbia

Circuit as Cases Nos. 21 155, 21,244, 21,787, 21 788

and 21, 789.

SUMMARY OF ARGUMENT

The actions of the National Labor Relations

Board in accepting authorization cards as presump- ©

' tive or conclusive proof of a labor organization’s

majority. status, and the concomitant duty of an

employer to bargain based thereon, are contrary to

the intent, purpose-and language of the Taft-Hart-

ley amendments to the National Labor Relations

Act. |

3! Although the Board has generally recognized as

theory that a good faith doubt on the part of anem- |

ployer is an adequate defense to a refusal to bargain

charge, in practice it has improperly based refusal

to bargain findings qn unconnected findings that

violations of sections 8(a)(1) and (8) of the Act

negated the employer’s good faith doubt. )

This general scheme of activity has atin in

the mentioned treatment of such cards as presump-

tive, despite the widely known and accepted unre-

liability of authorization cards in the determination

_ of an employee’s actuat desire.

In so doing, the employee has been caused by

-- the Board to become a forgotten man and the con-

cept of labor-management relations has been char-

acterized for all realistic purposes by the Board as

a field of battle where the only interested —— are

the unions and employers.

The instant case is a clear example of the Board’s:

activities and bent. There is an open and obvious

predilection by the Board to foster recognition of

unions without regard to the rights of employees to

express their wishes. The Trial Examiner’s findings

on which.the order is based reflect that the burden

of proof was not sustained by the Board’s counsel,

that the burden was in fact shifted to the employer, .

and that the entire hearing process was so lacking i in

_ impartiality as to .render ‘valueless the minirnum re-

_ quirements demanded by the Administrative Pro-

cedures Act. ; oe NaS atte

The union here involved was engaged i in organ-

izational activities in several businesses in the area,

and had attempted to organize in years past. The:

. union’s predilection for overstatement was known to

| respondent in fact as well as reputation, since the

. game union had previously claimed majorities in sim-

ilar businesses and to this same respondent; but sub-

sequent élections belied the claim of majority.

This affirmative basis for the employer’s doubt

was given scant consideration in favor of conjecture

and speculation by the trier without reasonable basis -

on the record taken as a whole.

The action of the United States Court of iit

for the Fourth Circuit on the issues here involved

was proper and should be affirmed.

oy . ARGUMENT -

- An Employer is not Obligated to Bargain with the

Union Solely on the Basis of Authorization Cards

Allegedly Signed by a Majority of Employees —

It should be noted at the outset that the National

Labor Relations Board and the petitioning, union -

rely in large part upon a prior decision of this Court,

United Mine Workers of America v. Arkansas Oak

Flooring Company, 351 U. 8. 62, 76 S. Ct. 559, 100

L.Ed. 941 (1956). In that case, however. this Court

stated, at Footnote 2,351U.S.68: == § =: ©

. Accordingly, we do not now con- ©

sider the questions that would have been

presented if the union or the pickets had

represented less than a. majority of the eli-

- gible employees, or if there had been a bona

fide dispute as to the existence of authoriza-_-

tion from a majority of the eligible em-

ployees. [Emphasis added].

It appears clear that in the insiideiciadaatitie 34

years since passage of the Wagner Act, there has

been a growing tendency on the part of the National

Labor Relations Board to foster recognition of un- —

ions. In recent years, the Board has diverged from

its previous position of generally holding elections

when requested, to the present situation wherein the

use of authoriaztion cards has come, by and large,

to substitute for the elective process unless two

‘unions are competing for recognition.

zIn 1935, an employer was: first required ~ oe

bargain collectively with the representatives of his

employees.” National Labor Relations Act, Section

8(a) (5), 49 Stat. 452 (1935). There was a require-

ment that, the representative be designated or se-

lected for the purposes: of collective bargaining by a —

majority of the employees, but there was no specific

manner in which determination was to be made as

to whether or not a majority of employees wanted

such representation. The Wagner Act allowed the

NLBEB to. “take a secret ballot of eniployees, or util-

ize any other suitable method” to ascertain such

representatives. National Labor Relations Act, Sec-

tion %(¢), 49 Stat. 453. (1935).

x In 1947, the Taft-Hartley Act revisions to the

TY NLRA were passed. The Taft-Hartley Act,.a8 passed,

did not amend Section 8(a)(5) and Section 9(a)

was largely unchanged. Section 9(c), however, was —

completely revised to allow, for the first time, a pe-

tition by an employer when only one union was

requesting representation, and to’ provide | if “a

question of representation exists, it [the Board] shall

direct an election by secret ballot and shall certify

the results thereof.’’ Thus, the Wagner Act language

. allowing other forms of determination was stricken. ~

This change is discussed in NLRB v. S. S, Logan

Packing Company, 4th Cir., 1967, 386 F. 2d 562. See

also Comment, Union Authorisation Cards, 75 YALE

L J. 805, 820 (1966). 7

» The proponents for the determinative use of

| authorization cards, as stated at _ length in

6 a

i at ae 4% Sp re eRe aes OR SEL ROUTAY LEA GLE SLA IE AIG FN 0 OL OLLI ONS AGB PILI PR LOREEN ET LOGIC L6G

ao —_ . . o ws08 ean — _——- -

‘ Petitioners’ briefs in this matter, attempt to rely on

the fact that there was no change in Sections ~~ (5)

or ga: under Taft-Hartley. .

4 "it should be recognized, however, that the orig-

inal House version (Hartley) of the bill, as reported

by the House Committee on Education and Labor,

would have amended Section 8(a) (5) to read that

it would be an unfair labor practice for an employer

. to. refuse to bargain collectively with the repre-

sentative of his employees currently recognized by |

the employer or certified as such under Section 9.” ;

H. R. 3020, 80th Cong., 1st Sess. 21 (1947). After . :

passage of the Senate version, the usual conference

committee was appointed to reconcile differences. In.

that conference, the Section 8(a) (5) House amend-

ment was dropped, with the later erroneous indica- |

tion in the conference report that neither the House

bill nor the Senate amendment had changed any

. provisions of Section 8(a) (5). H. R. Conf. Rep. No.

- 510, 80th — Ist Sess. 41 (1947).

This erroneous presentation has <a taken by

at least one commentator to indicate that the con-

ference committee felt there was no necessity for a.

change in 8(a)(5) in view of the later changes to

Section 9(c). Comment, Union Authorization Cards, .

75 Yate L. J. 805, 820 note 103 (1966). Further, the

statements made on the floor of the Senate, in the

version passed over presidential veto, clearly indi--

eatd that an employer had a right to election. As

stated by Senator Taft, reported 93 Cong. Rec. 3954

(daily ed., April 23, 1947):

Today an employer is faced with this

_ situation. A man comes in to his office and

says, “I represent your employees. Sign this

agreement, or we strike tomorrow.”... The .

Bill gives him a right to go to the Board un- _

. der ‘those circumstances, and say, ‘T want —

an election. I want to know who is the bar-

gaining agent for my employees.” Certainly

.-I do not. think anyone could question the

fairness of such a proposal.

Senator Ball further indicated that .the sane

ment would give the employer “the right to make

sure, by a democratic election, that a union really

represents his employees before he negotiates a con-

tract with it.” 93 Cong. Rec. A2377 (daily ed., May

18, 1947). - Bi

The NLRB, in its 1948 report, recognized that a

limitation had been placed upon it, noting:

“Section 9(c) of the Act, as amended,

Ps the election by secret ballot as the

sole method of lving a question concern-

ing representation, and leaves the Board

without the discretion it formerly possessed

— but rarely exercised — to utilize other

‘suitable means’ of ascertaining representa- -

tives.” 13 NLRB Ann. Rep. 32 (1948). |

As a reading of Section 9(c) will clearly estab-

lish, there is no’ discretion allowed the Board as to .

the method of ascertaining a majority or as to re-

quiring such determination if any question of repre-

sentation exists. The subsection is phrased with the

mandatory “shall” rather than the —

“may”.

. The Board has chosen to avoid the nr een 7G

* ad

*~provisions of Section 9(c), by making a subjective

determination as to good faith on the part of the

émployer and, if the employer fails to pass this sub-

jective determination, the Board finds that no actual

question of representation arises and an election is

therefore not to be held. Cf. Aiello Dairy Farms, a

NLRB 1365, 1368 (1954).:

| In more recent years, the pattern set forth in’

' this particular case lias become more apparent. A

union pregents authorization ecards, the employer de-

clines to bargain, :and charges of 8(a)(1), (3) and

(5) violations are then filed. A blatant example of

the Board’s reasoning is shown in the Wasau Steel

_ Corp., 160 NLRB 635 (1966), enforced, 377 F.2d

369 (7th Cir., 1967), where*the Board ignored the

entire-process and stated that where a company had |

foreclosed by any illegal conduct the customary

means of resolving a majority, an election, proof of

majority status might be made by cards. The Court

went on to say that a bargaining order would. be

appropriate to restore the status, even assuming

arguendo that the record would not warrant a find-

ing of unlawful refusal to bargain under Section

8(a) (5) of the Act. |

IL.

Authorization Cards Are An Unreliable Indicator

of An Employee’s Actual Preference as to Repre-

sertation by A Labor Organization

It is one of the oddities of these times that, in

the present posture of labor-management relations,

— ‘ PAPE OPERA INL ALLO DARGIS PLOW ASL TOO. oP hed DT POISE LILI AECL GIS A

“ ong aan ste Lae weiner 0

. the general assumption by labor advocates is that

_ the interests of labor and management are neces-

sarily in opposition, with a battle line drawn between

’ “organized labor” on the one hand and management

on the other. | ©

2 =

This view, apparently followed by the NLRB,

_ is in direct contravention of the intent of labor legis- .

lation. The rights given are not phrased to apply to

“organized labor’, or labor unions. Instead, the

rights to be considered are those of the individual

-employee. As stated in Section 7 of the NLRA:

Employees shall have the right to self-

organization, to —_ join or assist labor

organizations . - [Emphasis added].

In practice, the individual nites has become

the forgotten man. The actions and decisions of the

NLRB in large part involve the employee only as a

prize with rules regulating the manner of his cap-

ture by unions. -

a | Nee a

| The situation present in this cause me sg

flects this treatment. The NLRB has an elect :

process with which’ to determine the actual and -

- uncoerced desire of an employee under safeguards ©

far stronger and more protective than are those un-

der which this nation does now, and has from in-

ception, chosen those who are responsible for the

actions and continuing existence of the nation. —

The Board chooses not to believe its own state-

ments as to elections. It says, at page 65 of the Com-

OTN OOP OL IER I COLES LER ALTR COREL: COLEGIO DI A AIOE LE OTE RE EI EVIL! ALE ALBEE ALE FE

merce Clearing House reproduction, ‘Thirty-Second

Annual Report of the National Labor Relations

Board (1968) :

Board elections are " eonducted in ac-

cordance with strict standards designed to

assure that the participating employees

shave an opportunity to determine, and to

the selection of, a bargaining representa- .

tive. :

‘It is apparent that the use of authorization cards

to effect recognition has, become more popular with

unions unwilling to risk a fair and honest selection

through a supervised election. In recent years, cog-.

’ nizance of the abuses attendant with the securing

of such cards on an individual basis has become recog-

nized by some authorities, and by some courts which

decline to act as rubber-stamp enforcers = Board

‘

a tat a

The reason for union reliance on any method of

gaining recognition other than through fair choice

_is apparent when it is found that in fiscal year 1967,

the latest for which figures are available, 7,882 elec-

_tions were conducted by the Board, and four out of

teri were lost by unions, Of the 7,882, 4,722, or 60%,

“were won by unions, including elections where: the

essential choice was between rival unions. Chart 12,

Thirty-second Annual “tiga of the N ational Labor,

Relations Board angle

_. Doubt as to the ‘validity ef authorization cards -

| has long been present. For ee then Board, °:

A t in 57 elections where

~~ unions presented authorization ‘from over 70%

of the employees, they won 43, or 75% of them; thus,

‘unions lost one in four elections. where eqmployaes oe

were given a.free choice, even though their card-

.. based apparent approval would indicate that a lost

election would be a statistical rarity. 1962 PRocrEp-

INas, SECTION oF LABOR RELATIONS ] Law; AMERIOAN |

| Bir ASSOCIATION 14-17.

7 “The Fourth Circuit is not the sole. dive: to

recognize the deficiencies inherent in authorization .

eards.:'The Sixth Circuit, in N.L.R.B. v. Fashion .

- Fatr, Inc., 6th Cir., 1968, 399 F.2d 764, quoting with

approval Ahe Second Circuit, said

_ As both the Courts and the Hoard: recognize,

_ the use ‘of authorization cards is a ‘‘notoriously

. ° ‘unreliable method of determining the ‘Majority .

status of'a union.” N.L.R-B. v. Flomatic Corpo- -

ration, 347 F. 2d 74 (C. A. 2). (Other citations

omitted)... .. to base a recognition and bar-

_ gaining order on such questionable procedures

“ il in “strong medicine to be used only ‘with re-

- abeatad? Lane Drug Co. Vv. N.L.R.B. 391

F. 2d 812 (C. A. 6).

The Board, 3 in its brief, attempts remove ‘the

plaguing quotation from: Flomatic Corporation from *

consideration by indicating that the comment applies

only: where two or more unions are competing for the

‘employee. This reasoning would appear to be ill-

founded, for under such circumstances, there are at

De ? ok

least competing organizations to chéck one another’s

activities. In the single union casé, the reliability

would be substantially less, for usually — as in the

present case — authorization cards are sought quietly

and. the first indication to management of such ac-

tivity is the demand for bargaining.

- There is, of course, a difference in the standards . _

applying to use of cards and the circumstances sur- .

‘rounding elections. The Fourth Circuit has recog-

nized this in its landmark N.L.R.B. v. 8. S. Logan

. ‘Packing Co., 386 F.2d at p. 564 et seq: .

.. . It would be difficult to imagine a more —

utireliable method of ascertaining the real

wishes of employees than a “card check,”

unless it were an employer's request for‘an -

open show of hands. The one is no more re- — ee

liable than the other. No thoughtful person —

lias attributed reliability to such card

checks. This, the Board has fully recognized.

So has the AFL-CIO. [footnotes omitted] v

’ * a : ee i : A 6

The. unsupervised: solicitation of au-

thorization cards by union is subject to all

_ of the criticisms of open.employer polls. It

is well known that many people, solicited

alone and in private, will sign a petition and,

~ later, solicited alone and in private, will sign..

an opposing petition, in each instance, out of

concern for the feeling of the solicitors and

the difficulty of saying “No.”. This inclina-

tion te be agreeable is greatly aggravated in

the context of a union organizational cam-.

paign when the opinion of fellow-employees

| e aie ,

et are cin ten tins ta ann et inten aatrtaaantt Oe artenn atte et et Me ENE SE LE OE IL SS ROE Le ee ee EIS ED Ee ne Lad us =:

and of ‘potential ‘poviedtal union organ-

_izers may — sgl in the balanice. — re

eer -.8

. Without adequate supervision, solici-

_ tors of authorization cards may resort to 4

wide variety of other threats. Discrimina- .

tion in the exaction of initiation fees is fre-

quently encountered, and, particularly

where untrained fellow-employees are

‘ as solicitors, use of threats of discrimination |

against non-signers in the compilation of.

_ seniority rosters and other conditions of em-

; ployment may be a strong temptation.

7 ‘The unreliability of the cards is not de- Son

‘pendent upon the possible use of misrepre-

_ Sentations and threats, however. It is inher-

ent,-as we have noted, in the absence of se- ©

~. .erecy and in the natu; ral inclination of most

people to avoid stands which appear to be —

_ -nonconformist and antagonistic to friends

and fellow employees. It is enhanced by the.

‘ fact that ‘usually, as they were here, the.

cards are obtained before the employees are

_ exposed to any counter argument and with-

. out an opportunity for. reflection or recan-

tation. Most employees having second

thoughts about the matter and regretting

having signed the card would do nothing .

about it;in-most situations, only one of rare

strength of character would succeed in hav-

ing his card returned or destroyed. Cards -

are collected over a period of time, however,

and there is no assurance that an early

7 er is still of the same mind on the cru-

| date when the union delivers ite bargain-

rm demand. 7

’ ee + °

| For such reasons, a card check ia not a

reliable indication of the employees’ wishes.-

| _ [footnotes omitted é

The unreliability of Sutiaebiabicn cards. has

been recognied by the AFL-CIO in the oft-quoted

remark from the AFL-CIO Guidebook for Union

ee xpath that:

NLRB pledge pare are 6 at ae a signi-

fying of intention ata given moment. Some- -.

- times they are signed to “get the union off

: ~—— Cf. ee union’s brief at

p ° j

- Counsel for the’ petitioner union has inched a as

: a part of its. sipplemental appendix, p.' 41, Senate. .

Bill 426 as introduced by Senator Fannin in the cur-

rent 91st Congress. Senator Fannin’s comments on

two occasions indicate his thought that Section 9(c)

of the Act is being ignored by the Board in its at-

tempts: to_justify-authorization card ‘recognition. In -

1965, Senator Fannin introduced S. 2226, with the _

following remarks at 111 Cong. Ree. 15124 (1965)

“Reliance on 1 card checks instead of Se

eret ballot elections by the National Labor

: —— Board is increasing. If it is not’

slowéd

pealed . The Board’s recent thinking ~

seemis to be that authorization cards are a

true and valid indication of employee de--~

| sires. This is hot 80.”

wn, Section 9—election machinery / ;

—and 8(c)—free speech—may as wellbere- “ °

In ee the current S. 426, Senator Pas "sed

FP canara en cts were pms tesa gum De EP et GN MI Te AON Les I CRAG TLE LES OLE LEE BIEL S LALA LAL EL LLL ELLIE, LIES ee POS SE IO

ln aeaibon th deme: Giat: be Sea eating trom. sym

_ pathy for employers, but to safeguard the laborer inf

115 Cong. Rec. 591 (daily ed., January 21,1969) :

i “These bills are the same as those intro-

duced by me in the 90th Congress... Asec- -

ond bill would amend the National Labor

Relations Act.so as to require a Board-Con-

ducted -election in all representation cases.

Thus the bill would prevent voluntary. recog-

nition of a union by an employer, a practice

_ which has led to many ab Lhave always -

believed that it is the ight of the worker, |

and not his boss or a few union advocates,

_ to cast his ballot secretly for or against un-

.. Jon representation. +3

‘The Board Failed to Sustain its Burden of Proof

_ that Respondent Had No Good Faith Doubt as to

the Union’s Majority Status ar

The Board has the burden of proof in any pro-

ceeding and, as set forth in Section 10(c) of the Act,

taken the Board shall be of the opinion that any per-

son named in the complaint:has engaged in or is en-

gaging in any such unfair labor practice, . ..,”’

~~. Board may issue an order or take affirmaive action.

. In actual practice, the Board assumes a good

~ faith doubt is not present when bargaining based

on authorization cards is requested. The Board’s po-

- gition is that a violation of Sections 8(a) (1) or (3)

If updén the preponderance of ‘the testimony -

———_

nt. DE be a Lat

of the act also negates good faith -under Section |

868) (6). . ‘

Determination of the charges originally filed in

‘this cause rested initially with a trial examiher,

whose findings were adopted by the Board. Respond-

- ent believes that discussion of the findings of viola-

_ tions of. Sections.8(a) (1) and 8(a) (3) is relevant

here since the finding as to the 8(a) (5) violation is

based principally on the other findings.

(a), Alleged Section 8(a) (1) Violations

Section 8(a) (1) of the Act makes it an unfair

labor practice for an employer “to interfere with,

restrain, or coerce employees i in the exercise of the

rights guaranteed i in Section 7’. Section 7 pertajns

to the rights of employees to engage in-or: refuse to ;

engage in labor union activities.

The trial examiner found that some ine acts

violated Section 8(a) (1) of the Act. (R pp. 284-286).

Of these, nine of the specific incidents are alleged

statements made by Charles Gissel. Of the remaining

two, one is a statement made by Herbert Gissel and,

_\_: the other is-the-presence of Terry Lewis, a member ~

of the Gissel family, at a hotel where the labor union

had called a meeting.

In general, respondent aisha it would serve no :

useful purpose to discuss in detail the testimony res

lating to the statements allegedly made by Charles -

Gissel and Herbert Gissel. In the usual Board man-

. . ot.

~ a PELLICLE AEE ALEM IIA EYEE PAIN SLE AD EY PT hy "

ner, it is carged that certain isolated. statements

were made over a period of several months: time,

without Mentifving them in the original complaint.

‘In the p t. case each of the alleged statements .

were effectually denied by the Gissels.. The trial

examiner nevertheless uniformly credited the testi-

mony of board witnesses and discredited testimony.

of Company witnesses. This uniform crediting shee

Ce _be discussed, below, in more deta.” eae ss

‘Tt should be noted, however, that this Colapany ‘ be ni

had been involved in labor r proceedings with the same —

Union some _ or to the present’ campaign,

and had been specifically aware of the minimal state-

_ments required for the Board to allege 8(a) (1) viola-

_ tions. It-would be contrary to reason that Company

re who worked side by side with employees

‘inake the ee statements with this a

edge xX

” There is, however, one incidént: which should be

discussed. This is that designated as No. 9(R 286),

a relating to the presence of Terry Lewis at the hotel

~-on April 17. Terry’ Lewis is the nephew of Alfreda ,

Closterman, a company official. His mother is a .

member of the Gissel family. It is not denied that

he was present at.a hotel where a union meeting was

to be held. He was a part-time employee of Gissel —

‘Packing Co., but primarily a high school student,

and had seen a notice addressed to all employees. He

- went into a telephone booth, called his girl friend,

and his aunt. The trial examirfer, in an obvious at- “

“. ‘tempt to justify her conclusions, relied heavily upon

the mere presence of Terry. Lewis at the -meeting

in finding ultimate violations. (R 294) Her. state- - <

ment i is, “the admitted presence of Lewis at the hotel

-.is one of the most significant facts in’ the record

both generally and in connection 1 ‘with the discharge

- of Mount and Frye.” The trial examiner completely &

ignores the fact that, rather than having been in- ~

‘. _& ‘structed to attend the meeting, Terry Lewis was in- .

—. “structed to leave it promptly upon his aunt learning

of his presence there. He did not go inside the meet-

ing. He did not hear dnything that transpired or hap- |

pened at the meeting. He did not undertake to give —

‘a report to anybody in the management of Gissel

Packing Co. as to what happened at the meeting.

.. ° (R 185-186). He- was, of course, well known to

the employees. In fact, Herbert Mount, Jr., one of the

employees involved i in the 8(a) (3) violation charged,

saw him and eavesdropped on the conversation. In

Mr. Mount’s words, after having heard Lewis: pro-

‘nounce Mrs. Closterman’s name on the phone, he

said, “Well, then, we shoved the telephone booth door

open and he jumped out and ran.” (R 65). The trial

_ examiner, while expressing some doubt as to Mount’s

reliability, generally credited his testimony when in‘

conflict with that of company personnel. This, de-

- gpite the strong inference. of violence created by his

actions — Lewis.

‘The trial oniinduine inferred from the mere i :

ence of Lewis at the hotel that all matters relating

to this were suspect insofar as company actions were

concerned. She completely ignored the fact that he’.

- was directed to leave, that he was known to the em-

ployees, and that he did so leave without making re-

‘9 ®

peicta to anyone as “a the presence of persons there.

seer In faet, there would be no way for him to know all

_ of the employees present since he left ies to the

beatpuing of the. meeting. ee

es Finally, the trial examiner overlooked one hector >

so important as to be well‘nigh conclusive: Terry

Lewis, as a part-time employee, not supervisor. or

official, was within the bargaining unit and would

_ have been entitled to vote if an election were held.

" (See R305, twelfth name). He had a right to be

present at the meeting, and was within the definition’

of ‘‘all employees’ in the posted notice of the ati )

ing. (R tas <

‘

: The Board has also charged that the Weohaat a

Mount, Jr., and Jerry Lee Frye were discriminatorily —

3 discharged. Charles Gissel maintained that they had

~ left the job and did not work on a Wednesday after- -

noon, but were, in fact, working somewhere else.

‘ The Board charged that the reason for the dis-

charges was because of alleged union activities on the .

i parts of the persons. The trial examiner, in a-very

tives that the actual discharge reason was for union =

activities. Counsel for respondent suggests that a

thorough ‘study of the reasons given by the trial’.

examiner beginning at Page 295 of the Record will _

clearly show that there was no discrimination in-_ .

volved. Mount had been previously discharged but |

20°

‘ . .* Py

. e . ‘

e . . ‘ o 4 2

ars ’ ay Z

Ps ’

. ° .

Eiee

, was recalled because Charles Gissel was fearful that -

’ an unfair labor practice charge would be filed. This,

of course, controverts the alleged discrimination. The — ae

_ facts involved are clear. The men were expected to +

work Wednesday afternoon, did not, and it was dex _.

- termined they had quit by Gissel because they were .

~ working somewhere else. The trial examiner‘relied on

no substantial facts for credit. Instead, her reason-

. ing process was based upon evidence which, she said, °

should have been produced to satisfy her that Charles

Gissel was telling the truth. Respondent submits that

this is a blatant reverse of the law which should ap-

ply, that is, that the board has the burden of proof. :

In this instance, & well as in several others,in this.

matter, the trial examiner has shifted the burden of | .

“ie entirely to fee employer.

&) The Board, through ite Trial

Examiner, Attempted to Substantiate -

"A Preconceived Conclusion

Respondent submits that it is clear from the rec-

ord and from the findings in this matter that the

- National Labor Relations Board, through its various

representatives, had determined that the ultimate

result would be a bargaining order and, ‘to support

its findings, 8(a) (1) violalions were construeted

from a gossamer weave of facts. . ”

It’ should be sine that all discretion vested in

the trial examiner ‘as to- rulings, the admission of

evidence, and inferences to he drawn waa exercised

in favor of the union. In fact, the reasoning processes

(21

‘of the trial examiner in upholding’ the various

‘charges amounted in many instances to inferénce

built on inference built on inference. To cite but.a

few examples, in addition to those previously men-

tioned, in her footnote 42, (R 292), the trial examiner

. indicates that respondent had refused to contend

. ‘that men were discharged for cause, when this was _

contrary. to fact, and she apparently was dissatis- -

fied because the employer refused to falsify matters

which had occurred; in her footnote-29-(R 276), the

. trial examiner speculates without factual support to

. further bolster her. findings; i in her footnote 20 (R

', 269), the trial. examiner credits testimony of one

Maynard despite conflicts in his pre-hearing affi- |

_ -davit, and, without facts to substantiate her, excuses:

_ -Maynard’s clear testimony concerning a date upqn ~

which an alleged statement was ma e;in her_foot-

note 12 (R 263), the trial exdminer a {tempts to draw

a distinction between a printed signature and a

_ written signature, where an authorization card had

been signed with an x; and, in her footnote 8 (R 260-

261), the trial examiner states “I am convinced that

Pure Oil sent a report and that it was not introduced

into ‘evidence because it did not substantiate the

‘Compan;’s claim.” There is no fact to support her .

conviction, and this is a prime example of the tortu-_.

ous and inferential reasoning to which the trial.

examiner goes. to” support ~ aieacecetaa conclu-

sions. : “

Respondent iit that the findings of 8(a) (1)

and 8(a)(8) violations made by the trial examiner

show | tad and convincingly that this result was

— ae

\ pre-ordained despite what the evidence might have

, heen. The trial examiner was not privileged to ignore ~

téstimony, or to rely upon evidence taken out of con-.

. > text. Indeed, as shown above, in many instances she

relied upon alleged facts and convictions which were

non-existent. .

Respondent further . believes that the Siti

and conclusions made as a result thereof by the trial

‘examiner were so biased and prejudiced as to render’

impartiality wholly absent, despite the statutory

8(a)(1) and 8(a) (3) violations, respondent submits

that the trial. examiner’s partiality is so clear that

a mockery of judicial process has been made,

The Board’s finding i “contrary to. the state-.

ment of ;the Board, itself; at page 98, Commerce ~

Clearing. House reprod. tidh of the Thirty-second .

Annual Report, supra: /

‘The Board has long held that an em-

ployer may refuse to recognize and bargain

with a union upon its demand for initial rec-

| ognition and may insist upon proof of the

union’s majority status through election

procedures unless the refusal is not based

upon a good-faith doubt of. the union’s ma-

jority. It is equally clear that.in a case in-

volving such a refusal, the General Counsel

has the burden of proving the employer's

lack of good faith. The cases decided by the .

Board during the report yéar inelude a num-

ber requiring determination of whether the

requisite lack of good faith doubt had been

_ ggtablished.-In one Such case, the Board ex- |

: cana that: ~

. the. .2 bi en-of-proof rule is de- .

‘ signed to ass , in implementation of __—.

_ Board policy, that an employer who in

good faith withholds ‘recognition be- .

cause of a doubt of majority, though his —

. + . doubt is founded on nv more than a dis- -

. trust of cards, may have an election to

~~ resolve that doubt, fe will not be sub-

cause he is unable to substantiate a rea-

sonable basis for his doubt. But . . . the

_ rule...is only an evidentiary one. which

S| be read as dovetailing with, rather

- than altering, the long-settled substan-

tive principle that an employer may not

in the absence of a good-faith doubt re-

fuse to recognize a maj ity union.

(Citations omitted).

The Courts have almost uniformly questioned .

the validity of the Board’s reliance on Section ~

8(a)(1) and (3) violations to substantiate violations

of Section 8(a) (95). See, ¢.g., N.L.R.B. v. Hanna-

ford Bros. Co., 1st Cir., 1958, 261 F.: 2d 638, 641;

Textile Workers Union v. N.ER.B., 2d Cir., 1967,

386 F.-2d 790; N.L.R:B. v. Dan River Mills, Inc.,

5th Cir.; 1960, 974 FS 21381; N.L.R.B. v. 8S. 8. Logan

: Packing Co., 4th Cir., 1967, 386 F.2d 567,568; Ware- —

‘son Steel Corp. v. N. LR.B., 7th Cir., 1967, 377 F. 2d

- 369, 372.

The situation here hiatined is almost identical

with that’ in S. S. Logan Packing Co., supra. The .

Fourth Circuit there said:

An employer could not help but doubt the

_ results of a card check as an — tion of

—.

: %

in the. process. to allay it.Unless the em- ~

ploy r is \extraordinarily goo and_un- a!

ative, he will at least’ unreli- |

abili in the cards and their si gnatures. If igiigiaieee:

~he-had no honest doubt of the union’s claim mip

. of support by a majority of the employees,

_it will be because of other evidence known

to him, not because of the card check . .

Here, of course, there was some prior his- /

tory to add to the employer’s doubt of the

union’s claim. Four years earlier, the union

had claimed to represent a majority of the

employees, but, thereupon, lost @ consent —

election, the validity of which is unchal-

lenged. The proffer of a card check gave the

employer .no reason to attribute peste

credence to the claim of majority repre-

sentation than to the similar claim which

the employees refuted in the secret consent

election four years earlier,

This quotation could be. used intact in the i in-

stant case. _

- Here, too, the same union was involved.

Here, too, the union had previously claimed « a

majority. |

oi too, ‘the union’s claim to majority was

proven false in the subsequent election.

The trial examiner in this case, unlike the Court

in Logan, failed to give this direct, affirmative and —

factual evidence any weight in her subjective de-

termination of the employer’s good faith in its doubt.

25 .

- The entire subject of substitution of admin-* —

. istrative decisison for judicial process has long been

scrutinized and frequently criticized. Recently, an or-

der of the Interstate Commerce Commission was set |

aside by this Court in The Baltimore & Ohio R. Co. °

v. Aberdeen & Rockfish R. Co.,. ........U.S......... “

<a S. Ct.......... 21 L.Ed.2d 219 (1968). There, this

Court stated that to affirm the Commission’s finding

would be to say that the expertise of the Commission

was so great that its mere statement would put an

end to a particular controversy. This Court then

said, 21 L.Ed.2d at 224:

The requirement for administrative a.

sions based on substantial evidence and rea-

soned findings — which alone make judici

review possible — would become lost in

haze of so-called expertise . "That is im- |

permissible under the Administrative Pro-

_ cedures Act. a :

Respondent submits that the evidence is: + less

substantial and the findings reasoned with markedly

less basis in the-instant case than were those of the

‘Commissior.The standards applicable are, however,

the same regardless of the title or scope of an ad-

ministrative .

-@ There Is No Basis For Failure

- To Hold An Election To Determine

- The True Desires of The Employees

, There are clear indicators showing that the pos-

' sibility of an election occured to the Board’s repre-

_ sentatives in this matter. In Appendix A tothe Trial

PP.

Be,

Examine?’s Decision, the following appears as foot

note 1 (R 304):

The persons eau to be employees

are those .s% to whom there is no evidence

in the. record. The assumption is for the pur-

pose of determining the maximum number’

of employees in the unit and does not con-

_ stitute a finding that they are in fact in the

_unit if they come within any of the classifi- “ .

cations excluded by the Board in its Deci-

sion and. Direction a Election. [Emphasis .

added]. .

Frirther, while the Petitioner’s briefs herein

discuss the propriety of disallowing elections where.

Pies. co coercion has taken place, this remedy has

“no application in this case. The trial examiner made

_no finding of an hostile atmosphere, and there was _ |

no suggestion of fact-or-eonclusion of law 1 which

even inferred that a fair election could not be held.

‘The employer’s feeling i 6 s conveyed in G -G, Exh. my

(6 RU, BT ;

tional Labor Relations Board may conduct a eo

fair and impartial election wherein the em-.

ployees may determine for - themselves

whether or ‘not your Union is entitled to

represent them.

In view of the general refusal of the Board’s

9th Region to direct elections on request of an em-

ployer under similar circumstances, which was well

known and later verified, it was felt that a request

i election by employer would be a useless act.

See N.L.R.B..v. 8. S. Logan Packing Co., supra;

NLRB. Vv. Ssion Stevenson & Co., supra; Davis

Wholesale Co., supra. The union, as shown, was in-

vited to have: ‘an election conducted.

'"T#-this course had been followed, then this en-,

tire pending matter could have been fairly and i im-

| partially resolved four years ago. \

- CONCLUSION

For the foregoing reasons, it’ is sasigieitiiae sub-

mitted that the United States Court of Appeals for

the Fourth Circuit correctly applied applicable law

as to the issues herein, and its action should be af-

‘firmed. . :

Respectfully submitted, ~~

s—

——

JOHN E. JENKINS, JR.

C. Ropert ScHAUB

Counsel for. Respondent.

,Gissel Packing Co., Inc.

°- S9c*

JENKINS, ScHAUB & FENSTERMAKER

500 Kelly-Hatfield Building -

‘Huntington, W? Va.

Counsel for Debden ;

Gissel Packing Co., Inc. ° = ~

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.